[TRUST NAME] SPECIAL NEEDS TRUST AGREEMENT

(State of West Virginia)

TABLE OF CONTENTS

I. Document Header ………………………………………………………………………………… 2
II. Definitions …………………………………………………………………………………………… 3
III. Operative Provisions ……………………………………………………………………………… 6
IV. Representations & Warranties ……………………………………………………………… 13
V. Covenants & Restrictions ……………………………………………………………………… 14
VI. Default & Remedies ……………………………………………………………………………… 16
VII. Risk Allocation …………………………………………………………………………………… 18
VIII. Dispute Resolution ……………………………………………………………………………… 20
IX. General Provisions ……………………………………………………………………………… 22
X. Execution Block …………………………………………………………………………………… 25
Schedule A – Trust Assets …………………………………………………………………………… 27

[// GUIDANCE: Update page numbers after final formatting. Use a fixed-width font or automated TOC generator for precision.]

I. DOCUMENT HEADER

1. Title; Parties.
   This Special Needs Trust Agreement (this “Agreement”) is made and entered into effective as of [EFFECTIVE DATE] (the “Effective Date”) by and among:
   a. [GRANTOR NAME(S)], residing at [GRANTOR ADDRESS] (“Grantor”); and
   b. [TRUSTEE NAME], residing at [TRUSTEE ADDRESS] (“Trustee”),
   for the sole benefit of [BENEFICIARY NAME], born [DOB], Social Security No. -*-** (“Beneficiary”).

2. Recitals.
   a. Beneficiary has a medically determinable disability expected to be of long-continued duration and is, or is expected to become, eligible for means-tested public assistance programs (“Government Benefits”).
   b. Grantor desires to establish an irrevocable special needs trust pursuant to 42 U.S.C. § 1396p(d)(4)(A) and W. Va. Code §§ 44D-1-101 et seq. to supplement, and not supplant, such Government Benefits.
   c. Trustee is willing to hold, administer, and distribute the Trust Assets (defined below) in accordance with the terms herein.

3. Consideration. The mutual promises set forth herein constitute good and valuable consideration sufficient for this Agreement.

4. Governing Law; Forum. This Trust is created under, and shall be governed by, the substantive law of the State of West Virginia without regard to conflict-of-laws principles. Primary jurisdiction lies with the [COUNTY] Probate Court of West Virginia (the “Probate Court”).

5. Irrevocability. THIS TRUST IS IRREVOCABLE. Grantor relinquishes all power to revoke or amend except as expressly provided herein.

II. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below. Undefined capitalized terms shall have their ordinary meaning or the meaning ascribed by applicable law.

“Accounting Period” – Each calendar year ending December 31 or such shorter period ending upon final distribution.

“Agreement” – This Special Needs Trust Agreement, including all schedules and amendments.

“Arbitration” – Limited, binding arbitration pursuant to Section VIII.C for “Limited Arbitration Matters” only.

“Assets” or “Trust Assets” – All property transferred to the Trust, including without limitation the assets listed on Schedule A, together with any accretions, additions, substitutions, and reinvestments.

“Beneficiary” – The individual identified in Section I.1 for whose sole benefit the Trust is established.

“Disability” – A physical or mental impairment meeting the criteria of 42 U.S.C. § 1382c(a)(3).

“Distribution” – Any direct or indirect transfer of Trust Assets for the benefit of the Beneficiary.

“Government Assistance Programs” – Medicaid, Supplemental Security Income (“SSI”), Supplemental Nutrition Assistance Program (“SNAP”), Section 8 housing, and any similar means-tested public benefits.

“Grantor” – The settlor(s) executing this Agreement and any subsequent contributor(s) as permitted under Section III.A.2.

“Injunctive Relief” – Equitable relief to enforce fiduciary duties or prevent waste of Trust Assets.

“Limited Arbitration Matters” – (i) Trustee fee disputes; (ii) final accountings; and (iii) other administrative matters mutually agreed to in writing by all necessary parties.

“Probate Court” – The Circuit Court sitting in its probate capacity, or other court of competent jurisdiction under W. Va. Code § 44-1-1 et seq.

“Qualified Expenses” – Supplemental Needs as defined below, plus any other expenditures expressly permitted under Section III.C.

“Schedule A” – Inventory of initial Trust Assets annexed hereto and incorporated by reference.

“State” – The State of West Virginia.

“Supplemental Needs” – Goods and services not otherwise provided by Government Assistance Programs, including but not limited to education, recreation, travel, companion services, assistive technology, transportation, insurance, therapies, and other quality-of-life enhancements.

“Trust” – The [TRUST NAME] Special Needs Trust created hereby.

“Trustee” – The person(s) or entity acting as trustee from time to time.

III. OPERATIVE PROVISIONS

A. Creation, Funding, and Nature of Trust

1. Establishment. Grantor hereby transfers and delivers to Trustee the property described in Schedule A to be held, administered, and distributed as herein provided. Additional contributions may be accepted in Trustee’s sole discretion.

