Special Needs Trusts

Use a trust to leave money to a disabled loved one -- without jeopardizing government benefits.

If you want to leave money or property upon your death to someone with a disability, you must plan carefully. Otherwise, you could jeopardize your loved one’s ability to receive Supplemental Security Income (SSI) and Medicaid benefits. By setting up a "special needs trust" in your will, you can avoid some of these problems.

Owning a house, a car, furnishings, and normal personal effects does not affect eligibility for SSI or Medicaid. But other assets, including cash in the bank, will disqualify your loved one from benefits. For example, if you leave your loved one $10,000 in cash, he or she won’t be able to get SSI or Medicaid.

How a Special Needs Trust Can Help

A way around losing eligibility for SSI or Medicaid is to create what’s called a "special needs trust" in your will or living trust. Instead of leaving property directly to your loved one, you leave it to the special needs trust.

You also choose someone to serve as trustee, who will have complete discretion over the trust property and will be in charge of spending money on your loved one’s behalf. Because your loved one will have no control over the money, SSI and Medicaid administrators will ignore the trust property for program eligibility purposes. The trust ends when it’s no longer needed -- commonly, at the beneficiary’s death or when the trust funds have all been spent.

How Trust Funds Can Be Spent

The trustee can’t give money directly to your loved one -- that could interfere with eligibility for SSI and Medicaid. But the trustee can spend trust assets to buy a wide variety of goods and services for your loved one. Special needs trust funds are commonly used to pay for personal care attendants, vacations, home furnishings, out-of-pocket medical and dental expenses, education, recreation, vehicles, and physical rehabilitation.

Pooled Trusts

If you can’t come up with a good candidate to serve as a trustee or are leaving a relatively modest sum and don’t want to set up a separate special needs trust, consider a "pooled trust." These are special needs trusts run by nonprofit organizations that pool and invest funds from many families. Each trust beneficiary has a separate account, and the trustee chosen by the nonprofit spends money on behalf of each beneficiary. Pooled trusts (also called community trusts) are available in many areas of the country.

Will You Need a Lawyer?

Some lawyers will tell you that only an attorney can draft a special needs trust. But that's not true. Anyone can create a special needs trust if you include the right language.

Of course, there are times when you should seek an attorney's advice. For example, you must see a lawyer if you want to create a trust that will be funded with the beneficiary’s own money (for example, money from a personal injury lawsuit), rather than your money. Complicated and state-specific rules apply to these kinds of trusts.

Nolo's Special Needs Trusts: Providing for Your Child’s Financial Future, by attorney Stephen Elias, lets you know when you do need to seek an attorney's advice to set up a special needs trust. If you determine that you don't need a lawyer, the book gives you the language and instructions you need to set up your own special needs trust.