Loud and Clear: A Special Needs Conversation

Terminating a Special Needs Trust

By Charlene K. Quade, Esq.

Individuals establish special needs trusts (SNTs) to protect assets intended to supplement means-tested government benefits for a sole beneficiary, and to preserve the individual’s eligibility for such programs. SNTs exist in the form of first party, first party pooled, third party, and third party pooled trusts. First party and first party pooled trusts hold assets belonging to the beneficiary. Third party SNTs hold the assets of anyone but the beneficiary. Pooled trusts are administered by a nonprofit that combines multiple sub-accounts for investment and management efficiency, while standalone trusts are handled by a selected trustee. It’s critical to understand the funding of an SNT when contemplating termination.

Once established, SNTs are irrevocable and may terminate either with the death of the primary beneficiary or in the event of specific circumstances. For example, an SNT may terminate during the lifetime of the beneficiary when one or more of the following conditions exist:

  • a change in law or eligibility for benefits;
  • improvements in ability to engage in sustainable gainful activity so that beneficiary no longer meets disability criteria;
  • SNT no longer holds funds sufficient to justify the costs of administration.

Each SNT must contain well drafted terms detailing the complicated process of dissolution.

SNT Termination Upon Death

When the beneficiary passes away, the trustee must pay final expenses and taxes and satisfy liens against the SNT before the trustee makes distributions to remaining beneficiaries. In the case of first party SNTs and first party pooled SNTs, the trustee must reimburse state Medicaid for services rendered throughout the individual’s life. In stark contrast, the law does not subject a third party SNT to a Medicaid lien upon termination. The order in which the trustee satisfies the various obligations differs by state law governing Medicaid. In situations requiring satisfaction of a Medicaid lien, the trustee should request a listing of expenditures from the Medicaid agency in each state that provided services to the beneficiary and follow the precise process for managing the reimbursement to the Medicaid programs of the state(s) involved.

Remainder Distributions

In SNTs holding assets other than cash, it may take considerable time to satisfy these liens. However, once complete, there may be considerable funds remaining. In those instances where the SNT exists under court supervision, the trustee must draw up a final account and obtain court approval before making further distributions. Notably, many pooled trusts require that assets left in a sub-account be retained by the umbrella trust to cover administrative costs. In contrast, standalone SNTs name residual beneficiaries–individuals, classes of beneficiaries (surviving siblings, for example) or charities to receive remaining funds. The precise process differs depending on the type of residual beneficiaries designated. In some cases, identifying and locating unnamed beneficiaries may take additional time and resources. In addition, if any of the residual beneficiaries include minors or individuals with disabilities, trust language may arrange for the trustee to continue managing the funds for their benefit in a new trust.

Terminating SNTs Prior to Death

But what if facts and circumstances support the termination of the SNT prior to the beneficiary’s death? Government regulations require that the decision to close the trust must be made by someone other than the beneficiary and that termination benefits no one other than the beneficiary. Facts and circumstances may support the continuation of the SNT, even if the beneficiary no longer receives, or remains eligible for, public benefits. For example, the beneficiary may require assistance in managing finances, or it may be wise to protect those assets from creditors. If terminating the trust is the best course of action, final expenses, taxes and Medicaid liens must be satisfied prior to distributing the remaining assets to the beneficiary.

SNTs provide a significant benefit to the beneficiary and support an excellent public policy of providing for individuals with disabilities, but the termination of the SNT can be complicated. To avoid violation of law and trustee liability, consultation with a special needs attorney remains the best way to ensure the process goes smoothly.

Posted: April 14th, 2017 | 11 Comments »

11 responses to “Terminating a Special Needs Trust”

  1. My SNT was revoked by 2 siblings when my father passed and mother had severe dementia. It was a 6 million dollar family trust in 2009 and now my siblings tell me “there’s no money left” yet multiple properties have been sold and my SNT was never funded.

  2. Emilee N Neher says:

    Can u help me I have a irravicable special needs trust the lawyer tells me I can move. The only way I am doing anything with get it moved is if the bank sing off on it. I think this is stupid. As mush as my boyfriend is for boyfriend is to pay rent. Pluss it’s a small town and everyone and u can’t get no were. I want this trust thang to me gone it is killing our life the bank went through my underwear drawer and told me to fold tolws in the closet. I jest want my home and to have my family what do I do.

  3. anonymous says:

    I have so many questions. I am wondering if a minor who has a snt set up by the courts from a malpractice lawsuit will be able to stop it when they become an adult. I also do not understand what happens when a child doesn’t qualify for benefits from SSI because parents income is over the income brackets? Is there someone or a company who can answer questions directly besides Lawyers?

    • There are many banks and trust companies who handle Special Needs Trusts and may be a good resource for you if you are looking for non-legal advice. I am a Trust Officer with American National Bank and specialize in Special Needs Trusts. I would be happy to speak with you regarding your questions, but depending on your end goals you may indeed need legal counsel.

