Trusts

Trusts are a legal tool often used to pass wealth to a spouse or to the next generation, usually with rules attached. A trust is a formal legal relationship where a property owner (the Settlor or Grantor) conveys legal title to a third party (the Trustee) who then holds or uses trust property for the benefit of a person (the Beneficiary). Most trusts are written, but a trust can be established orally or can arise by operation of law.

Not everyone needs a trust, but they can be game changers when used for the right reasons. Here are a few reasons to consider using a trust: (1) controlling how your property is used by beneficiaries; (2) privacy and avoiding probate; (3) tax planning or public benefits planning; (4) disability and special needs planning; and (5) creditor protection. Trusts can also be used to avoid ancillary probate estates if you own real property in another State.

If you decide to use a trust, be certain you understand what your trust is supposed to accomplish. Knowing the purpose of the trust will help you communicate your goals with others and will give your lawyer the ability to determine whether you really need a trust, or whether some other, less complicated, legal tool would be a better fit. If the right tool for the job is a trust, then decisions need to be made regarding whether to establish it during your lifetime (a Living or inter vivos trust), or at death (a testamentary trust). Should the trust be revocable or irrevocable? Should all of your property be placed in the trust, or should you funds it with a portion of your estate? Who will serve as trustee? What rules should be included in your trust agreement regarding how trust property is used? If someone tries to sell you a trust without helping you answer these questions, then you’ve found a hammer salesman – someone who thinks every problem looks like a nail.

Introduction to Trusts for Elders and Special Needs Beneficiaries
Introduction to Trusts
Why Protect Assets?
What is Supplemental Security Income?
What is Medicaid?
Why use a Special Needs Trust?
What can a Special Needs Trust pay for?

Trust Formation and Structure
Creating the Trust
Trust Instrument and Essential Terms
The Trustee
Beneficiaries (of Trusts)
Purpose (of the Trust)
Revocation, Modification, Termination
Spendthrift Provisions
Discretion and Distribution Standards
Construction (Construing the Trust)

Funding the Trust
Funding, Generally
Sources of Funding

Trust Administration
Administration, generally
Administration and Investments
Investment Decision-making process
Income and Principal
Compensation
Accountings
Bond
Declaratory Judgment
Distributions, generally
Trust Ownership of a home
Distributions to family members

Medicaid Trust Rules
Trust Rules, generally
Self-Settled Trusts, generally
Third Party Trusts, generally
Income Only Trusts
Special Needs Trusts
Pooled Trusts
Sole Benefit Trusts
Funding Issues Associated with Special Needs Trusts
Distributions from Special Needs Trusts
SNT Accounting

Eligibility for Veteran’s Aid and Attendance
VA Aid and Attendance, generally
Treatment of Trusts
Revocable Trusts
Irrevocable Trusts

Tax Issues

Resources:

BLOG POSTS

Pooled Trusts Currently Authorized to Provide Trust Services in Georgia

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 […]

Secure Act 2.0 allows SNTs holding retirement accounts to name charitable beneficiaries

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 […]

Wills versus Trusts: Do I need a Trust?

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 […]

Property Rights

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 […]

What makes a signature valid in Georgia?

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” […]

What does it mean to be “Disabled” Under the Social Security Act?

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 […]

Gibbs and Ali

Has Georgia Abolished Irrevocable Trusts?

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 […]

Elle

Elder Law and Special Needs Law News Roundup – 7-22-2022

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 […]

Slosberg Revisited

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 […]

Elder Law and Special Needs Law News Roundup – 6-17-2022

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 […]

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