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RayAnswers, Attorney
Category: Estate Law
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Experience:  Texas lawyer for 30 years in Estate law
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My parents requested a will and they want me to be both

Customer Question

My parents requested a will and they want me to be both indemnified and be able to pay for a defense from their estate as well as be indemnified if an action is brought against me in my roles as executor, trustee and fiduciary. We expect a challenge from my sister. My parents would like to add in that those roles can also pay for the defense from the estate in the really thorough indemnification paragraph really but the attorney won't do it. He says this other paragraph that is no where near to it in the will means I can pay for a defense from the estate "(o) To defend and pay any and all costs, charges, fees, taxes, interest, penalties or other expenses of the administration of my estate, in installments with interest if desired, and except as expressly provided in Article FIRST hereof or elsewhere herein, to charge the same against the income or principal, or partly against each, of my estate or any trust. " Does it?

Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.

I think this does allow you to be paid for any such defense.My only other suggestion would be for parents to put your name on accounts with right of survivorship so the funds go to you outside probate and not be held up in any will contest.This really is the way around any chance of them being frozen.Right of survivorship on the accounts means you get the money at time of passing and not through probate.

This would offer you additional protection since the funds do not depend on a will here and probate, etc.They can leave them to you directly.They can sign such a form at their bank.That way you have the funds to defend from the time of death and nothing sister can do about it.

Otherwise the will clause offers you protection and ability to reimburse.The risk here is that the will itself has to be found valid and free of undue influence and the deceased has to have capacity.The will itself has to be upheld.See if they would leave you some funds here with right of survivorship directly.

I appreciate the chance to help you today.Please let me know if you have more follow up.Thanks again.

Expert:  RayAnswers replied 1 year ago.

Survivorship accounts law here in Georgia..

http://durdenmillspc.com/estatesblog/2012/03/11/survivorship-accounts-is-it-yours/

This is a great way to leave you funds directly and not having to go through probate.

Customer: replied 1 year ago.

Please don't be offended but are you a estate planning lawyer? They do have beginning stages of alzheimers/dementia. Also was told maybe a medicaid trust was a good idea and or some loan program if the trust isn't in place

Expert:  RayAnswers replied 1 year ago.

Yes what follow up do you have here.Be happy to respond.The problem would not be with the clause but whether the will as a whole is admitted during probate.If the sister were to be successful in denying the will be admitted then the language would not have force.It is contingent on the will being admitted.If it is admitted and you do prevail then you can pay for the legal fees etc of the will contest.

But you may want to see if parent will put survivorship on accounts or deed land to you with survivorship on the deed such that it passes directly to you instead of through probate.It is an alternate way around probate for some of all the resources.

Again if you have more please just ask.

Customer: replied 1 year ago.

My sister is getting half (or half of whatever is leftover esp if a trust is created) However there is and most of the will centers around a supplemental needs trust that will spring into being upon each of their deaths. No beneficiaries are named nor remaindermen as such ( i mean it says my wifes name is ***** ***** childrens names are ***** ***** doesn't label them as beneficiaries) but the attorneys says the spouse is the beneficiary (because i was concerned over as trustee one of their passing but let's say one of the other beneficiaries needed care and had to use the estate)

Expert:  RayAnswers replied 1 year ago.

So the will can leave assets to the Special Needs Trust.This is usually done to protect benefits from the government while allowing them to receive assets .The trustee of the trust decides what the funds can be spent on.In my mind that reflects the parent gave this alot of thought and had capacity.It also makes a claim of say undue influence unlikely if the lawyer here prepared this, intereviewed the parents, prepared the SNT , etc.Lawyer and their staff probably witnessed and notarized the documents and would make great witnesses.

The parents can leave you dedicated funds through survivorship if they want to avoid probate and any challenges.I just suggested this as a another means to get you the funds you might need here and faster than having them pass under the will and probate.

The will as it is written appears to protect you adequately.The lawyer seems to have spent a good amount of time here preparing it.

