How the Phrase “Other Obligations” Made Special Needs Trust Invalid Christopher W. G was denied Supplemental Security Income when his conservator initially filed an application on January 25, 2022. Reconsideration was denied on August 17, 2022. The conservator requested a hearing which was conducted on June 6, 2023. After the hearing, “the ALJ issued an […]
Blog
In North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, the U.S. Supreme Court was asked to review North Carolina’s attempt to tax an out-of-state trust. Justice Sotomayor, writing for a unanimous court, said the case was about the limits of a State’s power to tax a trust. “The North Carolina […]
What is Form 1041 used for? If an estate or trust has gross income of $600 or more during a tax year, it must file a tax return. The fiduciary of a domestic decedent’s estate, trust, or bankruptcy estate uses Form 1041 to report: The income, deductions, gains, losses, etc., of the estate or trust; […]
IRS Form 56 is used to notify the IRS of the creation or termination of a fiduciary relationship under section 6903 and provide the qualification for the fiduciary relationship under section 6036. Form 56 cannot be used to update the last known address of the person, business, or entity for whom you are acting. Use […]
Many people think that estate planning is just having documents prepared. They have a lawyer prepare a Will, get it signed and they’re done. As Lee Corso says on Game Day, “Not so fast!” The hardest part of stepping into someone else’s shoes, whether its as an agent under a power of attorney, or as […]
If called upon to determine the meaning of a trust, or to resolve some ambiguity, Court look for the intent of the Settlor. As stated in Strange v. Towns, “The cardinal rule in construing a trust instrument is to discern the intent of the settlor and to effectuate that intent within the language used and […]
The following sample language comes from a trust that was drafted years ago, however it remains useful in understanding issues to consider when drafting trusts: Appointment of Trustee. During my lifetime, [TRUSTEE] shall act as the sole Trustee of all trusts created in this agreement, with the full powers, duties and responsibilities as set forth […]
One of the most important tasks when creating a trust is selecting the trustee. You can have the best trust ever written, but if the trustee doesn’t follow the trust agreement, or worse, if the trustee intentionally violates the terms of the trust, then you’ve failed. There is a saying that you should not let […]
In Hammerberg v. Department of Human Servs. (Minn. Ct. App. 4/22/2024), the State made an estate recovery claim against what appears to have been an income only trust. Very little of the trust language appears in the decision, but the “trust instrument required the trustee to pay all income derived from the trust to the” […]
The amounts below are the estate tax exclusion amounts as provided by the IRS. Unless Congress takes action, in 2026, the exclusion amount will revert to the pre-2018 level ($5,490,000, adjusted for inflation) per deceased person. You can, however, use your exemption now. On November 26, 2019, the IRS clarified that individuals taking advantage of […]
Gun trusts were developed so gun owners can pass their firearms to beneficiaries or heirs at death (or disability) without creating unintended legal problems. Some people (e.g., convicted felons) are not allowed to own guns. Some weapons require a specific license. The trust is intended to prevent beneficiaries who are not allowed to own guns, […]
Medicaid’s “Any Circumstance” Test for Trusts In case you missed the memo, Medicaid doesn’t like trusts. The rules relating to trusts you create with your money or property are found at 42 U.S.C. § 1396p(d). To put this discussion in context, we’ll begin with the sections relevant to the “any circumstances” test, but the full […]
SNT Trustee Ordered to Reimburse Some Conservator Expenses In Weidner v. Stevenson (Cal. App. 2nd Dist. May 13, 2024), Roberta Davis established a special needs trust inside her living trust for her disabled adult son, Daniel. Daniel was under a conservatorship. Daniel’s aunt, Charlyne, was the successor trustee of the trust after Roberta’s death, while […]
In Agency for Health Care Administration v. Spence (Fla. App. 3rd Dist May 22, 2024) the Court of Appeals reversed a probate court order authorizing distributions from a special needs trust without first reimbursing the Medicaid agency. Ryan Spence was a disabled child adopted by Kathleen Spence. After Spence was killed, a settlement agreement allocated […]
When someone accepts the position of trustee, he (or she or it) must act for the benefit of the trust and its beneficiaries. In Bates v. Howell (Ga. App. 2019), Emily Howell decided that the trustee of her aunt’s trust breached his duties. She then went to court without giving anyone else notice (an ex […]
