Differences between ABLE Accounts and Special Needs Trusts

August 24, 2022

The cost of care and support can be as much as $100,000 per year. As a result, most individuals with disabilities will require government assistance, such as Supplemental Security Income and Medicaid. However, these individuals must shelter their assets carefully to not be disqualified from these programs. That’s why people many use special needs trusts and ABLE accounts. There are differences between ABLE accounts and special needs trusts.

As CNBC’s recent article entitled “Here’s how ABLE accounts, special needs trusts differ … and how they can work together” explains, there are two kinds of special needs trusts:

A third-party trust is funded with the parents’ [or others’] money, for only the disabled child’s needs. It isn’t in the child’s name, and when the child passes away, the funds go to someone other than the child.
A first-party trust is created with the individual’s own assets to shelter any income, whether earned or inherited, to not go above Medicaid income and asset limits. Distributions must be approved by the trustee. Any funds remaining after the child’s death may be claimed by Medicaid, if the child was a recipient.

Special needs trusts can’t be used for certain basic expenses that are covered by government programs. These are things like groceries, which are covered by Supplemental Nutrition Assistance Program; medical expenses, covered by Medicaid; and housing expenses, covered by SSI.

ABLE accounts, defined as “tax-advantaged savings accounts that can fund disability expenses,” can be used for a range of “qualified disability expenses.”

This is expenditures that help the individual “in maintaining or improving his or her health, independence, or quality of life.” These can cover a computer, communication devices, education, training, financial management, support services, assistive technology, and more.

The individual always has control, as opposed to a special needs trust, where the trustee makes the decisions. ABLE accounts are inexpensive and easy to set up and can be funded immediately with small amounts.

A major feature of an ABLE account is that it lets the individual accumulate more than $2,000 without jeopardizing means-tested benefits. ABLE account holders can keep their funds in cash or they can invest them. A certified elder law attorney will have the experience to help you understand the differences between ABLE accounts and special needs trusts. If you would like to learn more about special needs issues related to estate planning, please visit our previous posts.

Reference: CNBC (July 30) “Here’s how ABLE accounts, special needs trusts differ … and how they can work together”

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Take care managing ABLE Account Expenses

April 4, 2022

An ABLE account can be a life saver for individuals with disabilities. Those establishing one need to take care managing ABLE account expenses. An ABLE Account (Achieving a Better Life Experience Account) is a tax-advantaged savings account available to individuals diagnosed with disabilities. It lets them save without putting their public benefits at risk. Contributions to the ABLE account may be made by the account owner, family members, friends, trusts or any other person, as explained in the article “What Qualifies as Eligible Expenses for an ABLE Account?” from Investopedia. The money can be maintained in the account tax-free or spent on certain expenses, which are called “eligible expenses” or “Qualified Disability Expenses” (QDEs) and cover a broad range of goods and services. In some cases, figuring out if an expense meets the criteria is easy. However, in others, it is not so clear.

Typical QDEs include education, employment training, food, shelter, transportation, assistive technology, health, prevention and wellness, financial management of the ABLE account, including oversight and monitoring, legal fees, funeral and burial expenses. In all cases, keep detailed records of how ABLE funds are spent, just in case there is a dispute about whether an expense qualifies.

The law governing ABLE accounts does not spell out every single QDE. Sometimes the IRS or Social Security Administration will issue guidance to clarify whether an item is a QDE. The law says the term should be “broadly constructed to permit the inclusion of basic living expenses and should not be limited to items for which there is a medical necessity, or which provides no benefits to others in addition to the benefit to the eligible individual.”

Note that ABLE account funds may be used for a vacation, if it helps maintain or improve the health, independence, or quality of life for the disabled individual. The food category includes more than groceries: food delivery and restaurant meals are included.

A few tips:

If in doubt, use non-ABLE money and save the ABLE funds for eligible purchases.
Use public funds when possible. For instance, Medicaid may pay for transportation to a health care provider or educational programs.
Keep extensive records, especially for items you are not sure about.

