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Can I Be Out Of State And Set Up A California Special Needs Trust For My Loved One Residing In California?

12/22/2022 | Special Needs Trust
Can I Be Out Of State And Set Up A California Special Needs Trust For My Loved One Residing In California

Having a loved with a disability can mean having to become well-versed in government program guidelines and eligibility requirements while making sure they have what is needed to live comfortably. Even if you do not live close by, setting up a special needs trust can be an excellent way to support your loved one’s care. However, can I be out of state and set up a California special needs trust for my loved one residing in California?

California Special Needs Trust Laws

Special needs trusts are governed by both federal laws and the laws of the state where the trust and beneficiary are located. Therefore, a special needs trust created in California would be subject to California law. Although it would seem that most states would have virtually identical requirements in this area, there can be significant differences between them. Further, courts in different states interpret their laws according to their rules and history which can also vary widely. Creating this type of trust out of state for the benefit for a California resident would be problematic as the laws of another state would apply to the trust language and rules. Further, a special needs trust for a California resident should be drafted according to California law to make sure that it is done in a manner which does not endanger his or her eligibility for Medi-Cal and other government benefits.

California Trustee

Once the trust is created there will also be the matter of its administration by a designated trustee. California has its own laws regarding trustee obligations, duties, and powers which will apply to the individual or entity named in this role. Typically, the trust administration will take place where the trustee resides. Having an out of state trustee can get complicated in this situation because, unlike an ordinary trustee, a special needs trust trustee is required to pay close attention to the beneficiary and his or her needs. Although it may be possible to ask others how the individual is doing, this does not serve as a substitute for going to see them and making your own observations. Additionally, state laws can vary requiring trust administration requirements. Therefore, administering a California special needs trust from another state can create confusion regarding which state laws apply to the trust administration. In this circumstance, choosing a California trustee is usually the best option for those who live out-of-state.

Creating a special needs trust for the benefit of your loved one in California can be a critical resource for his or her care and comfort. However, it is vital that you consult with a California special needs trust attorney to ensure that the trust is created according to California law and in a manner, which will be of maximum benefit to your loved one. At the Law Offices of Alice A. Salvo, we have the experience creating California special needs trusts and can help you plan for your loved one’s care and needs. Schedule a consultation today to explore your options and start your solution.