Get the Clarity You Need to Protect Your Legacy, Your Assets, and Your Loved Ones

From avoiding probate to understanding trusts, we’ve compiled answers to the most common questions about estate planning, so you can make informed decisions with confidence.

Estate Planning F.A.Q.s

What is Estate Planning?

One of the goals of good estate planning is to ensure the financial security of your loved ones. While nothing can replace your presence in their lives, with the right estate planning tools, you can continue to care for them even after you're gone. A living trust can help by ensuring that your gifts go directly to the people you love—quickly, privately, and without the delays and expense of probate.

What is Probate?

Probate is the legal process through which your property is distributed to your beneficiaries. During probate, the court system must determine the validity of your will, appraise and inventory all of the assets in your estate, pay any outstanding debts, and then distribute whatever is left according to the instructions in your last will. Probate is often expensive, complicated, and time-consuming.

What are the different types of trusts?

While there are several good reasons to consider a revocable living trust for your estate plan—avoiding probate, for example—keeping your assets safe from creditors is not one of them.

To understand why, it's helpful to discuss what a revocable trust is and what it does, as well as how it differs from an irrevocable living trust—a legal instrument that actually may help you protect assets from creditors.

Aside from an irrevocable trust, there are other ways to keep creditors away from your stuff, so if you're concerned with asset protection, read on.

What is a revocable trust?

A revocable trust, sometimes called a living trust, holds the assets of a trust creator (called a “grantor," “settlor," or “trustor") during his or her lifetime. The trustor is named as trustee.

Upon the grantor's death, the “successor trustee," who had been chosen by the trustor, facilitates the distribution of assets to the trustor's chosen beneficiaries according to the provisions of the trust documents. All of this happens outside the probate process.

Indeed, many people turn to trusts to avoid probate, the court-supervised process of distributing a decedent's estate, which can become costly and time-consuming.

Generally trust documents do not become part of the public record, which means your affairs stay private, as opposed to what happens with a last will and testament, which goes on file for anyone to search.

Another benefit of a living trust is that the successor trustee can step in to handle the affairs of the trustor should the trustor become incapacitated, which, again, would happen without getting a court involved.

Two important notes about a revocable living trust, however: (1) The trustor is still legally considered the owner of the assets within the trust; and (2) the terms of the trust can be changed or the trust canceled by the trustor at any time.

These characteristics make the assets within the trust susceptible to collection by creditors because the trustor, as far as the law is concerned, still owns and has full control over the assets. As a result, a creditor could go after the trust, seek its termination, and gain access to assets within it.

So, to be absolutely clear: A revocable living trust does not protect assets from creditors.

What is an irrevocable trust?

An irrevocable trust, on the other hand, may protect assets from creditors. In fact, you may see the term “asset protection trust" used to describe such a trust.

What's the difference? With an irrevocable trust, the assets that fund the trust become the property of the trust, and the terms of the trust direct that the trustor no longer controls the assets. Also, an irrevocable trust's terms cannot be changed, and the trust cannot be canceled without the approval of the grantor and the beneficiaries, or a court order.

Because the assets within the trust are no longer the property of the trustor, a creditor cannot come after them to satisfy debts of the trustor.

Still, it is crucial to know your state law regarding irrevocable trusts to understand exactly how well your assets are protected from creditors. Keep in mind that a court is within its power to find a transfer of assets to a trust to be fraudulent if it is done with the intent to defraud creditors. Not only could such a finding expose the trust assets to liability, but also it could mean heavy legal penalties for the trustor.

Do I still need a power of attorney?

Living trusts have all of your assets already placed in the ownership and management of a trust, so that should you become incapacitated, they are already being handled for you. Most attorneys do recommend you also draw up a power of attorney that will authorize someone else to make legal and financial decisions on your behalf for non-trust-related matters such as paying bills, handling taxes, and dealing with retirement accounts should you become incapacitated. This is a standard practice with every trust created at AFEPI Northwest.

What are some asset protection strategies?

If you are concerned with asset protection, there are several different ways to accomplish this, aside from putting your property into a trust that you will no longer have control over.

Depending on your state law, certain assets may already be protected from creditors, so you may choose to put your money into such assets. Many states, for instance, have a “homestead exemption" for the main home of an individual, which cannot be touched in bankruptcy. Most retirement accounts and pension plan funds are also usually off-limits.