It is great for the disabled individual to have this much flexibility. However, it can also be confusing. That is why you must take care in managing ABLE account expenses. An elder law estate planning attorney will be familiar with the guidelines and help ensure that the funds are used properly. If you would like to learn more about ABLE accounts, please visit our previous posts.

Reference: Investopedia (Feb. 25, 2022) “What Qualifies as Eligible Expenses for an ABLE Account?”

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Special Needs Trusts are a solution for Disabled Heirs

March 8, 2022

A person with a physical or cognitive disability may qualify for taxpayer-sponsored public benefits or privately funded benefits to support his or her living expenses because he or she may be unable to work or to gain full employment due to a disability. Public benefits, like Supplemental Security Income (SSI) are “means tested.” As a result, to apply (or re-apply) for them, a person must use or “spend down” most of their savings or funds that are available without restriction. Special Needs Trusts are a solution to be considered for your disabled heirs.

Kiplinger’s recent article entitled “How to Keep Your Estate Plan from Jeopardizing a Disabled Heir’s Benefits” suggests that you partner with an experienced estate planning or elder law attorney who works in the complicated arena of public benefits planning.

A Special Needs Trust can be either a first-party trust created by a parent, grandparent, guardian or a court using the beneficiary’s own funds; or a third-party trust funded with assets belonging to the trust’s creator. Since the beneficiary’s assets are used, a first-party Special Needs Trust requires that the state benefits provider be reimbursed for lifetime benefits paid by it on behalf of the beneficiary.

A third-party Special Needs Trust for the primary benefit of the disabled individual will supplement, but not supplant, his or her public benefits. Upon their death, the remaining balance of the trust will be distributed to their heirs.

Special Needs Trusts are one of several solutions that can be used to plan for disabled heirs who currently receive disability benefits or may in the future. There are also some other options.

ABLE accounts. This is a savings accounts for individuals with disabilities. It is like 529 education savings accounts with similar tax advantages; However, there is a limited amount that can be held in an ABLE account. The balance will not be considered an available resource.

Pooled trusts. This type of trust is managed by a nonprofit organization, where the funds of many beneficiaries are combined into one master trust for administrative and investment purposes. Sub-accounts are then created for each beneficiary, with the disabled person’s account getting a proportionate share of the entire fund’s earnings. Distributions may be made by the trustee from the beneficiary’s share and used for his needs.

If you would like to learn more about special needs planning, please visit our previous posts.

Reference: Kiplinger (Feb. 9, 2022) “How to Keep Your Estate Plan from Jeopardizing a Disabled Heir’s Benefits”

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Include Special Needs Child in Retirement Planning

November 16, 2021

Neglecting to update an estate plan is always problematic. However, failing to update an estate plan when the family includes a special needs child can lead to disaster. An article from Barron’s titled “Retirement Planning? Don’t Forget to Review Plans for Special Needs Children” explains how this can be prevented before problems arise. So how do you include a special needs child in retirement planning?

Decisions made in the past may no longer be appropriate, or even permitted. A grandparent may have been named as a guardian ten years ago and may have moved to another part of the country or died. A retirement plan based on selling the family home and downsizing to a small apartment may no longer be feasible. Healthcare insurance choices may be limited after retirement. In other words, life changes and estate plans need to change also.

Children with special needs who receive Supplemental Security Income (SSI) and Medicaid may not have more than $2,000 of assets in their name. If they are listed as beneficiaries on retirement plans or life insurance proceeds, they will become ineligible for these benefits. Money should never be left directly to a child with special needs, but it can be left through a Special Needs Trust. Parents may not realize how critical this is, or they may overlook changing beneficiary designations. Either way, the results can be financially devastating.

Talk with grandparents and any relatives who might want to leave something to a special needs child. Chances are they have no idea how an inheritance can impact a special needs family member.

