Both of my parents died within the last few years and I (38M) was appointed as the personal representative of their estate. There’s almost $200k in the estate checking account and my parents will was for half to go to me and the other half to go to my mentally ill brother (53M) in the form of a special needs trust.

My brother lives in Michigan in a group home that is funded by his benefits (Medicaid) and he has a court appointed guardian. He’s been receiving benefits for decades now and has been mentally ill (schizophrenia and OCD) for his whole adult life.

My brother is 15 years older than me and has COPD (smokes a LOT) and has to use an oxygen tank. I worry for his health, but I also worry what will happen to his share of the money when he passes away eventually.

My probate attorney I’ve been working with for years has drafted a special needs trust that indicates it will be an irrevocable first party trust and that there has to be a clause in there stating that when my brother passes away, then the state of Michigan gets reimbursed for all the benefits they paid on behalf of my brother. This would mean they would take all the money basically.

His guardian and their attorney are telling me it should have been drafted as a third party trust which would mean that I would receive the remaining money in the trust when he passes away. My attorney is stating that it’s not possible to make it a third party trust because the source of the funds in the estate is from my mom. My dad died first and then my mom a few years later.

Someone is not telling me the truth and I need to know who is right here since we’re talking about a lot of money here. I’m not greedy by any means, I just don’t want his share of money to go to the state of Michigan and I want it to stay within our family if I can help it. Thank you