Thank you Chris and feel better!
I can place them both here even though one is a follow up for clarification from a past question if that is ok.
1. It's getting to be an emergency situation possibly because the attorney is playing the capacity card of my parents. Maybe they won't be able to sign another will unless with him per him.
1. Am I reading this clause correctly that a 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 (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."
2.a Most of the wills pages revolve around a supplemental needs trust but the the beneficiaries are not listed per se and neither are the remaindermen (although asked it was never explained to me what my responsibilities if I take on all those roles would be too just btw) My example I gave him was what if my dad dies but my sisters kids needs the assets of the estate/trust because of a dire situation. Actually my question to him was
"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"
Attorney's answer that wrote the will "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."
2b. You and I touched on this and you gave me a link but it doesn't work however I need to ascertain whether or not (because that was not clear in one of the last questions I asked you) if the testamentary supplemental needs trust part of the will (springing trust) would be valid and protect either of my parents from not being able to obtain medicaid since they were way over 65 at the time of the consultation a few months ago. The attorney is stating that the SNT he has written is a testamentary trust
and doesn't have the 65 yr old limitation. Or are they really the same thing? I can supply the language of the will if that would help but don't want to overwhelm you without first getting your answer.
For more infoI 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?http://elderlaw-lacey.com/articles/Special-Needs-Trusts-Ruthann-Lacey-GA-Bar-Journal-10-10.pdf
"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????