Laws concerning funding a Special Needs Trust have changed. The ten-year rule on required distributions no longer applies to beneficiaries of qualifying Special Needs Trusts, so the SNT may be a beneficiary of a qualified retirement plan. A Roth IRA may be the best way to leave assets to an SNT, as there are no taxes due on withdrawals.

Life insurance is often used to care for a special needs family member. A second-to-die life insurance policy can be used to insure both parents and pay to the SNT on the death of the second parent, when the money is needed most. If one parent doesn’t qualify because of health issues, their underwriting may be balanced by the good health of another parent, which may keep premiums reasonable. Make sure the laws of your state and financial institution permit the proceeds to be directed to an SNT.

An ABLE account is a tax-advantaged savings plan for individuals with disabilities. The account can be opened for an individual at any age, as long as the disability onset occurred before age 26. Talk with an estate planning attorney to ensure the individual will qualify for this type of account. The 2021 annual contribution limit is $15,000. However, there are many exceptions, so don’t do this without professional help. For instance, SSI may be suspended, if the account balance rises about $100,000. Be sure the amount in the ABLE account won’t put means-tested programs at risk.

It need not be overwhelming to Include a special needs child in your retirement planning. Consult closely with an Elder Law attorney as well as your financial advisor to ensure you have a solid plan. If you would like to learn more about special needs or retirement planning, please visit our previous posts.

Reference: Barron’s (Oct. 23, 2021) “Retirement Planning? Don’t Forget to Review Plans for Special Needs Children”

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The Estate of The Union Episode 10

October 25, 2021

The Estate of The Union episode 10 is live!

In the newest installment of The Estate of The Union podcast, Brad Wiewel is joined by Melissa Donovan, Certified Elder Law Attorney and Director of Elder Law and Special Needs Planning to discuss ABLE accounts and how they work to protect the financial well-being of your special needs family member.

Families with loved ones with Special Needs have stresses and challenges that are difficult to measure. ABLE Accounts are a relatively new and innovative tool to use that can provide Special Needs loved ones with additional resources and help maximize their life style. The accounts allow eligible individuals to save money without putting their eligibility for government benefits at risk. The income from the account is not used for means testing for Social Security Income or Medicaid.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insight into estate planning, making an often daunting subject easier to understand.

It is Estate Planning Made Simple!

The Estate of The Union episode 10 can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. Please click on the link below to listen to the new installment of The Estate of The Union podcast. The Estate of The Union Episode 9 out now. We hope you enjoy it.

Texas Trust Law/Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization.

Estate Planning for Couples with Big Age Differences

August 31, 2021

Estate planning becomes more complicated for couples with big age differences. Seniors who are married to younger spouses have a special situation for estate planning, a situation that’s become more common, according to Barron’s recent article “Couples with Big Age Gaps Require Special Attention.”

This kind of family requires planning for the older spouse’s retirement needs and healthcare costs, while determining how much of the older spouse’s wealth should go to the children from any previous marriages while balancing the needs of a future child with a younger spouse. Beneficiaries for all financial accounts, last wills and all estate documents need to be updated to include the new spouse and child. The same goes for medical directives and power of attorney forms.

Social Security and retirement account considerations differ as well. The younger spouse may begin receiving their own Social Security at age 62, or a portion of the older spouse’s Social Security, whichever is greater. If the older spouse can wait to file for Social Security benefits at age 70, the younger spouse will receive more spousal benefits than if the older spouse claims earlier. Social Security pays the survivor’s benefit, typically based upon the older spouse’s earnings.

Pension plans need to be reviewed for a younger spouse. If the pension plan allows a survivor benefit, the surviving spouse will receive benefits in the future. IRAs have different beneficiary distribution rules for couples with significant age differences. Instead of relying on the standard Uniform Lifetime Tables, the IRS lets individuals use the Joint Life and Last Survivor Expectancy Table, if the sole beneficiary is a spouse who is more than ten years younger. This allows for smaller than normally Required Minimum Distributions from the IRA, allowing the account a longer lifetime.

