Understanding Tenancy And Different Ways to Own Property

A paper cutout of a house

When two or more individuals own property whether it’s a home, or a piece of land, the relationship between the owners is known as “tenancy.” There are three common ways that a tenancy can be structured, and how it is done will determine such important considerations as whether an interest in the property will pass freely or by operation of law at an owner’s death and whether creditors can claim the property.

Tenancy comes in three common forms: tenancy in common, joint tenancy and tenancy by the entirety. Each has advantages and disadvantages so it is very important that the deed is properly drafted to accomplish its intended purpose. Otherwise, if the deed is not clear the state default rules will determine which form of tenancy applies and in Pennsylvania the default rule is tenancy in common.

Tenancy in common allows an owner the greatest flexibility to transfer the property. Each co-tenant in a tenancy in common has an interest in the property and is free to transfer this interest during life or through a will. The co-tenants can have different ownership interests; for example, three owners could own 3 percent, 27 percent and 70 percent of the property, respectively, as tenants in common. Each tenant can sever his relationship with the other tenants by conveying his interest to another party. This third party then becomes a tenant in common with the other co-tenants.

Joint tenants, on the other hand, must have equal ownership interests in the property. So, three owners would each have a one-third interest in the property. If one of the joint tenants dies, his interest immediately ceases to exist and the remaining joint tenants own the entire property. The advantage to joint tenancy is that it avoids having an owner’s interest probated upon his death since his interest passes by operation of law. This is why jointly owned property is considered non-probate property.

Another advantage is if a joint tenant needs to apply for Medicaid in Pennsylvania the State will not put a Medicaid lien on the property if it is a primary residence of both joint tenants. A disadvantage to both joint tenancy and tenancy in common, however, is that creditors can attach the tenant’s property to satisfy a debt. For example, if a co-tenant defaults on his debts, his creditors can sue in a “partition proceeding” to have the property interests divided and the property sold, even over the other owners’ objections.

A third form of tenancy is tenancy by the entirety which avoids this problem, but it is available only to married or, where applicable, civilly united couples. Tenancy by the entirety is based on the societal value of protecting the family. One tenant cannot convey his interest on his own, unlike with the other tenancies. Upon the death of one spouse, his interest automatically passes to the other spouse by operation of law, as with joint tenancy, and the creditors of one spouse cannot attach the property or force its sale to recover debts unless both spouses consent.

Creditors may place a lien on property held in tenancy by the entirety, but if the debtor spouse dies before the other spouse, the other spouse will take ownership of the property free and clear of the debt. This is why both husband and wife are required to sign the mortgage on their property for the mortgage to be valid.

If you have any questions about tenancy or need a deed updated or prepared feel free to contact Gregory J. Spadea at 610-521-0604 from Spadea & Associates, LLC in Ridley Park Pennsylvania.

Internal Revenue Code Section 1031 Exchange Requirements and Benefits

Blue man carrying the words tax on his back
Internal Revenue Code Section 1031 enables property owners to defer capital gains on the sale of business use or investment property provided another business use or investment property is acquired in the same transaction. A 1031 exchange allows investors to accomplish many investment goals, such as acquiring property with greater income potential, relocation of an investment property and diversification.

Some of the requirements of a successful 1031 exchange are as follows:

• A qualified intermediary is required to facilitate the exchange. The qualified intermediary acquires, holds and conveys both properties, controls the sale proceeds and guides the exchanger through the exchange process.
• The exchanger must not have actual or constructive receipt of the sale proceeds, including deposit monies.
• Once the relinquished property is conveyed to a buyer, the exchanger has 45 days to identify replacement property and a total of 180 days to acquire it.
• To maximize the tax-deferral, replacement property of equal or greater value and equity must be acquired. In the event of a trade down in value or equity, the exchanger is taxed on the amount of the trade down.
• Title to the replacement property must be held in the same name as the relinquished property.

In addition to the investment objectives already mentioned, a 1031 exchange is a great estate planning tool. The fact that one may complete exchange after exchange and continue to rollover the gain allows the gain to be deferred indefinitely. Upon the death of the exchanger, the heirs inherit the property with a stepped-up tax basis thus eliminating all deferred gain.

