(a) In this section, the following words have the following meanings, unless the context clearly indicates otherwise.
  (1) Testamentary trust--A trust established by will.
  (2) Inter vivos trust--A trust established while the person creating the trust is still living.
(b) Resources in a testamentary or inter vivos trust are countable to a person if the person is the trustee and has the legal right to revoke the trust and use the money for the person's own benefit.
  (1) If a person does not have access to the trust, then the trust is not counted as a resource.
  (2) If a person's access to a trust is restricted (that is, only the trustee (other than the person) or the court may withdraw the principal), then the value of the trust as a resource is not counted, even if:
    (A) the person's legal guardian is the trustee;
    (B) the trust provides a regular, specified payment to the person; or
    (C) the trust provides for discretionary withdrawals by the trustee.
  (3) If a trust is not counted as a resource, payments from the trust made to or for the benefit of the person may be counted as income only if the payments would ordinarily be counted as income in accordance with 20 CFR §416.1102.

Source Note: The provisions of this §358.336 adopted to be effective September 1, 2009, 34 TexReg 5497