Categories
Elder Law Estate Planning

Retirement Is Not Tax-Free

What many people don’t realize that when they start drawing funds from those 401(k)s, they’re taxed. One of the reasons the accounts are so popular, is that a traditional 401(k) is funded from pre-tax paychecks, so the money deposited into the plan and any gains on the investment are not taxed until the money is taking out. These withdrawals are called “distributions” and there are strict rules about Required Minimum Distributions, known as RMDs.

In the article “How 401(k) savers can avoid a nasty surprise come retirement,” Market Watch advises readers that these contributions are worthwhile, since they lower taxable income. Contributing enough can even move a taxpayer into a lower tax bracket for a given year, if they are able to do so.

However, there’s always payback where Uncle Sam is concerned. In this case, when distributions are taken, they are subject to ordinary income taxes. That’s why it’s called a “tax-deferred” account—taxes are deferred or put off. They aren’t tax free.

People who work in estate planning or personal finance tend to assume that everyone knows this, but that’s not the case. Just as they are about to retire, a great saver may look at their 401(k) balances and be so happy to consider how all their hard work and diligent savings have paid off. However, even if they have a million dollars in an account, the reality is, that $1 million is actually worth more like $700,000, if they are paying federal, state and local taxes. The same is true with balances of any size.

It is still important to continue saving in a 401(k) or any other kind of retirement account. However, you must keep that tax obligation in mind, when you’re setting any kind of financial retirement goals. Tax rates in the future are unknowns, but plan on roughly 20% in federal tax, and maybe another 3–10% in state and local taxes, depending upon where you live.
If you use an online retirement calculator to help you plan and estimate your goals and costs in retirement, make sure that the calculator takes taxes into account.

Everyone’s strategy for building a retirement nest egg is different. However, there are certain rules to consider, based on age. Once you turn 59½, you are allowed to take money from your 401(k) without penalties, but you will probably pay at least 20% in federal income tax, plus state and local income.

If you are taking withdrawals at this age and still drawing a paycheck, you might be moving yourself into a higher tax bracket. If you turn 65, withdrawing enough to move into a higher tax bracket may also mean that you are paying higher Medicare premiums.

For those who continue working into their 60s and 70s, a good goal is to preserve your 401(k) accounts for as long as possible. You are not obligated to take any money out of a traditional 401(k), until you turn 70.5. At this point, the Required Minimum Distributions must begin. Legislation pending as of this writing (the SECURE act) may change the age requirement for RMDs, but until the legislation becomes laws, the age remains at 70.5.

Categories
Elder Law Estate Planning

401(k) Withdrawals and Taxes

A simple way to decrease the taxes you have to pay on 401(k) withdrawals, is to convert to a Roth IRA or Roth 401(k). Investopedia’s recent article, “How to Minimize Taxes on 401(k) Withdrawals” explains that withdrawals from those accounts aren’t taxed, provided they meet the rules for a qualified distribution. However, you’ll need to declare the conversion, when you file your taxes.

The primary issue with converting your traditional 401(k) to a Roth IRA or Roth 401(k) is the income tax on the money you withdraw. If you’re near pulling out the money anyway, it may not be worth the cost of converting it. The more money you convert, the more taxes you’ll owe.

You can divide your assets between a Roth account and tax-deferred account to share the burden. You may pay more taxes today, but this strategy will give you the flexibility to withdraw some funds from a tax-deferred account and some from a Roth IRA account to have more control of your marginal tax rate in retirement. Remember that the five-year rule requires that you have your funds in the Roth for five years, before you start your withdrawals. This may not work for you if you’re already 65, about to retire, and concerned about paying taxes on your distributions.

Some of the ways that let you save on taxes, also make you take out more from your 401(k) than you actually need. If you can trust yourself not to spend those funds and save or invest the extra money, it can be a terrific way to spread out the tax obligation. If the individual is under 59½ years of age, the IRS allows use her to use “Regulation T” to take substantially equal distributions from a qualified plan, without incurring the 10% early withdrawal penalty. However, the withdrawals need to last a minimum of five years. However, a person who’s 56 and starts the withdrawals must keep taking those withdrawals to at least age 61, despite not needing the money.