If you want to have a second lawyer review this I would recommend a NAELA lawyer.They specialize in such trusts and medicaid and other benefits.National Association of Elder Lawyers.Doesn't hurt to have a second lawyer review all of this locally especially if medicaid is involved..

NAELA lawyer here locally.

https://www.naela.org/Public/About/Consumers/Find_An_Attorney/Public/About_NAELA/Public_or_Consumer/Find_an_Elder_Lawyer/Find_an_Elder_Lawyer.aspx?hkey=01d28480-72a3-4294-8d32-554931fc26b4

I hope this clarifies what I was trying to explain.

Customer: replied 1 year ago.

Thanks Ray but this didn't answer the question No beneficiaries are named nor remaindermen as such ( i mean it says my wifes name is ***** ***** childrens names are ***** ***** doesn't label them as beneficiaries) but the attorneys says the spouse is the beneficiary (because i was concerned over as trustee one of their passing but let's say one of the other beneficiaries needed care and had to use the estate) ie since wife not labeled as beneficiary couldn't this be an issue if let's say instead of wife my sisters kids needed the funds due to an accident etc.

Expert:  RayAnswers replied 1 year ago.

Here I am concerned that the SNT be named here.The SNT which is a different document normally names the beneficiaries of the SNT.It should reference that the assets are poured into the SNT and that wife here is beneficiary and children are residual beneficiaries or whoever they wanted to have the assets.

Again is seems prudent to have a second opinion here locally have another NAELA lawyer review it to see if it can be improved or clarified since you have a concern here.

Expert:  RayAnswers replied 1 year ago.

When there are existing SNTs a pour over will is used to pour over assets into the SNT here is an example.

http://pouroverwill.com/free-pour-over-will-form/

Customer: replied 1 year ago.

was also concerned that as trustee this means as also a beneficiary trustee can't get paid "


Notwithstanding anything to the contrary contained in this will, during such time as any current or possible future beneficiary of any trust created hereunder may be acting as a Trustee hereunder, such person shall be disqualified from exercising any power to make any discretionary distributions of income or principal to himself or herself

Expert:  RayAnswers replied 1 year ago.

Let me know if you have more here it is not a problem.Thanks .

Customer: replied 1 year ago.

Does this paragraph mean that the trustee that is also a beneficiary can't be paid?

"Notwithstanding anything to the contrary contained in this will, during such time as any current or possible future beneficiary of any trust created hereunder may be acting as a Trustee hereunder, such person shall be disqualified from exercising any power to make any discretionary distributions of income or principal to himself or herself"

Expert:  RayAnswers replied 1 year ago.

.

Customer: replied 1 year ago.

There is no answer here

Expert:  RayAnswers replied 1 year ago.

Did you have more follow up, I did not get it..please just ask..

Customer: replied 1 year ago.

I keep asking but guess it's not coming through. Does this mean a beneficiary that is trustee can't be paid?? Notwithstanding anything to the contrary contained in this will, during such time as any current or possible future beneficiary of any trust created hereunder may be acting as a Trustee hereunder, such person shall be disqualified from exercising any power to make any discretionary distributions of income or principal to himself or herself

Expert:  RayAnswers replied 1 year ago.

This was my last answer to your post..

ere I am concerned that the SNT be named here.The SNT which is a different document normally names the beneficiaries of the SNT.It should reference that the assets are poured into the SNT and that wife here is beneficiary and children are residual beneficiaries or whoever they wanted to have the assets.

Again is seems prudent to have a second opinion here locally have another NAELA lawyer review it to see if it can be improved or clarified since you have a concern here.

4 Sept 2015, 11:37 AM

Me

When there are existing SNTs a pour over will is used to pour over assets into the SNT here is an example.

http://pouroverwill.com/free-pour-over-will-form/

Let me know if you had more just repost it.

Customer: replied 1 year ago.

