If you want to make sure your loved one with disabilities is provided for after you’re gone, consider creating a special needs trust in your estate plan. A trust is an arrangement under which one person’s assets are managed by a third party (known as a trustee) to provide for a loved one (beneficiary) in a pre-defined manner. Unlike a standard trust, a special needs trust is specifically designed and tailored to meet the needs of a beneficiary with disabilities.
It is advantageous to prepare a trust for a beneficiary with special needs instead of creating a will, as a trust safeguards other benefits the beneficiary may already receive (or may be eligible to receive in the future). With a will, the beneficiary may receive inheritance as a lump sum, which could disqualify them from other government benefits, such as subsidized housing, Medicaid and Supplemental Security Income.
With a trust, however, the trustee manages the funds for the beneficiary. The trustee cannot give money directly to the beneficiary, but they can make a wide array of purchases on the beneficiary’s behalf, ranging from medical bills to home goods, caregiver services to entertainment.
There are many common missteps in creating a special needs trust, which could inadvertently dismantle the protection you’re intending to provide for your loved one with special needs. For example, the following actions and omissions could result in negative outcomes for your beneficiary:
- Failing to indicate that the intention of the trust is to provide “supplemental and extra care”
- Including a Crummey Power provision
- Neglecting to designate a trust protector
- Failing to make the trust irrevocable
An experienced estate planning attorney can be critical in ensuring that your trust is set up to benefit your special needs beneficiaries as you intended.