Dear Len & Rosie,
Unfortunately, one of my two children is a victim of the opioid epidemic. He is a heroin addict who lives on the streets of San Francisco. I often don’t hear from him for months at a time and don’t know if he is dead or alive.
If he were to inherit a large sum of money (at this point in time his half would be $500,000, he would lose it or spend it all on drugs until it was gone or he was dead. I would rather throw the money out the window than have him inherit his portion in the current situation.
Can I structure his inheritance such that he would get money only if he were able to show a history of sobriety? How would this be done? Could I structure it so he would inherit only a certain amount each year while continuing to prove sobriety?
We are glad that you wrote us because we have experienced trust administrations in which the parents neglected to take into account substance abuse and mental health issues with their children. There are lessons to be learned here that your family doesn’t have to learn the hard way after your death.
It is important to acknowledge that your son suffers an illness and should be treated with compassion whenever possible. But it’s equally important to look at his situation with eyes wide open. Your opioid addicted son should never be named as a trustee of your trust. Nor should he be named as an executor or agent under a power of attorney or health care directive. Under no circumstances should you give him any ability to access your funds. Even giving him your ATM pin number is too risky.
As for leaving him an inheritance, you have several options. The first is to leave him nothing at all, and instead leave it all to your other child with the understanding that he or she will chip in to help your son whenever appropriate. However, this plan may not work. It could be the case that your children are so set against one another that leaving it all to one means the other will never get anything.
A better although more completed alternative would be to leave your addicted son’s share in a trust for his benefit, with your child as trustee. You can give the trustee the power to appoint a replacement trustee, in case it’s too difficult to deal with an addicted beneficiary who wants money.
The trust can also allow the trustee to withhold payments if your son fails a drug screening test. Your other idea is fairly good. The trust could say your son gets, say, $2,000 a month, or any other amount you prefer, if he passes his drug screen. This would make it easier for the trustee, as your trustee wouldn’t have the discretion to give him more money beyond what is allowed for in the trust.
You should see an attorney soon to create an estate plan to take your son’s addiction into account.
Len & Rosie
Dear Len & Rosie,