I keep trying but it's not coming up. It was the question about the provision which I also posted about the trustee not being paid if also a beneficiary - if I was reading that correctly.

Expert:  RayAnswers replied 1 year ago.

Thats a strange clause to not pay the trustee.It is legal but certainly not normal.It is normal to pay the trustee for their work.Anotehr reason to have a second opinion here about the will and the SNT--A NAELA lawyer to review it.This shouldn't be expensive but you have raised several red flags here and you are concerned so it makes sens to do so.

Customer: replied 1 year ago.

Did you see the clause I wasn't sure I was reading it right?


Notwithstanding anything to the contrary contained in this will, during such time as any current or possible future beneficiary of any trust created hereunder may be acting as a Trustee hereunder, such person shall be disqualified from exercising any power to make any discretionary distributions of income or principal to himself or herself (unless the discretion to make such distributions is limited by an ascertainable standard within the meaning of Section 2041(b)(1)(A) of the Internal Revenue Code), or to satisfy any of his or her legal obligations, or to make discretionary allocations of receipts or disbursements as between income and principal, or to make decisions with respect to tax elections or options the exercise or nonexercise of which could result in an enlargement of his or her beneficial interest hereunder. No Trustee who is a current or possible future beneficiary of any trust hereunder shall participate in the exercise of any powers of my Trustee which would cause such beneficiary to be treated as the owner of trust property for tax purposes.

Expert:  RayAnswers replied 1 year ago.

Thanks let me know if you have more.

Customer: replied 1 year ago.

1.Yes did you get the clause? I sent above it yes, does it mean the Trustee does not get paid if also a beneficiary? Please tell if you read the clause I enclosed in the last post and if I read that correctly?

2. Back to the other issue the language we wanted regarding not just indemnification of which there is a clause but to add this "My fiduciary, executor and/or trustee may employ and pay the compensation of accountants, attorneys, experts, investment counselors, custodians, agents and other persons or firms providing services or advice out of my estate in connection with any contest, or proceeding regarding and/or arising from the above (or arising from any related conflict) and/or due to their service as my fiduciary, executor and/or trustee." Does this language protect me better than what I showed you in the beginning regarding defense? The attorney won't add it and keeps saying just that I am already protected.

Expert:  RayAnswers replied 1 year ago.

That is correct the trustee doesn't get paid if they are a beneficiary.This is another reason to have this reviewed by another lawyer.That raises a red flag here, this is not normal, no one would do this for free.It really isn't fair for the trustee to do the work for free.

Customer: replied 1 year ago.

1.This is attorney is on this list!!

2.Also I asked for an explanation of this clause and he will not answer - is it usual and what does it mean?

(r) To act or refrain from acting in all respects as if financially uninvolved, regardless of any connection with or investment in any business or any conflict of interest between any fiduciary hereunder and my estate or any trust. No Executor or Trustee shall be disqualified or barred from exercising any power or discretion conferred by law or under this will because such fiduciary may be a shareholder, officer, director, member, partner or person in any way interested in a corporation, partnership or other person or entity affected by the exercise of such power or discretion. My Executor or Trustee may contract, in any manner that my Executor or Trustee shall deem advisable, with any such corporation, partnership, person or entity.

3. Regarding that non beneficiaries were named I asked the attorney "where does it state or how does it protect mom//dad if the trustee is responsible for paying out of the estate for any beneficiary that needs care and she is not defined as the beneficiary that the supplemental needs trust is intended for nor are the remaindermen specified " His answer -

Your surviving parent is the beneficiary of the trust, if the trust is needed--everyone else is a remainder beneficiary--nothing gets paid out to anyone else if the parent is the survivor. Remainder beneficiaries by definition do not have a claim against the trust until the primary beneficiary passes; only then, do they become a beneficiary able to take, rather than a remainderman.

Expert:  RayAnswers replied 1 year ago.

