Special Needs Planning

Do you have minor children? Planning for the children involves multiple considerations.

1. Who do you want to raise your children if you are gone?

You need to name a “guardian” who will take care of your children in the event of your demise. You should name an alternate guardian, in case your first choice (usually your spouse) is unable to become one. This designation can only be done through a will.

You don’t want your children or your family to go through a custody battle. Stating your wishes clearly in a Will eliminates the courtroom drama.

2. Who do you want to manage the children’s assets while they are minor?

You need to name someone who will take care of the child’s assets while they are minor and potentially afterwards. It can be the same person as the “guardian” but it can also be a different person.  It will be either a “custodian” or a “trustee”, depending on the method used to leave the money.

You can decide whether or not there will be only one custodian or several (depending on how much control you want one person to have). You should not name your spouse as the sole custodian of the minor children’s money.

3. How do you want to split the money between your spouse and your children?

A very common misconception is that when a spouse dies, 100% of his money goes to the surviving spouse. In New York State, this is simply not correct, if there are children involved. Without a will expressing wishes to the contrary, the first $50,000 belong to the surviving spouse, and the remaining assets are split 50 /50 between the spouse and the children.

Do you like this default distribution? If you do not, then you need to write a will, expressing your desires about the percentage of your assets going to the spouse and the percentage going to your children.

4. When do you want your children to receive the money?

Without a will expressing wishes to the contrary, the children will receive all of their money at the time they turn 18 years old. Do you like this default distribution? Some people think that 18 is too young to receive a large inheritance. If you agree, then you need to decide when they children should receive the money and who will manage their assets in the meantime.

You can create a trust for the benefit of your children. The trust will specify at what age and under what circumstances the money will be distributed. You can decide who will manage the money and determine the distribution. You can decide in what proportion the money will be distributed. This trust can be created either during your life or written into a Will, to come into effect only after your demise.

Do not think that you need to have to be rich to have a trust. A $100,000 inheritance placed into the hands of an 18 year old without any limitations or control may spell disaster. With proper estate planning, the same money managed by a responsible friend or a relative can be used to pay for college education or vocational training, establishing a child’s future.  

5. Will the children have sufficient money to live on if something happens to you?

Even if you establish a guardian for your children, consider whether or not that guardian will have sufficient funds to raise your family. Will there be sufficient money for college, summer camps, and extracurricular activities?

If you are unsure of the answer, consider buying life insurance. The proceeds will ensure that your children are provided for until they are old enough to support themselves.

6. Do you have a child with Special Needs? There are many steps you should take when planning for this child’s future.

• If the child has capacity to execute legal documents, then as soon as he turns 18, he should execute advance directives.  
• If the child does not have capacity, then prior to the child turning 18, you will need to initiate a guardianship proceeding.
• Depending on the disability, either an Article 17A or an Article 81 guardianship may be appropriate.
• Prior to the child turning 18, you need to register with OPWDD (New York State Office for People with Developmental Disabilities), in order to obtain continuing services, assistance with living and additional education after high school.
• You should consider establishing either a First Party Special Needs Trust or a Third Party Special Needs Trust, depending on your individual situation, in order not to jeopardize the child’s ability to receive government programs.

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

There are many acronyms in government benefits. This article explains the difference between most common Social Security benefits.

Social Security benefits are based on the individual’s earnings, averaged over the worker’s life.

Eligibility: To be eligible, an individual must have a minimum of 40 quarters of reported earned income. To receive full credit for the quarter, the amount of earnings is currently $1,200. This amount has been raised incrementally since 1977.

Age of eligibility: for people born after 1959, the age of retirement is currently 67 years. For people born between 1943 to 1954, the full retirement age is 66. Individuals may retire early and collect reduced Social Security benefits as early as age 62. The reduced level of benefits will continue for the rest of the individual’s life.

What income is counted: only earned income is considered when determining eligibility or benefit amounts. Unearned income, such as interests and dividends, is not counted.

