SI BOS01120.200 Grantor Trusts (RTN 263 - 12/2009)
In order to evaluate a trust under the SSI program it is crucial to determine the following:
the grantor or grantors of the trust
the beneficiary or beneficiaries of the trust; and
whether the trust is irrevocable.
For trusts established prior to 1/1/00, consult SI 01120.200D to make the appropriate resource determination for all trusts, including irrevocable grantor trusts. For trusts established by an individual on or after 1/1/00, refer to SI 01120.201D.
B. Grantor Trust
Subject to state law, a grantor trust is a trust in which the grantor of the trust is also the sole beneficiary of the trust. See SI 01120.200B.2 for who may be a grantor.
C. Determinations of Irrevocability of Grantor Trusts
1. Connecticut, Rhode Island, and Vermont
The Regional Office of General Counsel (RGC) has determined that in Connecticut, Rhode Island, and Vermont a grantor trust is irrevocable if the trust document states that it is irrevocable, and the trust property will be left to a residual beneficiary upon the principal beneficiary's death or the occurrence of some specific event. In these states, residual beneficiaries are assumed to be created, absent evidence of contrary intent, when a grantor names heirs, next of kin, or similar groups to receive the remaining assets in the trust upon the grantor's death.
Examples of acceptable designations of residual beneficiaries are: Upon the death of John Smith (the beneficiary of John Smith Trust) the trust property will go to “Fred Smith and Mary Smith,” to “John Smith's brother or sister,” to “John Smith's heirs,” to “heirs at law,” to “next of kin,” survivors, to “the Vermont Association of Retarded Citizens,” or to “the State's General Fund.”
The RGC has determined that a grantor trust is irrevocable as long as the grantor/beneficiary does not reserve the right to revoke, alter, or amend the trust (i.e. the trust document stipulates that only the trustee may revoke, alter, or amend the trust and there is no language giving the grantor/beneficiary those rights). This rule applies as long as there is no evidence that the trust grantor/beneficiary relinquished his/her rights because of diminished mental capacity, fraud, mistake, or undue influence. It is not necessary that a residual beneficiary be named for a grantor trust to be considered irrevocable.
Generally, trust language will be clear as to the grantor's/beneficiary's rights to revoke, alter or amend the trust.
3. New Hampshire
For trusts created prior to October 1, 2004, a trust is irrevocable if the grantor/beneficiary does not reserve a right to revoke, alter or amend the trust.
Effective October 1, 2004, New Hampshire enacted the Uniform Trust Code. Under this statute, a New Hampshire grantor trust created October 1, 2004, or later is presumed to be irrevocable if it states that it is irrevocable despite the lack of a residual beneficiary.
The New Hampshire Uniform Trust Code allows for the termination of an irrevocable trust created on or after October 1, 2004, under certain circumstances. A court may approve termination of a trust if all the beneficiaries consent to the termination, and if the court finds that continuation of the trust is not necessary to achieve any material purpose of the trust. In addition, a grantor could also request the termination of a trust with no residual beneficiary. However, the ability of the grantor to request the termination of the trust does not make the trust a countable resource. The trust will be considered a resource at the time the court honors the request and orders the termination of the trust.
For grantor trusts established in Maine prior to July 1, 2005, follow the same rules as set out for Connecticut, Rhode Island and Vermont in SI BOS01120.200C.1. to determine whether a trust is irrevocable. A trust established prior to July 1, 2005, is generally considered irrevocable if the document states that it is irrevocable and if the trust property would be left to a residual beneficiary upon the principal beneficiary's death or the occurrence of some specific event.
For grantor trusts executed on or after July 1, 2005, a trust is irrevocable if stated to be irrevocable, regardless of whether a residual beneficiary is named.
The Maine Uniform Trust Code also provides for the termination of an irrevocable trust created on or after July 1, 2005, under certain circumstances. If the settlor and all the residual beneficiaries of the trust consent to a termination, a court can terminate the trust if doing so would be in the beneficiaries' best interest. In addition, in the case of an irrevocable grantor trust with no residual beneficiary, the grantor/sole beneficiary could also request that a court terminate the trust. However, despite the ability to terminate an irrevocable trust, such a trust will not be considered a countable resource until the court orders termination.
D. Administrative Finality
SSI claims may have been denied or benefits suspended due to evaluation of trusts using prior instructions. Take corrective action on cases where determinations were made within 2 years of the RGC decisions. Take corrective action on Connecticut, Maine, Rhode Island, and Vermont cases when the determinations were made after January 8, 2007.
E. Treatment of Trust Disbursement
If you determine that a trust is not a resource for SSI purposes, disbursement from the trust may still be considered income. See SI 01120.200E.1 and SI01120.201I for instruction on evaluating such disbursements.