You would want to have another one do a second opinion review.It appears the original lawyer has elder law background but it never hurts to have a second opinion while you can correct it if needed.I still think having the trustee work for free really isn't fair to them.

Customer: replied 1 year ago.

Hi Ray, This is becoming an emergency situation and so I do appreciate your answers very much. I have put aside my life to deal with all of this.

Can you please answer the other part I asked about that showed the attorneys answer to my question?



Regarding that non beneficiaries were named I asked the attorney "where does it state or how does it protect mom//dad if the trustee is responsible for paying out of the estate for any beneficiary that needs care and she is not defined as the beneficiary that the supplemental needs trust is intended for nor are the remaindermen specified " His answer - THE ATTORNEY ANSWERED





Your surviving parent is the beneficiary of the trust, if the trust is needed--everyone else is a remainder beneficiary--nothing gets paid out to anyone else if the parent is the survivor. Remainder beneficiaries by definition do not have a claim against the trust until the primary beneficiary passes; only then, do they become a beneficiary able to take, rather than a remainderman


.






Expert:  RayAnswers replied 1 year ago.

Thats true here that the parent is the only named beneficiary, everybody else is a surivivor beneficiary.Here the trustee has discretion on what to pay for and what not.There are limits to SNTs and what they can be used for.There are a few things SNTs cannot be used for..

http://specialneedsanswers.com/what-expenses-cant-a-special-needs-trust-pay-for-13247

You need to know this because you can be sued for spending SNT funds for these..

Customer: replied 1 year ago.

Ok so then it's not a big issue that he did not specifically name the beneficiaries?

My concern was for eg dad passes and mom doesn't need the funds but my sister has become disabled - that I would have to use their estate to pay for her treatment. Could this happen due to not naming the beneficiaries?

Also it was not explained how this trust comes into being. the attorney said it just springs into being at time of first parents death.

Expert:  RayAnswers replied 1 year ago.

No it is not here an issue.It does come into being when one of them passes and the person named as trustee controls everything.To me they ought to be paid for their work.But that is the parents call.

Customer: replied 1 year ago.

I wasn't talking about the payment issue. I meant the not naming my mom or dad specifically as beneficiaries - at one point I thought you said it was an issue.

My concern was for eg dad passes and mom doesn't need the funds but my sister has become disabled - that I would have to use their estate to pay for her treatment. Could this happen due to not naming the beneficiaries?

Expert:  RayAnswers replied 1 year ago.

There should be a SNT document an actual trust that names the beneficiaries and the successor ones too.There should be two different documents.The will transfers assets to the trust.The SNT then owns the assets and trustee controls them for the beneficiaries here.Will should name the trust as the heir to the will.It is usually called a pour over will--the assets are poured into the trust.

Thanks for letting me clarify.

I do think having a second opinion is a good idea as there is a lot at stake and you have concerns .It would give you peace of mind.

Customer: replied 1 year ago.

1.There is no separate SNT document and attorney said it automatically in GA springs into being by the will. Please clarify on this.

As this was started months ago time has ticked away for my parents so what if there is more of a capacity issue due to both life, his not being close by but mainly going back and forth on not doing what he said he will?? I now worried that maybe only he will do it and on his terms. I need this wrapped up by next week.

Expert:  RayAnswers replied 1 year ago.

I think you should consider a second lawyer here to review the single document and see if it is lacking and needs correction.Anytime you have concerns this is the safe play while it can be corrected.You have raised several areas that are legitimate concerns.I hope you will do so to protect your parents and you.

Thanks again.

Customer: replied 1 year ago.

Really feel like this has become a desperate situation so would really appreciate an answer here to 1 and 2.

(The lawyers I have spoken with want a consultation and then for us to pay them to do their own will. Meanwhile this attorney may pursue my parents for what he has written. I agree with you on getting someone else if they will but time is ticking as I said.)

1.So before we pay several thousand to someone new can you please please just clarify this because it I am confused on your answers regarding 1.There is no separate SNT document and attorney said it automatically in GA springs into being by the will. Please clarify on this.