Liability insurance is one of the most common ways to protect against potential lawsuits and creditors. Another option may be to create a separate business entity, such as a limited liability company (LLC) or corporation to shield personal assets from liability.

Make no mistake: The right kind of asset protection can make a big difference in how much your creditors could collect from you, so if you have any concerns about whether you're going about things correctly, you should contact an experienced professional for guidance.

What is a pour-over will?

Many living trusts include what's known as a pour-over will. A pour-over will transfer or "pour" into your trust any assets not already owned by your trust at the time of death. This includes property such as checking accounts, cars, and other personal items. Many pour-over wills also include provisions to name guardians for minor children and specify funereal and other last wishes.

What about minor children as beneficiaries?

Many living trusts include what's known as a pour-over will. A pour-over will transfer or "pour" into your trust any assets not already owned by your trust at the time of death. This includes property such as checking accounts, cars, and other personal items. Many pour-over wills also include provisions to name guardians for minor children and specify funereal and other last wishes.

What is the process to get started?

Call us or schedule time with one of our Legacy Builders. We will will walk with you through the entire process of gathering your data, getting your wishes on paper, creating the Trust, notarizing the trust, funding the trust, and administering the trust. Below is are contact information:

Christopher Moore

AFEPI Northwest

Office: 971-406-2194

Mobile: 971-207-9191

Web: https://afepinorthwest.com/

Email: [email protected]

Calendar: https://bookchrisnow.com/

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Living Trusts F.A.Q.s

What is a Living Trust

A living trust is a document that allows you to place assets into a trust during your lifetime. You continue to use the assets, but they are owned in the name of the trust. You name a trustee who is responsible for managing and protecting the assets in the trust. After your death, the assets in the trust are distributed to the people you choose as your beneficiaries.

Living trusts are often portrayed as the ultimate estate planning tool and something everyone needs. The truth is a living trust may not solve all your problems but may be one piece of your estate planning toolbox. To find out what’s right for you, ask your attorney the following questions.

What property can go into a living trust?

Most of your property can be placed into your living trust, but some items, such as certain retirement accounts, are not eligible.

Who should be my trustee?

Most people name themselves as trustee for a revocable trust, so that they can manage the trust assets during their lifetime. You can choose anyone or even a corporation as your trustee if you prefer. If you name yourself, you will need to name a successor trustee who can step up to manage the trust after your death or incapacity. For an irrevocable trust, you must assign a third party.

Does a living trust avoid estate and probate taxes?

A revocable trust (one that can be altered during your lifetime) does not avoid estate taxes that are applied by your state or the federal government. However, certain types of trusts can be created, such as AB Trusts, that can help you and your spouse reduce or avoid estate taxes. Assets owned by living trusts do not pass through probate, and so your estate will not need to pay any probate fees or costs.

What are the benefits of a living trust?

Living trusts offer a variety of benefits, which is why they have become so popular. Living trusts allow your estate to avoid probate. By doing so, you avoid the costs associated with having a will probated, but you also avoid the delay associated with probate. It can take months for a last will to be probated, but when you create a living trust, the assets in the trust can typically be distributed to your beneficiaries more quickly.

You can also choose to delay distribution to later dates. Some people set distributions for their beneficiaries’ big birthdays, for example. Another benefit of a living trust is that because it is not an irrevocable trust, you can alter it at any time. You can even decide to dissolve the trust if you so choose. A living trust is also more private. Since it is not probated, it never becomes public record.

What are the drawbacks of a living trust?

Living trusts cannot include all of your assets since some are not eligible to be owned by a trust. The other problem with a living trust is it can only control the assets you specifically transfer into it, so if you forget to change ownership of something like a bank account, it won’t be covered by the trust.

If you rely solely on a trust for your estate planning, the assets that are left out of your trust will pass via a last will or via your state's intestacy laws. The living trust cost can also be seen as a drawback. You need to pay upfront to have the document prepared and make sure the trust is being managed. These costs may be more than those involved in having a will drawn up and probating a small estate.

How property is transferred?

Upon your death, the person you assigned to succeed you as trustee (the successor trustee) takes over management of the trust and sees that all of your gifts are distributed to your beneficiaries. Your successor trustee may not change the trust, which becomes irrevocable at the time of your death. In other words, you can revise your trust while you're alive, but it cannot be changed after you're gone.

What is the difference between a living trust a will?

