Legal Question in Wills and Trusts in New Jersey
Is ''Social Security'' considered a ''governmental benefit'' in this case?
I have a simple legal question that you might be able to answer for me, my Aunt's husband just died and left everything in a Spousal Trust under his niece's control. My mother has set up my Aunt in an assisted living facility. My Mom and Dad's health is not the greatest -- anyway the upshot is that my Uncle set up this Spousal trust and has his nice set up as its Trustee. It is a tiny estate less than $100,000. My mother would like to put the money into her sisters own savings account but wants to be sure she can have, Helen her sister, legally request this.
My Uncle's will states under the ''Spousal Trust Provision:''
''The Trust named for my spouse shall be administered as follows:
Commencing as of the date of my death and during the life of my spouse the Trustee shall distribute to my spouse:
....As much or all of the principal of the Trust as my spouse from time to time may direct in writing: however, should my spouse be receiving governmental benefits, any distribution of income and principal shall be at the Trustee's sole discretion.''
My Mom's sister only receives simple ''Social Security'' and no other ''governmental benefits,'' is ''Social Security'' considered a ''governmental benefit'' in this case?
2 Answers from Attorneys
Re: Is ''Social Security'' considered a ''governmental benefit'' in this case?
Your aunt's situation is a very complicated area of law. In order to make sure that she does not lose any benefits she may have [and I can't say if "Social Security" in this case is a governmental benefit], your family needs to consult with an Elder Lawyer, who specializes in such issues.
There is an organization and a web site where you can get information: National Academy of Elder Law Attorneys - http://naela.org/ .
Re: Is ''Social Security'' considered a ''governmental benefit'' in this case?
I agree with Miriam taht this is somewhat complicated, as it appears this is an attempt both to provide for your aunt, as well as protect assets in the event of her qualification for benefits that might be income driven. If this is so, it appears to be deficient to protect the assets. I suggest your mother not add assets to this trust, but to consider creating her own "special needs" trust, which will allow funds to be used for your aunt, supplementing any governmental benefits she may be getting now or get in the future, but preserve any unused assets from going to the government upon her demise. An elder law attorney can assist you in doing this.
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