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How Do I Set Up an Estate Plan to Help Grandchild with Special Needs?

McNair Dallas Law

Disability Planning

Estate planning is not a requirement. No one can force you to make your will, create a power of attorney or to own your property in a way to avoid probate. As a result, people too often let common estate planning excuses stand in their way.

If you have a loved one living with a physical or intellectual disability, Kiplinger’s recent article entitled “How to Keep Your Estate Plan from Jeopardizing a Disabled Heir’s Benefits” suggests that you partner with an experienced estate planning or elder law attorney who works in the complicated arena of public benefits planning.

A person with a physical or cognitive disability who is unable to work or gain full employment may qualify for benefits to support his or her living expenses.  Public benefits, like Supplemental Security Income (SSI) are “means tested.” As a result, to apply (or re-apply) for them, a person must have a very low net worth, or “spend down” to the allowable amount.

A Special Needs Trust can be either a first-party trust created by a parent, grandparent, guardian or a court using the beneficiary’s own funds; or a third-party trust funded with assets belonging to the trust’s creator. Since the beneficiary’s assets are used, a first-party Special Needs Trust requires that the state benefits provider be reimbursed for lifetime benefits paid by it on behalf of the beneficiary.

A third-party Special Needs Trust for the primary benefit of the disabled individual will supplement, but not supplant, his or her public benefits. Upon their death, the remaining balance of the trust will be distributed to their heirs.

Special Needs Trusts are one of several solutions that can be used to plan for descendants who currently receive disability benefits or may in the future. There are also some other options.

ABLE accounts. This is a savings accounts for individuals with disabilities. It is like 529 education savings accounts with similar tax advantages; However, there is a limited amount that can be held in an ABLE account. The balance will not be considered an available resource.

Pooled trusts. This type of trust is managed by a nonprofit organization, where the funds of many beneficiaries are combined into one master trust for administrative and investment purposes. Sub-accounts are then created for each beneficiary, with the disabled person’s account getting a proportionate share of the entire fund’s earnings. Distributions may be made by the trustee from the beneficiary’s share and used for his needs.

Certified Elder Law Attorneys have the experience and specialized knowledge needed to create a Special Needs Trust that will ensure that your loved one has funds to pay for their supplemental needs while preserving their public benefits.  Contact our office today to learn more.

Reference: Kiplinger (Feb. 9, 2022) “How to Keep Your Estate Plan from Jeopardizing a Disabled Heir’s Benefits”

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