A living trust provides for management and ownership of only the assets you specifically place into it. A trust is designed to function during your life and after your death. A will provides for the distribution of all of your assets upon your death. It only provides instructions for what will happen to your assets after you die.

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Potential tax savings?

While most living trusts are created for the purpose of avoiding probate, you may also benefit from savings in certain kinds of estate taxes. An AB living trust, for example, can offer significant tax savings for a married couple with a combined estate value that is greater than the applicable federal estate tax exemption amount.

What is the process to get started?

Call us or schedule time with one of our Legacy Builders. We will will walk with you through the entire process of gathering your data, getting your wishes on paper, creating the Trust, notarizing the trust, funding the trust, and administering the trust. Below is are contact information:

Christopher Moore

AFEPI Northwest

Office: 971-406-2194

Mobile: 971-207-9191

Web: https://afepinorthwest.com/

Email: [email protected]

Calendar: https://bookchrisnow.com/

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Veterans Trusts F.A.Q.s

Why a Veteran Asset Protection Trust?

The Veterans Asset Protection Trust can be a beneficial option for many of your elder law clients that are looking for long-term planning options. The Veterans Asset Protection Trust is an intentionally defective grantor trust and can be considered as an option for clients who are wartime Veterans or the surviving spouses of a wartime Veteran. This trust is designed to meet the eligibility requirements from the Veterans Administration (VA) of a complete gift or complete relinquishment.

When it comes to assets, the most significant for Veterans is typically his or her residence. As long as a Veteran retains that home, it does not count as part of his or her net worth for VA-eligibility purposes and instead qualifies as a “non-countable resource.” If a Veteran is collecting a monthly pension benefit, however, and later sells the home, those proceeds will disqualify him or her from receiving any further Veterans’ pension benefits. This disqualification remains intact until the Veteran spends the proceeds down to an allowable asset level.

This is where a Veterans Asset Protection Trust can come into play. If the residence was placed into the trust before the VA application and later sold by the trustee, the proceeds of the sale in that case would not jeopardize the Veteran’s eligibility for pension benefits. Should the Veteran need Medicaid benefits more than five years following the establishment and funding of the trust, the sum of money or property set aside to produce income for a named beneficiary (a.k.a. the trust “corpus”) will not be part of the Veteran’s Medicaid application, and thus it will not be a countable asset when applying for Medicaid.

What are the different roles for a Veteran Asset Protection Trust?

The Veteran is the grantor in this type of trust, and his or her children are the beneficiaries. The trust grants rights and duties to the trustee so that person may make discretionary distributions to the beneficiaries. It is also advisable to recommend to your elder law clients that their trust agreement also includes the appointment of a trust protector. This person is someone who your client would grant the power to remove and replace a trustee that is not acting in the best interest of the trust or its intended purpose.

Although the name doesn’t suggest it, the Veterans Asset Protection Trust is also an asset protection option that can be used in the Medicaid environment. It’s a good option for clients whose primary goal is Medicaid Asset Protection. This is particularly useful in states that have issues regarding grantor trust status, including Massachusetts and New Jersey.

What is the VA Net Worth Limit?

The Net Worth Limit is $159,240 (eff. Dec. 1, 2024 – Nov. 30, 2025). This figure increases annually as Social Security benefits are increased. The Net Worth Limit includes not only one’s assets, but also their annual income. Furthermore, if a Veteran is married, the income and assets of their spouse are also counted towards the Net Worth Limit. Prior to the 10/18/18 establishment of a Net Worth Limit, it was advised that a single Veteran or surviving spouse have assets no greater than $50,000, and a married Veteran, no greater than $80,000.

Assets include checking, savings, and money market accounts, mutual funds, and stocks. Some assets are exempt; they are not counted towards the net worth limit. This includes one’s primary home on up to 2 acres of land (acreage in excess of 2 acres will be counted towards one’s net worth), household goods, a personal vehicle, and personal items, such as clothing.

Annual income is calculated by multiplying one’s monthly income by 12. For example, if one receives $1,200 / month in income, their annual income is $14,400 ($1,200 x 12 = $14,400). Furthermore, some Unreimbursed Medical Expenses (meaning they are not paid for by insurance), can be deducted from one’s income, effectively lowering the amount of income applied towards their net worth. Abbreviated as UMEs, some examples include insurance premiums, in-home care, and assisted living / nursing home costs. UMEs must be more than 5% of one’s Maximum Annual Pension Rate and only the amount that is over 5% can be subtracted from one’s annual countable income.

