Are you facing the challenging task of estate planning for a family that includes both neurotypical children and children with special needs? Understanding how to navigate the difficult special needs estate planning landscape effectively is crucial. Estate planning is a critical process for all families, but it becomes even more complicated when your family includes a child with special needs. 

As someone navigating this path, I understand the challenges and questions that arise, one of the most important being: How do you ensure fairness, security, and proper care for each child?

This guide explores the many nuances and considerations necessary for crafting an estate plan that accommodates the unique needs of children with differing abilities, as well as the strategies and options available to families like ours.

Staying Proactive With Your Estate Planning

In the Cookman family, we are blessed with both a neurotypical child and a child with special needs. I have two sons, each with his own unique path. 

My elder son, Caleb, who is now 11 years old, is a wonderful child with high-functioning autism. His future, especially his ability to work and support himself, remains uncertain. My younger son, Isaac, is neurotypical and 9 years old, and while it seems likely that he will be able to work and support himself, there are no guarantees.

In families like ours, it’s important to maintain an active approach to estate planning. Regular consultations with a special needs trust attorney every three to five years are crucial. These check-ins allow us to adjust our plan in response to our children’s development and any new challenges that may arise. 

For instance, there’s the possibility that one of our children might encounter mental health issues, often not manifesting until their early 20s. Such unforeseen developments necessitate a flexible estate plan that can adapt over time.

The key to successful estate planning in such scenarios is to prepare as if we might not be around much longer. We take a snapshot of our current family situation and plan accordingly, always ready to modify our approach as our children grow and their needs evolve. 

This proactive and adaptable strategy is essential to ensuring that our estate plan fairly and effectively provides for each child, catering to their specific needs and securing their future.

Navigating Inheritance Decisions in Special Needs Estate Planning

One of the most essential aspects of our family’s estate planning, which is likely echoed in many others, revolves around how our children will inherit assets. This question is at the heart of estate planning, especially when considering the distinct needs of each child. 

Caleb, who has high-functioning autism, presents an uncertain future in terms of his ability to be financially independent. This uncertainty leads to significant considerations in our estate planning process. On the other hand, Isaac, being neurotypical, may have a different path, potentially able to work and support himself.

Should their inheritance be divided equally, such as a 50-50 split, or should one child receive more based on their anticipated needs?

Many clients I’ve encountered in my practice as a special needs trust attorney face this dilemma. Often, the thought is that the child who may not be able to work and support themselves might need more financial resources to ensure their well-being throughout their lifetime. This thought typically applies to children with disabilities or special needs, who might have ongoing care costs.

Conversely, some parents take a different view. They consider the possibility that their neurotypical child, who can work and manage finances, might benefit more from a larger inheritance. This could be due to their ability to invest the money wisely or even start a business, thereby necessitating more financial support. In contrast, the child with developmental disabilities, possibly living in a group home, might not require as much financial support.

This is a crucial aspect for parents to consider in special needs estate planning. Deciding how to allocate funds between children is not just a financial decision but a reflection of anticipated future needs and care. 

Consulting with special needs trust attorneys can provide valuable insights and guidance in making these decisions. We can help navigate the complicated considerations and ensure that your estate plan aligns with the unique needs of each child in your family.

Achieving Balance in Asset Allocation for Children with Different Needs

Within special needs estate planning, a common goal for families is to treat all children equally, acknowledging their different abilities and needs. 

My sons, Caleb and Isaac, have diverse capabilities, but like many children, they appreciate a sense of equal treatment. This desire for fairness is an important factor to consider in estate planning, especially when it involves children with differing abilities.

One practical approach that I often recommend to clients as a special needs trust lawyer is to divide certain assets, like the contents of a trust, equally between the children. 

For example, you might allocate trust assets 50-50 between siblings. However, to address their individual needs effectively, you can distribute other assets, such as retirement accounts or life insurance policies, in a different proportion. This method ensures that each child receives what they need while maintaining a semblance of equality in the trust.

The key is to carefully consider the various ‘buckets’ of assets available and decide how to distribute them among your children. For instance, a life insurance policy might be more beneficial to one child, whereas a retirement account could be divided into a 75%-25% split, depending on each child’s anticipated future needs and circumstances.

This approach in special needs estate planning allows for a fair and flexible distribution of assets. It ensures that children, regardless of their abilities, feel they are treated equally while also addressing their unique financial requirements. 

Effective Management of Special Needs Trusts in Estate Planning

Another important aspect to consider is the method of asset inheritance for our children. In previous YouTube videos and blog posts, I’ve touched upon the significance of special needs trusts. These trusts are crucial for children with disabilities like Caleb, as they help protect their public benefits and shield them from potential financial misuse. However, it’s also essential to know how to manage these funds properly. 

For Caleb’s trust, the ideal scenario is to appoint an external, impartial entity, such as a professional fiduciary or a bank, as the trustee. This approach ensures professional and unbiased management of the trust assets.

