By Eva M. Luchini, JD

Folks come into my law office to create a special needs trust to capture the bequest for a child/adult with disabilities. I ask, “who should be the trustee of that special needs trust?” Their first thought is usually a family member, a sibling. A sibling that has (or will have) their own life, their own job, their own family. I want people to know that serving as a trustee is a really part time job itself. A part-time job that gets dropped in your lap at the worst possible time with a very steep learning curve. Let’s think about it: you’re suddenly up at bat as trustee for your brother or sister’s special needs trust because your parents just died. Regardless of the unfortunate timing, you are being called upon to roll up your sleeves and educate yourself on trust administration and government benefits. This is more challenging yet if the person was living at home with mom and dad and has no ability to stay there alone. Do you find in-home caregivers? Is there enough money for that? Are they on the right benefits to get that through Medicaid? Do you move them into an Adult Family home? A Supported Living Home? Your own home?

To get a sense of the job, google the Special Needs Alliance Special Needs Trust Handbook and read through it. That is one of the first resources a newly minted trustee should cover. There’s even more critical information that isn’t in that handbook. For instance—there’s a deadline for claiming retirement assets directed to special needs trust if you want the most tax advantage for the disabled beneficiary. That deadline can mean many thousands of dollars of difference in the account. Trustees should not just assume they know enough to do the job right (and without incurring personal liability). I often suggest to parents that they allow for their proposed trustee to decline the job in favor of a professional fiduciary. There are several options to consider, including using economical pooled trusts that already have a trustee in place. Parents are better off realistically planning ahead than just hoping their other child will take care of everything like they did.

Serving as trustee of a special needs trust is a part-time job. One that you can and should decline if you aren’t able to so properly. Well-drafted special needs trusts provide the mechanism for replacing trustees so that the right person on the job and the beneficiary is getting all the benefits that parents intended.

Who wants to be Trustee of a Special Needs Trust?

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