What is the VA Look-Back Rule & How it Impacts Net Worth?

The VA Look-Back Rule, also called a Look-Back Period, is 36-months (3 years) in which the VA “looks back” on all asset transfers. The “look back” immediately precedes one’s VA pension application / pension claim and is intended to discourage Veterans and surviving spouses from gifting assets, including selling them for under fair market value, to meet the VA’s Net Worth Limit (assets + annual income) of $159,240 (eff. Dec. 1, 2024 – Nov. 30, 2025).

If assets were gifted during the “look back” and those assets would have caused one to be over the Net Worth Limit, they will be penalized with a Penalty Period of VA pension benefit ineligibility (up to 5 years). To be clear, gifted assets that would not have caused one to be over the Net Worth Limit do not violate the Look-Back Rule. Furthermore, the VA does not “look back” at transfers made prior to 10/18/18, the date the Look-Back Rule was implemented. Before this date, assets could be gifted at any time without any repercussions.

What if I Have Violated the VA Look Back Rule?

Violating the 36-month Look-Back Period can result in a Penalty Period of VA pension ineligibility of up to 5 years. However, there is a loophole for those in violation. If one gets their assets back prior to pension application, or within 60 days of VA determination that the Look-Back Rule was violated, the Penalty Period can be reconsidered. Even a partial recuperation of assets can result in recalculation of the Penalty Period. This means that the penalty can be reversed, either fully or in part, with the return of assets. Candidates concerned that they may have violated the Look-Back Rule may wish to consult with a VA Pension Planner.

Exceptions to the VA Look Back Period

If a Veteran or surviving spouse gifted assets or sold them for less than they are worth, but never had a net worth over the established limit of $159,240, they did not violate the Look-Back Rule. For example, say a Veteran has $100,000 in net worth (assets + income) and gifts $30,000. This leaves the Veteran with $70,000 in net worth. This transaction does not violate the VA’s Look-Back Rule, as the Veteran never had a net worth over the limit of $159,240. However, say a Veteran has $165,000 in net worth and gifts $25,000, leaving them $140,000 in net worth. This violates the Look-Back Rule since the Veteran had a net worth greater than $159,240 when the cash was gifted.

Another exception to the Look-Back Rule exists when Veterans or surviving spouses transfer assets in order to set up a trust for their disabled child. The child must have been deemed disabled and unable to support themselves before age 18. Furthermore, the assets cannot be made available to benefit the Veteran and /or their spouse, or a surviving spouse.

Veterans and surviving spouses are able to “spend down” their excess net worth without violating the Look-Back Period by spending assets on services and other items valued at fair market value. To reduce one’s net assets, purchases must be for non-countable assets. Examples include paying medical bills prior to qualification for VA benefits, pre-paying for a burial policy, buying a new vehicle, or even spending funds on a vacation.

What is the process to get started?

Call us or schedule time with one of our Legacy Builders. We will will walk with you through the entire process of gathering your data, getting your wishes on paper, creating the Trust, notarizing the trust, funding the trust, and administering the trust. Below is are contact information:

Christopher Moore

AFEPI Northwest

Office: 971-406-2194

Mobile: 971-207-9191

Web: https://afepinorthwest.com/

Email: [email protected]

Calendar: https://bookchrisnow.com/

Medicaid Asset Protection Trust F.A.Q.s

What are Medicaid Asset Protection Trusts (MAPT)?

Medicaid Asset Protection Trusts (MAPT) can be a valuable planning strategy to meet Medicaid’s asset limit when an applicant has excess assets. Simply stated, these trusts protect a Medicaid applicant’s assets from being counted for eligibility purposes. MAPTs enable someone who would otherwise be ineligible for Medicaid to become eligible and receive the care they require, be that at home or in a nursing home. Assets in this type of trust are no longer considered owned by the Medicaid applicant. MAPTs also protect assets for one’s children and other relatives, which is a win-win for Medicaid applicants and their families. Medicaid Asset Protection Trusts are also called Medicaid Planning Trusts, Medicaid Trusts, or less formally, Home Protection Trusts.