If you take out distributions earlier while you’re in a lower tax bracket, you could save on taxes, instead of waiting until you’ll have Social Security and possible income from other retirement vehicles. If you plan ahead and are 59½ or older, you can take out just enough money from a 401(k) (or a traditional IRA) that will keep you in your current tax bracket but still lower the amount that will be subject to required minimum distributions (RMDs) when you’re 70½. The objective is to reduce the effect of the RMDs (which are based on a percent of your retirement account balance, along with your age) on your tax rate, when you have to begin taking them.

Although you’ll have to pay taxes on the money you withdraw, you can save by then investing those funds in another vehicle, like a brokerage account. Hold it there for at least a year and you’ll only have to pay long-term capital gains tax on what it earns.

Reference:

  • Investopedia (June 26, 2019) “How to Minimize Taxes on 401(k) Withdrawals”
Related Articles
Categories
Elder Law Estate Planning

Here’s How You Know You’re an Adult: 10 Documents

Fifty is a little on the late side to start taking care of these important life matters. However, it is better late than never. It’s easy to put these tasks off, since the busyness of our day-to-day lives gives us a good reason to procrastinate on the larger issues, like death and our own mortality. However, according to Charlotte Five’s article “For ultimate adulting status, have these 10 documents by the time you’re 35,” the time to act is now.

Here are the ten documents you need to get locked down.

A Will. The last will and testament does not have to be complicated. However, it does need to be prepared properly, so that it will be valid. If your family includes minor children, you need to name a guardian. Pick an executor who will be in charge when you pass. If you don’t have a will, the law of your state will determine how your assets are distributed, and a court will name a guardian for your children. It is better to have a will and put your wishes down in writing.

Life insurance. There are two basic kinds: term insurance, which covers about twenty years, and universal or whole, which covers you for your lifetime. You need enough to cover your liabilities: your home mortgage, college funding for your kids and any outstanding debts, like credit cards or a car loan. This way, you aren’t saddling heirs with your debt.

Durable power of attorney. This document lets you designate someone to pay your bills, manage your money and make financial decisions for you, if you become incapacitated. Without it, your relatives will need to go to court to be appointed power of attorney. Pick a trusted person and have the form done, when you meet with your estate planning attorney.

Twice your annual income in savings. Most Americans don’t do this. However, if you start saving, no matter how small an amount, you’ll be glad you did. You need savings to avoid creating debt, if an emergency occurs. A cash cushion of six months’ worth of monthly expenses in a savings account will give you peace of mind.

Insurance coverage. Make sure that you have the right insurance in place, in addition to life insurance. That means health insurance, auto insurance and disability insurance.

Credit report. People with better credit reports get better rates on home and auto loans. You can get them free from the big credit reporting services. Make sure everything is correct, from your address to your account history.
A letter of instruction. Where do you keep your estate planning documents? What about your bank statements, taxes and insurance documents? What about your digital assets? Keep a list for easy access for those who might have to figure out your affairs.

Retirement plan. Most people only know they don’t have enough saved for retirement. That’s not good enough. If you aren’t enrolled in your company’s 401(k) or other retirement savings plan, get on that right away. If your company matches contributions, make sure you are saving enough to get every bit of those matching dollars. If your company doesn’t have a retirement plan, then open an IRA or a Roth IRA on your own. You should try to contribute as much as you possibly can.

Updated resume. It also helps to do the same thing with your LinkedIn profile. No matter how long you’ve been in your field, everyone looks at your LinkedIn profile to see who you are and what and who you know. Make sure you have an updated resume, so you can easily send it out, whether it’s a casual conversation about a speaking opportunity or if you’re starting to look for a new position.

A budget. Here’s how you know you’re really an adult. Budgets went out of fashion for a while, but now they are bigger than avocado toast. If you don’t know what’s coming in and what’s going out, you can’t possibly have any kind of control or direction over your financial life. Start tracking your expenses, matching with your income and making any necessary changes.

One last thing—do you have a bucket list? Don’t wait until you’re 70 to consider all the places you’d like to go or the people you’d like to meet. It’s true–you only live once, and we should enjoy the ride.

