Gifts and Bequests to Persons with Disabilities

Some commonly asked questions.

My son receives disability benefits from Social Security.  I heard that if I gave him a gift or left him money in my will he will lose his benefits.  I really want to leave some money to my son, is there a way to do this without causing him to lose his Social Security?

There are several different types of benefits available from Social Security. The only Social Security benefit that would be affected by a gift or an inheritance is Supplemental Security Income (SSI), which is a needs based program. If your son is receiving another form of Social Security benefit, which are referred to as entitlement benefits, he will not lose his benefits if you give him a gift or inheritance.

Because SSI is a need based program it has rules about how much property a person can have (resources) and how much income (including gifts and in-kind support) they can receive and still qualify for benefits. It is still possible to give gifts and leave an inheritance for your son without disqualifying him for his SSI, but it must be done within the rules that have been established for that program.

Gifts. You cannot give your son cash gifts, or pay for his food and shelter without causing at least partial disqualification from his SSI benefits. These gifts or support are counted as income or in-kind support that will reduce or disqualify your son’s SSI. There are, however, goods and services which you may purchase for him that will not cause a loss or reduction in benefits from SSI.  For example, you could purchase a cell phone for your son and pay his monthly service fees directly to the cell phone company.  Chapter 21 of the Social Security Handbook has more detailed information about what you can provide to your son.

Because the rules are quite complex, you should consult with an attorney with public benefit experience if you are unsure whether a gift will disqualify your son from benefits.  Your son’s medical coverage may be dependent upon his remaining qualified for SSI.

Inheritance. You can leave an inheritance to your son without disqualifying him for SSI, but it will take some advance planning. You can create a Special Needs Trust (SNT) for your son, to be funded upon your death, through your estate plan or you can create a SNT now that can hold monetary gifts or inheritances from yourself and others for your son. A properly drafted SNT will not be counted as an available resource for SSI, but the distributions from the trust will be counted as income, unless care is taken to make the distributions in the manner described in the Gifts section above.

If your son has already received a gift or inheritance, it is not too late to preserve his SSI benefits.  Your son or his conservator/guardian can petition a court to create a SNT.  This SNT will have different restrictions than one that you could have created for him.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.


Your loved one just died–what should you do now?

We recognize that this is a very difficult time for you and your family having just lost a loved one.  The process to administer an estate after a loved one dies can seem overwhelming.  For some clients, the stress of meeting with the attorney shortly after the passing is too much.  For others, they feel reassured to start the legal process, often while other family members are in the area.  We are available to meet with you to discuss the basic steps of the estate administration either immediately after the passing or within the first month.  We recommend that the first meeting be within the first month of the passing.

Although you do not need to meet with us immediately, there are some decisions which have to be made immediately.  The questions most often asked are: “How do I get death certificates? and How many death certificates do I need?”  Typically the funeral home will assist you with obtaining death certificates.  It is important to review the form with the submitted death certificate information.  Of particular importance are the spellings of names, and the decedent’s social security number.  For most estates, at least five (5) certified death certificates are needed, and often we recommend that ten (10) be requested.  The exact number will depend on the types of assets the decedent owned and the process which will be used to administer the estate.  Should you find you need more death certificates later, we can assist you with ordering more from the county.

The process to administer a deceased person’s estate will depend on the type of Estate Planning documents the decedent had.  If the decedent had no documents or just a will, the estate will most likely need to pass through Probate.  If the decedent had a living or revocable trust, then a Trust Administration will need to be commenced.  The estate administration process depends not only on the type of documents, but also the type of assets the decedent owned.

At the first meeting, we will request that you bring the originals of all estate planning documents, as well as a certified death certificate. The type of estate planning documents will dictate the process required to administer the estate, as well as the type of assets and the title of those assets.   In order to review the type of estate administration work which will be necessary, we will need copies of all asset statements which cover or are as close to the date of death as possible.  Information relating to life insurance, retirement accounts, annuities and other assets which may have named beneficiaries should also be provided.  Upon review of all of the information, we can then provide you with the guidance necessary to administer the estate efficiently with the least amount of stress for you.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.