2.Also this attorney knew of my sisters hostility from the beginning. Now he is stating he thinks her hostility is affecting my parents health and he wants to do a guardianship. I had another lawyer suggest a no contest clause (I never even knew those existed until suggested) which I had to get him to put in there (and of course he is charging for those emails where I am asking for it and he is responding and then adding it). My question here is Don't you think that a non contest clause should have been in there with his knowing that there was a hostile beneficiary and a likely action from the get go?.

Expert:  RayAnswers replied 1 year ago.

It is possible here to draft a will and have it create a SNT.This is not normal but it might be possible to do so.I would have concerns because for one thing the trustee has to have knowledge of medicaid and ssdi/ssi limitations.Putting a person without that background in as trustee could have severe implications.If for instance trustee were to wriite a check to the beneficiary it could make them ineligible for medicaid or other programs.That would concern me about this will.Also SNTs have to have special language in the trust itself I do not see this present from what you present here.

These are the things you would be looking for here and might be lacking..

http://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/te_lewis.authcheckdam.pdf

This document is critical as it makes folks eligible for medicaid and ssdi/ssi or if something is worded improperly then ineligible.To me it is money well spent to verify that you have what you need here or correct it if not.If the first lawyer has a bad will or trust they can be sued for malpractice and reported to the state bar.

Customer: replied 1 year ago.

Thank you. Please answer about what I asked above re the non contest clause.

Expert:  RayAnswers replied 1 year ago.

Your parents would want to include a non contest clause.But to invoke it the will has to be admitted to probate as a valid will.Since the trust and will are one document again it i has to be validated and upheld in probate.But it is good to have such language in the will to lower chances of any contest later on.

Thanks again.

Customer: replied 1 year ago.

Oh so are saying it's better to separate the will from the trust language to hold up in probate?

Expert:  RayAnswers replied 1 year ago.

It would be easier to me to have two documents.Georgia allows one document called a springing trust from the will but overall two documents is easier.Thats why I thought you might want to have someone else review the will/trust.

Customer: replied 1 year ago.

Is more mental capacity needed for the will to be upheld that includes a trust?

Expert:  RayAnswers replied 1 year ago.

No really they would be equal.Court looks to evidence they knew what they were doing.Here it appears they went through some estate planning and lawyers make great witnesses to capacity here.

Customer: replied 1 year ago.

I don't think the lawyer not suggesting a no contest clause was great planning but I appreciate your opinion. I want to address some of these issues with him but have to pick and choose - if the capacity isn't different why would I try to get him to do it two separate documents ie what do you mean it's easier? please clarify.

Expert:  RayAnswers replied 1 year ago.

Well a SNT can be set up now rather than at time of death.Anyone can contribute to an existing trust, if this person were to inherit from other sources or other relatives want to gift her funds to the trust wouldn't affect her eligibility for ssdi/ssi, or medicaid.Those are just some of the reasons you would do it now and have a separate SNT.

Customer: replied 1 year ago.

by snt you mean testamentary or supplemental needs trust i think right. thats what this attorney is calling it. he recommended a medicaid trust (at first) which would be totally a separate irrevocable trust separate document and of course much more cost.

Expert:  RayAnswers replied 1 year ago.

Yes thats what I am referring too here.

Customer: replied 1 year ago.

Thank you.

Expert:  RayAnswers replied 1 year ago.

You are so welcome, good luck here.
If you can give a positive rating it is much appreciated..

Customer: replied 1 year ago.

Please clarify this last question re the article you sent and you will receive an excellent rating!

Expert:  RayAnswers replied 1 year ago.

It discusses SNTs and estate planning and the need for it.Here it can be a will with springing trust or stand alone SNT.Just good reference for you.Thanks.

Customer: replied 1 year ago.

My question for clarfication did not come through for some reason. Now I am concerned because my parents who are over 65 I think this would be a self settled trust since it is their will and estate/assets right ( or does the trust make it 3rd party?) This article says that would make this invalid?

