Ask Jaleh: Who Controls the Money In A Special Needs Trust?
Video Summary
Who controls the money in a supplemental or special needs trust?
Perhaps the most important consideration for an SNT is the selection of a trustee. The trustee of the special needs trust is critical to the successful achievement of the goals and objectives of the special needs trust.
First, the trustee should never be the beneficiary of the special needs trust, or the beneficiary spouse, because of the control and the deeming factors. The trustee should be someone who is experienced with financial matters, or who is capable of retaining the appropriate financial expertise to assist in the management of the assets in the special needs trust.
The trustee must have the time and be willing to exert the effort to become acquainted with and maintain current knowledge of the needs of the beneficiary. And, very importantly, the requirements of the public benefits programs for which the beneficiary of the special needs trust is eligible.
Often, especially with a supplemental needs trust, it is advisable to name co-trustees. One co-trustee could be a corporate trustee, and the other could be a family member or close friend who has frequent contact with the beneficiary of the special needs trust.
Whether co-trustees, a single corporate trustee, one or more individuals are appointed as trustee, consideration should be given to the use of a care manager. The special needs trust can provide that a care manager be hired by the trustee of the special needs trust, to provide the constant contact with the beneficiary necessary to become aware of the beneficiary’s personal needs. And then they can communicate that information regularly to the trustee.
The grantor of the special needs trust can also use a memorandum of instruction, or other similar type of document, to communicate the various personal information about the beneficiary of the special needs trust. Such as the beneficiary’s favorite color, favorite food, likes, dislikes, medications, and other important information regarding the beneficiary.
The special needs trust should include terms that prohibit the distribution of any trust asset for anything provided by the public benefits programs for which the beneficiary of the special needs trust may be qualified. If the trustee conscientiously complies with those provisions, the special needs trust assets will not be deemed to be owned by the beneficiary of the special needs trust, and will be available to use in the trustee’s discretion for other needs of the beneficiary of the trust.
Another common provision for a supplemental needs trust is allowing the trustee to make payments that could possibly disqualify the beneficiary of the trust for some government benefits, if the trustee decides that it is in the best interest of the beneficiary. For example, the trustee may use the special needs trust funds to purchase a house on behalf of the beneficiary. This would cause a reduction in the beneficiary’s social security income stipend, because it is considered a shelter expenditure. However, if the beneficiary of the special needs trust has housing needs that exceed the government benefits, it is in the beneficiary’s best interest to use the trust funds for better housing.
Special needs trusts are commonly used to provide the beneficiary with specially equipped vehicles, concert tickets, transportation tickets, dental work – these things are not covered by Medicaid or other public benefits programs. They could also be considered to be used for things such as the theater, performing arts admission tickets, computers, and other electronic devices such as televisions, iPads, and anything that would be necessary to the benefit of the beneficiary of the special needs trust.
With a third party special needs trust, the grantor has the right to designate, in the special needs trust document, who will be the beneficiaries of the trust upon the death of the primary beneficiary.
In conclusion, special needs trusts, whether third party or self-settled, are valuable tools for beneficiaries who are disabled or have other special needs.
If you’re interested in setting up a special needs trust, please contact me at Waller and Mitchell, at 727-847-2288.
Do I Need A Lawyer For A Will?
Video Summary
Do I need a lawyer for a will?
Yes, you should use a lawyer to prepare your will. Each state has different laws as far as how the will is to be signed, so there’s a certain formality involved as far as signing a will. In Florida, it requires that the will be signed in the presence of two witnesses, and the person who executes the will. And if it is not, and if both parties are not present, then the will can be challenged and is ineffective.
Also, there are certain provisions in a will that you would want to consult with a lawyer – besides the particular language, as far as paying your bills – as far as what property you want to go to what particular person. It’s not a particularly good idea to try and designate a beneficiary for each one of your assets, since those assets are fluid and you don’t know what assets you’ll have at the time of your death.
So, it is my suggestion, whenever I take information to prepare your will, that you allocate it into shares or percentages for the particular beneficiaries. If there’s a particular grandchild or person that you wanna leave a specific sum of money, well, we can designate that.
It’s also important to know or consult with a lawyer as far as devising your home or your homestead property. And there’s certain constitutional provisions which does not allow you to leave your house to anyone you want, if you’re married or if you have minor children.
