Burial contracts or burial trusts formed prior to January 1, 1988 pursuant to Section 73.104 of the Funeral or Burial Funds Act were required (with the exception of SI CHI01130.420C) to be revocable.

1. 1. 

   Upon request, the funds could be refunded to the purchaser, who may or may not be the SSI claimant. If the purchaser is not the SSI claimant, the burial trust is not a resource to the SSI claimant.

2. 2. 

   Even though a party to a burial trust agreement may attempt to make the agreement irrevocable (by refusal to revoke or by adding the word "irrevocable" on the agreement), it remains revocable.

Burial contracts or trusts entered into January 1, 1988 or later may be revocable or irrevocable. The law specifically allows agreements to be "irrevocable to the extent that federal law or regulations require that such a contract be irrevocable for purposes of such buyer"s eligibility for Supplemental Security Income benefits." If a statement to this effect is included in a contract, assume the entire contract is irrevocable unless the contract specifically states only a lesser dollar amount is irrevocable. If the contract provides that interest must be left to accrue or otherwise states that interest is irrevocable, the interest on the agreement is also considered irrevocable, and, therefore, is not income or resources. Otherwise, the interest is income (subject to exclusion, e.g., as irregular or infrequent) and a countable resource in subsequent months. (Note that if the irrevocable agreement does not entirely reduce the $1,500 national burial fund exclusion, the national exclusion may also apply.)

The Regional Attorney has advised that Illinois burial trusts established by a conservator, under court order on behalf of an incompetent individual, can be excluded from the resource computation because the funds are considered inaccessible without court approval subject to a court action over a prolonged period of time.

It is important to determine whether a burial trust was established with the individual"s funds or funds that have been irrevocably paid to the funeral director. Since the trust provisions of P.L. 106-169 apply without regard to the purpose for which the trust was established, burial trusts that may be irrevocable under state law may be countable resources for SSI resource-counting purposes if established with the individual"s assets. (See SI 01120.201H for development guidelines.)

Questionable cases should be referred to ARC-MOS CRSI/SSI for an opinion from the Office of the Chief Counsel.