"Special Needs Trusts Third Party Settled Special Needs Trusts are those to which assets are contributed by someone other than the beneficiary.33 Typically they are created by family members of persons with disabilities, naming the person with a disability as the beneficiary. They may be created by transfers during life (inter vivos trusts)34 or in a Last Will and Testament document (testamentary trusts).35 As long as the beneficiary does not have the legal authority to revoke the trust or direct the use of the trust assets for his or her own support and maintenance, the trust principal is not considered to be the beneficiary’s resource for SSI and Medicaid purpose." "Further, due to the age restriction, if the beneficiary is 65 years of age or older it would be impossible to establish a self-settled SNT." So is this a) self settled and b) invalid????

Expert:  RayAnswers replied 1 year ago.

Your parents may be too old for a Special Needs Trust here.They have to be 65 and under if the goal here is to make them medicaid eligible.

Reference to the age limits.http://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/te_lewis.authcheckdam.pdf

Normally the parents do this if their child is disabled..

.

Expert:  RayAnswers replied 1 year ago.

A self-settled trust is a type of irrevocable trust in which the grantor is also the primary beneficiary. To maximize the trust's usefulness in protecting the grantor's assets, its structure must prohibit the grantor, or his or her creditors, from accessing trust assets. Here this would be the alternative if they are 65 or older.You may want another lawyer to review this, another potential issue.

Customer: replied 1 year ago.
Oh I understand and why I brought it up. The attorney said this is a testamentary trust/ supplemental needs trust not a special needs trust and would accomplish getting them eligible for Medicaid .Is this possible?
Expert:  RayAnswers replied 1 year ago.

If they were under 65 when the trust was signed here.

Customer: replied 1 year ago.

There is no trust - it is part of the will which has not yet been signed. They were well over 65 when they first saw him.The attorney is stating we must do it this week because we saw him a few months ago (paid him his high consultation fee but not yet for the will) and he is playing the testamentary capacity card saying we need to do it this week due to that. I do feel bullied by him. I know we need to do something this week as time is ticking for my parents - will go to another attorney but everyone I spoke to wants to do the will not just look at the one he drafted. Then they would have to pay for two wills? He has now charged double just for my questioning items I have brought to your attention. No bill yet received and also don't recall them signing a contract. My parents have not yet paid for the will (that includes this snt) and hence how I feel bullied that they need to do it this week.

Anyway,regarding the springing snt


The attorney we saw said this is a testamentary trust/ supplemental needs trust not a special needs trust and would accomplish getting them eligible for Medicaid .Is this possible?
Expert:  RayAnswers replied 1 year ago.

Supplemental needs/special needs trust are the same thing.It is only going to make them eligible for medicaid if they are under 65 when they created it and funded it.Otherwise you need to seek other shelters.Again have a second lawyer review all of this.

Customer: replied 1 year ago.

I will but feel terrible about it all. What if another lawyer says they lack the capacity now like he said they might?? I don't think it's right to have to pay for a will that is doesn't have the clauses in it they need do you? I don't want to pay for two wills (and they haven't paid for his yet but he probaby will bill and try to sue them/me)

He is listed as an elder lawyer in NAELA it makes no sense that he wouldn't know that all of that springing testamentary trust language (which is most of the will) to hold medicaid at bay is the same thing as the snt for those 65 and under and yet still use it plus for him to say it's not the same thing.

Expert:  RayAnswers replied 1 year ago.

Thats all you can do here, sue if there was malpractice , hopefully they still have capacity.Thanks and good luck to you.

Customer: replied 1 year ago.

He is listed as an elder lawyer in NAELA it makes no sense to me at all that he wouldn't know that all of that springing testamentary trust language (which is most of the will) to hold medicaid at bay is the same thing as the snt for those 65 and under and yet still use it plus for him to say it's not the same thing.

