Illinois Estate Planning & Elder Law Blog

Authority to appoint the property of an original trust to a second trust is commonly referred to as decanting authority. The Federal Taxpayer Certainty and Relief Act of 2009 would provide this authority to a trustee and allow him to adapt the terms of a trust on account of unforeseen circumstances or drafting errors.

Statutory decanting authority allows for modification of undesirable terms of an irrevocable trust when doing so would be in the best interests of the beneficiaries. Some examples of these modifications including changing the situs of a trust to a state with more favorable law; relocating trust assets to a state with no income tax imposed; combining multiple trusts to reduce administrative costs and dividing trusts to resolve conflicts among beneficiaries; correcting errors in drafting; and conforming the distribution provisions of a trust to the requirements of a special needs trust.

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In his article titled Estate Planning for a Family with a Special Needs Child, Sebastian V. Grassi, Jr. lists five estate planning options for parents of a special needs child:

1. Distributing assets directly to the special needs child;
2. Disinheriting the special needs child;
3. Leaving property to another family member;
4. Establishing a third-party discretionary support trust for the special needs child; and
5. Establishing a third-party created and funded Special Needs Trust for the child.

Only number 5, establishing a third-party created and funded special needs trust, is recommended because it will not disqualify the child from receiving means-tested government benefits, it is legally enforceable and it does not subject the assets to creditors of family members.

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When parents set up a Third Party Special Needs Trust, it is created by and funded with the assets of the parents. The parents are considered to be the “third party”. The trust is not set up with the assets of the special needs child and the transfer may not be created to make the parents eligible for Medicaid paid nursing home care.

The Trustee has wide discretion in making distributions to or for the benefit of the special needs child. For this reason, the Trustee should be familiar with and responsive to the particular needs of the special needs child, should have knowledge of the government benefit programs and the effect the trust may have on eligibility for these programs, and should be in good health, reliable and financially astute.

If a special needs child has received an inheritance, gift, bequest, lawsuit award or settlement, child support, alimony or divorce property settlement, the receipt of these assets can disqualify a child for means tested benefits such as Medicaid and Supplemental Security Income. In cases like these, a First Party Special Needs Trust should be established to preserve the child’s eligibility for the government benefits.

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The White House recently proposed changes to the rules governing Grantor Retained Annuity Trusts. These trusts pay an annuity to the grantor over the life of the trust that equals the initial value of the assets plus an interest rate established by the IRS (currently 2.4 %). The annuity is not taxed since it flows back to the creator of the trust.

If the investment produces a greater return than the IRS established rate, there is a remainder in the trust which can be transferred to the beneficiaries of the trust without any gift tax being assessed.

But if the trust grantor dies during the term of the trust, the assets in the trust revert back to the grantor’s estate and are subject to estate taxes. To minimize the risk of the grantor passing away before the end of the trust term, Grantor Retained Annuity Trusts have been established which have short terms, some as short as two years.

Without the GRAT setup, any gifts by an individual in excess of $1 million over the individual’s lifetime would be subject to the current 45% tax.

The White House has proposed setting a minimum term of 10 years for GRATs. This minimum term might encourage individuals over 75 years of age to reconsider establishing a GRAT.

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A Grantor Retained Annuity Trust (GRAT) is comparable to an annuity. You place funds in the annuity and receive an annual payout based on the IRS stated interest rate at the time you establish the trust. This rate is currently 2.4%

When the annuity matures, any appreciation above the current rate goes tax free to your designated beneficiaries, who most likely will be your children.

Currently, interest rates and asset values are low so there is a very good chance that the assets in the trust will grow at a rate above 2.4%. Any growth above 2.4% passes tax free to the beneficiaries.

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A Bypass Trust, also known as a Credit Shelter Trust, lets a married couple double the estate tax exemption.

If the husband dies first, his assets fund an irrevocable trust for the children up to the estate tax exemption amount which is currently $3.5 million. All remaining assets go to the widow in a second, separate trust. The first trust (the children's trust) is drafted to allow the widow access to the principal for medical costs and other needs. This safeguards against the funds in the widow's second, separate trust from being completely depleted and the widow running out of money without access to the husband's $3.5 million trust.

The advantage is that when the widow dies, she can pass on $3.5 million in assets tax free to the children. Also, the Bypass trust allows for another $3.5 million in assets to be passed on tax free to the children.

Another benefit to the first spouse to die is that this arrangement ensures that the assets will go to the children and not a second spouse of the widow.

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Children under the age of 18 cannot directly inherit more than a small amount of money. If you make no provisions in your will, a court will appoint a property guardian to manage your child’s assets until he reaches 18.

That property guardian may be a stranger who will add another layer of bureaucracy to the situation. When your child needs money, formal requests will need to be made through the court system.

One solution is to set-up a custodial account for your child. You are allowed to choose the custodian, and the custodian makes decisions regarding how the money is spent. Once your child turns 18, the money is your child’s to spend as he pleases.

As Stacy L. Bradford points out in her Wall Street Journal piece titled, “Deciding if Your Kid is Trust-Worthy”, a better alternative may be to set up a trust. A trust allows more control over how money is spent once the parents are gone. The parents can specify how the trust money is to be spent, for example on college tuition, and a trust can delay the age at which the child has access to the money, for example the child gets half at age 30 and the other half at 35.

The trustee makes all of the decisions, so it’s important to pick a person who is trustworthy, financially astute and diligent.

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What is a Trust?

Example: You are visiting your sister in Australia for six months and your son needs $5000 for living expenses while you are gone.

You could deposit $5000 in his checking account. But what if you are concerned that he might spend it on a wall size plasma television and have nothing left for food?

Instead of giving him the money outright, you could give it to your best friend with instructions on how the money is to be spent for your son’s benefit.