On November 28, 2023, the IRS Office of Chief Counsel published a memorandum addressing whether modification of an irrevocable grantor trust to add a tax reimbursement clause not previously in the trust constituted a taxable gift. The IRS concluded that it does constitute a taxable gift by the trust beneficiaries because the addition of a […]
The federal Medicaid statute authorizes the use of individual self-settled special needs trusts for individuals under the age of 65. See 42 U.S.C. § 1396p(d)(4)(A). It also authorizes any applicant, regardless of age, to establish a self-settled pooled special needs trust sub-account. 42 U.S.C. § 1396p(d)(4)(C). An open question not addressed in (d)(4)(C) is whether […]
Recently we received a document we haven’t seen before which informs Medicaid recipients that their special needs trust accounting was approved. Obviously, there is probably a different form telling some individuals that their accounting was not approved, but we haven’t seen that form yet. The new form is below:
Recently the Special Needs Alliance published a new handbook for individuals with disabilities and their advocates. The SNA states: “The intent of this handbook is to explain some of the terms related to services and supports for people with disabilities, to introduce the process of transitioning from child services to adult services, and to provide […]
Warren Buffett The following video clips are from Berkshire Hathaway Annual Meetings where Warren Buffett fielded questions regarding estate planning: 2013 Annual Meeting: 2023 Annual Meeting:
Sometimes you just have to say No “No” isn’t a four-letter word. Saying “no” isn’t necessarily bad and you shouldn’t feel bad when you say it. Part of saying no means taking a stand. It can mean standing up to injustice. For example, our legal system is, for the most part, dependent on people saying […]
Some people want to control others. This reminds me of the Bible story in Genesis 27 where Jacob stole Esau’s blessing. We’re not going to focus on Jacob. Instead, we’re looking at his mother, Rebekah. That’s why this is under the heading of control, not greed. Isaac and Rebekah were unhappy when Esau married two […]
Fear is a powerful motivator. The Bible tells us to fear not. Stonewall Jackson (and others) are attributed as having said “Never take counsel from your fear.” Nonetheless, people act based on fear. In 1 Kings 19, Elijah had executed all of the false profits leading Israel astray. King Ahab whined to his wife, Jezebel. […]
Tradition can be a powerful motivator. Traditions can be like laws, meaning the group following them will not accept any change or departure from their custom. Traditions can also be a way of acting that varies with life changes. In 2 Thessalonians 2:15, Paul urged the Church to stand fast and hold to the traditions. […]
This is the first in a series of posts exploring why people do what they do. In this post, we’re discussing certainty. When I was a young lawyer, I worked on a corporate team where Fortune 500 companies paid tens of thousands of dollars for certainty. When they signed a contract, they wanted to know […]
Until recently, the IRS has said little (if anything) regarding whether assets the beneficiary of an irrevocable trust receives get a step up in basis following the Grantor’s death. With issuance of Revenue Ruling 2023-2, that has changed. The IRS has spoken. In RR 2023-2, the IRS posed the following hypothetical which I’ve edited slightly: […]
In April, 2022, we reported that HB 620 altered how settlements for minors can be approved under O.C.G.A. § 29-3-3, at least in cases where the trial court approves direct payment to a trust. Prior to passage of HB 620, Section 29-3-3 read as follows: 2021 Version For purposes of this Code section, the term […]
The following is a mishmash of information on various Elder Law, Special Needs Law, and Estate Planning issues. It also includes anything else we found interesting during the month of June, 2023. We will continue updating from time to time throughout the month. Last updated 6/8/2023. Keep in mind, you are using linked content at […]
In McGee v. State Dep’t of Health Care Servs., 2023 Ca. App. LEXIS 409 (Cal. Ct. App., 3d Dist. 5/24/2023), Diana McGee established a special needs trust under the provisions of 42 U.S.C. § 1396p(d)(4)(A). This followed a malpractice action and settlement. Dianna suffered from short bowel syndrome, which impaired her ability to care for […]
In Henderson v. Dept. of Health and Human Services (May 18, 2023), a Medicaid applicant transferred significant resources, including the full value of her retirement account, to an irrevocable trust. When she applied for Medicaid during the 60 month look back period, the Medicaid agency found the resources were not countable, but imposed a transfer […]
In the Matter of the Medical Assistance Pooled Special Needs Trust of Scott Hewitt (Iowa 2023), the State Medicaid agency had a contigent interest in the trust remainder due to the payback requirement in 42 U.S.C. § 1396p(d)(4)(C). However, after the beneficiary died, the master trust informed the Department that it would retain the remainder, […]
