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Los
Angeles Special Needs Trust Attorney
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Us: Info@SirkinLaw.com
Our Los
Angeles Special Needs Trust attorneys can help create special
needs trusts which protect special needs kids. We can also advise
trustees on administering special needs trusts in California in
accordance with California Trust Law and the California Probate
Code. We practice in all California Probate courts.
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Los
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CREATING
A SPECIAL NEEDS TRUST PLAN
Los
Angeles:
As
special needs parents, we gear our planning based on personal
experience. When leaving an inheritance to a special needs child,
much attention should be given to the selection of the trustee and
the special needs language as well as the expected cost of living
of the child. Our California Special Needs Trust Lawyers address
each special needs issue specifically and individually, on a
case-by-case basis as there are no two cases which are identical.
The
Special Needs Trust is then developed to assess and manage
inheritances, law suit or litigation proceeds, and other resources
while maintaining the child's eligibility for the much desired
public assistance benefits.
Generally,
parents or others may fund the trust with resources they deem
appropriate for the trust. The Special Needs trust assets are
managed by a trustee on behalf of the child or person with the
disability.
The
government agencies honor special needs trusts, but many agencies
have imposed stringent rules and regulations upon them. This is
why it is of most importance that you, as parents consult an
experienced attorney regarding current government benefit
programs.
There
are generally several types of Special Needs Trusts:
Third
Party Special Needs Trust: This type of trust is created by a
parent, grandparent or other persons for the benefit of the
disabled person. In this type of trust, the parent or grandparent
is the grantor. Its assets come from a third party other than the
disabled person. THERE IS NO REPAYMENT PROVISION IN THIS TYPE OF
TRUST.
First
Party Special Needs Trust: This type of trust is created by the
disabled individual and has a repayment provision for SSI and
Medi-CAL. In this type of trust, the disabled person is the
grantor. This type of trust is generally used for litigation
proceeds. In certain circumstances where a special needs person
has inherited property which was not designated in a special
needs trust, we may use this procedure to insure that the special
needs trust is created, even after date of death.
First
Party Litigation Special Needs Trusts: There are many
times where a structured settlement proposal needs a special
needs trust. We are experts in obtaining court approval of the
special needs plans involving structured settlements. If you are
an attorney who is proposing to enter into a settlement involving
special needs of the plaintiff, you should call us to insure the
settlement does not disqualify the plaintiff from government
benefits. Litigation Special Needs Trusts can also be used with
structured settlements.
First
Party Special Needs Trusts for Inheritances where the decedent
failed to plan. This type of trust is very similar to a
litigation trust. It must be approved by the court before any
benefits go to the special needs beneficiary. If you are a trust
or probate attorney and you have a beneficiary who is on SSI or
Medi-Cal, you should call us BEFORE you petition to distribute
the asset.
Much
care must be given to the language of the trust to prevent the
loss of the needed services and assistance.
Click
here to get a consultation appointment for special needs cases in
Los Angeles.
The
special needs trust assets do not belong to the person with the
disability. The disabled person is the beneficiary of the trust.
The trust is discretionary and the trustee has absolute discretion
to determine when and how much the disabled individual should
receive. The disabled individual cannot be the trustee of this
trust.
Checklist
of important items to know regarding a Third Party Special Needs
Trust:
The
SNT is established (grantor, settlor) by the family members such
as parents, grand parents, and guardians (someone other than the
person with the disability);
The
SNT assets are managed by a trustee (and successor trustees) and
NOT the person with the disability;
The
SNT gives the trustee or successor trustee the absolute
discretion to provide whatever assistance is required. This means
that no mandatory distributions can be made;
The
SNT should prohibit giving the person with the disability more
income or resources than permitted by the government;
The
SNT is for supplementary purposes only; it should add to the
things provided by the government benefit program, and should not
replace those government benefits;
The
terms of the SNT define “supplementary needs” in
general terms, as well as in specific terms related to the unique
needs of the disabled individual;
The
terms of the SNT may provide instructions for the disabled
person's final and funeral arrangement;
The
terms of the SNT will determine who should receive the remainder
balance of the trust after the disabled person dies;
The
creator of the SNT trust determine choices for successor
trustees. These can be family members, friends or professional
organizations who have the best interest of the person with the
disability in mind; and
A
Third party SNT is a spendthrift trust and generally protects the
trust against creditors or government agencies trying to obtain
funds from the disabled person.
The
Social Security Administration's (1990) publication Understanding
SSI discusses special needs trusts as follows:
How
do resources in this type of trust count in the SSI program?
Money
or property in this type of trust for an SSI beneficiary...does
not count toward the SSI resource limits of $2,000 for an
individual.
How
does money from the trust affect the individual's SSI payments?
Money
paid directly to the providers for items other than the person's
food, clothing, and shelter does not reduce SSI payments. (Items
that are not "food, clothing, or shelter" include
medical care, telephone bills, education, entertainment.)
Money
paid directly to the providers for food, clothing, and shelter
does not reduce the individual's SSI payments -- but only up to a
limit. No matter how much money is spent for these items, no more
than $155.66 (in 1991) is subtracted from the individual's SSI
check.
Money
paid directly to the individual from the trust reduces the SSI
payment. (U.S. Department of Health and Human Services, 1990, p.
46)
Most
special needs trust attorneys who are experienced in estate
planning for persons with disabilities will advise the parents to
prepare an Intervivos Special Needs Trust. This means that the
trust is to function during the life of the parent as well as upon
death. The Intervivos Special Needs Trusts function to financially
look after the future needs of the disabled child.
You
as parents should not wait until your son or daughter is 18 years
old to establish the Intervivos Special Needs Trust. It should be
created now.
An
Intervivos Special Needs Trust is different that other types of
trust as follows:
It
is a trust that is separate from the family's main estate or main
trust.
The
trust is managed by the trustees, who are usually the parents.
Setting
up books and records, and an account for the special needs trust
now sets the history and creates a record for the trust and its
successor trustees.
If
other relatives are to leave an inheritance to your disabled
child, you can request that the inheritance be made to the
special needs trust created by you for the benefit of the child.
An
intervivos special needs trust creates a more flexible structure
for the person with the disability.
Revocable
Special Needs Trust v. Irrevocable Special Needs Trust
Third
Party Special Needs Trusts are generally revocable and can be
changed by the settlor. First party Special Needs Trusts are
generally irrevocable and cannot be changed. Although there may be
certain times when the parents want an irrevocable special needs
trust for tax planning purposes.
When
you create an irrevocable special needs trust , it means that any
assets you place in it will remain there for the benefit of the
person with the disability. The settlor cannot later change his
mind about this type of trust. The irrevocable trust is considered
a separate entity other than the creator of the trust . It has its
own tax identification number.
How
to fund Special Needs Trust
The
most common types of assets used to fund this type of trust are as
follows:
Real
Property;
Life
Insurance;
Annuities;
IRA
Accounts; and
Cash
and securities.
A
Cost worksheet should be used to determine the amount of income
and principal needed for the disabled person.
Three
things you should talk about with us:
A.
Who will the disabled child live with when you have passed.
B.
How will the disabled child's needs be meet and how to fund the
trust.
C.
Who will manage the disabled child's money.
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