2. Additional Grantors. With Trustee’s prior written consent, third parties may irrevocably transfer assets to the Trust, provided each such transfer clearly indicates it is intended for the [TRUST NAME] Special Needs Trust.

3. Separate Fund; Spendthrift. The Trust shall constitute a separate fund for the Beneficiary and shall be a spendthrift trust under W. Va. Code § 44D-5-502. No interest hereunder shall be subject to assignment, anticipation, pledge, or creditor’s claims, except as mandated by law.

4. Purpose. The primary purpose of the Trust is to supplement, and not supplant, Government Assistance Programs and to enhance the Beneficiary’s quality of life while preserving eligibility for such programs.

[// GUIDANCE: For a third-party SNT (most common), omit subsection C.5(c) “Medicaid Payback.” If drafting a first-party trust, retain it as required by 42 U.S.C. § 1396p(d)(4)(A).]

B. Trustee Powers

Trustee shall have, in addition to powers under W. Va. Code § 44D-8-801 et seq., full power to:

1. retain, invest, and reinvest assets;
2. open and maintain bank and brokerage accounts;
3. execute, deliver, and record instruments;
4. compromise or litigate claims;
5. employ professionals and delegate authority;
6. determine income and principal in accordance with the Uniform Principal and Income Act;
7. exercise all powers necessary or desirable for proper administration consistent with the Trust’s purpose.

C. Distribution Standards

1. Sole Benefit; Discretionary. All distributions are wholly within Trustee’s sole and absolute discretion. Beneficiary shall have no power to compel distributions.

2. Supplemental Needs Standard. Trustee may distribute for Supplemental Needs only and shall consider the impact on Government Assistance Programs before making any distribution. Direct payments to third-party providers are preferred over cash to Beneficiary.

3. Government Benefit Protection.
   a. Means-Tested Programs. Trustee shall (i) ascertain eligibility requirements, (ii) give written notice to any affected agency as required by law, and (iii) structure distributions to avoid countable income/resources.
   b. Best Interests. Trustee may decline any distribution that would jeopardize eligibility unless the distribution is clearly in Beneficiary’s best interests and directions to the contrary are provided by court order.

4. Emergency Distributions. Trustee may, after consulting qualified counsel, make distributions that temporarily affect benefits if the expenditure is necessary to meet an immediate, significant need of the Beneficiary.

5. Termination Events.
   a. Exhaustion of Assets. The Trust shall terminate upon complete depletion of Trust Assets.
   b. Death of Beneficiary. Upon Beneficiary’s death, Trustee shall:
   i. pay all unpaid administrative expenses;
   ii. optionally reimburse, to the extent required by law, any State Medicaid agency (see 42 U.S.C. § 1396p(d)(4)(A));
   iii. distribute the remaining corpus to the remainder beneficiaries: [NAME(S) & PERCENTAGES].
   c. Medicaid Payback (optional first-party trusts). “The State shall receive all amounts remaining in the Trust up to the total Medicaid assistance paid on behalf of Beneficiary.”

6. Accounting & Reports. Trustee shall deliver an annual written accounting to (i) Beneficiary (if legally competent), (ii) Beneficiary’s legal guardian, and (iii) the Probate Court if so ordered.

D. Tax Administration

1. Grantor Trust Election. Unless otherwise elected, the Trust shall be treated as a “grantor trust” under 26 U.S.C. § 671 et seq.; Trustee may obtain a separate EIN if advisable.
2. Tax Returns. Trustee shall prepare and file all required federal and state tax returns.
3. Tax Reimbursement. Trustee may pay any income taxes attributable to Trust Assets from the Trust.

IV. REPRESENTATIONS & WARRANTIES

1. Grantor Representations.
   a. Authority. Grantor has legal capacity and authority to establish this Trust.
   b. Title. Assets transferred to the Trust are free of liens and encumbrances unless otherwise disclosed in writing.
   c. No Fraudulent Transfer. Funding the Trust does not render Grantor insolvent or defraud creditors.

2. Trustee Representations.
   a. Qualification. Trustee is not disqualified under W. Va. Code § 44-10-3 and has obtained all required bonds or insurance.
   b. Fiduciary Duty. Trustee understands and accepts the fiduciary obligations imposed by law and this Agreement.

3. Survival. The representations and warranties in this Section IV shall survive the execution of this Agreement and remain in full force during the Trust’s existence.

V. COVENANTS & RESTRICTIONS

1. Recordkeeping. Trustee shall maintain accurate books and records in accordance with Generally Accepted Accounting Principles (“GAAP”) or any successor standard.

2. Notice Obligations. Trustee shall provide at least thirty (30) days’ written notice to Beneficiary’s guardian and any co-trustee prior to:
   a. resigning;
   b. changing principal residence of Trust administration; or
   c. making a distribution reasonably expected to terminate or substantially reduce Government Benefits.

3. Compliance Covenant. Trustee shall comply with all applicable federal and State statutes, regulations, and program rules governing special needs trusts and public benefits.

