The Will Is Not Enough
A businesswoman named Audrey who is in her 50s has been managing her husband’s business after her husband aged 60 became paralysed by a stroke he suffered one year ago. Due to his condition, Audrey has placed him in a prominent nursing home which could give him the best nursing care while she manages the business. She also has a son aged 12 who is mentally retarded and she sent him to a special school for the disabled. After work she would then pick up her son and take care of him. It is a daily routine for her to visit her husband together with her son after dinner. One day while talking to her sister, she was asked whether any plans or arrangement have been made to take care of her husband and son if she dies. She told her sister that this problem has always been in her mind but she still could not find a solution.
In Audrey’s case, she could begin planning by setting up a Living Trust or Inter-Vivos Trust. When she sets up the trust, she is called the “Settlor”. In her trust, she has to appoint a trustee company like Rockwills Trustee Bhd. to be the “Trustee” because it has the expertise, impartiality, professionalism and most importantly perpetual existence. The next important issue is the appointment of the “Protector” who acts as a watchdog on the “Trustee”. The Protector or Protectors are people whom the Trustee would liaise with concerning the welfare of the beneficiaries in terms of distribution.
Then it is equally important to appoint one or two “Guardians” for both her husband and son. In regard to this, she has to discuss with her close family members like sisters or brothers or even close relatives who are willing to take up the responsibility. But if all her relatives could not take up the responsibility due to their own family commitments, then she has to identify a suitable nursing home for her son. That being the case, the role of her family members appointed as “Guardian” would only be monitoring the homes that provide nursing care for her husband and son. It is also suggested that the guardian should be given an allowance to do this job. The “Guardian” can also act as the “Protector” in this trust.
Since Audrey could not will away her estate to either her husband or son due to their condition, it is best that she will away her estate to her “Living Trust” if she passes away. In her will, she has to appoint Rockwills Trustee Bhd. as the main executor since Rockwills Trustee Bhd. is also appointed as the trustee for the “Living Trust”. The instruction in her will would be giving all her movable and immovable assets to her trust. As for immovable assets such as properties, she could give her instruction to the trustee to either sell or convert to cash immediately or when the need arises. Having all these arrangements in place, one has to take note that if Audrey passes away, the duration to wait for her “Grant of Probate” to unlock her assets and give them to the “Living Trust” would be one to one and a half years. Therefore, she must create an immediate funding upon her death by assigning her insurance policies to her trust when she is alive because money will be released to the trust maybe less than a month after the death certificate is produced as it does require waiting for the “Grant of Probate”.
When all the above is sorted out, Audrey now has to specify how much is to be allocated monthly for the nursing homes providing the necessary care for her husband and son or guardian who is going to take care of her son. In her case, she must state that the trust will end when both her husband and son die or upon the exhaustion of funds. Anything further would be any one’s guess because this is the best she can do as she cannot control the future.
Peter Lee is an Associate Estate Planning Practitioner (Wills & Trust) with Rockwills International Group. He is also an Islamic Estate Planner providing Wills & Trust services for Muslims. He is based in Ipoh and can be reached at: 012-5078825/05-2554853 or excelsec@streamyx.com.
Peter Lee
Category: Rockwills
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This is a very good piece of advice to look after the loved ones who are permanently disabled or mentally retarded.