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How Some Won’t Benefit from Inheritance

August 2, 2021Filed Under: Estate Planning

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Let’s say, for example, your spouse is living in a nursing home because of advanced Parkinson’s. Your spouse is currently receiving Medicaid benefits to pay for the high cost of that care. If you were to pass before your spouse, you wouldn’t want your spouse to inherit all your life savings, no matter how much you love your spouse. Inheriting all of your life savings would jeopardize your spouse’s Medicaid benefits, and that is not what you want to see happen.

 

Hold the Medicaid or Supplemental Security Income (SSI) benefit-programs next to the high cost of health care. Those programs are “means-tested.” In other words, to be eligible, recipients must own practically nothing. If your spouse or any disabled person is receiving those kinds of benefits, and if they were suddenly to inherit, they would lose their benefits and they would end up having to pay for their care themselves until the inheritance was used up. That could involve a lot of money!

 

Rather, it’s best if the disabled person were to keep the benefits coming in, and have assets from your estate be used to pay for “extras” that benefits don’t cover. These extras might include payment of real estate taxes, upkeep of a residence, or vacations or a flat-screen television.

 

In the case of Medicaid, that is accomplished by creating a Will that includes provisions for a “supplemental needs trust” (SNT). When you pass, and if your disabled spouse or other beneficiaries were to be on benefits at that time, your assets would be moved into this trust. The money would be managed by a trusted person other than your beneficiaries. The trust would pay for “extras” only, and the disabled person would continue to receive the crucially important benefits.

 

This arrangement must be done by Will, though, as the Medicaid rules require (there are other possibilities for other benefits programs). As to Medicaid, your estate would go through a simplified probate process in which a judge would approve the transfer of the estate into the SNT.

 

Even if everybody inheriting were well and able-bodied – as, of course, we would hope – and there was no need for benefits, an SNT would still be important. It could be made “contingent.” In other words, it would be unnecessary if all your beneficiaries were able-bodied, but, if anybody did happen to be disabled and on benefits, the terms of the Will would require the creation of the SNT.

 

Or, if your beneficiaries might become disabled in the future – and unfortunately, none of us has a crystal ball – the SNT could be “forced.” A forced SNT would require that the assets be placed into an SNT regardless of whether anybody was disabled. In that situation, though, as long as your beneficiaries were well, there would be no concern about restricting distributions to only the “extras,” and the trustee would be free to distribute money as beneficiaries needed it for any worthy purpose. Then, later, if disability were to occur, the distributions could be made to conform to relevant government-program restrictions. Estate assets would be protected by the SNT and benefits eligibility would be preserved.

 

This is a win-win proposition and one that we would be happy to discuss further with you. Give us a call and let’s get your planning started! If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

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Medicaid’s Gift Giving Policies

July 26, 2021Filed Under: Medicaid Planning

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Your loved one should not be giving gifts if there is a possibility that a loved one might need Medicaid assistance in the foreseeable future. This can be sad if that person gets joy out of generosity. But gifts in that situation can turn out to be very, very expensive.

 

Medicaid is the government program that covers the huge expense of long-term care, for those who are not able to pay for it out of their own pocket. But to be eligible, Medicaid applicants must be pretty much broke. They are permitted to own no more than around $2,000.00.

 

On the filing of a Medicaid application, caseworkers will meticulously investigate the applicant’s financial history. They are looking to see whether an applicant has given away money or assets over a period of years before the Medicaid application is filed. That period of years is known as the “look-back” period. In all states except California, that period for nursing-home care is five years under the current rules. In California the period is 2.5 years.

 

Depending on the size and number of gifts given away during the “look-back” period, the penalty imposed as a result could be substantial.

 

Many think that there would be no penalty for gifts of up to around $15,000 annually. That misunderstanding confuses tax law with Medicaid law (and it also is not quite accurate under tax law, but that’s another subject). In the Medicaid context, gifts of any amount that are given during the look-back period can be penalized.

 

There are a number of options to protect assets and still qualify for Medicaid. For instance, exceptions include gifts to spouses and siblings under certain circumstances, disabled children, and children who are caregivers and who live at home with the elder for a span of time. But overall, gifts and Medicaid do not go together.

 

The Medicaid rules are complicated and the consequences for mistakes like gift-giving can be very costly. This is why it’s best to consult attorneys like us, who are especially qualified by our experience and expertise in Medicaid law. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

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Will Medicaid Take My Home?

May 3, 2021Filed Under: Medicaid Planning

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It’s a part of the American Dream to be able to buy your own home. People work hard all their lives to own a home, and it is often their most valuable and significant possession. So, when health begins to fail and the need for long-term care arises, we often get this fear-filled question from our clients: will they take away my home?

 

The enormous and on-going costs of nursing-home care are astronomical, on average around $8,500.00 a month depending on location. The joint federal and state Medicaid program foots the bill for one in four of around 75 million recipients in this country. This is an enormous drain on government funds. To recoup some of those costs, then, the Medicaid rules permit states to take the value of a recipient’s home in some cases, to reimburse the program for funds it has expended.