Earnings Limitations on Benefits: for individuals between ages 62 and 65 collecting Social Security benefits, earnings above $15,480 will reduce Social Security benefits by $1 for each $2 of earnings in excess of $15,480. For individuals above age 65 collecting Social Security benefits, all earnings limitations have been eliminated.

Social Security Disability (“SSDI”) benefits are based on several criteria, including medical condition, age, prior earnings level, and period between termination of employment and the onset of disability. The case will be periodically reviewed, to ensure that the individual is still disabled.

Definition of disability: inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of no less than 12 months, taking into account the person’s age, education and past work history.

Determination of Eligibility:

1. To be fully insured and eligible for Social Security Disability payments, an applicant must have 40 quarters of earnings. For workers under the age of 31, there is a special calculation.

2. To be fully insured and eligible for Social Security Disability payments, an applicant must have reported earnings within 5 years prior to the onset of disability.

If the above 2 criteria are met, then:

1. There are 5 criteria that Social Security Administration evaluates when determining eligibility, such as (a) substantial gainful employment at the time of the application, (b) severe impairment, (c) listed impairment, (d) past relevant work and (e) residual functioning capacity.

Medicare for Social Security Disability recipients

If an individual receives Social Security disability benefits for a continuous period of 24 months, he becomes eligible for Medicare Part A and B, without regard to age.

Reduction of Social Security Disability benefits

An individual’s benefits are not reduced if he has other sources of income, such as IRA accounts, pensions, insurance, SSI, or Veterans Administration benefits.

Supplemental Security Income (“SSI”) is a federal program that pays a monthly cash stipend to indigent aged, blind or disabled individuals.

Eligibility:

1. Categories: There are 3 separate categories of people who are eligible to receive SSI:

a. Aged: people above 65 years of age

b. Blind: either total blindness or minimal vision that is incapable of correction

c. Disabled: people who are unable to perform any gainful employment because of a medical or mental condition that is expected to last for at least a year.

2. Resource test: an individual is entitled to have no more than $2,000 in resources (a married couple is entitled to no more than $3,000)

a. Certain assets are exempt from calculation, such as a primary residence, a car, and household goods

b. Assets held for the benefit of an individual in a Special Needs Trust, if structured properly, are also not considered resources

3. Income test: an individual’s income from all sources is considered when determining eligibility  

a. Certain income is exempt, such as food stamp benefits, German reparation payments, reverse mortgages, etc.

b. Other income is disregarded, such as the first $65 of earned income and the first $20 of unearned income.

Transfer of Assets

At the time of application, Social Security Administration will conduct an investigation into any transfers that were done by the applicant or his spouse in the past three years. A penalty will be calculated for all transfers that were made for less than a full market value. The penalty is calculated by dividing the amount gratuitously transferred by the maximum monthly benefit. The maximum penalty period is 3 years.  

Medicaid for SSI recipients

Any New York State resident who is eligible for SSI is automatically enrolled into the Medicaid program.

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney client relationship.

The federal estate tax threshold for an individual is currently $5.43MM (and double that for most married couples). The New York State estate tax threshold is currently $2.06MM (and set to rise to the federal level by 2019). That all means that for the vast majority of New York residents, estate taxes are no longer an important reason to consider creating a trust.

Does that mean that no one needs a trust anymore? Not exactly. Below are the top 10 reasons why you might still want to create a trust:

1. You want to avoid probate. If the assets are owned outright at the time of death and there is a will, then the family must go through probate. If the assets are owned outright at the time of death and there is no will, then the family must go through administration. Both probate and administration are costly, long-lasting, and often frustrating court processes. Placing assets in a trust avoids this hassle for your family.

2. You favor privacy. The text of your will and the names and addresses of the people to whom you left money and property become part of the public record. A trust document, on the other hand, is completely private. If you have unusual family dynamics or a publicly recognized name you might want to keep the distribution of your assets private.

3. You want to make it easier for your family to get control of your assets. If you place assets in a revocable trust, you can name yourself as a trustee while you are capable of acting. You name a successor trustee (a family member or an institution) to take over in case of you lose capacity or death. The transition is orderly.