By giving the money to your best friend for your son’s benefit, you have established a Trust. You are the Grantor because you gave the money to your friend. Your friend is the Trustee because she is the one responsible for the management and distribution of the money according to your instructions. Your son is the Beneficiary because he will receive the benefit of the money you have put in the Trust. The list of instructions you gave your friend is the Trust Agreement. It tells your friend (Trustee) what to do. The $5000 is the Principal of the trust.

There are many types of trusts: revocable, irrevocable, living, testamentary and other distinctions. Illinois law sets forth requirements for all of them.

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In a recent article in the Wall Street Journal titled, How to Fix Your Life in 2009, Eleanor Laise provides advice for individuals whose stock portfolios have been beaten down.

She suggests taking advantage of the $13,000 exemption from gift taxes that one can use to give up to $13,000 in stocks to as many recipients as one wants without incurring any gift tax liability. This has the advantage of reducing the size of one's estate and, accordingly, one's estate tax liability. It also allows the recipients of the gift to benefit from an increase in stock prices over the long term.

Another suggestion is to consider a Grantor Retained Annuity Trust or GRAT. Ms. Laise points out, "You can put your beaten-down stock in the GRAT, name your children as beneficiaries, and receive an annuity from the trust based on a percentage of what you contributed. As long as you survive the trust term, often just a couple of years, any stock appreciation beyond a 'hurdle rate' set by the government passes to the beneficiaries tax-free. That hurdle rate, currently 3.4 %, is at historically low levels, and it's set to move even lower".

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In her article, Practical Tips and Tricks on What You Should Do With Your Estate Plan, Julie Garber advises completely funding your revocable living trust so that all of your assets can be managed by the trustee.

Ms. Garber states, " Many people fail to realize that funding their trust is just as important as creating it. If an asset isn't titled in the name of the trust, then the trust agreement won't control what happens to that particular asset . . . . "

So how does one go about placing assets in a trust?

All that needs to be done is to change the title under which the property is held.

Example: Title to the summer home is currently in "John Smith". Change the title so that it is now in "John Smith and Jane Smith, Trustees, or their successors in trust, under the John Smith Living Trust, dated January 1, 2009, and any amendments thereto".

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What is the difference under Illinois law between a revocable trust and an irrevocable trust?

A revocable trust can be modified, amended or revoked by the maker (also known as the settlor or grantor) of the trust at any time during the maker’s life. With a revocable trust, property passes after the maker’s death to the parties the maker designates without going through probate proceedings with the court. This is often less expensive and requires less time than going through the court probate system. It is also private. Unlike public probate court documents, trust documents are not a matter of public record.

A revocable trust becomes irrevocable after the maker's death and may be used to reduce estate taxes for married couples.

An irrevocable trust cannot be changed after it is created. As with a revocable trust, an irrevocable trust does not pass through the court probate process and is private. In addition, an irrevocable trust can be used to reduce estate taxes for singles and married couples and protect assets from creditors.

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In her article from the Wall Street Journal titled, An Estate Plan for Special Needs, Rachel Silverman explains how an estate planner can create a “pooled” trust which can be a useful tool for a family with a special needs member. She writes,

“Another option is ‘pooled’ trusts, in which funds from many special-needs families are bundled together and managed by nonprofit groups that focus on disability issues. Families typically use pooled trusts if they can’t find appropriate individual or bank trustees, or if they have a small trust account that would benefit from bunching with other families”.

We recently assisted a client who was receiving Supplemental Security Income benefits from Social Security and was awarded a $17,000 settlement from a class action lawsuit. By depositing the settlement money in a pooled trust operated here in Illinois, the client was able to retain his monthly Supplemental Security Income benefits and have access to the $17,000 settlement funds to purchase needed furniture for his room and visit a close relative he hadn’t seen in a long time.

Once the Special Needs Trust has been established, the funds are available for use by the disabled individual and remain secure until they are used.

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Special Needs Trusts allow a disabled individual to receive lawsuit settlements, gifts and other funds while retaining eligibility for government programs. They are designed not to provide basic support, but to pay for things like education, recreation, counseling and medical attention.

Special needs can include medical and dental expenses, special equipment (such as vans for the disabled), training and education, insurance, transportation, special dietary needs, spending money, electronic equipment, computers, vacations, movies and payments for a companion.

In her article, Meeting Special Needs and the Need for Peace of Mind, New York Times writer Hillary Chura points out the many advantages to establishing special needs trusts. Ms. Chura writes,

"Most services for the disabled are provided through state-administered Medicaid programs, with Federal Supplemental Security Income providing a monthly stipend for adults. To be eligible for Supplemental Security Income, however, potential recipients cannot have more than $2000 in assets. Because that amount is inadequate for a lifetime of haircuts, hobby supplies, vacations and DVDs – expenses not covered by the government – a supplemental-needs trust can enhance quality of life. Without a trust, a lifetime of care for a disabled person could eat through even a sizable inheritance. . . .

While the term trust tends to imply great wealth, many special-needs trusts contain less than $100,000. Because the trust does not belong to the disabled person but is used to supplement a lifestyle, it does not compromise government benefits. . . .

Still, many parents are reluctant to start a trust because they fear making the wrong decision, do not want to face the idea that one day they will be unable to care for their child, or do not know how to establish one or whom to ask. In addition, they may not like the notion of putting their child on what is perceived to be welfare.

Some may believe they can avoid drawing up a trust by leaving the money to a trusted relative or friend. Specialists universally discourage that. Even people who intend to follow up on a moral obligation to care for the disabled child could lose the money in a divorce, bankruptcy, lawsuit, premature death or other unforeseen calamity, the specialists say."

For more answers to questions about Special Needs Trusts, contact a law firm that concentrates its practice in the area of Estate Planning Law.

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