[TRUST_NAME] SPECIAL NEEDS TRUST
(Governing Law: State of Nevada)
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
3.1 Creation and Funding
3.2 Purpose and Intent
3.3 Beneficial Interests
3.4 Distributions
3.5 Termination - Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
THIS SPECIAL NEEDS TRUST (the “Trust”) is made as of [EFFECTIVE_DATE] (the “Effective Date”) by and between:
• [SETTLOR_NAME], an individual with an address at [SETTLOR_ADDRESS] (the “Settlor”); and
• [TRUSTEE_NAME], [individual/corporate trustee] whose principal place of business is [TRUSTEE_ADDRESS] (the “Trustee”).
RECITALS
A. The Settlor desires to establish a trust under Nevada law for the sole benefit of [BENEFICIARY_NAME] (the “Beneficiary”), who is a person with a disability as defined in 42 U.S.C. § 1382c(a)(3).
B. The Settlor intends that all Trust assets be administered so as to supplement, and not supplant, any means-tested governmental benefits for which the Beneficiary may be or become eligible.
C. The Trustee is willing to accept the office of trustee and administer the Trust pursuant to the terms herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Settlor hereby transfers to the Trustee the property listed on Schedule A attached hereto, to be held, managed, and distributed in trust as provided below.
2. DEFINITIONS
When used in this Trust instrument, the terms below shall have the following meanings:
“Administrative Trustee” – Any additional trustee appointed solely for Nevada‐situs or administrative compliance purposes.
“Arbitration Rules” – The NV Uniform Arbitration Act as adopted in NRS Chapter 38, as modified by Section 8.3.
“Beneficiary” – [BENEFICIARY_NAME].
“Discretionary Distribution” – Any distribution made in the Trustee’s sole and absolute discretion pursuant to Article 3.4.
“Governing Law” – The laws of the State of Nevada, excluding its conflict-of-laws principles.
“Means-Tested Benefits” – Medicaid (Title XIX), SSI (Title XVI), SNAP, Section 8 housing, or any similar federal or state needs-based program.
“Qualified Disability Expenses” – Expenses that enhance the Beneficiary’s quality of life and are not inconsistent with benefit eligibility, including but not limited to education, therapies, travel, recreation, personal care, and adaptive equipment.
“Special Needs” – Needs arising from the Beneficiary’s disability that are not fully met by public benefits, including Qualified Disability Expenses.
“Trust Assets” – All property, real or personal, tangible or intangible, held from time to time under this instrument.
“Trust Protector” – The individual or entity appointed under Section 3.6 with limited oversight powers.
[// GUIDANCE: Add or delete defined terms to fit the particular matter. Maintain alphabetical order.]
3. OPERATIVE PROVISIONS
3.1 Creation and Funding
3.1.1 Irrevocability. This Trust is irrevocable. The Settlor waives all rights to alter, amend, revoke, or terminate the Trust, except as expressly provided herein.
3.1.2 Additional Contributions. Additional assets may be added to the Trust at any time by the Settlor or any third party with the Trustee’s consent, provided such additions do not jeopardize the Beneficiary’s eligibility for Means-Tested Benefits.
3.2 Purpose and Intent
The Trust is intended to qualify as a “Supplemental Needs” or “Special Needs” trust under applicable federal and Nevada law. Trust Assets shall be used exclusively to provide for the Beneficiary’s Special Needs and to maintain the Beneficiary’s eligibility for Means-Tested Benefits.
[// GUIDANCE: If the Trust is SELF-SETTLED, insert mandatory Medicaid payback language to comply with 42 U.S.C. § 1396p(d)(4)(A). Omit for third-party trusts.]
3.3 Beneficial Interests
3.3.1 Sole Benefit. During the Beneficiary’s lifetime, no person other than the Beneficiary shall have any beneficial interest in or entitlement to Trust Assets.
3.3.2 Spendthrift Protection. The Beneficiary’s interest is subject to a spendthrift clause under Nevada law; accordingly, it is not transferable or subject to creditors’ claims to the maximum extent permitted by NRS Chapter 163.