 

Yet, because a home is such an essential family possession, the rules treat a primary residence as exempt – that is, its value is not counted as available to pay for nursing-home care from the home-owner’s pocket, before Medicaid kicks in. The home is protected, to a certain extent, for the benefit of Medicaid recipients and their close relatives.

 

That protection can be lost, however. The value of the house can be counted against a Medicaid applicant, and benefits denied or curtailed, when:

 

*     A home-owner has no living spouse or dependents, and

*     The owner moves into a facility permanently, with no intent to return home, or

*     The owner dies.

 

In other words, as long as the owner expresses the intent to return home, and the owner’s spouse or disabled or blind child live in the home, the home will not be counted against the owner for Medicaid-eligibility purposes.

 

Once the owner passes, however the state may place a lien on the home, to secure reimbursement of the value of the Medicaid services the owner received. This lien makes it impossible to sell the home or refinance a mortgage, without first paying the state what it may be owed.

 

As elder law attorneys we know a number of ways to protect homes from this kind of attachment. If you come to us at least five years before you anticipate needing nursing-home care, we can preserve your home or its value such that Medicaid will not count it, or lien against it, at all.

 

Or, if a child moves into the home and cares for an ailing parent for two years, permitting the parent to stay home and out of a nursing home, the house can then be given as a gift to that child without any Medicaid penalty or disqualification. Ordinarily, Medicaid heavily penalizes giving away property, but this is one exception.

There are other strategies available. The home can be given to a disabled child without penalty or disqualification. Or, you might keep the right to live in the house for your lifetime and deed the remainder interest to others, who will then own the house after you pass. However, each strategy comes with risks that must be fully explored before determining the correct one.

 

An overall plan that is tailored to suit each individual, and to meet as many contingencies as possible, requires juggling a number of puzzle-pieces. There is no one cookie-cutter solution. The key is to plan before you or your spouse may need nursing-home care.

 

As one piece in the overall picture of a balanced estate plan, we can help you save your home. We welcome the opportunity to work with you. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

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Inheritance Is Not Always a Good Thing

December 21, 2020Filed Under: Asset Protection, Elder Law, Estate Planning, Spousal Support

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Most of the time, getting an Inheritance is a good thing. However that is not always the case. Say your spouse is living in a nursing home because of advanced Parkinson’s. Your spouse is currently receiving Medicaid benefits to pay for the high cost of that care. If you were to pass before your spouse, you wouldn’t want your spouse to inherit all your life savings, no matter how much you love your spouse. Inheriting all of your life savings would jeopardize your spouse’s Medicaid benefits, and that is not what you want to see happen.

Hold the Medicaid or Supplemental Security Income (SSI) benefit-programs next to the high cost of health care. Those programs are “means-tested.” In other words, to be eligible, recipients must own practically nothing. If your spouse or any disabled person is receiving those kinds of benefits, and if they were suddenly to inherit, they would lose their benefits and they would end up having to pay for their care themselves until the inheritance was used up. That could involve a lot of money!

Rather, it’s best if the disabled person were to keep the benefits coming in, and have assets from your estate be used to pay for “extras” that benefits don’t cover. These extras might include payment of real estate taxes, upkeep of a residence, or vacations or a flat-screen television.

In the case of Medicaid, that is accomplished by creating a Will that includes provisions for a “supplemental needs trust” (SNT). When you pass, and if your disabled spouse or other beneficiaries were to be on benefits at that time, your assets would be moved into this trust. The money would be managed by a trusted person other than your beneficiaries. The trust would pay for “extras” only, and the disabled person would continue to receive the crucially important benefits.

This arrangement must be done by Will, though, as the Medicaid rules require (there are other possibilities for other benefits programs). As to Medicaid, your estate would go through a simplified probate process in which a judge would approve the transfer of the estate into the SNT.

Even if everybody inheriting were well and able-bodied – as, of course, we would hope – and there was no need for benefits, an SNT would still be important. It could be made “contingent.” In other words, it would be unnecessary if all your beneficiaries were able-bodied, but, if anybody did happen to be disabled and on benefits, the terms of the Will would require the creation of the SNT.

Or, if your beneficiaries might become disabled in the future – and unfortunately, none of us has a crystal ball – the SNT could be “forced.” A forced SNT would require that the assets be placed into an SNT regardless of whether anybody was disabled. In that situation, though, as long as your beneficiaries were well, there would be no concern about restricting distributions to only the “extras,” and the trustee would be free to distribute money as beneficiaries needed it for any worthy purpose. Then, later, if disability were to occur, the distributions could be made to conform to relevant government-program restrictions. Estate assets would be protected by the SNT and benefits eligibility would be preserved.

This is a win-win proposition and one that we would be happy to discuss further with you. Give us a call at 513-771-2444 and let’s get your planning started.

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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton Co., L.P.A.
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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton
123 Boggs Lane
Cincinnati, OH 45246
Phone: 513-771-2444
Fax: 877-483-2119
oksmith@cmrs-law.com

Family Law Attorney Olivia K. Smith, LLC represent clients in Cincinnati, Anderson Township, Batavia, Loveland, Mason, Milford and other communities in Hamilton County, Clermont County, Butler County and Warren County.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.

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