Families that include children with special needs also benefit from trusts, as assets in the trust are not included in eligibility for government benefits. Many families with such family members are advised to use an ABLE Savings Account, which lets the assets grow tax free, also without impacting benefit eligibility. There are limits on the accounts, so funds exceeding the ABLE account limits may be added to special needs trusts, or SNTs.

A trustee, who may be a family member or a professional, uses the SNT assets to pay for the care of the individual with special needs after the donor parents have passed. The child is able to maintain their eligibility.

For same sex couples, revocable or irrevocable trusts may be used, if the couple is not married. Nontraditional families of any kind with children require individual estate plans to protect them, which usually involves trusts.

Trusts are also useful when there are children from different marriages. They can protect the children from the first marriage and subsequent marriages. Estate planning is more complicated for couples with big age differences. A wisely constructed estate plan can do more than prevent legal battles among children—they can preserve family harmony in the non-traditional family after parents have passed.

If you would like to learn more about estate planning for older couples, or those in second marriages, please visit our previous posts.

Reference: Barron’s (July 27, 2021) “Couples with Big Age Gaps Require Special Attention”

Who Pays Tax on a Special Needs Trust?

August 10, 2021

One of the reasons to use a Special Needs Trust (SNT) or open an ABLE account is to prevent federal or state benefits for a disabled person to be put at risk. The SNT is a way to hold property for someone without interfering with their eligibility. However, there are no tax advantages to the trust, according to a recent article titled “How To Factor In Taxes When Considering Special Needs Trusts, Accounts” from Financial Advisor. So who pays the tax on a Special Needs Trust?

Tax results depend on who creates the trust, the terms of the trust and how it’s administered. The trust pays no taxes on any income it earns, as long as that income is passed on to the beneficiary. Trust tax rates are generally higher than individual tax rates. The income to the beneficiary will be taxable at their income tax rate. In some cases, all of the income of a trust might be taxed to the beneficiary, while in others the parent or person who created the trust might bear a tax burden, or the trust itself may be responsible for the tax liability.

An ABLE account is also a tax-favored vehicle, similar to a 529 college saving account. For a person to qualify for an ABLE account, they must have a disability that began before age 26 or be a recipient of Supplemental Security Income (SSI) or Social Security disability insurance benefits or meet other disability requirements.

The ABLE account will not reduce the major part of SSI benefits under the dollar-for-dollar SSI direct support rules, and it won’t be counted as an asset. The disabled person may also use their ABLE account to save earned income. The ABLE account can be inherited, and new rules allow funds in a 529 college savings account to be rolled into an ABLE account.

You can only contribute $15,000 a year to most ABLE accounts, and if the account plus other resources exceeds $100,000, SSI benefits will be suspended. These accounts must be managed carefully to protect eligibility.

The ABLE account varies, depending on the requirements and rules of the state where it is established. Some states offer additional tax benefits, if the person uses the ABLE accounts offered by their home state.

Depending on the state where you open the account, there can be deductions for contributions to an ABLE account. Earnings in the account are generally not subject to taxes, but the funds in the ABLE account may only be used tax-free for qualified expenses that result from living with a disability. Those include education, housing, employment training and special assistance.

The ABLE account is a useful financial tool for disabled individuals, but it does not completely replace a Special Needs Trust or trust planning.

When there are substantial funds, such as those from an inheritance, litigation settlement or a major gift, most estate planning attorneys recommend that those funds go into a Special Needs Trust. So remember that the person creating the trust pays the tax on a Special Needs Trust.

If you would like to read more about special needs planning, please visit our previous posts.

Reference: Financial Advisor (July 12, 2021) “How To Factor In Taxes When Considering Special Needs Trusts, Accounts”

Planning Is Different for a Child with Special Needs

December 16, 2020

Parents and grandparents do all they can to help their children and grandchildren lead their best lives, and that often extends to the child or grandchild’s adult lives. When estate plans are made, people who can afford to, leave money and property to continue to support loved ones. However, planning is different for a child with special needs, explains the article “Planning for loved ones with special needs” from The Sentinel. The child may have been born with a developmental disability or a motor disability or developed mental illness or an addiction.