  4. Diane says:

    I am a 68 year old female from NYC.
    I’ve had a an the SNT since 2005. The funds are
    down to about $200. No longer use it. Been receiving Medicaid service since 1990. Doctor visits and
    medications. I no longer care to have medicaif.
    But I will have Medicare and advantage,
    But I wondering if I inherit money will I have to pay
    back Medicaid? Or will they try and take my money?

  5. Nancy Awbrey says:

    I am a 59 year single female and I need some answers. I worked 25 yrs in Dentistry when I became physically disabled and received SSDI in 2010. Why would I need a trust like this set up? It seems my mother her new husband set up a trust for her/his adult children and “robbed” us of our properties, I never signed anything! I have no rights, no information, and am living “extremely low-income”, unable to pay for a doctor visit and the deed to my modest home I had paid for from working all my life, was in my diseased father’s safe along with the title to my car purchased with $44,000 back-pay which was “stolen” from me! How do I get some info about this so-called special needs trust? I am isolated, and without anyone to tend to my so-called “special needs”! My mother lives in a mansion and who I thought was just a dumb acquaintance in the village I have been forced to live in due to lack of funds or deed to my home may have appointed herself a “guardian”, driving a brand-new mercedes benz and slandering my name and sabotaging any relationships I had! I am not the only one! How can this happen to normal, hard-working adults like my step-brother, my diseased step-sister, my brother whom I suspect is dead too and (what goes around comes around) now dead stepfather, her partner in crime of stealing benefits to line their own pockets! It is a shame for these criminals to take advantage of this “Special Needs Alliance” with parents that truly set up these trusts to protect the future of their disabled children! I cannot even afford medical attention! I never applied for SSI, food stamps and I suspect my home is under Section 8 HUD! I had to pay my Medi-Care premium for 2 months and did all the paper-work & spent the day at Human Resources to have that paid for & was eagerly awaiting due to receiving official papers from SS for re-imbursement of my “chump-change” while I did without food! Well, someone due to fraud & forgery received that too! Any suggestions on getting to the bottom of this rabbit hole? I was so sick, had surgery, even had hospice for a month and no transportation! I was a well-adjusted, attractive, social & professional woman (still am, chuckle) and my life, career, finances,family, home and a future were stolen from me by my mother who I trusted! Desperate & distressed in New Mexico the “land of entrapment”! I had lived & worked in Houston Tx for 16 years until I was “entrapped” by my mother to feed her never-ending, never-enough greed and control…Sad state of affairs

  6. Kimberly Clouse says:

    I’m the trustee for a friend’s special needs trust. I’m no longer able to continue working in that function. How can I terminate my position?

  7. James says:

    My brother and I were left money (stocks) in a SNT. I am physically disabled and my brother had some mental issues, so he was considered mentally disabled. Recently he lost his SSDI and health benefits because Social Security deemed him no longer disabled and removed his benefits. So, since he is no longer considered disabled and no longer receiving Social Security payments, is he still bound by the rules and restrictions of the SNT or can he demand the right to take control over his stocks from the trustee?

    • Judy says:

      I administer a SNT for a family member. In my little bit of understanding SNT’s, I believe once you no longer receive any SSDI or any governmental support (as a reminder, it’s not ONLY SSDI or SDI or even Medicare or if in CA, Medi-Cal that prevent a person from receiving their full inheritance and ability to control their money themselves, there are other circumstances also, so it’s not a simple thing. There are many rules that are to be followed), you may have the trust dissolved and receive your money. I recommend that he not “demand” but instead speak with his trustee. Most trustees are honest people trying to help the beneficiary. Since he no longer receives any help from the government, he will need to show proof of this fact to his trustee. Once he sends a copy of any proof, if the trustee balks at helping to get him the remainder of his inheritance, I would recommend finding an attorney. Also, the beneficiary can legally remove a trustee, however the beneficiary CANNOT appoint a replacement trustee. But the trustee can help find him another. If by doing this he has another trustee willing to help him dissolve the trust, that might be a way to go also.

  8. James says:

    my name is James i have one simple question that seem never been answer after consulting with many attorney, they explain that is unusual to terminate a SNT while the person is still alive regarding with special need need trust. so The question i have is, can i terminated a special need trust with medicaid buy back while with out medicaid coming after the trust? i do not want to terminated the trust and get a bill from medicaid saying that i have to pay them back… back then i was sick but now a lot of circumstance have changed and i became more functional and been seeking to terminate the trust but my only concerned is that if i pursuit this road, i need to know that if medicaid will come after the trust? it state that i would have to pay them upon on death of Beneficiary (me),

    so the question is, will medicaid come after the trust if i terminated the trust if the beneficiary (me) still alive?

Leave a Reply

Your email address will not be published. Required fields are marked *