We want to leave our house to our son. What are the legal parameters if we should go into an assisted living home? - AgingCare.com

We want to leave our house to our son. What are the legal parameters if we should go into an assisted living home?

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We made our a will with an attorney 2 yrs ago. We left everything to be divided equally with the 3 children. My husband has dementia and I have multiple health problems. I feel there is a real possibility we will wind up in an assisted living facility although we want to stay in our house as long as possible. We have been in this house 42 yrs. Our son is the one who does for us, checking on us daily and doing all the things for us we need. We have 2 girls, one agrees that our son can have the house., the other one is on the fence. I called a lawyer to see about changing the will but he was too expensive. Can we type or handwrite our changes on the will and have it notorized? Will that work? Thanks to anyone who knows.

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In my area the starting cost for memory care is $5,000.00 a month. Then levels of care on top of that. A friend of mine was paying $7,000.00 a month for his wife. Her care level was so high, they even asked him for an additional $700.00 a month.
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Visit a financial planner before doing anything. You mention your husband has dementia -- the cost of his care alone, per year, whether it is at your home or in a facility, will be at least $60,000. Remember, Assisted Living rent is not for those with dementia, those residents will require much more care, which costs extra. Also consider, what if he lives for 10 years and you live for 15 years or more? It is very noble that you want to leave your house to your son, but when push comes to shove, are you willing to live in a Medicaid cut-rate dual occupancy dormitory room in a nursing home, versus a private room (which could happen if you gift your home to son, and 8 years on have no assets with which to pay your own needs). Please consider what YOUR needs are, and what it might mean for you in your most vulnerable years to "do without". Do not confuse love with giving your house to your son. And also consider that giving your home to one child, will create immense problems amongst siblings, after you are gone, even if you "Will" it to him, one child has already indicated they are not sure....which means they really do not agree with that. If your Will ends up in court, what would a judge say about it?
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sondraO, I am not an Elder Law attorney but if it were me, I would keep the current Will as it stands with no changes.

I know it isn't easy to figure out what the future might hold, and where you and your husband might be living 5 years from now, or even 10 years. Glad you are thinking about it now. Moving to a retirement complex is best done sooner than later, that way you and your husband can start making friends which is so very important as you age.
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Or do you have a long term care policy that will pay assisted living expenses? Even if you were to deed the house to your son now, if you need Medicaid in the future to pay living expenses, there is a five year look back period and you would be penalized the value of the house, a period of time that living costs would have to come from another source.

However, some states will permit the house being transferred to a family caregiver, if that person has provided medically necessary care in the home for a period of two years prior to moving to a nursing home. And that is only nursing home, not assisted living.

It would be well worth the money to consult with an elder law attorney well versed in Medicaid regulations to try to plan your future. Medicaid allows you to keep the home, one car and a total of $2,000.00 in cash assets. The home could be rented to provide additional income to pay for living expenses, but Medicaid would place leins on the property equal to the amount that they front for your care, then collect it either when the house sells, or upon your passing.
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Call a real estate title company and find out how much they would charge to help you put the house in joint tenancy with your son. You will still need to direct this inheretance through a codicil to your will, but having the son as a joint tenant will help make the transition easier. Kudos to you for thinking ahead.
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As to changing your will, you should NOT make changes directly on the will and ask someone to notarize it. You need to do a separate Codicil, as Igloo states.

If you can't afford an attorney to do it properly, try to find an estate planning clinic through a law school; at least they'll know the legal issues and can offer insight into any new applicable laws that might affect your bequest.

If you can't do that, research to determine what your state's laws are on holographic (handwritten wills).

People complain about the cost of an attorney, but if changes aren't made properly, there could be far more problems down the line than if the money was spent for a qualified attorney in the first place.
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Changing your will by doing a codicil to it may be the least of your concerns. A codicil is pretty simple & straightforward to do.

The bigger issue IMHO is do you & your hubby have a solid mid 6 figures in assets - outside of the house - to private pay for your care in an AL or a NH? Like 500k at least? If not, then just how is your care in AL or NH to be paid? and be paid for possibly years & years......if Medicaid will be part of the equation to pay for your care the house could have a claim or lein placed against it upon death.

Your son may not meet the standard for a live in full time caregiver providing needed & documented care that kept you out of a NH.
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