I loaned my Mother approximately $68,000 in 2008 to cover construction costs for an apartment on the second level of our home. Mom lived on the first floor. I live on the second. She & I agreed back then I would get my money back plus appreciation when the house sells. Over the years I have asked her to put me on the title or legally confirm my financial contributions. Her replies were, “No” or “You didn’t pay for half of the construction costs.” & “It’s in my Will.” In 11/2018 she was admitted to a nursing home by my 2 brothers. Now that she is a Medicaid recipient, is there a way for me legally secure that loan?? Both of my brothers know I loaned mom money towards construction of the house. They knowingly completed her Medicaid application without asking Medicaid about the loan. Mom’s Will has changed 3 times since she has been in the nursing home. I haven’t read anything about Wills taking priority over MERP. Is there any way to secure this loan now?

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A will WONT take priority over MERP. Medicaid will get their $$ regardless of what her will states, at least that was my experience with my grandmothers estate. I sure learned a lot during that time.
Helpful Answer (1)
Reply to cherokeegrrl54

Was this Moms home and you remodeled so you could live there? Your calling it "our" home but u aren't on the deed? So the "home" for all intents and purposes is Moms? If this is so, this is how I look at it.

I agree, a contract should have been drawn up at the time. You should have been put on the deed. Because...Medicaid told me my Moms will was null and void. Why, because all Mom had was the house. Once that house sold the proceeds were to be used for her care. Moms house didn't sell till after her death. My brother was to inherit but, Medicaid overrides that and they got what was due and we got the rest.

Hopefully, you never paid her rent because the way I figure, ur 68k covered that. If you had been placed on the deed, Medicaid could only get half at the most. The one thing that may go in your favor is that you have resided there for 11 years and it was done to watch over/help Mom I assume. My Merp papers read that if the person/s living in the house at the time of death can prove residency they will be allowed to stay but a lean will be placed on the house. At the time the resident leaves, sells the house or dies, the Medicaid lean will need to be satisfied. You also will probably need to show that you can pay taxes, utilities and up keep. I think thats the best u can do for now. Medicaid may look at the 68k that you profited from living at Moms especially if some of Moms money went into the remodel. And if u never paid rent.
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Reply to JoAnn29

Wow, without proof and iron-clad contracts I see no hope for you. What a lesson it may be for the rest of us. So sorry this has happened to you. Your brothers know about this. That is about the best that can be said of it. Do you still live on the second floor of your Mom's home? Are your brothers willing to allow you to occupy rent free in exchange for care? That may at least insure you an opportunity to save a bit before Mom dies and the home is sold with medicaid recovery taking a lot of it.
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Reply to AlvaDeer

Good advice already, so I'll just summarize and add a few comments.

A Promissory Note evidences the lien; a mortgage secures it.  Unfortunately, neither exist in this situation.   So there's literally no proof other than verbal agreements.

You may have some support if you have copies of all the checks to your mother, but again, there's no evidence that this was a loan vs. a gift.  If you do have copies of your checks, you might be able to make a claim against the estate, but you do have the burden of proving that these were loans and not gifts.

Igloo mentioned what used to be referred to as mechanic's liens in Michigan.   You would have to have done work on the property in order to be eligible to record this kind of lien.    

In addition, the last time I worked on suits dealing with workers' liens was more than a few decades ago, and at that time there was a filing limitation.   If a lien wasn't properly recorded with the Register of Deeds Office, it wasn't considered a valid lien.   That's why when loans went south and foreclosure was imminent, we waited 90 days after the last work had been performed to "flush out" all the potential liens.

Sometimes when caring for parents we can extend ourselves in areas that we don't anticipate will not be treated properly, or honored, and we can end up with problems and issues that can't be solved.

I'm sorry for this situation; it must be quite frustrating and disappointing to have extended yourself w/o reciprocation.
E (later) TA:   reread your original post and see that I missed the issue of construction having been done on the property.   For $68K of work, I'm assuming that you had contracts with tradesmen, as well as invoices or other data reflecting the payments made.

Do you still have copies of the contracts, invoices, acknowledgment of payment?
By any chance did you get Waivers of Lien?   They would help to establish that work was done on the home.    

If you do have these, and have copies of your checks, you have a better chance of proving a claim against the estate, if there are any funds available and haven't all been spent down (which seems to be a good possibility

It may be a long shot but you could contact the tradesmen and contractors and ask them if they could provide copies of their own documentation.

My suggestions:

1.   Consider filing a claim/lien against property against your mother now, as it will still be a claim when she passes.  That way you can establish a priority (not over Medicaid though) as a claim that needs to be addressed before asset disposition can be made after death.   

2.   I believe, but this should be verified by either or both an elder law attorney or real estate attorney, that this claim MAY prevent disposition of other assets, such as the home (assuming it's not already sold or under contract to be so.)   Either professional could also advise the most appropriate type of claim to be filed, and handle the recording of it.

The issue of an unpaid, unsecured obligation would still be in existence, but when recorded, it will be an encumbrance that MUST be addressed and resolved before clear title can be conveyed by the Personal Rep (f/k/a Executor or Executrix) of the Estate.   

If there are any funds in the Estate (or will be on sale of the house), this gives you a bargaining chip - if the claim isn't resolved, I doubt if any competent buyer would purchase property with a $68+++ claim against it.
By filing now, you establish a precedence or priority over any other claim (outside of Medicaid) that may in the future arise.  