There are many different types of trusts and not all of them are Medicaid compliant. For instance, family trusts, commonly called revocable living trusts, are different from MAPTs. Generally, family trusts are not adequate in protecting money and assets from Medicaid because the language of the trust makes it revocable (meaning the trust can be cancelled or altered) or allows for money in the trust to be used for the Medicaid applicant’s long-term care costs. Therefore, assets in this type of trust would have to be “spent down” to meet Medicaid’s asset limit.

This page is about Medicaid Asset Protection Trusts. There are several other types of trusts that are relevant to Medicaid eligibility, but they will not be covered in this article. Irrevocable Funeral Trusts, also known as burial trusts, are generally used to protect up to $15,000 in assets for funeral and burial costs. There are also Qualifying Income Trusts, also called Qualified Income Trusts (QITs) or Miller Trusts. This is mentioned to avoid persons confusing MAPTs with QITs. While MAPTs protect one’s assets and allows them to meet the asset limit, QITs allow one who is over the income limit to become income-eligible for Medicaid purposes. Not all states allow QITs.

California Medicaid (Medi-Cal) eliminated their asset limit effective 1/1/24. Medicaid applicants can have unlimited assets, and therefore, Medicaid Asset Protection Trusts are not relevant for one to qualify for Medicaid.

Why Are Medicaid Asset Protection Trusts Important?

While each state runs its Medicaid program within federally set guidelines, there is “wiggle” room for each state to set its own rules within those larger guidelines. Generally speaking, the asset limit for an elderly individual applying for long-term care Medicaid is $2,000. This asset limit can be lower or higher depending on the state in which one resides. See state-specific asset limits. While some higher valued assets are usually considered exempt (uncountable), such as one’s primary residence, a vehicle, and wedding rings, too often applicants are still over the asset limit, but still cannot afford their cost of care. Therefore, any assets that exceed the asset limit need to be “spent down” or a planning strategy, such as a Medicaid Asset Protection Trust, needs to be put into place to help the applicant qualify for the care they require. Persons can utilize our Calculator to determine the approximate value of assets that must be spent down to become Medicaid-eligible.

How Do Medicaid Asset Protection Trusts Work?

To get a better grasp of Medicaid Asset Protection Trusts, one must understand the associated terminology. The individual who creates the MAPT is called a grantor, trustmaker, or settlor. There is also a trustee, who manages the trust and controls the assets within it. The trustee must be someone other than the trustmaker or their spouse, but can be an adult child or another relative. The trustee must adhere to trust rules, which are very specific as to how trust money can be used. For instance, it should be strictly prohibited for funds to be used on the trustee. A beneficiary is also named and is the person who will benefit from the trust after the trustmaker passes away. For the trust to be Medicaid exempt, the beneficiary must be someone other than the trustmaker. If the trustmaker were also the beneficiary, they would have access to the assets, and Medicaid would consider them available to pay for their care and supports.

The trust must be irrevocable for exemption from Medicaid’s asset limit. This means that the trust cannot be cancelled or changed. Once the assets are transferred into the trust, they no longer belong to the trustmaker, nor can the trustmaker regain ownership of them. If the assets are in a revocable (can be changed or terminated) trust, Medicaid considers the assets to still be owned by the Medicaid applicant. This is because they still have control over the assets held in the trust. Therefore, the assets are counted towards Medicaid’s asset limit.

MAPTs cannot be used to shelter or reduce assets if the applicant is immediately applying for Medicaid.

Planning well in advance of the need for long-term care Medicaid is the best course of action when considering a Medicaid Asset Protection Trust. MAPTs are not suitable for persons who need Medicaid immediately or within a short period. This is because MAPTs are a violation of Medicaid’s Look-Back Period if not set up at least 5 years before one applies for long-term care Medicaid. There are other planning strategies for those who need Medicaid currently or in the near future.

What are the benefits of a Medicaid Asset Protection Trust?

Putting assets in a Medicaid Asset Protection Trust not only allows one to meet Medicaid’s asset limit without “spending down” assets, but also protects the assets for the beneficiaries listed by the trustee. This means the assets are safe from Medicaid Estate Recovery. In simplified terms, when a Medicaid recipient passes away, the state in which the individual lived and received Medicaid benefits, attempts to collect reimbursement for which it paid for long-term care. This is done via the deceased’s estate. However, if one’s home and other assets are in a MAPT, the state cannot come after those assets.

What are the shortcomings of a Medicaid Asset Protection Trust?