Categories
Elder Law Estate Planning

What If My Beneficiary Isn’t Ready to Handle an Inheritance?

“There are only two ways to live your life. One is as though nothing is a miracle. The other is as though everything is a miracle.” Albert Einstein

“The old who have died live on in the young ones. Don’t you feel this now in your bereavement, when you look at your children?” Albert Einstein

A recent Kiplinger article asks: “Is Your Beneficiary Ready to Receive Money?” In fact, not everyone will be mentally or emotionally prepared for the money you wish to leave them.
What If My Beneficiary Isn’t Ready to Handle an Inheritance?

Here are some things to consider:

The Beneficiary’s Age. Children under 18 years old cannot sign legal contracts. Without some planning, the court will take custody of the funds on the child’s behalf. This could occur via custody accounts, protective orders or conservatorships. If this happens, there’s little control over how the money will be used. The conservatorship will usually end and the funds be paid to the child, when they become an adult. Giving significant financial resources to a young adult who’s not ready for the responsibility, often ends in disaster. Work with an estate planning attorney to find a solution to avoid this result.

The Beneficiary’s Lifestyle. There are many other circumstances for which you need to consider and plan. These include the following:

A beneficiary with a substance abuse or gambling problem;

A beneficiary and her inheritance winds up in an abusive relationship;

A beneficiary is sued;

A beneficiary is going through a divorce;

A beneficiary has a disability; and

A beneficiary who’s unable to manage assets.

All of these issues can be addressed, with the aid of an estate planning attorney. A testamentary trust can be created to make certain that minors (and adults who just may not be ready) don’t get money too soon, while also making sure they have funds available to help with school, health care and life expenses.

Who Will Manage the Trust? Every trust must have a trustee. Find a person who is willing to do the work. You can also engage a professional trust company for larger trusts. The trustee will distribute funds, only in the ways you’ve instructed. Conditions can include getting an education, or using the money for a home or for substance abuse rehab.

Estate Plan Review. Review your estate plan after major life events or every few years. Talk to a qualified estate planning attorney to make the process easier and to be certain that your money goes to the right people at the right time.

Categories
Estate Planning Guardianship

Parents Want Their Children To Be Taken Care Of After They Die

There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. New clients often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning otherwise, their estate will be distributed after death according to New York’s laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan will replace the terms of the New York’s estate plan with your own. Reach out to your local Queens County estate planning attorney to create your estate plan.

MORE ABOUT ESTATE PLANNING SERVICES:

YOUR LAST WILL AND TESTAMENT – Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed. Some things you should know about wills:

A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.

A will does not help an estate avoid probate. A will is the legal document submitted to the probate court, so it is basically an “admission ticket” to probate.

A will is a good place to nominate the guardians (or back-up parents) of your minor children if they are orphaned. All parents of minor children should document their choice of guardians. If you leave this to chance, you could be setting up a family battle royal, and your children could end up with the wrong guardians.

TRUSTS: REVOCABLE LIVING TRUSTS, IRREVOCABLE TRUSTS, TESTAMENTARY TRUSTS, SPECIAL NEEDS TRUSTS, ETC. – Trusts come in many “flavors,” they can be simple or complex, and serve a variety of legal, personal, investment or tax planning purposes. At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker, the trustee (trust manager), and the trust beneficiary. Oftentimes, all three parties are represented by one person or a married couple. In the case of a revocable living trust, for example, a person may create a trust (the trust-maker) and name themselves the current trustees (trust managers) who manage the trust assets for their own benefit (trust beneficiary).

Depending on the situation, there may be many advantages to establishing a trust, including avoiding probate court. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Or they may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. If well drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.

POWERS OF ATTORNEY – A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain things for you. What those powers are depends on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the death of the maker, and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to designate a back-up decision-maker in the event of incapacity, then a durable power of attorney should be used. Durable Powers of Attorney should be frequently updated because banks and other financial institutions may hesitate to honor a power of attorney that is more than a year old.