So, if you’d like to have a will prepared, give me a call. I’ll be glad to give you a quote for preparing the will. Also, there’s other documents that I will talk to you about whenever we do your estate plan, such as a living will which states your dying declaration as to whatever circumstances you want life support to be discontinued.
Also, a healthcare surrogate, which is a healthcare power of attorney form where you’re designating someone to make healthcare decisions for you if you’re unable to do so. And, also, a durable power of attorney which appoints an agent to be able to sign on your behalf. And the durable power of attorney is effective even if you become incapacitated, and may avoid having to set up a guardianship.
So if you would like to do some estate planning, giving me a call at 727-847-2288.
How Is Estate Planning I Do In Florida Impacted When I Move To Another State?
Video Summary
How is estate planning I do while I live in Florida impacted when I move to another state?
Well, that’s a question that you’re gonna have to ask the out-of-state lawyer, whenever you move. It’s my recommendation that if you move to another state, that you consult with a lawyer in whatever state you become a resident, and ask him to review your estate planning documents. That’s something that I do routinely.
And then I get asked, the other question is, “Are my estate planning documents from Illinois, or some other state, valid in the state of Florida?” Most of the time, I look at those and say, “Well, the will would probably be effective. However, for me to review it and confirm that the aspects of the self-proving aspects, and also the personal representative, would be sufficient and Florida would have it admitted to probate, it would be easier in most circumstances just to do a new Florida will, particularly if there are any circumstances that have changed.”
Usually, a will that has been properly executed in another state is effective in Florida. However, you may want to modify it to Florida law, in order for the ease of administration when you pass away, and if it has to be admitted to probate. It is a good idea, though, to talk to an attorney in whatever state you reside, to have him review your estate planning documents.
Florida is peculiar in that we require the personal representative to either be a relative or a resident of the state of Florida, to serve as a personal representative, which may not be the case in your old document. There may be other laws that are peculiar to whatever state you move to, so that lawyer could tell you about that.
Also, we have different powers of attorney and how they must be executed, in Florida. Under a Florida power of attorney, we like to have two witnesses, so that we can use it to convey real property. Also, living wills and healthcare surrogates.
So, the short answer to the question is, consult with whatever attorney about estate planning documents, wherever you become a resident. And take with you your estate planning documents that you previously executed.
If you have any questions about this, please give me a call at 727-847-2288.
- Published in Estate Planning, Videos
What Is A Holographic Will?
Video Summary
What is a holographic will?
A holographic will is one that is written out by the person, or the testate of the person, that they’re writing their own will. So, it’s a handwritten will. And under Florida law, the holographic will – or a handwritten will by the testate or the person that’s making out the will for themselves – must comply with Florida law, which requires that it be witnessed by two different witnesses who sign in the presence of the person that’s writing out the will.
I hear from my clients, from time to time, where they’ve put off making out a will. They get ready to go on a trip – particularly if they’re going to Europe or getting on an airplane ride – that they’ve written out something as to what they want done. They show it to me after they get back safe and sound, and then say, “Well, I did a will, myself.” Well, that’s not gonna be effective in Florida, because it doesn’t have the two witnesses, or wasn’t executed with the formality that’s required under Florida law, which is the two witnesses.
So if it is witnessed and the witnesses were present when the testate or the person making out the will signed it, it’s not effective. If they were there, it is effective. And then we’ve gotta try and decipher what you had to say, without any guidance of an attorney.
I believe that there are some states that give preference to holographic wills, and not require them to comply with the formalities of a typewritten will or a will prepared by a lawyer. But that is not the case in Florida.
So, if you have a holographic will, give me a call at 727-847-2288, and I’ll set you up a will conference. Thank you.
How Can I Dispute A Landlord’s Claim Of My Security Deposit?
Video Summary
How can I dispute a landlord’s claim on my security deposit for repairs or damages?
Well it’s addressed in the Landlord Tenant Act and the landlord must give you a notice of their claim within so many days. I believe it’s 30 days from the termination. It may be 15 but they have a certain period of time where they must give you that notice. If they do not you’re entitled to the return of your deposit.
If they do send you the claim, you need to sue them in small claims court, get the return of your deposit whereupon they will have to prove what the damages are. Unfortunately your remedy is having to go to court which is usually in small claims court in order to recover your security deposit from a landlord. If you have any question about that, give me a call at 727-847-2288.
- Published in Real Estate, Videos