4. You have real estate in more than 1 state. If you have real estate property in more than one state, the family will have to go through the probate process in each state. Each state has its own rules and complications, and attorneys will have to be hired in each of these states.

5. You have children who are professionals (doctors, lawyers, accountants, real estate owners). By placing assets in a trust, you can protect your children’s inheritance from creditors and malpractice claims. You can also protect your children’s inheritance from divorce proceedings.

6. You have children or grandchildren who are minor. In a trust, you can specify when and under what circumstances your beneficiaries will receive the money. However, you will still need a will in order to specify who will be the guardian of your minor children.

7. You have a family member who is not good with money or who has a drug / alcohol / gambling problem. You might want some kind of outside management for that beneficiary’s share of your estate.

8. You have a child, a grandchild or a relative with a disability. If they are receiving public benefits like Supplemental Security Income (SSI) or Medicaid, you will want to create a special needs trust for any share of the inheritance that they will receive.

9. You may want to change your mind. A trust often has the language that permits the Grantor to change the disposition of the assets amongst the various beneficiaries of the trust. Thus, if for now your trust beneficiaries are your son and your daughter equally, and later you want to give only 25% to your son, you do not need to create a new trust in order to accomplish that. You can simply write a letter stating your new preferences, and sign it in front of a notary.

10. It is harder to challenge a trust. To submit the probate or administration petition to court, an agreement from all your potential distributees is required. If one of the children wants to cause problems, the probate process and litigation may take years and cost thousands. A trust, on the other hand, does not require a sign off from the beneficiaries in order for the assets to be distributed.

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney client relationship.

What are the ABLE Accounts? Not many people are aware of it, but if you have a disabled relative, you can save money for their benefit, WITHOUT jeopardizing their receipt of Medicaid or SSI. In the past, a Supplemental Needs Trust was the only option.  Under the Achieving a Better Life Experience (ABLE) Act, family and friends may now contribute up to $14,000 a year to an ABLE account, without the cost of setting up a Trust.   

What can the money be used for? The money in the account can be used for the qualified disability expenses, which include beneficiary’s education, housing, transportation, employment support, financial management and wellness.  Similar to the money in the more familiar 529 Plan, all income in the account grows tax free and all withdrawals for the qualified  disability expenses are also tax free.

Impact on Government Assistance? Regardless of the amount of assets in the ABLE account, the beneficiary’s Medicaid eligibility will not be suspended. However, if the beneficiary is receiving Supplemental Security Income (SSI), no more than $100,000 is permitted to be kept in the ABLE account.  

Medicaid Payback Provision? In the event the beneficiary of the ABLE account dies (or ceases to be an individual with a disability) with remaining assets in the ABLE account, the remaining assets will be distributed to the New York Medicaid to repay the cost of the medical assistance provided to the beneficiary after the creation of the ABLE account.

When can you open an ABLE account? The legislation was passed by Congress at the end of 2014 and has been recently signed by President Obama. Now, individual states must pass the required legislation, to enable the individual accounts in each state.

Why a Supplemental Needs Trust may still be a better option.

1. A Supplemental Needs Trust, set up by a relative for the benefit of a disabled beneficiary, does NOT need to have a Medicaid Payback Provision. As a result, any money left over after the death of a beneficiary will be able to be passed on to the remaining family members.

2. A Supplemental Needs Trust can be set up at any point. The legislation to be able to do so in New York must  still be passed.

3. A Supplemental Needs Trust does not have the multitude of restrictions that are contained in the ABLE legislation:

1. A Supplemental Needs Trust may contain any amount of money, without a $100,000 limit for the purpose of SSI benefits.

2. An ABLE account beneficiary must have been classified as ‘disabled’ by the time he turned 26.  There is no such restriction for the beneficiary of a Supplemental Needs Trust.

3. A maximum contribution that an individual can make to an ABLE account is $14,000 per year. There is no maximum contribution limit for a Supplemental Needs Trust (although a gift tax return may need to be filed for higher amounts).