HEALTH CARE DOCUMENTS (OR ADVANCE DIRECTIVES) – An advance directive is a document that specifies the type of medical and personal care you would want should you lose the ability to make and communicate your own decisions. Anyone over the age of 18 may execute an advance directive, and this document is legally binding in NY. Your advance directive can specify who will make and communicate decisions for you, and it can set out the circumstances under which you would not like your life to be prolonged if, for example, you were in a coma with no reasonable chance of recovery.

A document that goes hand-in-hand with your advance directive is an authorization to your medical providers to allow specified individuals to access your medical information. Without this authorization, your doctor may refuse to communicate with your hand-picked decision maker.

Categories
Elder Law Estate Planning

Even a Late Start toward Retirement Planning is Better than None at All

“There’s never enough time to do all the nothing you want.” Bill Watterson, Calvin and Hobbes

“The trouble with retirement is that you never get a day off.” Abe Lemons

There are also people who wait until they become senior citizens to begin planning for retirement. That’s a little on the late side, but the important thing, says the article “Retirement Planning: Start now to help Social Security, Medicare” from Martinsville Bulletin, is to get started. That’s better than doing nothing.

It’s easier if you start earlier. Let’s consider the high school student who diligently puts away 10% of a $7.25 per hour gross minimum wage earning for a year on an average 20-hour work week. That’s $750 into a retirement plan after one year. If that student never went to college, never learned a trade, got a raise or a promotion, they would still have $34,500 in personal savings in 46 years. And since minimum wage increased those number swell to $1,560.00 for one year and $71,760.00. It’s not a lot, as retirement savings go, but it’s better than nothing.

If the same high school student put those savings into an Individual Retirement Account (IRA), more would have been saved. The more time your money has to grow through compounding, the more money you’ll have.

Saving a little money every month could make a big difference later on. This year, the average monthly Social Security benefit rounds out at about $1,460 per person, calculated by combining a worker’s highest paid years in the workplace. That’s not enough for retirement. The answer? Start saving early.

It is not as easy to build a nest egg in a few years, but it’s possible.

Many people don’t wake up to the reality of retirement, until they reach age 62. There’s still time to plan. They can put money into IRA accounts, and at age 62 they can save as much as $7,000. Those IRA contributions count as tax deductions.

Roth IRAs are a little more flexible, but there are no tax deductions with contributions. On the plus side, when money is withdrawn, you’re not paying taxes on the withdrawals.
Another important planning point for seniors: if you’ve had health issues, it’s a good idea to keep working to maintain your employee health insurance. The healthier you are, the lower your health insurance costs will be during retirement. However, health costs do tend to increase with age, so that has to be factored into your retirement planning.

For people who take a lot of medication to control chronic conditions, they’ll need to look into health insurance outside of the workplace. That usually means Medicare. Most seniors are eligible for free Medicare hospital insurance, which is Part A of a four-part option, if they have worked and paid Medicare taxes.

Part A helps pay for inpatient care in a hospital or skilled nursing facility after a hospital stay, some home health care and hospice care. Part B helps to pay for doctors and a variety of other services. Part C allows HMO, PPO and other health care organizations to offer health insurance plans for Medicare beneficiaries. Part D provides prescription drug benefits through private insurance companies.

The Social Security Administration advises people to apply for Medicare three months before they celebrate their 65th birthday, regardless of whether they plan to start receiving retirement benefits right away.

Whether you’re 27 or 57, you need to plan for retirement. You also need to have an estate plan, and that means making the time to meet with an experienced estate planning professional to discuss your life and your retirement plans. You’ll need their guidance to create a will and other documents.

Advance planning will always be better than waiting until the last minute, for retirement and estate planning.

Categories
Estate Planning Guardianship

Top 6 Questions (and Answers) about Conservatorships and Guardianships

When someone becomes incapacitated due to illness, injury or disability, the court appoints a guardian to handle healthcare and certain non-financial decisions for that person. A guardian can be anyone over the age of 18, but must also be able to show that they are qualified to make these decisions for their loved one. A guardian is not necessarily the person who is the caregiver over the incapacitated individual.

What is a conservator?

A conservator is appointed by the court to make financial decisions for an incapacitated person. In some states, those who are appointed “conservator of the estate” are those who make financial decisions.

