Trusts: March 2011 Archives

March 20, 2011

Finding a Professional Fiduciary

professional fiduciary.jpgDear Liza: We're in the process of establishing a Child's Trust as part of our estate planning; the Trust would exist until our daughter turns 35 (32 years from now; we're both about to turn 50).  We have created a list of four Successor Trustees, but each one is either our age or slightly older. Nolo's advice is to list a last choice a "private trust company." What's that?  It's great that you're thinking about how old your trustees are going to be when you daughter is 35--sadly, our trustees age right along with our kids. I am not familiar with the term 'private trust company' but I think Nolo may be suggesting that you consider naming a private fiduciary as a backup trustee. This is someone who is licensed to serve as a trustee, but is not a bank or a large corporate institution. Such people are licensed in California via the Department of Consumer Affair's Professional Fiduciaries Bureau. Alternatively, you might consider allowing your daughter to become the Trustee if none of the above can serve and she is over a certain age, say 28. (Serving as her own Trustee would give her management control over the trust, but still protect the trust's assets from her creditors or a bad marriage.) You might also, though, check with the bank where you do most of your business, you might find that their rates are competitive for trust services.

 

March 13, 2011

Special Needs Trusts

downs syndrom girl.jpgDear Liza: we had a special needs trust drawn up by a lawyer for our disabled daughter who has turned 21 and is entitled to an annuity.  Our lawyer is stating in
the trust that any benefits received by SSI or medicare throughout her life
must be reimbursed to the state (new york) upon her death or upon
termination of the trust.  We want her to be entitled to government benefits
so that she can stay active (day programs, job coaching, etc) but we were
surprised to read in the drafted trust document that any of these benefits
would have to be "paid back".  Is this true in New York State?
If the money that you are going to place in that Special Needs Trust is her money, and not a gift from a third party (and this is often the case if there's an accident settlement or the like), then, yes, your lawyer sounds as if he or she is setting it up correctly. A self-settled Special Needs Trust requires, by federal regulation, that the assets left at the end of the beneficiary's life must be paid back to the state Medicaid agencies that provided service. Here's a link to a helpful site, The Learning Disabilities Association of America, read the entry on Restrictions on Self-Settled Special Needs Trusts.