While real estate exchanges account for a majority of 1031 exchanges, you can exchange any type of asset held for business use or investment, including tangible and intangible assets. A few examples include airplanes, construction equipment, rental car fleets, artwork, patents, race horses, distribution rights and livestock. When exchanging personal property, “like-kind” replacement property must be acquired which means something within the same asset class. When exchanging, in addition to deferring the capital gains, you also defer the depreciation recapture. For business owners who took bonus depreciation in recent years, this is especially beneficial and helps keep valuable capital invested in the business.

Business owners have long utilized 1031 exchanges to help grow their business. They can also help a business relocate to a better location or a more efficient facility or expand into several locations as well as replace equipment and vehicles. Additionally, exchanges can provide an exit strategy for retiring business owners by exchanging business related real property for other incoming producing real estate or even a future vacation home or primary residence.

If you are considering selling real property held for business use or investment purposes, be sure to contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604 to discuss how you might benefit from a 1031 tax-deferred exchange.

Proper Uses of Special Needs Trust Funds

Once you have a third party Special Needs Trust set up for a disabled beneficiary, you should know what the proper uses of Special Needs Trust funds are. The general rule is that the funds cannot be used to pay for any expense covered by Medicaid. Here is a general list of how the Special Needs Trust funds should be spent:

1. Purchase of home.
2. Architectural modification to residence owned by either the trust or the disabled beneficiary to permit greater accessibility.
3. Home improvements, repairs and maintenance including tools to perform home improvements, repairs and maintenance.
4. Furniture and home furnishings.
5. Home alarm or monitoring system.
6. Repair services for appliances, bicycle, household items and fitness equipment.
7. Cable television service like Comcast or Direct TV, telephone and internet.
8. Computer, laptop or tablet or e-readers including Apple Ipad, or Kindle with software, programs, e-books and applications.
9. Telephone service and equipment, including cell phone, pager, etc.
10. Appliances such as TV, DVD, microwave, stove, refrigerator, clothes washer and dryer.
11. Assistive technology not covered by Medicaid.
12. Snow removal, landscaping and lawn service.
13. House cleaning and laundry services.
14. Purchase of automobile or van to transport the disabled beneficiary including maintenance, insurance, repairs, fuel etc.
15. Fitness equipment.
16. Non-food grocery items such as laundry soap, bleach, fabric softener, deodorant, dish soap, hand and body soap, personal hygiene products, paper towels, napkins, tissues, toilet paper, any household cleaning products.
17. Over-the-counter medications including vitamins, herbs and protein shakes.
18. Holiday decorations, parties, dinner dances, holiday cards, reasonable modest gifts from beneficiary for customary special occasions to close family and friends.
19. Stationery, stamps, Christmas cards, etc.
20. Case management of the programs for the disabled beneficiary including attendant care.
21. Elective surgery.
22. Dental work not covered by Medicaid, including anesthesia.
23. Personal assistance services not covered by Medicaid.
24. Physical or occupational or speech therapy or any medical specialist not covered by Medicaid.
25. Musical instruments including lessons and music.
26. Prepaid funeral expense.
27. Psychiatric and psychological services including evaluations and private counseling if not covered by Medicaid.
28. Accounting services to prepare annual trust income tax returns.
29. Legal fees and Court costs to appoint a guardian.
30. Haircuts, salon services and message therapy.
31. Pet and pet’s supplies, veterinary services.
32. Educational courses or classes including supplies and tutoring.
33. Clubs and club dues including record clubs, book clubs, health clubs, service clubs, zoo, advocacy groups, museums etc.
34. Tickets for concerts and conferences
35. Travel costs like airline tickets to family and friends.

If you have any questions about setting up or operating a special needs trust please contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

What Can I Do With My Life Insurance Policy?

Do you have a life insurance policy and no longer want it or can’t afford the premiums? You can do more than just stop paying the premiums or cashing it in with the insurance company.

Many people have sold their policies in a life settlement sale for cash. The process is not easy, but it can be in your best interests to explore it.

How does it work?

First, we will review your policy and appraise it to determine the market value. Next, we will find a buyer. Once we have a buyer and complete the sale, you will receive a cash settlement and the buyer will pay the future premiums and collect the benefit when you die.

Finding a buyer on your own can be very difficult, which is where we come in. We have contacts in the market and are able to find the best deal for you. You will receive a percentage of your policy’s value in cash. For a free consultation contact David Edelman at 610-521-0604.