A person who is not able to work or care for themselves often receives public benefits to pay for food, shelter and medical care. Those public benefits will be jeopardized, if parents or grandparents make the mistake of leaving a gift of money or a bequest. Special needs planning addresses this issue.

Public benefits for people with no assets or income include Supplemental Security Income (SSI) to pay for food and shelter, Medicaid for medical care and the SNAP program for food, among others. Before money is given to a disabled family member or left in an estate plan, a review of the public benefits that are in use or available needs to be done, so benefits are not disrupted.

One example is SSI, a federal program that supports disabled persons who cannot earn enough, which in 2020 means $1,260 or more in a month. A disabled person who earns less than that and owns less than $2,000 in assets can receive $783 monthly to pay for food and shelter. If the person owns the home they live in or owns one car, they may still be considered to have under $2,000 in assets. Clothing and personal belongings are also not counted against the $2,000 asset limit.

However, to continue receiving the full benefit amount, the person cannot receive money from family or friends, since that money could be used for food and shelter. This also applies to “in kind” gifts, such as making a mortgage payment or helping with utility bills. Any direct gift reduces the SSI benefit.

There are ways for parents and grandparents to help their loved one enjoy a better quality of life. However, gifts must be carefully planned and within the laws. For instance, a family member may purchase certain services for a disabled person that would not disrupt their benefits. A parent or grandparent could pay for auto repairs, cell phone and land line phone services, educational expenses, medical care and social services. One very important note: the payments must be made directly to the merchant or provider and not to the disabled person.

There are two primary tools used to consider, when planning for a child with special needs or disabled person:

Special Needs Trust: The gift is placed in the control of a trustee who manages the money, invests it, makes the appropriate tax filing and makes the decision about when to distribute funds.

Most family members don’t understand the web of complex regulations that dictate how public benefits work. Properly created and managed by a responsible trustee, the Special Needs Trust avoids putting the burden of financial care on other family members and lets money be wisely distributed.

Money and property in a Special Needs Trust is not considered to be an asset of the individual, as it is owned by the trust. However, the same restrictions apply to making direct distributions from the trust to the individual beneficiary for food and shelter.

The other account is an ABLE account, created by the Achieving a Better Life Experience law. Anyone can contribute to it and money in the account is not considered income and not counted against the asset limitations. Contributions are currently capped at $15,000 per year, and the account cannot contain more than $100,000.

Distributions from the ABLE account can be used to pay for a wide array of expenses for a disabled person without impacting government benefits. That includes housing, transportation, assistive technology, health, education and other needs. Families need to be aware that the disabled individual owns the assets in the ABLE account. If they are unable to manage money or are susceptible to scams, the family will want to be cautious about putting funds into the account.

If you would like to learn more about planning for a child with special needs, please visit our previous posts.

Reference: The Sentinel (Nov. 20, 2020) “Planning for loved ones with special needs”

Different Types of Special Needs Trusts

November 17, 2020

The most frequently used tool to protect and care for children with special needs after both parents has passed is a special needs trust, says Forbes in its article entitled “Making Trusts for Special Needs Children.” A special needs trust is a legal instrument used to provide benefits to an individual with special needs, while also maintaining that person’s ability to receive state or federal benefits assistance. The trust is usually created by a parent or guardian, with the special needs child as the beneficiary. It is important to understand the different types of special needs trusts.

A third-party trustee is often appointed. That person or institution has authority to make disbursements from the assets in the trust on behalf of the beneficiary. This trust lets parents make sure that their child with special needs has his or her needs met after the parents pass away.

Some government benefits used by a person with special needs—such as Supplemental Security Income (SSI) and Medicaid are “means tested.” That means they are only available to those who themselves have limited income or assets. If a parent wants to provide support to a child with special needs after the parent’s death, those assets must pass correctly to ensure that the assets don’t cause that child to directly own the assets and thereby lose their government eligibility for the benefits.