4. Prohibition on Self-Dealing. Except as expressly authorized by court order, Trustee shall not engage in transactions that constitute self-dealing under W. Va. Code § 44D-8-802.

5. Successor Trustee Acceptance. Any successor trustee must execute a written acceptance acknowledging fiduciary duties and this Agreement’s terms before acting.

VI. DEFAULT & REMEDIES

1. Events of Default. Each of the following constitutes a default:
   a. Trustee’s breach of fiduciary duty;
   b. failure to render required accountings within sixty (60) days of written demand;
   c. misappropriation or conversion of Trust Assets;
   d. incapacity, death, or resignation of Trustee without qualified successor; or
   e. judicial determination of Trustee misconduct.

2. Notice & Cure. Prior to seeking judicial intervention, any interested party shall give written notice specifying the default and a thirty-(30-) day cure period, except where irreparable harm is imminent.

3. Remedies. Upon default, the Probate Court (or arbitrator for Limited Arbitration Matters) may:
   a. surcharge Trustee;
   b. remove and replace Trustee;
   c. order injunctive relief to prevent waste;
   d. compel an accounting; and/or
   e. award attorneys’ fees and costs to prevailing party.

4. Non-Exclusivity. Remedies are cumulative and not exclusive of any rights available at law or in equity.

VII. RISK ALLOCATION

1. Trustee Indemnification.
   a. Scope. Trustee shall be indemnified and held harmless from and against any loss, liability, or expense arising from administration of the Trust, except to the extent caused by Trustee’s willful misconduct or gross negligence.
   b. Source of Indemnity. Indemnity shall be paid solely from Trust Assets; no personal liability shall attach to Grantor or Beneficiary.

2. Limitation of Liability. The maximum liability of Trustee, in any aggregate, shall not exceed the total value of Trust Assets under Trustee’s control at the time the cause of action arose.

3. Insurance. Trustee may procure fiduciary liability insurance, the premiums of which may be paid from Trust Assets.

4. Force Majeure. Trustee shall not be liable for delays or failures in performance resulting from acts of God, war, pandemic, or other events beyond Trustee’s reasonable control, provided Trustee uses commercially reasonable efforts to mitigate impact.

VIII. DISPUTE RESOLUTION

1. Governing Law. This Agreement and all disputes hereunder are governed by the laws of the State of West Virginia.

2. Forum Selection. Except for Limited Arbitration Matters, exclusive venue lies in the Probate Court.

3. Limited Arbitration.
   a. Scope. Limited Arbitration Matters shall be resolved by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Rules, as modified herein.
   b. Procedure. The arbitrator shall be a West-Virginia-licensed attorney with at least ten (10) years of trusts-and-estates experience. The seat of arbitration shall be [CITY], West Virginia.
   c. Award. The arbitrator’s award shall be final and may be entered as a judgment in the Probate Court.

4. Jury Waiver. No jury demand is made because the Probate Court generally sits without a jury in trust matters.

5. Injunctive Relief. Notwithstanding the foregoing, any party may seek preliminary or permanent injunctive relief from the Probate Court to protect Trust Assets or enforce fiduciary duties.

IX. GENERAL PROVISIONS

1. Amendments. Except as required to maintain Government Benefit eligibility or to comply with changes in law, this Agreement shall not be amended. Any permissible amendment must (i) be in writing, (ii) be executed by Trustee, and (iii) receive Probate Court approval.

2. Severability. If any provision is held unenforceable, the remaining provisions shall be given full effect to the maximum extent permitted by law.

3. Assignment. The interests of Beneficiary are non-assignable. Trustee may not assign duties without complying with Section V.5.

4. Successors & Assigns. This Agreement binds and benefits the parties and their respective successors and permitted assigns.

5. Integration. This Agreement constitutes the entire agreement with respect to the Trust and supersedes all prior understandings.

6. Waiver. Failure to enforce any provision shall not operate as a waiver of that or any other provision.

7. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures transmitted electronically or by facsimile shall be deemed original signatures and fully enforceable.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, the parties have executed this Special Needs Trust Agreement as of the Effective Date.

GRANTOR

[GRANTOR NAME]

TRUSTEE

[TRUSTEE NAME], Trustee

[// GUIDANCE: Insert additional signature lines for co-trustees, trust protector, or investment advisor if utilized.]

NOTARIZATION

State of West Virginia )
County of ______ ) ss.:

On this ___ day of _, 20, before me, the undersigned Notary Public, personally appeared ________, known to me or satisfactorily proven to be the person(s) whose name(s) are subscribed to the foregoing instrument, and acknowledged that he/she/they executed the same for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

Notary Public
My commission expires: _______

WITNESSES (if required)

Schedule A – Trust Assets

1. Cash: $[AMOUNT] transferred via check no. ____
2. Brokerage Account no. ____ at [INSTITUTION]
3. [ADD ADDITIONAL ASSETS]

[// GUIDANCE: Attach copies of account statements or deeds. Update Schedule A whenever additional contributions are accepted.]