Lady Bird Deeds aka Enhanced Benefit Deeds (asset passes outside of probate) exist in just a few very pro-property right type of states. MI, TX, FL have them.
If you have an elder who is thinking abt doing one and they will likely be going onto LTC Medicaid, there’s a couple of things to consider if Medicaid enters the picture: - if elder goes onto LTC Medicaid, Medicaid will require them to use almost all their monthly income as a copay to the facility. All they get to keep is a smallish personal needs allowance. PNA varies by state, most have it as $50-60 and realistically it’s just enough to pay for beauty shoppe and some toiletries replacement. So all property costs on that house still in the elders name will need to be paid by whomever is the anticipated future owner as per the Lady Bird. So it will be on you / them to pay utilities, property taxes, insurance, repairs, maintenance, yard etc. - If there is a mortgage (horrors!), that too you will need to pay. Mortgage co doesn’t care who pays the note. But paying the mortgage on elders behalf does not grant any ownership rights. - Elder doesn’t come with an expiration date, so they could be in the NH for years. Whether 1 yr or 5 years, it’s on you to pay all property costs the entire time. - Property taxes & property insurance could increase & significantly. The issue would be that if they are viewed as FT resident at a NH then they cannot have a homestead exemption and the lower taxes the homestead provided. So taxes go up. Homeowners insurance voids as well so vacant dwelling policy $$$ is needed instead. Some states allow a “right to return” as a way around this. - if you live at the property, Medicaid may require you to pay rent. Rent will need to be a FMV and is income to the elder. Elder will have to file taxes & whatever forms for rental property income, depreciation, etc. If you were living there prior or you yourself are disabled or were a legal dependent of the elder, rental requirement could be waived. May be easiest to have house empty & basically shut it down with minimal utilities on till after death. - the after death transfer via the Lady Bird will likely need an attorney to draw up and file at the courthouse. This will have costs; you should ask now as to if that later date attorney’s fees are included.
Please realize If the Lady Bird deed has several beneficiaries, they all inherit equally. In theory all should pay their % share of all property costs from day 1 of elder being on Medicaid till the property transfer done post death. If not, then the others end up having to pay all costs. Yet the deadbeat heir(s) still inherits as per the Lady Bird Deed…. it is what is it whether they pay a penny or not. You know your family best as to if this is likely to happen.
I’ve been on this forum quite a while and getting all to do their share seems to be the biggest hurdle for families to do should the elder want to keep their home once in a NH. Whether there’s a Lady Bird Deed, a Trust, no Medicaid involvement or heirs with exemptions to MERP (estate recovery) doesn’t matter IF the family / heirs doesn’t have the time, wallet and sense of humor to deal with the house till whenever. if that’s your family, try to sell the property - if you can - before ever entering a facility. Good luck. -
Go to YouTube and type in Ladybird deed versus revocable trust. One man has a two parter on the subject and there are a few more to choose from. The rules differ state to state. A good question for an elder law attorney to deal with your own respective case, and sure wishing you good luck.
If you have an elder who is thinking abt doing one and they will likely be going onto LTC Medicaid, there’s a couple of things to consider if Medicaid enters the picture:
- if elder goes onto LTC Medicaid, Medicaid will require them to use almost all their monthly income as a copay to the facility. All they get to keep is a smallish personal needs allowance. PNA varies by state, most have it as $50-60 and realistically it’s just enough to pay for beauty shoppe and some toiletries replacement. So all property costs on that house still in the elders name will need to be paid by whomever is the anticipated future owner as per the Lady Bird. So it will be on you / them to pay utilities, property taxes, insurance, repairs, maintenance, yard etc.
- If there is a mortgage (horrors!), that too you will need to pay. Mortgage co doesn’t care who pays the note. But paying the mortgage on elders behalf does not grant any ownership rights.
- Elder doesn’t come with an expiration date, so they could be in the NH for years. Whether 1 yr or 5 years, it’s on you to pay all property costs the entire time.
- Property taxes & property insurance could increase & significantly. The issue would be that if they are viewed as FT resident at a NH then they cannot have a homestead exemption and the lower taxes the homestead provided. So taxes go up. Homeowners insurance voids as well so vacant dwelling policy $$$ is needed instead. Some states allow a “right to return” as a way around this.
- if you live at the property, Medicaid may require you to pay rent. Rent will need to be a FMV and is income to the elder. Elder will have to file taxes & whatever forms for rental property income, depreciation, etc. If you were living there prior or you yourself are disabled or were a legal dependent of the elder, rental requirement could be waived.
May be easiest to have house empty & basically shut it down with minimal utilities on till after death.
- the after death transfer via the Lady Bird will likely need an attorney to draw up and file at the courthouse. This will have costs; you should ask now as to if that later date attorney’s fees are included.
Please realize If the Lady Bird deed has several beneficiaries, they all inherit equally. In theory all should pay their % share of all property costs from day 1 of elder being on Medicaid till the property transfer done post death. If not, then the others end up having to pay all costs. Yet the deadbeat heir(s) still inherits as per the Lady Bird Deed…. it is what is it whether they pay a penny or not. You know your family best as to if this is likely to happen.
I’ve been on this forum quite a while and getting all to do their share seems to be the biggest hurdle for families to do should the elder want to keep their home once in a NH. Whether there’s a Lady Bird Deed, a Trust, no Medicaid involvement or heirs with exemptions to MERP (estate recovery) doesn’t matter IF the family / heirs doesn’t have the time, wallet and sense of humor to deal with the house till whenever.
if that’s your family, try to sell the property - if you can - before ever entering a facility. Good luck.
-