Disabilities affect families at all income levels. A child could be born with a disability or could have developed one due to an accident. It can be challenging to advocate for your child with special needs to protect their welfare and happiness. Assembling a team of professionals with the expertise to address all your child’s needs, now and into the future, is essential. A special needs attorney is a critical member of your team as they know the issues that need to be discussed in your family’s estate plan if you’re naming your special needs child as a beneficiary.
Options for Special Needs Estate Planning
Families with a special needs child who gets needs-based public benefits have a few estate planning options. Some families consider disinheriting their children, which would allow them to qualify for benefits but not give them the additional income they require. Parents may also choose to leave the estate to the siblings of a special needs child.
This approach can be problematic because the siblings may face creditors, divorce, or bankruptcy, leaving no money for their special needs child. Parents may also think about leaving a traditional inheritance to their special needs child in their will. However, doing so jeopardizes the child’s public benefits. For most families, establishing a special needs trust is the best option for estate planning. Your special needs child will continue to be eligible for government assistance. At the same time, the trust’s income and principal will help enrich your child’s life.
What is a Special Needs Trust?
An essential part of your estate plan is making provisions for your child with special needs. Of course, you hope to be there for your child and want them to enjoy a long and happy life and guide them through any of the challenges they will face – many of which have to do with state and federal benefits. But the time will come when you will not be around, which is why you need to have a comprehensive plan in place to provide for your child and protect their benefits. A special needs trust is often the best estate planning option for you and your family, and an estate planning attorney can assist you in creating one that will best serve your child’s needs.
One of the primary concerns of special needs planning is maintaining access for your child to public benefits such as Social Security Income (SSI) and Medicaid. A special needs trust can offer the following advantages:
- Manage the child’s money throughout their life.
- Maintain the child’s eligibility for public assistance.
- Make plans for future funding if public benefits are ever restricted.
At The Law Offices of Kimberly Butler Rainen, one of our special needs attorneys will work with you to make sure that your estate plan provides a lifetime of money management that benefits your special needs, child. You will have the support of our legal team as they work to ensure that your child’s public benefits remain protected.
What Are the Benefits of a Special Needs Trust?
Estate planning for individuals with disabilities can be challenging. Special needs planning is primarily concerned with providing for the best interests of disabled individuals. Because the trustee, not the beneficiary, controls the assets in a properly structured trust, the state does not consider the assets when determining eligibility for assistance programs. This means that your child can receive supplemental income from the special needs trust while still meeting the frequently extremely low-income requirements for SSI, Medicaid (MassHealth), and other benefits. A special needs trust can be established even after the disabled person has acquired their own assets.
Many government assistance programs for people with disabilities require assets worth no more than $2,000 to be eligible. In some cases, well-intentioned extended family members who name a disabled family member as a beneficiary in there will cause the disabled family member to be disqualified from public assistance. A trust arrangement can help to ensure that your child does not lose support.
In addition, a special needs trust can protect your legacy while still providing the high-quality care that your special needs family member requires. While it is never pleasant to consider, some parents are concerned about the distribution of assets following the death of their disabled child. The remaining assets in some trust structures can be distributed to other beneficiaries, ensuring that those you care about are taken care of.
What Kinds of Special Needs Trusts Exist?
There are two kinds of special needs trusts:
Self-Settled” Special Needs Trust
A “self-settled” special needs trust is funded from the beneficiary’s own assets. It can be beneficial in instances where the disabled person has already been left an inheritance that disqualifies them from assistance or if the disabled person becomes disabled due to illness or injury.
Occasionally, this occurs due to a child being the beneficiary of a personal injury lawsuit or because an adult who previously managed their own finances now requires additional care. These assets are not considered when determining eligibility for public assistance. However, with a self-settled special needs trust, assets remaining at the beneficiary’s death are used to first reimburse the government for its expenses before passing to the remainder beneficiaries.
Third-Party Supplemental Special Needs Trust
A third-party supplemental special needs trust can be established and funded using funds belonging to someone other than the special needs child. It enables the disabled person to continue receiving primary care and support from public programs while also holding and protecting the beneficiary’s assets. This means that the assets are available in both ordinary and extraordinary circumstances. For instance, trust funds could be used to furnish a child’s room in a group home. Alternatively, if the child becomes ineligible for a benefits program or the program is discontinued, the trust may be able to continue funding assistance for the child.
Unlike a self-settled special needs trust, at the death of the beneficiary, assets held in the third-party supplemental special needs trust are not required to be used to reimburse the state for public assistance provided to the beneficiary during their lifetime. The entire amount left in the trust may pass to other beneficiaries.
The Law Offices of Kimberly Butler Rainen: Special Needs Estate Planning in Andover, Massachusetts
The Law Offices of Kimberly Butler Rainen understands how unique every family is – and each child. We work with families to create individualized plans that will provide the level of care and dignity every member of the family deserves, even after the parents are gone.
If you’re ready to learn more about creating a special needs trust for your child, contact The Law Offices of Kimberly Butler Rainen, estate planning lawyers in Andover, Massachusetts, today, and schedule your special needs planning consultation. Our Massachusetts estate planning lawyers have worked with clients to create trusts and wills, document power of attorney needs, and so much more. Schedule your “get to know you call” by calling us at (978) 409-1928 to review how you can move forward with ensuring that your family is protected with a special needs trust. You can also contact us by completing our online form here.
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