3.4 Distributions
3.4.1 Discretionary Standard. The Trustee may, in the Trustee’s sole and absolute discretion, make Discretionary Distributions for the Beneficiary’s Special Needs. No distribution shall be made that would reduce or eliminate Means-Tested Benefits unless, after consultation with qualified benefits counsel, the Trustee determines such distribution is in the Beneficiary’s best interests.
3.4.2 Prohibited Distributions. The Trustee shall not make any distribution:
(a) for food or shelter if such distribution would be counted as “income” for SSI purposes without a corresponding benefits analysis;
(b) directly to the Beneficiary, except for nominal cash gifts permissible under SSI policy; or
(c) for any purpose that would be deemed “support” or “maintenance” under 42 U.S.C. § 1382b(e)(5).
3.4.3 Distribution Mechanics. Distributions may be made by direct payment to vendors, reimbursement to third parties, or purchase of goods or services for the Beneficiary’s use.
3.5 Termination
3.5.1 Lifetime Termination. The Trust shall terminate on the earlier of:
(a) the date the Trustee, after consultation with the Trust Protector and competent benefits counsel, determines that continued administration is no longer necessary to achieve the Trust’s purpose; or
(b) the exhaustion of Trust Assets.
3.5.2 Post-Death Administration. Upon the death of the Beneficiary, the Trustee shall:
(a) pay all allowable administrative expenses, taxes, and debts;
(b) [IF SELF-SETTLED: repay to the State of Nevada (or any other state agency) an amount equal to the total Medicaid benefits paid on behalf of the Beneficiary, pursuant to 42 U.S.C. § 1396p(d)(4)(A)]; and
(c) distribute the remaining Trust Assets to the remainder beneficiaries listed in Schedule B.
3.6 Trust Protector
The Settlor appoints [PROTECTOR_NAME] as Trust Protector. The Trust Protector may:
(a) remove and replace the Trustee;
(b) approve Trustee compensation;
(c) amend the Trust for tax or benefits compliance, provided the amendment does not alter the Trust’s purpose.
4. REPRESENTATIONS & WARRANTIES
4.1 Settlor Representations. The Settlor represents that:
(a) Settlor has legal capacity to create this Trust;
(b) all property transferred is free of encumbrances, save as disclosed on Schedule A; and
(c) execution of this Trust does not violate any court order or agreement.
4.2 Trustee Representations. The Trustee represents that:
(a) Trustee has reviewed this instrument and agrees to serve under its terms;
(b) Trustee is qualified under Nevada law to act as trustee; and
(c) Trustee has obtained any licenses or bonding required by law or contract.
Survival. All representations and warranties shall survive execution and remain in full force for the duration of the Trust.
5. COVENANTS & RESTRICTIONS
5.1 Affirmative Covenants of Trustee
(a) Compliance. Administer the Trust in conformity with Nevada law and all applicable federal statutes, including 42 U.S.C. §§ 1382b & 1396p.
(b) Record-Keeping. Maintain complete fiduciary accounting in accordance with generally accepted trust accounting principles and furnish annual reports to the Beneficiary’s legal guardian and the Trust Protector.
(c) Benefits Coordination. Consult periodically with qualified public-benefits counsel to ensure ongoing compliance.
5.2 Negative Covenants
The Trustee shall not:
(a) commingle Trust Assets with non-trust assets;
(b) engage in self-dealing or transactions prohibited by NRS Chapter 163 unless specifically authorized by court order; or
(c) make any distribution that would convert countable resources to the Beneficiary.
5.3 Notice & Cure
In the event of a breach, the Trustee must give written notice to the Settlor (if living), the Beneficiary’s guardian, and the Trust Protector. The Trustee has 30 days to cure before removal procedures under Article 6.2 may commence.
6. DEFAULT & REMEDIES
6.1 Events of Default
The following constitute defaults:
(a) material breach of fiduciary duties;
(b) failure to render an accounting within 60 days after written demand;
(c) insolvency or bankruptcy of the Trustee;
(d) any act jeopardizing Means-Tested Benefits.
6.2 Trustee Removal
Upon default, the Trust Protector—or if none, a Nevada probate court—may remove the Trustee and appoint a successor.