What you should know before selling your policy

  • Your life insurance policy may not have much value on the market.
  • You won’t get the full face value. Generally, sellers receive about 7 percent to 20 percent of the value of their policy.
  • Brokers charge a commission.
  • Buyers don’t want every policy.
  • Your settlement could be subject to income tax.
  • Your eligibility for government assistance programs like Medicaid may be affected.

If you would like to discuss your options or are interested in finding out more, please call David W. Edelman at 610-521-0604 at Spadea & Associates, LLC in Ridley Park, Pennsylvania.

When Are Fiduciary Bonds Required in Probate?

Fiduciary bonds or administrator’s bonds, act like an insurance policy covering the administrator’s performance of his or her duties. The purpose is to ensure that the administrator does not steal the beneficiary’s assets, which is what the bond insures against.

Fiduciary bonds are not required if the decedent left a valid Last Will and Testament that specifically waives the requirement for a bond. This alone is a compelling reason why everyone should have a Will, even if their intended beneficiaries are the same people who would inherit under the intestacy laws.

Fiduciary bonds are required if the decedent’s Last Will and Testament did not waive bond, or if the decedent died intestate (without a will). It may take one to three weeks for fiduciary bond to be issued and the estate cannot be probated until the bond is issued.

The amount of the bond depends on the size of your estate. Pennsylvania requires the bond to be double the value of the personal assets. Real estate is not typically included in the bonded amount. Because real estate is inherently fixed, there’s no concern that the personal representative will steal it. The amount of the fiduciary bond can fluctuate over time. If more assets are discovered, the amount could increase. If a distribution is made from the estate, the amount could decrease. You should monitor the amount of the bond to be sure that it accurately reflects the value of the estate.

Fiduciary bonds are usually renewed on an annual basis. The longer the estate remains open, the more money is paid out in bond premiums by the estate. This creates an incentive for the personal representative to keep things moving and complete the process as quickly as possible. A pro rata refund of the bond premium may be available if the estate is closed before the one year anniversary of the bond issue date.

If you have any questions about surety bonds or probating an estate please call Gregory J. Spadea at 610-521-0604. Spadea & Associates, LLC located in Ridley Park, Pennsylvania provides estate and tax planning services and probates estates.

Why I Should Form a Family Limited Partnership

Basic Strategy
The estate planning strategy employed by business owners is to gift limited partnership interests to family members at a discount based on their future business succession plan. This works well for succession planning because a business owner that has a successful LLC can gift the nonvoting LLC units to his children and out of his estate over time. The business owner acts as a general partner and his children are limited partners. In addition all the assets transferred to the Family Limited Partnership are protected from business creditors.

Gifting to the Limited Partnership
The general partner (business owner) can gift the limited partnership interests up to the annual exclusion of $13,000 in 2012 without filing a form 709 federal gift tax return. If the business owner wants to gift more than $13,000 per person he has to file a Form 709 return and may use part of his $5.12 million exemption in 2012. However, the value of the limited partnership shares or nonvoting LLC units may be discounted up to 30% due to their lack of marketability since there is no ready or available market to sell those shares on.

Tips on Surviving an IRS Challenge
In order for the Family Limited Partnership to survive a challenge by the Internal Revenue Service the general partner (business owner) must resist the temptation to maintain too much control over the partnership assets. The general partner should not pay personal expenses from the partnership bank account or comingle his personal funds with the partnership funds. The partnership should be operated as a separate entity and hold annual meetings to discuss management issues.

The partnership agreement should be drafted to

  1. avoid potential abuses by the general partner;
  2. address when distributions from the partnership bank account should be made;
  3. state at least three nontax reasons indicating why the partnership was formed such as:
    • To make a profit.
    • To increase the family’s wealth
    • To provide a means whereby family members can become more knowledgeable about the management and preservation of the family’s assets.*

If you have any questions about Family limited partnerships please call Gregory J. Spadea of Spadea & Associates, LLC in Ridley Park, PA at 610-521-0604.

*Estate of Turner, TC Memo 2011-209

What Are The Duties Of A Trustee?

Financial Advisor Talking To Senior Couple
A trustee is a person or entity who administers a trust for the benefit of a beneficiary according to the instructions established by the trust maker in the trust document. A trustee should be patient, organized, detail oriented, honest and have the ability to make unbiased decisions with regard to the trust beneficiaries.

Every trustee has the following duties:

1. Duty to Administer the Trust based on the Trust Documents – the trust is your road map and you must follow its directions, whether about when and how to distribute income and principal or what reports you need to make to beneficiaries.

