How can my father set up his estate to include a missing (by choice) son?

August 3, 2005 3:55 PM

As executor, I'm helping my retired father set up his estate. Everything is pretty cut & dried with the exception of my brother. We have no idea where he is and whether he is even alive. How should my father account for him in his will?

My brother is in his mid-30s (as am I) but he has had dependency problems and was homeless for a while. My family's last contact with him was over five years ago.

If my brother never surfaces, I suggested taking his portion of the estate and giving it to a non-for-profit chemical dependency organization (I had a half brother who died through similar circumstances.) Is that possible? If so, is there a time-limit we can put on a trust fund in case he materializes?

To complicate matters, his grandmother passed away in March and left him mid-five figures. Is there anything we can do about this even though she knew of his "estrangement" and left no special instructions?

Finally, I worry that if my brother is still alive a large influx of money could send him off the wagon and kill him.

Any other thoughts or ideas would be appreciated.

posted by anonymous to work & money (7 comments total)

Get a lawyer to help you out with this (at least to make sure the papers you prepare are valid in your state). IIRC, you can do exactly what you want, just by stating it clearly in the will. You'll probably only run into difficulty if you try to have a time limit longer than 21 years.

For the "falling off the wagon" concern, you could have the money put into a trust that would only pay out a small amount monthly, or would only pay rent/food bills presented to the trustee, or something like that.

For the bequest from Grandma, presumably the executor of her estate hasn't been able to find him to give him the money. What you can do (and what you should do) depends on what state you live in, the terms of your grandmother's will, and many other factors. For a "mid-five figures" sum, there's definitely enough to speak with a lawyer for a couple of hours, and it sounds like good reasons to do so.
posted by spacewrench at 4:16 PM on August 3, 2005

You're getting in to an area that is best left to professionals who deal with this area of law. I am a lawyer (I work with import/export regulatory issues) and in your position I would not try to deal with this on my own.

The trust spacewrench refers to is typically called a "spendthrift" trust. I haven't thought much about these issues since law school but if I remember correctly you need to be very careful in the way you set them up.
posted by Carbolic at 5:43 PM on August 3, 2005

See an attorney specializing in estates and probate--yes. you can set up trusts with special conditions--I recently helped an attorney who was setting up a large estate for a person whose son had long term substance abuse problems--he wanted to set it up so his son only got money if he tested clean or to pay necessary medical and rehab costs--it is very complicated--your generosity and concern for fairness and equity is note worthy--good luck
posted by rmhsinc at 6:02 PM on August 3, 2005

I'm not angling to derail and I have nothing on the legal front to offer but if you were to ask me this question in person I think I would initially respond by asking if you want to seek some news about your brother. 5 years is a long time of course but perhaps given all the circumstances you might consider hiring a private detective who could at least undertake a preliminary investigation. It's a form of closure perhaps and indirectly assists with the estate provisions/inheritance questions you are asking. I'm not suggesting you do it - merely a thought for you to consider.
posted by peacay at 8:46 PM on August 3, 2005

Yes, got to agree, get professional legal help.

I have experience a little similar from the UK. Obviously, relevent law is probably different where you are. I'm currently an executor of my mother's will. Our family considered it risky for my brother, who has some developmental and responsibility problems, to suddenly inherit a (to him) significant sum all at once. The lawyer made it seem quite straightforward to set up a trust fund from which he could be paid a small income and that could be used for more significant purchases only with permission from my sister or myself.

Perhaps a similiar arrangement could be made in your brother's case. Or, if he can't be traced, a way to simply hold the money in trust until he can be, or some significant predetermined time has passed. In my experience, pretty much anything is possible, within the law and with a competent lawyer.

Ultimately it's for your father to decide what he feels is appropriate and desirable, of course.
posted by normy at 6:04 AM on August 4, 2005

You definitely need to set up a spendthrift trust here. If the grandmother's estate is still open, it may be possible (since he is not around) to get the court to creat some sort of trust with the mid-five-figures that she left him as well.

A spendthrift trust allows the trustee several options: to pay out money to the beneficiary (your brother), or for the beneficiary's support (rent, utilities, healthcare) directly to the support creditors. Since the payments directly to the brother are optional, he has no expected income, and a court could not attach a judgment to the trust money.

As everyone above has noted, see a lawyer specializing in trusts and estate planning. You should not consider this legal advice, just a little bit of information to start a conversation with your hired attorney.

Good planning now will save your family lots of heartache and money in the long run. Don't wait.
posted by MrZero at 8:56 AM on August 4, 2005

Your request and all of the responses assume that your father has to or wants to provide for him. That is not necessarily the case, and as you observe, the influx of money may not do him any good. If he were in my office, I would recommend that he consider giving all the money to a trusted person - such as the other child - with a precatory (non-binding) direction to use the funds for inpatient rehab if it were ever a reasonable option for him.

There is nothing that can be done about the grandmother's bequest. He is entitled to the money outright if he ever shows up to claim it. A court has no authority to impose a spendthrift trust on its own initiative; that has to be the directive of the decedent.
posted by yclipse at 3:44 PM on August 4, 2005