Article on ABLE Account Information for Estate Planning Lawyers

Bernard A. Krooks & Benjamin A. Rubin recently published an Article entitled, ABLE Accounts: What Trusts and Estates Lawyers Need to Know, 31 Probate & Property 40 (May/June 2017). Provided below is an abstract of the Article:

Individuals with special needs and their families and advisors are now able to set up ABLE (Achieving a Better Life Experience) accounts under Internal Revenue Code § 529A. These tax-free accounts do not affect an individual’s eligibility for Supplemental Security Income (SSI) or Medicaid so long as certain requirements are met. Currently, at least 19 states are operating ABLE accounts and several more have announced plans to launch ABLE accounts in 2017. Most states allow out-of-state residents to open accounts. Thus, it is generally not necessary for clients to wait until their home state offers ABLE accounts to establish one. When first enacted, the ABLE law prohibited out-of-state residents from setting up accounts. In 2015, however, Congress removed this provision.

Although ABLE accounts offer many benefits, it is important to understand the applicable limitations and how they compare to special needs trusts. In some cases, it may be appropriate for an individual to have both an ABLE account and a special needs trust (SNT). Keep in mind that the individual with disabilities is generally considered the owner of the ABLE account even if a third party (parent, grandparent, among others) contributes funds to the account. There are two kinds of SNTs: first-party SNTs and third-party SNTs. First-party SNTs are funded with the assets of the individual with disabilities. By contrast, third-party SNTs are created by someone other than the beneficiary with disabilities and are a common estate planning tool used to improve the quality of life of an individual with disabilities while allowing that person to maintain his government benefits. A major characteristic that distinguishes a third-party SNT from a first-party SNT is that, on th death of the beneficiary, funds remaining in the first-party SNT must be used first to repay the states’ Medicaid programs the beneficiary received services from for expenses incurred; whereas, in a third-party SNT there is no such requirement. Thus, at the death of the beneficiary of a third-party SNT, any remaining funds may be distributed to other family members or beneficiaries. This distinguishes third-party SNTs substantially from ABLE accounts as will be discussed further later in this article.