Those who are appointed “conservator of the person” handle the same issues as a “guardian.” Conservators can be expensive, as is the process to obtain one. There is also the potential that the incapacitated individual may be taken advantage of. To avoid a conservatorship, designate a power of attorney for your financial and medical care.
New York uses the frame of guardian for person or for the property and one person can be both.
Does my elderly loved one need a guardian?
If your family member is unable to make healthcare or financial decisions on her own, due to an injury following an accident, an illness, or disability, and she has not designated a healthcare power of attorney, she will need a guardian.
When is a conservator more appropriate than a guardian?
In some cases, someone may be perfectly capable of making her own healthcare decisions, but are unable to manage her finances. In this case, a conservator would be more appropriate. If an individual cannot make financial or healthcare decisions, both may be appropriate.
Who does the court appoint as guardian or conservator?
A court will appoint the person it deems most competent to fill the role of conservator or guardian. In general, the person must be over the age of 18. The court’s first choice is a spouse, or other close family member. If none of those is available or is unwilling to serve, then they may consider extended family or friends. If those are unwilling or unavailable, then the court will appoint a neutral third party, such as an attorney, to act as conservator or guardian. In New York, the Court maintains a list of qualified persons for that role.
How do I relinquish guardianship over my wife?
To relinquish guardianship over any loved one, you must go to court and petition to do so. It is best if you have someone else in mind to take over when you submit your petition, to ensure your loved one’s needs are met.

Categories
Elder Law Estate Planning

Here’s Why a Basic Form Doesn’t Work for Estate Planning

It’s true that an effective estate plan should be simple and straightforward, if your life is simple and straightforward. However, few of us have those kinds of lives. For many families, the discovery that a will that was created using a basic form is invalid leads to all kinds of expenses and problems, says The Daily Sentinel in an article that asks “What is wrong with using a form for my will or trust?”

If the cost of an estate plan is measured only by the cost of a document, a basic form will, of course, be the least expensive option — on the front end. On the surface, it seems simple enough. What would be wrong with using a form?

Actually, a lot is wrong. The same things that make a do-it-yourself, basic form will seems to be attractive, are also the things that make it very dangerous for your family. A form does not take into account the special circumstances of your life. If your estate is worth several hundreds of thousands of dollars, that form could end up putting your estate in the wrong hands. That’s not what you had intended.

Another issue: any basic form will that is valid in all 50 states is probably not going to serve your purposes. If it works in all 50 states (and that’s highly unlikely), then it is extremely general, so much so that it won’t reflect your personal situation. It’s a great sales strategy, but it’s not good for an estate plan.

If you take into consideration the amount of money to be spent on the back end after you’ve passed, that $100 will becomes a lot more expensive than what you would have invested in having a proper estate plan created by an estate planning attorney.

What you can’t put into dollars and cents, is the peace of mind that comes with knowing that your estate plan, including a will, power of attorney, and health care power of attorney, has been properly prepared, that your assets will go to the individuals or charities that you want them to go to, and that your family is protected from the stress, cost and struggle that can result when wills are deemed invalid.

Here’s one of many examples of how the basic, inexpensive form created chaos for one family. After the father died, the will was unclear, because it was not prepared by a professional. The father had properly filled in the blanks but used language that one of his sons felt left him the right to significant assets. The family became embroiled in expensive litigation, and became divided. The litigation has ended, but the family is still fractured. This was not what their father had intended.

Other issues that are created when forms are used: naming the proper executor, guardians and conservators, caring for companion animals, dealing with blended families, addressing Payable-on-Death (POD) accounts and end-of-life instructions, to name just a few.

Avoid the “repair” costs and meet with an experienced estate planning attorney in your state to create an estate plan that will suit your needs.

Reference: The Daily Sentinel (May 25, 2019) “What is wrong with using a form for my will or trust?”

Categories
Elder Law Estate Planning

Digital Assets in Estate Planning: The Brave New World of Estate Planning

“They say that every time a Targaryen is born, the gods toss a coin and the world holds its breath.” – Varys to Jon

“The master of coin must be frugal.”Varys to Eddard Stark

Cryptocurrency is almost mainstream, despite its complexity, says Insurance News Net in the article “Westchester County Elder Law Attorney Anthony J. Enea Sheds Light on Cryptocurrency in Estate Planning.” The IRS has made it clear that as far as federal taxation is concerned, Bitcoin and other cryptocurrencies are to be treated as property. However, since cryptocurrency is not tangible property, how is it incorporated into an estate plan?

