A special needs trust is a vital tool for planning the future of children with special needs. Like all trusts, a trustee manages, on behalf of the beneficiary, the funds for the trust. What sets apart the special needs trust from other types of trusts is that they specifically protect the assets and retain public benefits of the beneficiaries since the funds it holds are not considered income for benefits eligibility.
When the beneficiary turns 18, they will continue to receive need-based benefits, such as SSI and Medicaid, among others. Also, funds from the trust may be utilized for the beneficiary’s supplemental needs. Special needs trusts can either be revocable or irrevocable.
Revocable vs. Irrevocable Special Needs Trusts
Once you’ve decided to create a special needs trust, you should then decide whether it would be an irrevocable trust or revocable trust. There are certain advantages and disadvantages to each kind of trust, so you should carefully take into account your family’s specific circumstances when deciding between an irrevocable or revocable trust.
With a revocable special needs trust, you have the option of adding and subtracting trust assets at any time, giving you a greater degree of control and flexibility because you’ll be able to manage the trust based on your ever-changing life circumstances. But with a revocable trust, take note that the government will consider the assets held in it as part of your own estate.
This means that upon your death, everything in the special needs trust will be automatically included in your estate and will be subject to estate tax and, quite possibly, lawsuits. If someone tries to file a lawsuit against you after you die, the assets may not be protected.
On the other hand, a special needs irrevocable trust will be considered separate from your estate. You can’t remove the assets in it, and they will remain in the trust exclusively for the beneficiary’s benefit. This means that you can’t touch the assets, even if you need them for some other purpose.
Although some may think of this as a drawback, having an irrevocable trust does come with certain benefits. For instance, creditors of any outstanding taxes or debts you or the beneficiary owes can’t touch all the assets held in the trust.
Explore Your Legal Options Now Before It’s Too Late
It’s also vital to note that special needs trusts come in three primary types:
- Self-settled trusts – These utilize funds the beneficiary owns, including from a legal settlement or inheritance.
- Third-party trusts – These can be created by the parents or loved ones of individuals with special needs.
- Pooled trusts – These are administered by non-profit organizations for the beneficiaries.
Creating a special needs trust is an extremely complex job because you have to consider many things, such as the tax implications, public benefits, and the trust’s impact on your family’s overall estate and financial plan. Talk to a knowledgeable estate planning lawyer to explore all the options that will best suit your circumstances.