6.3 Graduated Remedies
• First Tier: Written warning and 30-day cure.
• Second Tier: Suspension of distribution powers during investigation.
• Third Tier: Formal removal and surcharge for losses caused.
6.4 Attorneys’ Fees
A prevailing party in any action to enforce this Trust is entitled to recover reasonable attorneys’ fees and costs, payable from the Trust Assets except as otherwise ordered by the court.
7. RISK ALLOCATION
7.1 Indemnification of Trustee
The Trustee and its agents are indemnified from the Trust Assets against any liability, claim, or expense arising from the proper administration of the Trust, except for liability resulting from gross negligence, willful misconduct, or fraud.
7.2 Limitation of Liability
In no event shall the Trustee’s personal liability exceed the value of the Trust Assets under administration at the time the liability is incurred.
7.3 Insurance
The Trustee may purchase fiduciary liability insurance payable from the Trust, naming the Trust and Trustee as insureds.
7.4 Force Majeure
Neither the Trustee nor any fiduciary shall be liable for failure to perform due to acts of God, war, terrorism, pandemic, governmental restrictions, or other events beyond reasonable control.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Trust shall be governed by and construed in accordance with the laws of the State of Nevada.
8.2 Forum Selection
Exclusive jurisdiction over all trust matters shall lie in the probate or guardianship division of the [COUNTY_NAME] District Court, State of Nevada.
8.3 Limited Arbitration
Disputes solely regarding Trustee compensation or accounting shall be submitted to binding arbitration under the Arbitration Rules. All other matters remain within the exclusive jurisdiction of the court specified in Section 8.2.
8.4 Jury Waiver
None (jury trials are not available in probate administration; this clause is intentionally omitted).
8.5 Injunctive Relief
Nothing herein limits the court’s equity power to issue temporary, preliminary, or permanent injunctions to enforce Trust terms.
9. GENERAL PROVISIONS
9.1 Amendments
Except as may be required to maintain the Trust’s compliance with tax or public-benefits law, this Trust may not be amended. Any permissible amendment must:
(a) be in writing;
(b) be executed by the Trustee and Trust Protector; and
(c) not alter the Trust’s primary purpose.
9.2 Assignment
No party may assign rights or delegate duties without prior written consent of the Trust Protector.
9.3 Successors & Assigns
This Trust is binding upon and inures to the benefit of all successors, assigns, and legal representatives of the parties.
9.4 Severability
If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the court may reform the invalid provision to best approximate the Settlor’s intent.
9.5 Integration
This instrument constitutes the entire agreement concerning the Trust. All prior agreements, whether oral or written, are merged herein.
9.6 Counterparts; Electronic Signatures
This Trust may be executed in counterparts, each of which is deemed an original; together they constitute one instrument. Signatures transmitted via electronic means shall be deemed original for all purposes under NRS 719.240.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Settlor and Trustee have executed this Trust as of the Effective Date.
SETTLOR:
[SETTLOR_NAME]
Date: _______
TRUSTEE:
[TRUSTEE_NAME]
Title (if corporate): ____
Date: _______
NOTARY ACKNOWLEDGMENT
State of Nevada )
County of __ )
On this ___ day of __, 20, before me, the undersigned Notary Public, personally appeared [SETTLOR_NAME] and [TRUSTEE_NAME], personally known to me or proved on the basis of satisfactory evidence to be the individuals whose names are subscribed to this instrument, and acknowledged that they executed the same for the purposes therein contained.
Notary Public
My Commission Expires: __
[// GUIDANCE: Nevada does not mandate witnesses for trusts, but practitioner may add witness lines if desired or if other state law might apply.]
SCHEDULE A – INITIAL TRUST PROPERTY
[List assets being transferred, e.g., cash, securities, life insurance proceeds.]
SCHEDULE B – REMAINDER BENEFICIARIES
- [NAME / RELATIONSHIP / SHARE]
- [NAME / RELATIONSHIP / SHARE]
[// GUIDANCE: Confirm that designation of remainder beneficiaries does not conflict with Medicaid payback rules if Trust is self-settled.]
END OF DOCUMENT