Special Needs Trusts ABLE Accounts WIPA

Many people with special needs, such as mental health disabilities, are eligible to receive financial assistance from the government through programs such as Supplemental Security Income (SSI), Medi-Cal (Medicaid), HUD Section 8, In-Home Support Services, and CalFresh. These government aid plans are based on financial need and have strict income eligibility requirements, however. If the person receives a large amount of money from an inheritance, they can be disqualified from such needs-based programs. For the family members of a special needs individual, careful estate planning is essential to prevent such an outcome.

The purpose of a “Special Needs Trust” is to preserve government benefits for disabled beneficiaries. Instead of leaving assets directly to the disabled adult child, families can establish a “Third Party Special Needs Trust” in their living trust or wills. This trust would not be under the control of the child but would be managed by an independent trustee named by the parents and would continue for the lifetime of the child. (This is known as a “Third Party Special Needs Trust” because the beneficiary has no control over the trust.)

This type of trust prevents the beneficiary from controlling their inherited assets, but also provides a means for parents to ensure their disabled loved one receives financial support even after their deaths. The trust can own assets that are used but not “owned” by the beneficiary, and so do not count against needs-based government aid. The trustee may not want to give cash directly to the child, as such payments are counted as income against SSI, but they can pay for expenses such as utilities, transportation, education, recreation, etc. The trust may pay for food and rent (or own a home in which the beneficiary resides), although paying for such “basic needs” will trigger a reduction in SSI benefits. Assets owned by the trust can include money, property, stocks and bonds, child support, and monetary legal settlements; and other family members and friends can also contribute money and assets to the trust.

Expert Resources

For more information on Special Needs Trust funds in California, see Building Your Assets and Wealth: The Details by Disability Benefits 101. Families who think they need such an estate planning arrangement should consult an attorney with experience preparing Special Needs Trusts. Also, families who want to hire an experienced Professional Fiduciary to administer a Special Needs Trust can go to the Professional Fiduciary Association of California website (click on the Fiduciary Search link and look for someone who specializes in Special Needs Trusts). The following books are also recommended:

• Special Needs Trusts: Protecting Your Child’s Financial Future by Kevin Urbatsch Attorney and Michele Fuller-Urbatch Attorney, (7th Edition) published by Nolo Press
• Administering the California Special Needs Trust, by Kevin Urbatsch Attorney, published in 2016 by iUniverse

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ABLE accounts are tax-advantaged savings accounts for persons with disabilities. California’s ABLE account program is called CalABLE. If you have a disability that began before you turned 26*, you can open an ABLE account. Advantages are:

• Savings and tax advantages – Money saved in ABLE accounts is not taxed as long as money taken out of the account is used for “qualified disability expenses.” Also, friends and family can contribute to your ABLE account.
• Preserving your benefits – You can save up to $100,000 in your ABLE account without affecting your SSI benefits (ABLE savings do not count against the SSI $2,000 asset limit). Also, the money saved in an ABLE account does not affect CalFresh eligibility.
• Flexible spending – You can use your ABLE savings for many “qualifying expenses”, such as housing, education, transportation, legal fees, etc.

*In 2022, the U.S. Congress passed the ABLE Age Adjustment Act. This legislation increases the eligibility age of beneficiaries of ABLE accounts from the onset of disability before age 26 to age 46 — beginning January 1, 2026. Until then, only individuals who have a qualifying disability beginning before age 26 are eligible to open a CalABLE account.

Expert Resources

For more information about CalABLE account eligibility, rules, and benefits, see the CalABLE website for California.

You can choose to open an ABLE Account in another State’s ABLE program. You can compare different state ABLE accounts program to see which one best fits your needs.  Note: You can switch your ABLE account from one state program to another. You do not have to stick with the state program you choose.

Ref: ¹Disability Benefits 101

Good sources of information about ABLE accounts in general are:

• ABLE Accounts page on the Disability Benefits 101 website.
• ABLE National Resource Center (ABLE NRC)

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If you already have a Special Needs Trust, it’s a good idea to open an ABLE account as well, because these asset protection tools have different advantages.

Advantages of ABLE accounts:

• Tax benefits
• Easier (and cheaper) to open
• Easier to use the money in the account
• The person with a disability has more control over the account
• Money from an ABLE account used for housing expenses doesn’t make SSI benefits go down

Advantages of Special Needs Trusts:

• No limits on contributions
• Money can be put into a third-party trust, instead of in the disabled person’s name. When the beneficiary dies, a third-party trust does not have to repay Medi-Cal for medical expenses.
• Some third-party trusts are Qualified Disability Trusts and have tax benefits

The bottom line: Because of the $18,000 annual limit on contributions (as of 2024) to an ABLE account, you cannot replace a trust with an ABLE account. Instead, consider using them both as part of your overall asset-building strategy.

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Many people receiving Social Security benefits (SSI and/or SSDI) would like to work but are worried that they will lose their benefits if they earn an income. The Work Incentive Planning & Assistance (WIPA) Program is a FREE service offered by the Social Security Administration to help those on SSI/SSDI to make informed choices about working. This program is for individuals currently receiving disability benefits who are considering work, seeking work, self-employed, or currently employed. WIPA will provide you with information about work incentives which may allow you to keep some or all of your cash benefits as well as your medical benefits.

Expert Resources

To obtain local WIPA services, you must work with an SSA Certified Work Incentive Counselor. For the San Francisco South Bay Area, these services are available from the Center for Independence in San Mateo County. To request WIPA services, go to the Work Incentives Planning and Assistance web page, and leave a message by clicking the “Email Us to Request More Information” button.