In all States in the Chicago Region, specifically named persons or entities, or categories
            such as parents, siblings, children, issue, or descendants, are considered residual
            beneficiaries. The grantor’s estate or the administrator of the estate is not a residual
            beneficiary. If the trust provides that, upon the beneficiary’s death, the trust will
            reimburse the state for medical assistance provided during the beneficiary’s lifetime,
            the state generally should be considered a creditor, not a residual beneficiary of
            the trust, unless there is a clear intent that the state is an intended beneficiary
            of the trust, rather than a mere creditor. See Section 5 below for information on
            Ohio.
         
          
         In the past, as a general rule in trust law, “heirs,” “heirs at law,” “next of kin”,
            “survivors,” and similar terms were not residual beneficiaries. In the Chicago Region,
            Illinois, Indiana, Minnesota, and Ohio followed this general principal, while Michigan
            and Wisconsin had recently begun to consider heirs to be residual beneficiaries.
         
          
         A Restatement of the Law (Third) of Trusts was published in April, 2003, replacing
            the Restatement (Second), published in 1959. The new Restatement draws on court decisions
            and statutes to provide a contemporary treatment of trust law, offering authoritative
            guidance to legislators, judges, and attorneys.
         
          
         According to this Restatement, the legal community now assumes, absent evidence to
            the contrary, that most grantors intended to create a remainder interest when they
            name heirs, next of kin, and the like to receive the remaining assets in the trust
            upon the grantor’s death. Therefore, they are considered to be residual beneficiaries
            and the trust is considered irrevocable.
         
          
         
            
            
               For trusts created after 1955, in the absence of an indication of a contrary intent,
                  you may assume that the grantor intended to name residual beneficiaries by naming
                  their heirs, heirs at law, survivors, or persons entitled to inherit on their death
                  intestate or under the statute of descent and distribution. If there are such residual
                  beneficiaries, the grantor cannot unilaterally revoke the trust, unless the grantor
                  reserved the right to do so. This change of position is effective August 11, 2003.
                  Trusts in this category are considered to have residual beneficiaries from the time
                  that they were created, even if they were created before August 11, 2003. Where a
                  final decision is questioned based upon this change of position, refer to POMS SI 04070.040.
               
                
               Refer the trust to the Regional Office, for possible referral to the Office of the
                  General Counsel for a legal opinion as to whether the trust is revocable if the trust
                  does not reserve the power to revoke, was created in 1955 or before, and names only
                  the grantor’s heirs, heirs at law, survivors, persons entitled to inherit on their
                  death intestate or under the statute of descent and distribution, or the like, to
                  receive remaining trust assets on the death of the grantor.
               
                
               Where the trust states only that the grantor’s own estate will receive any remaining
                  trust assets on the grantor’s death, and names no other beneficiaries to the trust,
                  the trust should be considered revocable.
               
                
               If the trust states only that assets will be distributed according to the grantor’s
                  Last Will and Testament, send the case to the Regional Office, Center for RSI/SSI
                  for referral to the Office of the General Counsel.
               
                
             
          
         
            
            
               For trusts created after 1971, in the absence of any trust language indicating a contrary
                  intent, you may assume that the grantor intended to name residual beneficiaries by
                  naming their heirs, heirs at law, survivors, or persons entitled to inherit on their
                  death intestate or under the statute of descent and distribution. If there are such
                  residual beneficiaries, the grantor cannot unilaterally revoke the trust, unless the
                  grantor reserved the right to do so. This change of position is effective August 11,
                  2003. Trusts in this category are considered to have residual beneficiaries from the
                  time that they were created, even if they were created before August 11, 2003. Where
                  a final decision is questioned based upon this change of position, refer to POMS SI 04070.040.
               
                
               Refer the trust to the Regional Office, for possible referral to the Office of the
                  General Counsel for a legal opinion as to whether the trust is revocable if the trust
                  does not reserve the power to revoke, was created in 1971 or before, and names only
                  the grantor’s heirs, heirs at law, survivors, persons entitled to inherit on their
                  death intestate or under the statute of descent and distribution, or the like, to
                  receive remaining trust assets on the death of the grantor.
               
