Comparing Testamentary and Intervivos Trusts

Establishing a Special Needs Trust for a loved one with disabilities can ensure that he or she will be taken care of in the future. However, it is important for families to choose the right type of trust. There are two major types of Special Needs Trusts: testamentary and intervivos. The major difference in these trusts is that a testamentary trust is created through a Will, and it only becomes effective after the death of the parents or primary caregivers of the child with special needs have passed away. The trust is created whenever the decedent’s Will has been probated, and the assets are then transferred to the trust. Many parents choose to establish this kind of trust if they are concerned with having all of their assets available to them during their lifetime. Also, establishing this type of trust requires less work on the part of the parents or caregivers, as they simply need to establish the trust in their Will.

On the other hand, an Intervivos Special Needs Trust is also meant to protect the future of the person with the disability but allows parents or caregivers to deposit money and other assets into the account and manage it while they are still living. Parents do not have to wait until the child turns 18 to establish this trust but can establish it at any time. An Intervivos Special Needs Trust offers several key benefits:

• The trust is completely separate from the family’s main estate.

• There is more freedom in managing the trust, as it is normally managed by the child’s parents.

• Using this account will help to keep a record of all the supplementary items that have passed government scrutiny. This will make it easier for the future trustees to know which items are appropriate and will provide a guide for them to use in the future.

• These types of trusts will allow family members to give money to the trust now, rather than just upon their deaths, where there may be significant tax issues that prevent them from donating as much money as they would like.

In creating an Intervivos Special Needs Trust, families will ensure a secure future for the person with the disability. This type of trust will continue to function without interruption in the event that parents have to go into a nursing home or die suddenly. Also, the trust allows for greater flexibility and the ability to build up assets over time.

It is important for family members to consult with an attorney who specializes in special needs planning, as they consider the benefits and drawbacks of each type of trust.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit

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