Trusts are very useful estate planning tools that provide a way to save money and other property for a chosen beneficiary. As our estate planning lawyers can explain, certain trusts have a particular purpose such as providing future support for a loved one with special needs. Your chosen trustee will hold and manage the property, making that person responsible for seeing that the terms of the trust are fulfilled.
Defining “Special Needs”
“Special needs” is a broad term that includes healthcare services, as well as, a wide variety of medical-related services meant to increase the beneficiary’s “quality of life.” After the beneficiary’s medical needs are taken care of, the Special Needs Trust can also provide additional services, such as help with the activities of daily living. Providing relief for the primary caregiver of someone with special needs is also an important benefit.
What is a Special Needs Trust?
A Special Needs Trust is a specific type of trust, the purpose of which is to provide future care for a disabled individual. In the event a caregiver is unable to continue caring for someone with special needs, the special needs trust will then provide the assets required to continue the necessary care.
Special Needs Trusts are irrevocable, meaning they cannot be canceled and the assets in the trust are protected from creditors or other judgments. Another benefit of a Special Needs Trust is that it protects the trust funds so they do not count as financial assets for purposes of eligibility for government benefits.
Categories of Special Needs Trusts
There are two kinds of Special Needs Trusts. The General Support Special Needs Trust is considered the primary source of benefits for a disabled individual. The Supplemental Care Special Needs Trust is most often the secondary source of support once government benefits are exhausted. The Supplemental Care Special Needs Trust is the most common type.
What Type of Trust do I Need?
Determining the correct type of Special Needs Trust requires consideration of many issues, including to whom the assets belong and whether they will cover the full cost of support and care for the recipient. If the assets and resources are likely to be adequate, then a General Support Special Needs Trust is likely the right choice. Otherwise, if need-based government programs will be the primary source of funding the beneficiary’s care, then a Supplemental Care Special Needs Trust may be the proper solution. When you are ready to choose a trust, let our estate planning lawyers help you make that decision.
How is a Special Needs Trust Established?
A Special Needs Trust can be established during the lifetime of the caregiver, as well as, through the last will and testament. The trust becomes effective when it is signed and notarized by the grantor (the person creating the trust). A tax identification number is required from the IRS. Then a bank account can be opened with a minimum deposit. After that, the trust can be funded through a variety of estate planning tools.
Who is the Trustee of a Special Needs Trust?
Customarily, grantors will name themselves as trustee. A successor trustee should also be named to take over the trust in the event the initial trustee becomes incapacitated, resigns, or dies. Anyone who serves as the trustee will be legally obligated to follow the terms of the trust document, which includes using the property only for the benefit of the person with special needs.
How to Fund a Special Needs Trust?
A Special Needs Trust can be funded by a parent, relative or other third-party. It can also be funded with the beneficiary’s own assets, in which it is considered a “self-settled” Special Needs Trust. Federal law requires that a self-settled Special Needs Trust reimburse Medicaid for benefits provided, when the beneficiary dies, from the remaining property in the trust. Our estate planning lawyers can help you with funding your trust properly.
Pooled Special Needs Trusts
If the disabled individual is over the age of 65, only a “pooled” Special Needs Trust is available for a self-settled trust. A Pooled Special Needs Trust is established through a non-profit organization, which pools together the funds of several different beneficiaries. Those combined funds are then managed and invested by the non-profit organization, on behalf of all of the beneficiaries. Any funds that remain when the beneficiary dies are used for the aid of others with disabilities.
A “Third-Party” Special Needs Trusts
A “third-party” Special Needs Trust, which is also funded with assets from other beneficiaries, is not subject to the Medicaid payback requirement. All property remaining when the beneficiary dies will be distributed in the manner directed by the terms of the trust. Another advantage of a third-party Special Needs Trust is that there is no age limitation or specific disability required.
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