Gregory Hall created a trust for his children. He also made gifts to his children prior to his death, including a $500,000 house to his son, Kenneth. Gregory’s trust provided that, following his death, the trust remainder would be divided equally among his three children. But Kenneth argued that the $500,000 should not be included […]
On March 24, 2023, the United States District Court for the Middle District of Florida ruled in Securities and Exchange Commission v. Synergy Settlement Services, Inc., et al., Case No. 6:22-cv-820-WWB-DCI. The motion before the Court was to dismiss the action. The motion was denied with the Court indicating it should at least move tot […]
An easy way to think about trusts is to consider the example of a delivery truck. A delivery truck driver has no control over how a package is addressed by the sender. The truck driver has no control (other than his delivery schedule) over who receives the package. The driver transports the package as directed. […]
As of this writing, the following pooled trusts are authorized by the Department of Community Health to provide trust services in Georgia: Georgia Community/Trust/Bobby Dodd Institute Anita Gardner Decatur, GA 404.809.2914 Anchor For Special Needs, Inc. Annie Warner Cincinnati, OH 844.526.2467 Advocates and Guardians for the Elderly & Disabled (AGED) Thad A. Joseph Longwood, FL 888-277-1826 The Center […]
H.R. 2617, commonly known as the Consolidated Appropriations Act, 2023 (which includes the SECURE Act 2.0), amended provisions in the tax code to allow special needs trusts to leave remaining funds in a retirement account to a charitable organization. The Bill became Law when signed by President Biden on December 29, 2022. The Senate Summary […]
What is a Will? A Will, also known as a Last Will and Testament, is a document stating how your probate estate is distributed after you die. It has no legal effect until it is probated. In Georgia, Wills are probated in the Probate Court for the county where the decedent resided. What is a […]
Assets are things you own that have value. Assets include all income and all resources. 42 U.S.C. § 1396p(h)(1). They are one-half of a net-worth calculation (the other half being liabilities). Medicaid treats different types of assets differently, with some being countable and others being non-countable (or exempt) during the eligibility determination. Recall that you […]
The dictionary definition of “signature” is “a person’s name written in a distinctive way as a form of identification in authorizing a check or document or concluding a letter.” There are no grades for penmanship when signing legal documents. Your signature is your mark, which is exactly how Georgia law defines it: “Signature” or “subscription” […]
The Rule 42 U.S. Code § 1382c(a)(3)(A) states: “an individual shall be considered to be disabled for purposes of this subchapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or […]
The answer, like the answer to many legal questions, is maybe. Georgia has not outright abolished irrevocable trusts. However, O.C.G.A. § 53-12-61 authorizes judicial modification or termination of irrevocable trust under two circumstances. During the Settlor’s Lifetime Subsection (b) controls modifications or terminations during the settlor’s lifetime. Recall, a settlor is the same person as […]
We regularly post links to news articles and other resources that related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles […]
In Slosberg v. Giller (Georgia Supreme Court 6/30/2022), the Court reversed a Court of Appeals decision we previously reported. David Slosberg created an irrevocable trust in January 2014. After David died, Plaintiff filed a lawsuit alleging, among other things, that Defendants unduly influenced David to create the trust that contained the in terrorem clause, and […]
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
March is Developmental Disability Awareness Month. March is also National Kidney Month. We regularly post links to news articles and other resources that might be of interest to our viewers. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Only headlines are […]
We regularly post links to news articles and other resources that might be of interest to our viewers. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Only headlines are listed so you can use this page like a newspaper, reading only […]
In Geyen v. Commissioner of Minnesota Department of Human Services, 964 N.W.2d 639 (2021), Dorothy Geyen’s application for Medicaid was denied. In 2011, Geyen established two substantially identical irrevocable trusts. Each trust provided that the trustee could not make loans to Geyen and could not make gifts to her. Nonetheless, the Department took the position […]
February is American Heart Month! Read President Biden’s Proclamation on American Healrth Month 2022 We regularly post links to news articles and other resources we believe might be of interest to our viewers. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. […]
