Special needs trusts have become common estate planning tools for special needs children and adults. These trusts are so common that many parents of special needs children believe they can move from one state to another without jeopardizing any of the benefits that the trust provides. While this assumption may be true in the majority of circumstances, the failure to closely examine the requirements and regulations for special needs trusts in the destination state may deprive a child of essential federal and state aid.
One issue that may arise is that the amount of Supplemental Security Income is lower in one state than in another. Each state sets the amount of these benefits, and they may be lower or higher in the new state.
Another issue might be that the new state imposes different regulations and limitations on special needs trusts. The new state may require the family and the special needs child to actually become residents before they can petition for approval of their special needs trust. This problem may have several potential solutions, including drafting a new trust instrument or amending the existing trust. These solutions may not be practical if the existing trust is irrevocable. Different states will have different solutions and seeking advice from an attorney in the destination state may be the best solution.
If you have questions regarding special needs planning, you may want to consult an experienced special needs attorney about possible changes to the trust that might be required in the destination state.