                
               Where the trust states only that the grantor’s own estate will receive any remaining
                  trust assets on the grantor’s death, and names no other beneficiaries to the trust,
                  the trust should be considered revocable.
               
                
               If the trust states only that assets will be distributed according to the grantor’s
                  Last Will and Testament, send the case to the Regional Office, Center for RSI/SSI
                  for referral to the Office of the General Counsel.
               
                
             
          
         
            
            
               Effective April 1, 2000, any trust that indicates that upon the beneficiary’s death,
                  assets will be paid to heirs at law, heirs, next of kin, relatives, family, distributees,
                  or similar language is considered to have residual beneficiaries, unless there is
                  evidence that the individual intended that this language create only a reversionary
                  interest in the grantor. Trusts using such language are considered to have residual
                  beneficiaries from the time that they were created, even if they were created before
                  April 1, 2000.
               
                
               If the trust states only that assets will be distributed according to the grantor’s
                  Last Will and Testament, send the case to the Regional Office, Center for RSI/SSI
                  for referral to the Office of the General Counsel.
               
                
             
          
         
            
            
               For trusts created prior to 1939, a grantor could not create a remainder interest
                  in their heirs, next of kin, or the like; rather, such language created only a reversionary
                  interest in the grantor. Such language would not create additional beneficiaries who
                  could prevent the grantor from revoking the trust.
               
                
               For trusts created after 1939, in the absence of a contrary intent, you may assume
                  that the grantor intended to name residual beneficiaries by naming their heirs, heirs
                  at law, survivors, or persons entitled to inherit on their death intestate or under
                  the statute of descent and distribution. If there are such residual beneficiaries,
                  the grantor cannot unilaterally revoke the trust, unless the grantor reserved the
                  right to do so. This change of position is effective August 11, 2003. Trusts in this
                  category are considered to have residual beneficiaries from the time that they were
                  created, even if they were created before August 11, 2003. Where a final decision
                  is questioned based upon this change of position, refer to POMS SI 04070.040.
               
                
               If the trust states only that assets will be distributed according to the grantor’s
                  Last Will and Testament, send the case to the Regional Office, Center for RSI/SSI
                  for referral to the Office of the General Counsel.
               
                
             
          
         
            
            
               For trusts governed by Ohio law, if the trust meets the Medicaid Payback trust criteria
                  of Section 1917(d)(4) of the Act (see POMS SI 01120.203), and if the trust states that it is irrevocable, then the trust should be considered
                  irrevocable, regardless of whether any residual beneficiaries are identified in the
                  trust.
               
                
             
          
         
            
            
               For trusts created January 1, 1999, or later, a residual beneficiary generally can
                  be assumed to exist, absent evidence of contrary intent on the part of the grantor,
                  if the trust indicates that, upon the grantor/beneficiary’s death, assets will be
                  paid to the grantor’s “heirs,” “heirs at law,” “next of kin,” “relatives,” “family,”
                  “distributees” of the grantor’s estate, or a term that has similar meaning. Therefore,
                  trusts that contain this language for distribution of remaining assets generally should
                  be considered irrevocable, unless the evidence suggests that such designation was
                  not intended to create a beneficial interest in any individual other than the grantor
                  , or unless the grantor reserved the power to revoke or amend the trust. A trust should
                  be referred to the Regional Office, for possible referral to the Office of the General
                  Counsel, if the trust was created prior to January 1, 1999, contains such language
                  for distribution of remaining assets, and identifies no other beneficiaries.
               
                
               Where the trust states only that the grantor’s estate will receive any remaining trust
                  assets on the grantor’s death, and names no other beneficiaries to the trust, the
                  trust should be considered revocable, absent evidence that the grantor intended to
                  designate beneficiaries other than their own estate.
               
                
               If the trust states only that assets will be distributed according to the grantor’s
                  Last Will and Testament, send the case to the Regional Office, Center for RSI/SSI
                  for referral to the Office of the General Counsel.