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Supplemental Needs Trust
1. Bequest to Trust. If my son [name of beneficiary]
(hereinafter "the Beneficiary") survives me, I give, devise, and
bequeath to [name of trustee], in trust nevertheless, . . . . .
percent (. . . .%) of my residuary estate [or the sum of . . . . .
Dollars ($ . . . )] for the uses and purposes set out below.
a. Purpose. It is the Testator's intent to create a
supplemental needs trust that conforms to the provision of Section . . .
of the . . . . . . Law of the statutes of the State of [state]. This
trust is established as a supplemental needs trust because of the
Beneficiary suffer from a disability that impairs his ability to provide
for his own care and maintenance and constitutes a substantial handicap.
It is the Testator's primary concern in establishing this Trust that it
exist as a supplemental and emergency fund to public assistance for the
Beneficiary throughout his life, and to provide him with the security
that the Testator provided while alive. Therefore, this trust is to be
used to supplement and not to supplant, impair, or diminish, any which
the Beneficiary may be receiving. Currently, there are basic living
needs that public benefit programs for the disabled do not provide.
after the Testator has died, it is vitally important that the
Beneficiary continue to have these needs met so that he may maintain
an acceptable level of human dignity and humane existence.
If this Trust were to be invaded by creditors, subjected to any
liens or encumbrances, or cause public benefits to be terminated or not
granted, it is likely that the Trust's principal would be depleted
before the Beneficiary's death, since the cost of care for such disabled
persons is high even if no emergency needs ever present themselves. In
that event, there would be no supplemental coverage for emergency or
special need. The trust provisions contained in this instrument should
be interpreted in this light and my stated intent.
As used in this instrument, the term "supplemental needs" refers
to the essential requisites for maintaining the Beneficiary's good
health, safety, and welfare when, in the Trustee's discretion, these
requisitees are not being furnished by any public agency, office, or
department of the State of [state] or of any other state or of the
United States. "Supplemental needs" include, but are not limited to,
dental care, special equipment, training or educational programs, and
necessary travel and recreation.
Notwithstanding the above, the Trustee, in its sole discretion,
may make distributions to third parties to meet the Beneficiary's needs
for food, clothing, shelter, or health care, but only if the Trustee
determines (i) that the Beneficiary's basic needs will be better met if
such distribution is made and (ii) it is in the Beneficiary's best
interests to suffer the consequent effect, if any, on the Beneficiary's
eligibility for or receipt of government benefits or assistance.
However, if the mere existence of this authority, whether exercised or
not, would, under the terms of any program of government benefits or
assistance, result in the Beneficiary's loss of such benefits or
assistance, then the grant of this authority to the Trustee shall be
null and void and the Trustee's authority to make such distributions
shall cease and shall be limited as otherwise provided in this
b. Distribution of Income and Principal. The Trustee shall
pay to or apply for the benefit of the Beneficiary, during the
Beneficiary's life, such sums from the Trust's income or principal, up
to the whole thereof, as the Trustee, in its sole discretion, from time
to time may deem necessary or advisable for the satisfaction of the
Beneficiary's special needs. Any income not so distributed shall be
added to the principal of the Trust. The Beneficiary does not have the
power to assign, encumber, direct, distribute, or authorize
distributions from the trust.
c. Governmental Benefits Preference. It is the Testator's
intent that, because the Beneficiary is disabled and unable to maintain
and support himself independently, the Trustee shall, in the exercise of
its best judgement and fiduciary duties, seek support and maintenance
for the Beneficiary from all available public resources, including, but
not limited to, Supplemental Security Income (SSI), Medicaid, Federal
Social Security Disability Income (SSDI), and the appropriate regional
center for the disabled. In making distributions to or on behalf of the
Beneficiary for his special needs, the Trustee shall take into
consideration the applicable resource and income limitations of the
government benefit programs for which the Beneficiary is eligible. In
carrying out the provisions of this instrument, the Trustee can ignore
the probable future needs of the remainderman of this Trust and the
No part of the corpus of this Trust shall be used to supplant or
replace the benefits provided by any county, state, federal, or other
governmental agency that has a legal responsibility to server persons
with disabilities that are the same or similar to the Beneficiary's
impairment. For purposes of determining the Beneficiary's Medical
eligibility, no part of the principal or undistributed income of the
Trust shall be considered to be available to the Beneficiary. If the
Trustee is asked to release Trust principal and/or income to pay for
equipment, medication, or services that Medicaid is authorized to
provide were it not for the existence of this Trust, or if the Trustee
is asked to petition a court or any administrative agency for the
release of Trust principal or income for this purpose, the Trustee is
authorized to deny such request and, in its discretion, take whatever
administrative or judicial steps that may be necessary to continue the
Beneficiary's Medicaid (or other government benefits) eligibility,
including obtaining a ruling from a court of competent jurisdiction that
the principal and income of the Trust is not available to the
Beneficiary for Medicaid (or other governmental benefits) eligibility.