2. Duty of Loyalty to all the Trust Beneficiaries – you have a fiduciary duty to the trust beneficiaries including the current beneficiaries as well as any future or contingent beneficiaries to safeguard and preserve trust property and keep the beneficiaries informed.

3. Duty to Keep and Render Accounts – to keep track of all income to, distributions from, and expenditures by the trust. Generally, you must give an account of this information to the beneficiaries on an annual basis. In strict trust accounting, you must keep track of and report on principal and income separately.

4. Duty to Exercise Reasonable Care especially regarding investment standards – your investments must be prudent, meaning that you cannot place money in speculative or risky investments. In addition, your investments must take into account the interests of both current and future beneficiaries.

5. Duty to Enforce Claims of the Trust and Defend Actions Against the Trust – you would be responsible for hiring legal counsel.

6. Duty to Keep Trust Property Separate from your own Assets – you should have a separate trust bank account using the trust Employer identification Number (EIN) since the trust is a separate entity from the trustee and beneficiaries.

7. Duty Not to Delegate your Responsibility as a Trustee – however if you feel you can no longer serve as trustee you should resign after an alternate trustee is appointed.

As you can see from all the duties listed above being a trustee is an awesome responsibility. The trustee has full legal responsibility and legal liability for trust administration, filing the trust annual federal and state income tax returns, and making distributions in compliance with the trust documents. Therefore it is very important to select a professional trustee that has the experience and resources to handle all the details and duties listed above. Feel free to contact Gregory J. Spadea at Spadea & Associates, LLC in Ridley Park, PA at 610-521-0604 to see how he can help you fulfill your responsibilities as Trustee or act as a co-trustee with you.

How to Avoid a Will Contest

Signing Last Will and Testament
With such a large transfer of wealth passing from the current generation than ever before, it is not hard to imagine that litigation can occur at the passing of a loved one if a beneficiary is left out of the will.   A will contest is defined as a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary (mental) capacity, was operating under an insane delusion, or was subject to undue influence, or fraud or duress. A will may be challenged in its entirety, or only in part.

In order to file an objection against a will a person or party must have standing.  Typically, standing to contest the validity of a will is limited to two classes of persons: 1) those who are named on the face of the will (i.e. any beneficiary); 2) those who would inherit from the testator if the will was invalid.

If an heir is unhappy with the amount they received or didn’t receive under a will, he may contest the will.  It may be impossible to prevent heirs from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out. The following are some steps that may make a will contest less likely to succeed:

  • Make sure your will is properly executed. The best way to do this is to have an experienced estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed by two independent parties and notarized and should include a self-proving affidavit.
  • Explain your decision. If all the heirs understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to heirs at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. Although you should discuss it in person, always state the reason in the will. You may also want to include a letter with the will.
  • Use no-contest clause. One of the most effective ways of preventing a challenge to your will is to include a no-contest clause in the will. However this will only work, if you are willing to leave something of value to the potentially disgruntled heir. A no-contest clause states that if an heir challenges the will and loses, then he or she will get nothing. Therefore, in order to be effective you must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
  • Remove the appearance of undue influence. The most common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your son who is also your primary caregiver, your other children may argue your son took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.
  • Prove competency. One common way of challenging a will is to argue the Testator was not mentally competent at the time he or she signed the will. Pennsylvania requires that you be over 18 years of age and be of sound mind. One type of mental incapacity is insane delusion which Courts have defined as a “fixed false belief without hypothesis, having no foundation in reality.  You can try to avoid this by making sure the attorney drafting the will tests you for competency.  The attorney may ask you a series of questions to ensure the Testator understands (a) the amount and nature of his or her property, (b) the heirs and loved ones who would ordinarily receive such property by his Will, and (c) how his Will disposes of such property.  The attorney will record your answers to show you were competent when you signed your will.  The attorney may also recommend you be tested by a doctor who will write a report indicating you were competent when you signed your will.
  • Remove the appearance of undue influence. The most common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your son who is also your primary caregiver, your other children may argue your son took advantage of his position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.
  • Remove the appearance of fraud. A less common method of challenging a will is for an heir to argue that the Testator was fraudulently induced into signing his or her will. Fraud can occur if the Testator signed a will without realizing it was a will. It could also happen if someone gave the Testator misinformation that caused him or her to change the distribution in the will. It is very hard to prove but it happens.
  • Remove the appearance of duress. Duress involves some threat of physical harm or coercion on the testator by the perpetrator which caused the signing of the Will not to be voluntary.  To avoid this the Testator should be by themselves when they meet with their attorney to draft and sign the will with no beneficiaries present.

