Ask the Expert: Leave assets in trust

My mom wants to put my name on her home, bank accounts, etc. If she passes away, would my husband be able to get any of these assets? We want to avoid that. We live in New York, and my mom lives in another state.

If your mother wants to make sure your husband can't get access to your inheritance, she needs a different plan. Making you a joint owner ensures that you inherit her assets when she dies. But if you later divorce or predecease your husband, he would have a claim on them.

Every asset in your name is subject to New York State's "right of election" law, explains Stephen J. Silverberg, a Roslyn Heights estate lawyer. That law entitles your surviving spouse to inherit the greater of $50,000 or one-third of your assets, no matter what your will says. And in a New York divorce, marital assets are subject to division between the spouses. Although an inherited bank account in your sole name isn't treated as marital property if you have never commingled it with marital assets, it's very easy to commingle assets unintentionally. "If your inherited account generates taxable income, for example, and you pay the taxes with a check drawn on a joint account, you've commingled the two accounts," says Silverberg.

He recommends that your mother establish a trust for your benefit in her will. At her death, her assets will automatically go into the trust. "If the trust document is drafted properly, you will effectively control the trust and its assets will be protected from any creditor, including your spouse and the IRS," Silverberg says.

The bottom line: Leave assets to a trust for your child's benefit if you want to protect them from his or her spouse.

Websites with more information: bit.ly/q0AqDd and bit.ly/yVD0d9