Planning well in advance of the need for Medicaid, if at all possible, is the best course of action. Medicaid Asset Protection Trusts are ideal for persons who are healthy and don’t foresee needing long-term care Medicaid in the near future. This is because MAPTs violate Medicaid’s Look-Back Period, which immediately precedes one’s date of Medicaid application.

The “look back” is generally 60-months in all states. With California’s elimination of their asset limit on 1/1/24, there no longer is a Look-Back Period for transactions made on or after this date. New York is another exception and currently has no Look Back Period for long-term home and community based services. The state plans to implement a 30-month Look-Back Period no earlier than sometime in 2025. During the “look back”, Medicaid checks to ensure no assets were gifted or sold for under fair market value. For Medicaid purposes, the transfer of assets to a Medicaid Asset Protection Trust is considered a gift and violates the Look Back Rule. This results in a Penalty Period of Medicaid ineligibility. Therefore, a MAPT should be created with the idea that Medicaid will not be needed for a minimum of 5 years in most states.

Once the assets have been transferred to a MAPT, the trustee no longer has control or access to them. They no longer are considered owned by the individual.

Given the fairly expensive fees associated with the creation of a Medicaid Asset Protection Trust ($2,000 – $12,000), they are typically not used for assets less than $100,000. Should a family need to reduce one’s assets to qualify for Medicaid in amounts less than $100,000, there are other approaches.

What type of assets can go in an Asset Protection Trust?

Various assets can be put into a Medicaid Asset Protection Trust, including one’s home. When a trustee places their home in a MAPT, they can continue to live in it. It is even possible for the home to be sold and the trust purchase another one. There is one exception to this rule. In Michigan, a home is considered a countable asset when placed in a MAPT. This means the home is non-exempt and is counted towards Medicaid’s asset limit.

Other assets placed in MAPTS include real estate other than one’s primary home, checking and savings accounts, stocks and bonds, mutual funds, and CDs. In most cases, transferring retirement accounts (401k’s and IRAs) is not recommended due to tax implications with cashing out the plans and transferring them to a MAPT.

If income-producing assets are placed in the trust, the trustmaker is able to collect the income while the principal remains protected by the trust. However, Medicaid also has income limits, so it’s important that this income does not cause one to have “excess” income. In 2024, most states have an income limit of $2,829 / month for a single senior applying for long-term care. See income limits by state. When a Medicaid applicant is in a nursing home, income produced by the principal generally goes to the nursing home to help pay care costs.

What is the process to get started?

Call us or schedule time with one of our Legacy Builders. We will will walk with you through the entire process of gathering your data, getting your wishes on paper, creating the Trust, notarizing the trust, funding the trust, and administering the trust. Below is are contact information:

Christopher Moore

AFEPI Northwest

Office: 971-406-2194

Mobile: 971-207-9191

Web: https://afepinorthwest.com/

Email: [email protected]

Calendar: https://bookchrisnow.com/

Special Needs Trust F.A.Q.s

What is a Special Needs Trust?

A special needs trust is a type of trust designed to manage assets on behalf of individuals with special needs. The main purpose of a special needs trust (SNT) is to provide financial support for the individual’s needs without risking their eligibility for government benefits, such as Supplemental Security Income (SSI) or Medicaid eligibility.

The trust is typically established by a parent, grandparent, or legal guardian for the individual with special needs. Then assets are placed into the trust to be managed by a dedicated trustee. The trustee is responsible for using the assets to provide for the individual’s supplemental needs, which are expenses beyond what government benefits cover, such as education, rehabilitation, travel, entertainment, or special medical care.

By setting up a special needs trust, the individual with special needs can continue to receive government benefits while also benefiting from the assets in the trust. This is because the trust assets are not counted as income or resources for government benefit purposes. Additionally, the trust can provide peace of mind to the family or caregiver, knowing that the individual’s financial needs will be met in the future.

What is referred to commonly as a Special Needs Trust and on this website is a Third Party Trust (unless it is called a First Party Trust). A third-party special needs trust is a type of trust that is funded with assets that do not belong to the person with special needs. Instead, these trusts are typically created by a family member, friend, or other third-party individual who wants to provide financial support to the person with special needs without jeopardizing their eligibility for government benefits.

Planning for the future of someone with special needs is crucial to ensure that they receive the care and support they need throughout their lifetime. It can be difficult to think about the long-term future when you are focused on the day-to-day challenges of caring for someone with special needs, but planning ahead can provide peace of mind for both the individual with special needs and their loved ones.