Please contact Gregory Spadea at 610-521-0604 if you would like your will reviewed to ensure the likelihood of it being contested is reduced.

What are the Duties of PA Executor?

A frequently asked question for clients preparing Wills is, what are the duties of my PA Executor? The short answer is that the Executor’s duties are to gather the assets, pay the bills, file the necessary tax returns, prepare an accounting and make distribution to the beneficiaries.

The basic outline of the duties of a PA Executor include the following:

1. Notice of Probate. Prepare a Notice of Probate for each beneficiary of the Will and each
heir-at-law and next-of-kin. File within 60 days after probate. Send a Proof of Mailing
to the Register of Wills within 10 days of filing.

2. Charitable Bequests. Determine if there are any charitable bequests. If so, send a
Notice to the Attorney General. The Attorney General must also receive an accounting
and copies of all filed Receipt and Refunding Bonds.

3. Specific Bequests. Pay any specific bequests within 1 year.

4. Social Security. Notify Social Security of the decedent’s death and return any Social
Security checks that should not have been received. In the case of direct deposit, Social
Security will automatically make the withdrawal upon receipt of the notification.

5. VA. Determine if the decedent is a Veteran and apply for the appropriate Veteran’s
benefits by calling 800-827-1000. The VA Pension direct deposit phone number is 877-
838-2778. The VA Life Insurance phone number is 800-669-8477.

6. Postal Service. Contact the postal service and arrange for the decedent’s mail to be
forwarded to the executor.

7. Valuation. Value all assets of the estate as of the date of death, including:

  • Tangible personal property (by appraisal, if necessary)
  • Real estate (by appraisal). Deal with all tenants, landlords and lenders.
  • Bank accounts
  • Securities
  • Employee benefits
  • Retirement accounts
  • Motor vehicles
  • Business assets
  • Government bonds
  • Annuities
  • Tax or Insurance Refunds

8. Debts. Obtain balances for any indebtedness owed by the decedent

9. Retitle to Estate. Retitle assets from the decedent to the estate

10. Claims. File claims with life insurance companies, annuities and retirement plans

11. Safeguard Assets. Safeguard any real and personal property, check that all insurance is current, that real estate is secured, and that utilities are dealt with appropriately

12. Taxes

  • Income Tax. File the decedent’s final federal and state income tax returns.
  • Federal Estate Tax. Prepare and file a Federal Estate Tax Return (Form 706), if required.
  • PA Inheritance Tax. Prepare and file a PA Inheritance Tax Return, if required. Remember that Wrongful death claims are not subject to PA Inheritance Tax
  • Income Tax for Estate. Prepare and file a Form 1041, if the estate income exceeds $600.
  • Income Tax for Trust. Prepare and file a 1041 Income Tax Return for any trust, if required.
  • Out-of-State Taxes. Prepare and file any out-of-state tax returns, if required.

13. Executor’s Commission. Determine the amount and appropriateness of executor’s commissions based on the Johnson estate.

14. Accounting. Prepare an informal accounting of all of the financial activity of the estate. List the assets of the estate, income generated by those assets, expenses paid by the estate, what is left and how the remaining assets are proposed to be distributed.

  • Determine whether the beneficiaries want distribution in cash or in-kind.
  • Obtain beneficiaries’ signatures on the accounting.

15. Release and Refunding Bonds. Obtain a signed Release from each beneficiary indicating that they accept the distribution and agree to refund to the estate any amounts that may be due if obligations of the estate are later discovered. The Release only needs to be filed with the Register of Wills if a formal accounting is requested by one of the beneficiaries or by the Orphans Court.

16. Retitle Assets. Make distribution to the beneficiaries, including any trusts that may be beneficiaries and retitle assets to the name of the beneficiaries.

17. If the decedent got divorced after the will was written you also need the divorce decree.

Contact a Ridley Park, PA Estate Planning Attorney

Contact Gregory J. Spadea in Ridley Park, PA at 610-521-0604 if you need help probating an estate or have any questions about your duty as an executor.

