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Tuesday, November 8, 2016

Estate Planning for Special Needs

From Fidelity Viewpoints

November 2, 2016

A sound, up-to-date estate plan is important for virtually every adult, but it’s absolutely essential for people who have dependents with special needs. "Many special needs children will be financially dependent on others their entire lives," says Mark Albertson, an Estate Planning Specialist for Fidelity Wealth Planning and Personal Trust.

"It's crucial to have a plan in place that protects the long-term financial well-being of these dependents."

Here are some strategies you should consider if you’re among the nearly 30% of American families with at least one member with special needs.

Start Talking

When creating or reviewing your estate plan, start by identifying what you’re trying to accomplish as a family. Hold conversations with appropriate family members, as well as professionals such as financial advisors, attorneys, and physicians, to determine how you want to divide up the estate among your heirs.

“Some families may want to leave more money to a special needs child than to other children; other families may decide it makes sense to leave less, because that child receives income from a settlement or Social Security; and others might want to make inheritances as equal as possible,” says Albertson. “Talking through those kinds of issues is the first step.”

Also discuss what care will be necessary for your special needs dependents, how it will be provided, and who will take on responsibility for overseeing it.

Consider Establishing a Trust

Albertson recommends speaking with legal and estate planning professionals regarding the creation of a trust that could provide for special needs dependents for as long as they live, rather than leaving money directly to the dependent or another family member.

"Many people with special needs have cognitive impairments that keep them from being able to manage money well," says Albertson. "What’s more, leaving an inheritance to a special needs dependent may put him or her at risk of losing eligibility for government benefits."

Some families simply leave extra assets for a sibling or other loved one to care for the dependent. That’s unwise, Albertson warns. Such a commitment can create unwanted moral obligations or financial problems.

"It's impossible to prepare for every contingency," Albertson says. "Say a special needs child has a brother who's very reliable and agrees to take on added responsibilities. Divorce, job loss, or unexpected death can derail even the best-intentioned plans."

A trust provides the vehicle in which a family can set aside funds specifically for the care of the special needs dependent. The right type of trust depends largely on the anticipated size of the grantor's estate.

Many people with special needs are currently eligible for up to $733 per month in federal Supplemental Security Income (SSI), and also may qualify for other need-based federal, state, or local programs. Trusts set up specifically for special needs dependents can help ensure that their inheritance doesn’t jeopardize eligibility for those payments. (Note that most special needs trusts must be established before the beneficiary is age 65, so they can’t be created to support elderly dependents.)

Special needs trusts limit how the money in them can be used, however, so affluent families may opt for a general discretionary trust, which allows for greater flexibility and imposes fewer limits on disbursements.
  • Trusts created with the dependent’s assets. This type of trust is designed for special needs dependents that come into money through an inheritance, a lawsuit, or other unexpected means, and are under the age of 65. They are designed to ensure that money from a windfall doesn't jeopardize eligibility for government benefits. However, under the terms of these types of trusts, when the dependent dies, the state Medicaid agency receives any money left in the trust for any support the state provided to the dependent.
  • Trusts created with assets from parents or grandparents. This type of trust is created by parents or grandparents who want to leave money for a special needs dependent but don't want that person to lose out on government benefits. The trust can be established by a will or created during the benefactor’s lifetime. The creators of the trust appoint a trustee who has general discretion over it. The trustee cannot give money directly to the dependent, but can pay for certain items and services not covered by the dependents' monthly SSI income. Upon the death of the dependent, whatever assets are left in the trust can be distributed according to the creator's wishes as specified in the terms of the trust.
  • Pooled special needs trusts. This classification allows nonprofit organizations to set up and manage pooled trusts for people with special needs. It's the only type of special needs trust that can be set up for people older than 65. There is no cost to set up or administer this kind of trust, and no tax return is required for it, making this an easy and inexpensive way to set aside money for a special needs dependent. However, transferring money out of this trust can result in certain penalties. When the dependent dies, the remainder of the money in the trust stays in the fund to help other special needs people who are cared for by the nonprofit organization. For a list of nonprofits that offer this option, visit the Academy of Special Needs Planners website.

Tip: The restrictions imposed by the trusts listed above may prevent the flexibility a family desires in meeting the needs of a dependent. In that case, a family may choose to create a general discretionary trust. General discretionary trusts typically disqualify the special needs dependent from government benefits, but let trustees use the money in any way that benefits the trust’s beneficiary.

Update Your Plan Periodically

All estate plans need to evolve over time to keep pace with changes in people’s lives and financial situations. The stakes for staying up-to-date are especially high for families with special needs dependents. Dependents’ conditions often are not static. Some may become more or less acute as children grow older and the level of help that a dependent needs can fluctuate over time.

Speak with your attorney or estate planning specialist about how to build flexibility into your plan through a trust or otherwise, based on your specific situation.

In addition, to make sure your plan stays current, review it every three to five years, or whenever your life or your family changes in a major way. That way you can be confident that your loved ones will be cared for when you’re no longer here to look after them financially.

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