What specifications can I make in my will to be sure my disabled son is cared for?

1 answer | Last updated: Jun 30, 2010
Dojazmommy asked...

My 25 year old son had a traumatic brain injury and is disabled. He is on Medicaid and receives SSI. Is there a way he can live in my home after I die thru a special needs trust fund and have the home willed to my niece when he dies? I want to provide a home to both of them and don't want him to lose government benefits.

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

 Your legal instincts are good. A special needs trust may be the best way to accomplish what you wish: providing for your son’s care and comfort while assuring that he does not lose eligibility for long-term assistance from government programs.


The key will be not to name your son as the trustee, but to name another trusted adult to serve in this position who can act as his financial guardian or manager. Another key will be to find a trustee who is willing to serve and is attuned to your son’s needs and concerns and will be willing to provide for them.


If you intend for your niece to own the home after his death, however, beware that you likely may also need to establish a source of funds, other than the home, that could be tapped to cover the costs of his needs.


Because special needs trusts can be tricky to draft, you would be wise to consult with an attorney to help with the final document.