Expert:  RayAnswers replied 1 year ago.

Yes there are lots of questions here about the will and related items. I hope you are able to get answers from a second lawyer and resolve all of this.

Customer: replied 1 year ago.

Here was the language in the will we were discussing so maybe I got what I asked you wrong:


THIRD: Notwithstanding any other provision in this will, if any beneficiary under this will, including any beneficiary of any trust created under this will, is or shall become disabled or incapacitated, institutionalized, and/or shall be receiving nursing or other care in the home of the beneficiary, in a nursing home, or on an out-patient basis, thereby entitling the beneficiary to public benefits such as Medicaid or Supplemental Security Income, or my Executor or Trustee reasonably shall anticipate that the beneficiary may need such public benefits in the foreseeable future, the share to which said beneficiary (hereinafter referred to as the "Beneficiary") is entitled instead shall be distributed to my Trustee, IN TRUST, to hold the same as a separate trust for the benefit of the Beneficiary in accordance with the following provisions of this Article THIRD.



(a) My Trustee shall hold, manage, invest and reinvest the trust assets, shall collect the income therefrom and, after deducting all charges and expenses properly attributable thereto, shall apply for the benefit of the Beneficiary, at any time and from time to time, any part or all of the net income and/or principal of this trust as my Trustee shall deem advisable, in the absolute discretion of my Trustee, subject to the limitations set forth below. Any income not so paid or applied shall be accumulated and added to the principal of this trust at least annually.



(b) It is my intention to create a purely discretionary supplemental needs trust. I intend that the trust assets be used to supplement, not supplant, impair or diminish, any benefits or assistance of any federal, state, county, city or other governmental entity for which the beneficiary may otherwise be eligible or which the beneficiary may be receiving. Consistent with that intent, it is my desire that, before expending any amounts from the net income and/or principal of this trust, my Trustee shall consider the availability of all benefits or assistance under governmental or private programs for which the Beneficiary may be eligible and that, where appropriate and to the extent possible, my Trustee shall endeavor to maximize the collection of such benefits or assistance for the benefit of the Beneficiary.



(c) None of the income or principal of this trust shall be applied in such manner as to supplant, impair or diminish benefits or assistance of any federal, state, county, city or other governmental entity for which the beneficiary may otherwise be eligible or which the beneficiary may be receiving. The Trustee shall not make any distribution to or for the benefit of the Beneficiary if such distribution would reduce or eliminate any governmental entitlement or payment which the Beneficiary would otherwise receive.



(d) No judge or court shall have the power to order the invasion of principal in contravention of the provisions of paragraphs 2 and 3 above. This provision is intended to negate and eliminate any discretion granted by any applicable law. All provisions of this trust shall be interpreted to conform to my primary goal that any governmental benefits or assistance that otherwise would be available to the Beneficiary if this trust did not exist will in no way be reduced, diminished, altered or denied.



(e) The following are examples of the kind of supplemental, nonsupport disbursements that may be appropriate for my Trustee to make for the Beneficiary: medical, dental, rehabilitative and diagnostic work or treatment for which there are no private or public funds otherwise available; supplemental nursing care; differentials in the cost between housing and shelter for shared and private rooms in institutional settings; care appropriate for the Beneficiary that assistance programs do not otherwise provide; and expenditures for travel, companionship, cultural and educational experiences. It is my desire that the Beneficiary enjoy the therapeutic benefits of education, vocational training, hobbies, vacations, modes of transportation, equipment, visitation with family and friends, and other needs and/or luxuries the Beneficiary may have to enjoy life to the fullest. Subject to the restrictions and limitations set forth in the preceding paragraphs of this Article, my Trustee may use the principal and income of this trust for these types of purposes and such other purposes as my Trustee may deem appropriate.



