Steve Oshins: It’s time to stop using health, education, maintenance and support (HEMS) trusts

The health, education, maintenance and support language is probably found in more than 95% of the trusts that are drafted. This language can make the trust susceptible to certain creditors, including divorcing spouses, and can cause an otherwise avoidable state income tax if a beneficiary resides in California, Georgia or North Carolina. The technical reason for its inclusion in trust ‘forms’ is that if a beneficiary has the power as trustee to distribute to him or herself, then HEMS (or