Determining The Purpose of an SNT and the Appropriate Expenditures

Arriving to Hospital via Ambulance
A Special Needs Trust might have been created to handle proceeds from a personal injury settlement or an inheritance left directly to an individual with a disability. It might be designed to protect eligibility for Supplemental Security Income (SSI), Medicaid or other public benefits programs — or for a number of programs (usually including those two) at the same time. Common questions about use of trust money revolve often revolve around what expenses should be paid from the trust such as travel and entertainment, transportation and housing and other expenditures.

The first place the trustee should look is at the trust document itself. It may be fine that state and federal law permit a particular expenditure, but if the trust does not then the trustee cannot take advantage of the government’s flexibility. Sometimes there is nothing to prohibit a proposed expenditure in public benefits law or the trust document, but that still might not mean that the purchase is appropriate — it might be imprudent considering the circumstances, or a violation of general trust administration principles.

All that said, the very purpose of Special Needs Trusts is usually to provide extra, or supplemental, items to the beneficiary the things that the system, family and other sources cannot or will not provide. One of the very few court cases addressing this concept is a 2004 Minnesota Court of Appeals case, In re: The Irrevocable Supplemental Needs Trust of Collins. The Court of Appeals ruled that the proper approach was not to second-guess the trustee as to each expenditure, but to determine whether the trustee was properly exercising his discretion. Since the whole point of a Special Needs Trust is to provide for extra benefits that are not otherwise available, the trial judge here should have presumed that a trustee/father knows best whether his daughter is mature enough to ride a snowmobile or attend a Britney Spears concert.

The Collins case was an unreported case and therefore sets no precedent for other courts.
Nonetheless, the Collins case can give us some assistance in determining whether a given expenditure should be approved from a Special Needs Trust. Among the items to consider in a given case:

1. Is the expenditure permitted by the trust terms? Is it prohibited by Medicaid or Social Security regulations?

2. Does the expenditure clearly benefit the trust’s beneficiary? Does it also benefit others, such as family members? If it benefits the trustee (as, for instance, a home improvement that clearly aids the beneficiary but also increases the value of the home owned by a parent/trustee), it should be scrutinized much more closely, and may not be permissible in all circumstances.

3. Is there enough money in the trust to make the proposed payment without seriously affecting the ability to provide other benefits in coming years? Not every expenditure that reduces future benefits is forbidden, but the larger the expenditure (in relation to the trust’s size), the harder it is to justify.

4. Is the proposed expenditure related to the purpose for which the trust was established? In other words, if the trust came from a personal injury settlement it will ordinarily be easier to approve expenditures for therapy or adaptive equipment related to the injury for which the settlement was obtained.

5. Are there other sources of funds? If public benefits are available to provide the same items, the money ordinarily should not come from the trust. But if the public benefits are so limited that the quality of the items will suffer, or if it takes an extremely long time for equipment or services to get to the beneficiary, the trust might still be available to make the purchase more quickly or to purchase better supplies or equipment. Where family resources are available, it might be better to save trust funds — especially if the beneficiary is a minor, and parents have a general obligation of support.

There will, of course, be other considerations in each case. We do not mean to give an encyclopedic list here, so much as to suggest that decisions about expenditures can be very difficult. It is not enough for the trustee to really, really want to make the expenditure, or to be completely convinced it is appropriate — it is important to consider the proposal from all sides, admitting that there may be good reasons not to proceed, as well. The key is that the trustee must act reasonably, remain free from self-interest or bias, and above all, be prudent.

How Does a Trustee Act Prudently? The best way to assure that proper decisions are made, and to minimize the possibility of later difficulties, is to seek independent advice from a qualified legal expert.

Payment by the trust for housing and food directly to the organization providing the services (income distributions) will not usually eliminate SSI and Medicaid benefits. Income distributions of food and shelter invoke special rules, known as In Kind Support and Maintenance, or “ISM,” which may reduce but not necessarily eliminate benefits.

What kind of expenses are considered “shelter” or “household” expenses according to the Social Security Administration? Social Security’s rules list these and only these:

1. Mortgage, including property insurance
2. Property taxes
3. Rent
4. Gas
5. Electricity
6. Heating fuel
7. Sewer/Garbage removal
8. Water
9. Food

In general, the benefit is not reduced by more than one third of the maximum Supplemental Security Income plus $20.00.

Sometimes it may be appropriate to consider the options and risks, to make an expenditure and report it to the appropriate government agency and wait for a response. Sometimes it may be better to seek the blessing of the court system, giving notice to government agencies as appropriate and asking for a determination of the validity of the proposed expenditure in advance.

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