Ask and We WILL Answer
The Borneo Post with the expert help of Rockwills Trustee Bhd, the leading specialist in estate planning having pioneered wills and trust 29 years ago, is publishing a regular Q & A column on estate planning. It will feature questions which readers have in mind but don’t know who to ask.
Question 1:
I have three children and one of them has down syndrome. She is currently 15 years old. Can I write in my Will to give her my house? Is there any implications a special needs child to inherit a property? Answer:
Absolutely! You may include your children in your Will, including the special needs child. Individuals with disabilities, whether registered with an OKU (Orang Kurang Upaya) card or not, are allowed to own a property. However, there might be certain considerations that you will need to be aware of.
In many jurisdic?
Individuals under the age of 18 are considered minors and will not have the legal capacity to own property. In such cases, the property will be held on trust until the child reaches the age of majority. It is therefore important to appoint a trust company as trustee to ensure the property will be held for your child until he/she reach the age of majority. Appointing an individual trustee will not have the assurance that the individual trustee will live long enough to pass the property to your child at 18.
If you were to will away your property to your special needs child, and he/she may not have the legal capacity to own the property, a trust must be created, and a trust company must be appointed as the trustee to outlive your special needs child. Appointing an individual trustee will not provide such continuity.
During the lifetime of your special needs child, your child will have a home to stay and with proper planning, the trustee can use the monies you have set aside for your child’s maintenance, therapy, education, medical needs and upkeep of the property as well as monthly allowance to the guardian to provide care.
As detailed planning is required to ensure the needs of your special child are met in the future, you need to consult with a qualified estate planner, who has experience with special needs planning. The estate planner can provide you with personalised advice based on your specific circumstances and local regulations.
Question 2:
I do not keep a lot of cash, because whenever I have surplus, I will usually put it into unit trust investment. When I passed away, can those unit trust be given to my children? If yes, will the procedure be more complicated if compared to the money in my saving accounts? I do not want to trouble my family too much when I am no longer around. What would be your advice if I want to prioritise the ease in inheriting the assets, what would be the best option? Answer:
We appreciate your thoughtful consideration in planning the distribution of your assets for your family. To ensure a seamless distribution of your assets as desired, you need to write a comprehensive Will. With a comprehensive Will, yes, it allows you to clearly outline your wishes regarding the distribution of your assets, including your bank account funds and unit trust. It allows you to specify beneficiaries, conditions, and any other relevant instructions, providing a legal framework to ensure your intentions are carried out precisely.
Unlocking and transferring your bank accounts and unit trusts after your passing entails several steps. Your Executor will need to engage a lawyer for the probate application, which is necessary before your family can receive the assets.
Since your intention is not to burden your family too much, you may consider setting up a Declaration Trust for your unit trusts, as most of your assets are in the form of unit trusts. Setting up a Declaration Trust can be advantageous for you as it can help avoid probate and provide control over how and when your unit trusts are distributed to your family while waiting for Will.
To make this process easier for your family and to ensure everything is handled correctly, we suggest you discuss with an estate planner which is experience in dealing with the different steps involved in managing both bank accounts and unit trusts during estate administration. This not only gives you peace of mind but also lightens the load on your loved ones during a difficult time.