Sibling dynamics play a significant role in this decision-making process. For example, in our family, having Isaac, Caleb’s younger brother, directly manage Caleb’s funds could lead to complications due to their close age and natural sibling rivalry. Therefore, naming Isaac as the trustee of Caleb’s special needs trust might not be the most effective choice.

However, Isaac can still have an important role as the trust protector. This position would allow him oversight of the trust, giving him the authority to intervene if necessary, such as replacing the trustee for any reason. This structure maintains family balance, allowing Isaac to contribute positively without the direct responsibility of managing Caleb’s finances.

It’s beneficial to involve children, particularly adult children, in these planning discussions. This involvement helps clarify their roles and fosters a cooperative atmosphere in managing the family’s estate plan.

By carefully considering these aspects, families can develop an estate plan that caters to the needs of each member, ensuring fair and effective management of assets, while also maintaining family harmony.

Aligning Estate Planning with Family Member Wishes

In the Cookman family, just as in many others, understanding each member’s desires in estate planning is as crucial as the legal aspects themselves. 

Sometimes, what we assume about our children’s readiness to manage responsibilities for their siblings can differ greatly from their true feelings. It’s important to consider that a neurotypical child, like Isaac, might not want the burden of managing the affairs of their sibling with special needs.

Equally, our child with special needs, like Caleb, may express a preference for another relative, perhaps an uncle or cousin, to oversee their financial matters. Identifying and respecting these preferences is key to creating an estate plan that not only ensures fairness but also resonates with each family member’s comfort and wishes, especially in terms of dynamics after the parents are gone.

The transition following the loss of a parent is a big change for any child, whether neurotypical or with special needs. This period can be emotional and challenging, so proper alignment of the estate plan to ensure a flow of assets and responsibilities is necessary to avoid additional stress and friction within the family.

Open discussions about these preferences and expectations is crucial. In our practice as special needs trust attorneys, we often encourage families to have these candid conversations. This helps tailor the estate plan to each family member’s needs and ensures everyone is on the same page about their roles and responsibilities.

Tailoring Trusts for Individual Needs and Autonomy

Establishing a Dynasty Trust for Neurotypical Children

As we continue to navigate the complications involved in special needs estate planning, it’s important to mention dynasty trusts for the neurotypical child. This approach complements the special needs trust designed for our other child. 

In our family, while Caleb’s future might be secured through a special needs trust, a dynasty trust for Isaac represents an opportunity for him to manage his own trust, fostering independence and a sense of personal responsibility.

Balancing Fairness and Autonomy in Trust Management

This estate planning strategy ensures that both of our children, Caleb and Isaac, feel equally cared for and valued. Each child receives their inheritance through a trust, yet each is uniquely tailored to their specific needs and life situation. The trusts may differ in terms, but the underlying principle of equality and fair treatment is a constant guiding force in our estate planning.

Addressing Individual Reactions and Expectations

It’s crucial to recognize that reactions to the estate plan may vary among family members. For instance, Caleb, despite his high-functioning autism, might express a desire to manage his own finances. While practical considerations may limit feasibility, explaining that the estate plan aims for fairness and equity can foster understanding and acceptance.

In creating these trusts, we aim to ensure that each child feels they have an equal stake in the family’s legacy. The combination of a dynasty trust for Isaac and a special needs trust for Caleb creates a comprehensive estate planning approach that respects their individual journeys while promoting fairness and balance.

This approach, combining both dynasty and special needs trusts, demonstrates our dedication to catering to the unique needs and futures of both Caleb and Isaac. It underscores our commitment to ensuring their long-term well-being and security in ways that honor their distinct paths and personal growth.

Final Thoughts and Next Steps in Special Needs Estate Planning

As I conclude this discussion on estate planning for families with unique situations, it’s clearer than ever that this process requires careful consideration and specialized knowledge, especially when it involves children with differing abilities. 

The path to establishing a robust and effective estate plan, particularly one that includes a special needs trust, is crucial for the protection and future security of your loved ones with disabilities.

The intricacies of setting up special needs trusts in California, and understanding the legal nuances that accompany them, highlight the importance of seeking expert guidance. 

To provide further insight into this process, I highly recommend watching our detailed video on setting up special needs trusts. This resource offers valuable information and practical advice to ensure your loved one with disabilities is comprehensively protected.

Connect with Cookman Law for Expert Estate Planning

For families looking to begin estate planning, or for those seeking to refine their existing plans, getting professional assistance is a smart move. 

At Cookman Law, we understand the nuances and sensitivities involved in this process. Our expertise in special needs trust law and estate planning allows us to offer tailored solutions that align with your family’s unique situation. We commit to guiding you through every step of this important journey, ensuring your estate plan truly reflects your family’s values and goals.

If you’re ready to start the conversation about your family’s estate planning needs, we invite you to reach out to us. Visit to learn more about our services and to schedule a consultation. 

Let us help you secure a future that brings peace of mind and certainty to every member of your family, both now and for generations to come.