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Chapter: 1600 Assets Program: MSSI, SFP 10

Assets are considered available to an individual when the individual has unrestricted access to the funds.

Accessibility depends on the legal structure of the account or property. An asset is countable if the asset is available to a representative possessing the legal ability to make the asset available for the individual's support and maintenance, even though the individual may not choose to do so.

Assets not available due to legal restrictions or factors beyond an individual's control are not considered in determining total available assets. The only exception to this rule occurs when the legal restrictions were caused or requested by the individual. 1640.0311 Availability of Joint Bank Account (MSSI, SFP) When an individual owns any portion of a joint bank account and is legally able to withdraw funds from that account, the funds are available to the individual. If it is shown that all funds in an account are legally accessible to the individual only in the event of the death of the co-owner, the funds are not included as the individual's asset. 1640.0312.01 Availability of Trusts (MSSI, SFP) The availability of funds held in a trust depends on the conditions (wording) of the trust and whether the individual is the trustee or beneficiary of the trust. 1640.0312.02 Trust Availability to Trustee (MSSI, SFP) The trust is not an asset to the trustee if the trustee cannot use any of the funds in the trust for his own benefit.

The trust is an asset to the trustee if the individual is the trustee and has the legal ability to revoke the trust and use the money for his own benefit, regardless of whose funds were originally deposited in the trust.

The trust is an asset to the individual if the individual or the individual's spouse created the trust and has the right to dissolve it and use the funds for his own benefit.

One type of revocable trust commonly established is a “totten trust”. A totten trust is created with an individual's own funds and the individual is named as trustee for another person (the beneficiary). The trustee of a totten trust can revoke the trust at any time during the trustee's lifetime.

If the trustee dies without revoking the trust, the trust principal reverts to the beneficiary. These trusts are usually set up in the form of savings accounts and are not legally recognized in most states. Regardless of whether the totten trust is legally recognized or not, the trust principal is an asset of the trustee. 1640.0312.03 Trust Availability to Beneficiary (MSSI, SFP) The trust is an asset to the beneficiary if the beneficiary can access the trust principal. If the trustee has access, refer to passages 1640.0576.02 and 1640.0576.11.

The individual who is the beneficiary of a totten trust does not have access to the trust principal unless the trustee dies; therefore, the funds are not defined as available to the individual.

If the trustee revokes a totten trust, determine whether the beneficiary has unrestricted access to the trust principal. If the beneficiary has unrestricted access to the principal of the trust, it is counted as an asset.

If the totten trust agreement does not clearly define the availability of funds to the individual who is the beneficiary, the agreement must be referred to the Circuit Legal Counsel.