What are the General Rules of a Special Needs Trust (SNT)?

In order to preserve your Supplemental Security Income (SSI) and/or Medicaid, CPT Institute must follow the three general rules below:

All disbursements from the SNT must be for the primary benefit of Trust Beneficiary - To protect eligibility for SSI and/or Medicaid, CPT Institute will only approve disbursements for the “primary benefit” of the trust beneficiary. See POMS SI 01120.203(B)(1)(e).

All disbursements from the SNT must be payable to a third party. Funds cannot be made payable directly to the Trust Beneficiary - Money directly given to the Trust Beneficiary will be considered as “unearned income”, which will reduce his/her SSI benefit on a dollar-for-dollar basis. See POMS SI 01120.200(E)(1)(a).

All disbursement requests from the SNT require receipts and/or invoices to process - As trustee, CPT Institute requires receipts, invoices, and/or other evidence to keep accurate records of all SNT transactions. The Social Security Administration Office (SSA) or the local Medicaid office may request copies of these records to verify that disbursements made from the SNT for the benefit of the trust beneficiary were appropriate. If unable to provide these records, it will be presumed that the disbursements were made inappropriately and the Trust Beneficiary will lose his/her eligibility for SSI and/or Medicaid.

Are All Special Needs Trusts the Same?

No. There are two types of special needs trusts: first-party and third-party. Both types ensure that trust assets benefit a beneficiary without giving them direct access to the funds. However, first- and third-party SNTs also feature a few important distinctions.

First-Party Special Needs Trusts:

Who funds the assets? A parent, grandparent, legal guardian, or court can create a first-party SNT. However, the trust assets originally belonged to the person with a disability.

Is there an age restriction? Yes. The beneficiary must be under 65 years old.

Can the trust terms be changed? No. First-party SNTs must be irrevocable. Once a grantor creates an irrevocable living trust, a grantor cannot change its terms.

What happens to the remaining funds? First-party SNTs are subject to a payback requirement at the beneficiary's death. This means that when the beneficiary dies, the government receives reimbursement for benefits provided to the beneficiary during their lifetime. The trustee can distribute the remaining trust assets after reimbursement according to the trust's terms.

First-party SNTs are sometimes called "self-settled SNTs" or "Medicaid payback trusts." They may be referred to as "(d)(4)(A)" or "(d)(4)(C)" trusts in reference to sections in the federal statute authorizing this kind of trust as well.

Third-Party Special Needs Trusts:

Who funds the assets? In a third-party trust, the grantor and beneficiary are different people. In other words, someone other than the beneficiary provides the assets in a third-party SNT.

Is there an age restriction? No. Benefit eligibility from a third-party trust is open to a disabled person of any age.

What happens to the remaining funds? A third-party SNT is not subject to a government "payback" requirement. According to the trust instructions, the trustee can distribute any remaining funds when the beneficiary dies.

Can the trust terms be changed? A third-party SNT can be revocable or irrevocable. If the trust is revocable, the grantor reserves the power to change the trust terms.

How Do Special Needs Trusts Protect Government Benefits?

SNTs supplement—not replace—government benefits provided to beneficiaries with a disability. For this reason, they are also known as supplemental needs trusts. SNT supplement needs Supplemental Security Income (SSI), which Medicaid does not cover. Please note Supplemental Security Income (SSI) is distinct from Social Security (SS).

Because eligibility for these public benefits is need-based, there are income limits. An individual with a disability whose total assets or monthly income are too high could be disqualified. If you leave assets to a loved one with a disability, there could be unintended consequences. Leaving them assets in a will or direct disbursements from a trust may disqualify them from these benefit programs by over-providing.

A well-formed SNT solves this problem in two ways. The trustee owns the trust assets. Thus, they are excluded when calculating the beneficiary's initial eligibility for government benefits. The trustee must maintain and use the trust assets to benefit your loved one with a disability. The trust terms must clarify that the trustee holds absolute discretion in achieving this goal.

Second, unlike most trusts, an SNT beneficiary does not—and cannot—receive direct disbursements from the trust. This protects the beneficiary's eligibility by ensuring their assets and income never exceed the disqualifying threshold.

When Are First-Party and Third-Party Special Needs Trusts Used?

A third-party SNT is straightforward. In this kind of SNT, a third-party grantor funds the trust, and the funds never belong to the beneficiary.