The Testator expressly prohibits application of any state law to the
contrary to this Trust. All costs and expenses incurred by the Trustee
in carrying out the provisions of this subparagraph c., including
reasonable attorney fees, shall be proper charge to the Trust. All
references in this instrument to Medicaid shall include any other
state's Medicaid equivalent program.
d. Spendthrift Provisions. No interest in the principal or
income of this Trust shall be anticipated, assigned, or encumbered, or
shall be subject to any creditor's claim or to legal process, prior to
its actual receipt by the Beneficiary. Furthermore, because this Trust
is to be conserved and maintained for the special needs of the mentally
impaired Beneficiary throughout his life, no part of the corpus of the
Trust, neither principal nor income, shall be construed to be part of
the Beneficiary's estate or be subject to the claims of voluntary or
involuntary creditors for the provision of care or services, including
residential care, by any public entity, office, department, or agency of
the State of [state], or of any other state, or of the United States.
e. Benefits to Be Held Separately. All of the
Beneficiary's government benefits shall be held separately by the
Trustee and shall not be commingled with the Trust assets. Nothing in
this instrument shall be construed to require the addition of government
benefits received by or on behalf of the Beneficiary to the Trust
f. Termination of Trust. Notwithstanding anything to the
contrary contained in the other provisions of this instrument relating
to the Trust, if the existence of the Trust has the effect of rendering
the Beneficiary ineligible for Supplementary Security Income (SSI),
Medicaid, or any other program of government benefits to which he
otherwise would be entitled, the Trustees are authorized to terminate
this Trust and to distribute the undistributed principal and income of
the Trust in cash or in kind, free of this Trust to [name of
remainderman], per stirpes and not per capita. In determining whether
the existence of this Trust has the effect of rendering the Beneficiary
ineligible for SSI, Medicaid, or any other government benefits, the
Trustee is hereby granted full and complete discretion to initiate
judicial or administrative proceedings, or both, for the purpose of
determining such eligibility. All costs and expenses relating thereto,
including reasonable attorney fees, shall be a proper charge to the
If not previously terminated in accordance with the above
provisions of this subparagraph f., the Trust shall cease and terminate
upon the Beneficiary's death, and thereupon the Trustee shall distribute
and deliver all of the Trust's remaining principal and undistributed
income, free of this Trust, to [name of remainderman], per stirpes and
not per capita.
Upon the Beneficiary's death, the Trustee may pay any death
taxes that, by reason of such death, may be due. All expenses of the
Beneficiary's last illness and funeral, and all expenses related to the
administration and distribution of the Trust corpus may be paid from the
Trust, if in the Trustee's discretion, other satisfactory provisions has
not been made for the payment of such expenses. The Trustee shall not
pay any expense incurred prior to the Beneficiary's death if the Trustee
shall determine that the payment of such expense is the obligation of
any county, state, federal, or other governmental agency that has a
legal responsibility to serve persons with disabilities that are the
same or similar to the Beneficiary's impairment.
g. Nomination of Trustee. The Testator nominates,
constitutes, and appoint [name of trustee] whose principal offices are
at [address], or its successors, to be the Trustee of the Trust
provided for by this Article . . . . . of my Last Will and Testament.
h. Trustee's Powers. It is the Testator's intent to grant
to the Trustee the power to deal with all of the Trust property as
freely as the Testator could in the handling of his own affairs. The
Trustee shall have all the powers and protection granted to Trustees by
statute at the time of application, and, in addition and not in
limitation of any court, the Trustee shall have the powers and
responsibilities described below, to be exercised in its sole
discretion. [Set out such additional powers and responsibilities as are
desired such as those set out in Form 20.6.09, Paragraph 9.]
i. Trustee's Bond. No bond shall be required of the Trustee
for the faithful performance of its duties as Trustee.
j. Trustee's Compensation. The Trustee shall be entitled to
compensation according to its schedule of fees for the administration of
testamentary trusts as the same may be in effect from time to time.