Question: I have three sons and one is disabled. Should my Will leave everything to my other two sons so that my disabled son does not lose his government benefits when he receives an inheritance? I am sure my other two sons will always take care of him.
Answer: There is no reason to disinherit your disabled child. Chances are that your disabled son will certainly need the inheritance when you die. You should provide for that son in your Will. Even if your non-disabled children have good intentions, many circumstances may arise in their lives that could directly affect their ability to provide for your disabled child. For example, if either son gets divorced, predeceases you, or has creditor issues, the disabled child’s share would be at risk. Even worse, what if your other sons predecease your disabled son?
The best way to protect your disabled son’s government benefits, such as Supplemental Security Income (SSI) and Medicaid benefits, is to leave his share in a Supplemental Needs Trust for his benefit. The terms of this trust would be stated in your Will and created upon your death. The trust specifically forbids the trustee from dispensing any benefits to the disabled individual which would jeopardize his SSI or Medicaid benefits.
The Supplemental Needs Trust assets can be used to enhance and enrich the lifestyle of the disabled individual making it unnecessary to disinherit and/or impoverish the individual for purposes of maintaining crucial government benefits. This type of trust is meant to supplement rather than supplant government benefits. The trustee may not make any direct payments to the disabled person and may not use the funds of the trust to pay for anything that the government benefits already provide. All distributions from the trust have to be made to the provider of services, not outright to the disabled person. For example, the Supplemental Needs Trust can pay for summer camp, a computer, car service, clothing, a vacation or a van. This greatly improves the disabled person’s life without the loss of necessary government benefits.
A trust created in your Will, would be a third-party Supplemental Needs Trust. This means that the funds used to create the trust would never be considered the disabled individual’s own funds. Upon the disabled person’s death, the balance in the trust can be distributed to anyone that you, as the creator of the trust, name as a contingent beneficiary.
If you have a child with any level of disability, you should consult with an attorney who is well versed in the area of special needs planning to further discuss the benefit of leaving that child’s inheritance in a Supplemental Needs Trust in your Will.
By Nancy Burner, Esq. & Britt Burner, Esq.