(f) The Beneficiary shall not have any right or power to assign, encumber, direct, distribute or authorize distribution from this trust. The Beneficiary has no entitlement to the income or principal of this trust, except as my Trustee, in the complete, sole, absolute and unfettered discretion of my Trustee, may elect to disburse. In this regard my Trustee may act unreasonably and arbitrarily as I could have acted if living and in control of these funds. The discretion of my Trustee in making nonsupport disbursements as provided in this will is final as to all interested parties, including all federal, state, county, city or other governmental entities, even if my Trustee shall elect to make no disbursements at all.



(g) With the consent of my Trustee, any person may add property to this trust, by assignment, gift, transfer, deed or will, and any property so added shall be held, administered and distributed under the terms of this trust.



(h) My Trustee from time to time may consult with an attorney with appropriate expertise in the area of public benefits and trust law to review applicable legislation, regulations and requirements so that the public benefits eligibility of the Beneficiary is not jeopardized by the actions of my Trustee. The cost of such attorney shall be paid by my Trustee from the trust assets.



(i) Subject to the restrictions and limitations set forth in the preceding paragraphs of this Article, upon the death of the Beneficiary my Trustee may pay all or part of the funeral expenses of the Beneficiary and expenses relating to the distribution of the remaining trust assets as my Trustee shall deem advisable, in the absolute discretion of my Trustee. My Trustee may consider whether other satisfactory provisions have been made for such expenses.



(j) My concern is to provide for the Beneficiary and I am not concerned about preserving assets for the remaindermen of this trust. Upon the death of the Beneficiary, all remaining principal and income of this trust shall be paid and distributed as follows: The remaining principal and interest shall be distributed to whomever the Beneficiary may appoint in the last will and testament of the Beneficiary, or if there is no specific reference to this supplemental needs trust in the last will and testament then to the beneficiaries of the residuary estate under said last will and testament, or if the Beneficiary does not have a last will and testament then to those heirs of the Beneficiary and/or my heirs, in such proportions and amounts, as my Trustee may elect.



(k) If the existence of this supplemental needs trust adversely affects the qualification of the Beneficiary for public entitlements or private support benefits, my Trustee may terminate this trust. If this occurs the remainder interest will be accelerated and all principal and income remaining in the trust shall be paid and distributed as provided in the preceding section. In the event of such a voluntary termination of this trust, it would be my hope and expectation that the remainder beneficiaries would continue to provide for the nonsupport care of the Beneficiary of this trust; however, this request is an expression of my wishes and is not binding on the remainder beneficiaries.

Expert:  RayAnswers replied 1 year ago.

Bye now.

Customer: replied 1 year ago.

THE ATTORNEY SAID YOU ARE NOT GIVING THE RIGHT INFORMATION ON WHETHER THE TRUSTEE BENEFICIARY CAN BE PAID NOR THE SNT PLEASE READ ON for his answer:

"1.--The referenced code in 2014(b)(1)(A) still provides for discretionary distributions to a Trustee who is a beneficiary for "health, education, maintenance, and support". That's incredibly broad--see what I wrote in the last version--its taken care of. Don't do the other stuff that's named and you avoid the tax issue.

as to 2.--the SNT is specifically designed TO provide for their eligibility for Medicaid, if necessary. It IS NOT a self-settled SNT (also known as a D4A trust), as it is testamentary. Self-settled trusts are intervivos trusts, not testamentary. This is not self-settled.

Why do a SNT in advance if its not needed? If its needed, yeah sure do it now, and be prepared to pay for it. Self-settled SNTs are EXPENSIVE!

I do testamentary SNTs as a matter of course and they are routine for me. Done them that way for some time now; strikes me that the commenter is not comfortable or is unfamiliar with testamentary SNTs - they are NOT the same as special needs trusts. .

Expert:  RayAnswers replied 1 year ago.

I do not have the benefit of seeing the trust.I can only give you information and reference on what you have asked.I have tried to do this on multiple follow ups.I am going to opt out here and leave this for a second opinion from other experts.

Again I ask you not to rate other experts will pick this up.Thanks for your patience.

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