By contrast, the funds in a first-party SNT always belong to the beneficiary before being transferred to the trust. This situation may arise, for example, if an individual with a disability receives a large amount of money.

This could happen when the individual receives:

A large inheritance

Proceeds from a life insurance policy

A personal injury settlement

The sudden windfall might disqualify them from their government benefits. To avoid disqualification, the assets are set aside in an SNT.

There is an added benefit. Remember that a first-party SNT is always irrevocable. The beneficiary does not own or control the trust. Thus, if the beneficiary is sued, the plaintiff cannot touch the first-party SNT funds in an irrevocable trust. By contrast, a third-party SNT is only sometimes irrevocable. A revocable trust generally does not shield trust assets from creditors and court judgments.

Both kinds of SNTs accomplish the same goal. They ensure that an individual with a disability benefits from trust assets. At the same time, trust administration occurs in a way that does not disqualify them from need-based government programs. Both caregivers and family members concerned for the long-term well-being of a loved one with a disability typically set up an SNT. Again, the key difference is who provides the funds.

How does a Special Needs Trust (SNT) Beneficiary Receive Funds?

The trustee uses the trust assets to purchase necessities for the beneficiary.

Remember, an SNT beneficiary cannot control the trust assets or receive direct distributions. Direct distributions compromise their eligibility for need-based government benefits. Therefore, the SNT trustee receives full discretion to spend on the beneficiary. They can purchase health care products, other services, and supplies to supplement the beneficiary's government benefits.

This might include the following:

Personal care attendants

Vacations

Home furnishings

Uncovered medical expenses

Education

Vehicles

Physical therapy

Recreational activities

The beneficiary holds no sway over these purchases.

As in all trusts, the trustee is constrained by their fiduciary duty to manage the funds to benefit the beneficiary. The trustee of an SNT must be a person who will honor their duty. A breach of fiduciary duty can lead to serious legal consequences.

What is the process to get started?

Call us or schedule time with one of our Legacy Builders. We will will walk with you through the entire process of gathering your data, getting your wishes on paper, creating the Trust, notarizing the trust, funding the trust, and administering the trust. Below is are contact information:

Christopher Moore

AFEPI Northwest

Office: 971-406-2194

Mobile: 971-207-9191

Web: https://afepinorthwest.com/

Email: [email protected]

Calendar: https://bookchrisnow.com/

Take the First Step Today!

Don’t leave your future to chance. The decisions you make today shape the legacy you leave tomorrow. Our team of dedicated estate planning professionals is here to guide you through the process with clarity, care, and expertise. Whether you’re looking to protect your loved ones, preserve your assets, or minimize tax burdens, we’re committed to providing solutions tailored to your unique goals.

Here’s what you can expect from your complimentary consultation:

  • A Comprehensive Review of Your Needs: We’ll take the time to understand your financial and family situation, your goals, and your concerns.

  • Clear Explanations: Estate planning can feel overwhelming, but we simplify the jargon and outline your options in straightforward terms.

  • Tailored Strategies: Whether it’s asset protection, tax advantage accounts, or veterans’ trusts, we provide recommendations that align with your specific circumstances.

  • A Path Forward: You’ll leave with a clear understanding of your next steps and how we can support you in achieving your estate planning goals.

Why Wait? Your Future

Deserves Attention Now.

Don’t leave your future to chance. The decisions you make today shape the legacy you leave tomorrow. Our team of dedicated estate planning professionals is here to guide you through the process with clarity, care, and expertise. Whether you’re looking to protect your loved ones, preserve your assets, or minimize tax burdens, we’re committed to providing solutions tailored to your unique goals.

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Christopher Moore, Your Legacy Builder

Let’s Build Your Legacy Together

The best time to secure your future is now. Whether you’re just starting or need to refine your current plan, I’m here to help you navigate the complexities of estate planning and asset protection with care and expertise.

Why I’m Passionate About Estate Planning

Estate planning is about more than protecting assets—it’s about protecting legacies. As your trusted guide, I bring together my business acumen, leadership skills, and coaching expertise to help families and individuals across Oregon, Washington, and Idaho build a future of security, prosperity, and peace of mind. Whether you’re considering a revocable trust, irrevocable trust, veterans’ trust, or exploring tax-advantaged strategies, my goal is to empower you with clarity and confidence every step of the way.

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Email: [email protected]

Phone: 971-406-2194

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