Special Needs Trusts Overview

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Apr 9, 2012

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Many people who are born with mental or physical disabilities, or develop them later in life, are eligible to receive assistance from the government through programs such as Medicaid, Supplemental Security Income (SSI), subsidized housing, and others. For the family members of a special needs individual, careful estate planning is essential to ensure that the special needs beneficiary remains eligible to receive these government benefits.

To qualify for most government programs, there are strict limits on the special needs individual’s income and assets. Inherited assets are counted when looking at what assets are available to a special needs beneficiary. Therefore, the family members of a special needs individual should consider passing wealth to that person through a trust.

How Does a Special Needs Trust Work?

A special needs trust is one in which a trustee holds assets for the benefit of the special needs individual. The trustee has complete discretion to make distributions to or for the benefit of the special needs beneficiary. The goal is to ensure that, while the assets are there for the beneficiary, the trustee is not legally obligated to distribute money to the special needs beneficiary. Therefore, the assets in the special needs trust cannot be counted when determining whether the beneficiary qualifies for government programs.

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Role of the Trustee

Special needs trusts generally provide that the trustee is authorized to supplement the needs of the beneficiary. For example, if the beneficiary is living in an assisted living facility, the trustee could pay for cable television, barber or salon services, and entertainment. The trust assets are used to enhance the quality of life for the special needs individual and pay those expenses not covered by government benefits.

Trust Distributions

A common practice among estate planning attorneys is to include provisions in every trust to address special needs beneficiaries. You never know when a family member could develop an illness or become disabled, so the safest way to draft a trust is to include language that allows a trustee to hold assets in a discretionary trust for the benefit of the special needs beneficiary. If distributions are discretionary, the trustee is not legally obligated to make the distributions to the beneficiary, and thus the assets of the trust will not be counted in determining whether the beneficiary qualifies for a government program.

Consult an Estate Planning Attorney

If you think you or a family member may need a special needs trust, you should consult with an attorney who has experience preparing special needs trusts. There are many pitfalls to avoid in drafting a trust, so an experienced attorney is best. 

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