You may not actually be able to recover, and this may cause friction with your brothers.   That, as well as the fact that there will be a Medicaid lien, are both factors to consider.
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Reply to GardenArtist
lsudvm91 Feb 5, 2020
I appreciate all the info!! I’m in the process of placing a lien on the home/property. I have bank statements & invoices that verify my construction costs. I tried several times to discuss this with my mom before she was served. She wouldn’t discuss it. My brother with Power of Attorney told me I would have to fight Medicaid for my money. I decided to fight now vs later.
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Setting aside Medicaid for a moment.....
Lending is 2 sided. To have a valid debt agreement, promissory note, memo of understanding, whatever you want to call it, there must be 2; grantor/ grantee, lender / lendee, obligator/obligatee. For secured debt, something is placed as collateral and that item is described in some way within agreement that both parties sign off on. To make this very valid, its witnessed & notarized. You’d need this imo to even start to get anything done.

You cannot place a workmans lien. Those would be done by contractor, construction co, property management co. or other 3rd party back in 2008 - 2009 or when they did a job for property & didn’t get paid.

If mom in the past refused to do a lending agreement, she didn’t view 68k from you to her as a loan. Even if she wanted to do this now, she’s probably not competent to enter into legal agreements.
& yeah, I’d be concerned that those 3 will changes are valid. Get a copy of each of these & just set them aside. Why? Cause you & your own probate attorney, who does litigation, are going to challenge the validity of the will entered into probate by your brothers. (If they are having new wills done, they are planning probate imo.) What will likely happen is that court will name an independent executor (not you or bro’s) with dependent administration of the estate. So all actions must be approved by court. Your atty probably will have you enter claims against the estate & not just 68k but all costs you have paid since and then after death. It’s a negotiation position.

On Medicaid, imo Medicaid is all about income & assets.
-Medicaid not really concerned if applicant has debt. Credit card debt, mortgage, insurance premiums, auto & house costs, not of any interest to Medicaid. Medicaid requires a copay of mom’s monthly income.
- If house stuff needs to be paid, elder on LTC Medicaid basically won’t have $ to do this. So family need to pay to keep things ok.
-Medicaid can care if the Medicaid recipient has debts that changes their income & assets. Like unpaid taxes & IRS places 15% attachment onto their SS$. Or a foreclosure that produces a 1099-C cancellation of debt, as that’s “income”.

I don’t see any recourse for you on all this right now. If mom dies and she’s still owing home, then if probate gets opened then everybody puts in their claim..... you, MERP, brothers. But realize this could be 4 months or 4 years from now & every day is another day on her LTC Medicaid room&board tally & another day of property costs & all have to have time & $ & do documentation to be in probate, perhaps for quite a while.

I’ve just got to ask, what is backstory on property costs???
if mom went into NH2018, there’s 2 years property taxes, homeowners insurance. Perhaps repairs too. So who is paying?
You live in the house? 2 brothers? Anyone paying rent?
Anybody a full time caregiver for mom for 2016-2018?
Do you & bro’s have any real plan as to dealing with MERP?
Does your state allow for pre-death (TIFRA) lien placement once on LTC Medicaid? If so, imo it’s going to be more complicated to deal with.

For an elder to want to continue to keep home while on LTC Medicaid, it can be done. States by & large let it remain an exempt asset for their lifetime. But they have zero $ to pay property costs. Family needs to have the wallet to pay & for an undetermined period of time & needs to have some sort of plan that makes sense on how to deal with MERP. Personally I think it works best on a lower value property or one close to the edge of maximum value allowed by your state.

So, again, who is paying property costs?
if it’s all you, I’d suggest you see a probate attorney - who does litigation & with MERP experience- now to figure out how to best document costs paid and atty at the ready for probate & MERP. Or if you should just fold it all now and walk away.
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Reply to igloo572
lsudvm91 Feb 5, 2020
My 3 siblings somehow convinced my father to pay mortgage, property taxes, insurance, etc. My parents are divorced. My Dad is under the impression if he pays these expenses my Mother in exchange will give him the empty lot adjoining the lot the house sits on. Property is actually 2 lots. Mom mortgaged them together when the new house was built. My siblings have not been honest w either parent or me.
If you are not on the title, and you have to signed contract for are pretty much out of luck.

i am always amazed by why people do there loans without a title change. Love is wonderful, but business is business. No bank would do this...because it is the only way to protect their interest.

i would have told her back get the money in the name is added to the title in the same transaction as you get money. Mortgage company isn’t going to lend money for repairs/upgrades without a lien on the title,,.why would she treat you worse than a business?

ok...can’t change it now. But, don’t ever do it again.
Helpful Answer (1)
Reply to Katiekate

The horse is already out of the barn, your mother owns the home, when she passes Medicaid will place a lien on the home. Her will is not a help to you in this situation.

In order to place a lien on the home, you would have needed her to sign a promissory note stating that the loan would be repaid when the home was sold, this was not done. Even if you got her to sign one now, it would not be considered valid as it was signed after Medicaid got involved.

You can TT an attorney and see what they have to say.

Lending money to another is a personal decision, the paperwork established is a business decision, which should never be overlooked.
Helpful Answer (2)
Reply to anonymous912123

If you actually have a real physical contract, then maybe you can place a lein on the home. If not you are out of luck. So many people fall for loaning money without paperwork. Generally, in order to try to collect, you would have to go to court with those documents
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Reply to MACinCT

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