Again, any assets left directly to the beneficiary without use of a trust could disrupt the beneficiary’s receipt of benefits, taking money and support away from the beneficiary.

What are the differnt types of special needs trusts? The most common special needs trust is a third-party special needs trust. This trust is funded by family members of the beneficiary to make certain that there are specific assets set aside for the beneficiary’s utility bills, education, entertainment, or most other regular expenses.

There are also first-party trusts, where the trust is established with the assets owned directly by the child with special needs. This can result when the child with special needs receives an inheritance, life insurance payout, or personal injury settlement directly, which may impact their existing benefits.

There are also pooled trusts, which are trusts that are managed by a nonprofit organization. With a pooled trust, the grantor doesn’t have to name a trustee, especially one who may not have experience in managing trust assets. Consequently, the assets are held for the benefit of the child with special needs, but they are managed by an organization with expertise in doing just that.

An ABLE account is another option. They’re not trusts, but they allow up to $15,000 a year to be earmarked for the benefit of a person with special needs. The distribution rules are similar to those of a special needs trust.

It can be difficult to understand the different types of special needs trusts. There is significant complexity with the laws surrounding special needs trusts, so you should work with an experienced estate planning attorney or elder law attorney.

To learn more about special needs planning, please visit our previous posts.

Reference: Forbes (Sep. 10, 2020) “Making Trusts for Special Needs Children”

A trust is a good option when your children are minors

Special Needs Plans Need Regular Reviews

November 16, 2020

Special needs plans need regular reviews and updates to be effective. For creating a wholly new plan or reviewing an older plan, one way to start is by writing a biography of a loved one with special needs, recommends the article “Special needs plan should be carefully considered” from The News-Enterprise.

Write down the person’s name, birth date and their age at the time of writing. Include information about favorite activities, closest friends and favorite places. Consider all of the things they like and dislike. Make detailed notes about relationships with family members, including any household pets. Think of it as creating a guide to your loved one for someone who has never met them. This guide will be useful in mapping out a plan that will best suit their needs.

Follow this by writing down what you envision for their future, in three distinct scenarios. A good future, where you are able to care for them, a not-so-great future where they are alive and well, but you are not present in their life and a bad future. You should be as specific as possible. This exercise will provide you with a clear sense of what pitfalls may occur, so you and your estate planning attorney can plan better.

Your plan needs to consider who will become the person’s guardian. You’ll need to list more than one person and put their names in order of preference. Consider the possibility that the first person may not wish to or be able to serve as a guardian and have second and third guardians. Talk to each person to be sure they are willing and able to take on this responsibility.

Next, consider living arrangements. Will your loved one be able to live independently, with regular check ins? Could they live in an accessory apartment with a guardian close at hand? Or would they need to live in a group care facility with an on-site social worker?

Special needs plans usually include a Special Needs Trust (SNT), with comprehensive details for the trustee. Just as you need multiple guardians, you should also name several trustees. The guardian is responsible for a person and the trustee is responsible for the property.

The question is raised whether a family member or a professional should be the trustee. Having a family member manage the finances is not always the best idea. A professional fiduciary will be able to manage the funds without the emotional ties that could cloud their ability to make good decisions. This is especially important, if the beneficiary has a drug dependency problem, does not have a strong family network or if the estate is large.

Consideration should also be given to having the trustee check in on the beneficiary on a regular basis to ensure that the beneficiary’s needs are being met. The trustee should have permission to make decisions about the use of the trust funds in special circumstances. The trustee will need to be someone who is skilled with managing money and is well-organized and responsible.

Special needs plans need regular reviews, but careful planning will give you the peace of mind of knowing that your loved one will be cared for by people you choose and trust.

If you would like to read more about special needs planning, please visit our previous posts.

Reference: The News Enterprise (Oct. 13, 2020) “Special needs plan should be carefully considered”

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