For starters, recordkeeping is extremely important for any cryptocurrency owner. Records need to be kept that are current and income taxes need to be paid on the transactions every single year. When the owner dies, the beneficiaries will receive the cryptocurrency at its current fair market value. The cost basis is stepped up to the date of death value and it is includable in the decedent’s taxable estate.

Here’s where it gets tricky. The name of the Bitcoin or cryptocurrency owner is not publicly recorded. Instead, ownership is tied to a specific Bitcoin address that can only be accessed by the person who holds two “digital keys.” These are not physical keys, but codes. One “key” is public, and the other key is private. The private key is the secret number that allows the spending of the cryptocurrency.

Both of these digital keys are stored in a “digital wallet,” which, just like the keys, is not an actual wallet but a system used to secure payment information and passwords. This is Digital Assets in Estate Planning: The Brave New World of Estate Planning.

One of the dangers of cryptocurrency is that unlike other financial assets, if that private key is somehow lost, there is no way that anyone can access the digital currency.

It should also be noted that cryptocurrency can be included as an asset in a last will and testament as well as a revocable or irrevocable trust. However, cryptocurrency is highly volatile, and its value may swing wildly.

The executor or trustee of an estate or trust must take steps to ensure that the estate or the trust is in compliance with the Prudent Investor Act. The holdings in the trust or the estate will need to be diversified with other types of investments. If this is not followed, even ownership of a small amount of cryptocurrency may lead to many issues with how the estate or trust was being managed.

Digital currency and digital assets are two relatively new areas for estate planning, although both have been in common usage for many years. As more boomers are dying, planning for these intangible assets has become more commonplace. Failing to have a plan or providing incorrect directions for how to handle digital assets, is becoming problematic for many individuals.

Speak with an estate planning attorney who has experience in digital and non-traditional assets to learn how to protect your heirs and your estate from losses associated with these new types of assets. To learn more about Digital Assets in Estate Planning: The Brave New World of Estate Planning please speak to estate planning attorney Frank Bruno, Jr.

Categories
Estate Planning Guardianship

Creating an Estate Plan for a Child with Special Needs

“As special needs parents we don’t have the power to make life “fair,” but we do have the power to make life joyful.” Anonymous

“All kids need is a little help, a little hope, and someone who believes in them” Magic Johnson.

Parents want their children to be taken care of after they die. But children with special needs have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning by parents is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the caretaking responsibility.

Special Needs Trusts

The best and most comprehensive option to protect a loved one is to set up a special needs trust (also called a supplemental needs trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiaries in determining their eligibility for public benefits.

There are three main types of special needs trusts:

A first-party trust is designed to hold a beneficiary’s own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary’s benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care. These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI or other needs-based benefits and come into large amounts of money, because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.

The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect a beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. The key distinction is that a third-party special needs trust does not contain the “payback” provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.

A pooled trust is an alternative to the first-party special needs trust. Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance

Not everyone has a large chunk of money that can be left to a special needs trust, so life insurance can be an essential tool. If a special needs trust has been created, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child. You should make sure you have enough insurance to pay for your child’s care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy only pays out after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies.

ABLE Account

An Achieving a Better Life Experience (ABLE) account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him money.

Created by Congress in 2014 and modeled on 529 savings plans for higher education, these accounts can be used to pay for qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing and health care, among other things. ABLE account programs have been rolling out on a state-by-state basis, but even if your state does not yet have its own program, many state programs allow out-of-state beneficiaries to open accounts. (For a directory of state programs, click here.)

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for her family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary, and then the remaining funds will have to pass through probate in order to be transferred to the beneficiary & heirs.

Get Help With Your desire to Create an Estate Plan for a Child with Special Needs.

Creating an Estate Plan for a Child with Special Needs takes forethought, patience and a willingness to include caregivers in your plan. you decide to provide for a child with special needs, proper planning is essential. Talk to your attorney to determine the best plan for your family.