imho, a lot of this depends on whether you think that in the future she will need to go onto Medicaid & if you want the property.
If there is a home & they get Medicaid to pay for NH then there will be MERP - Medicaid Estate Recovery Program to deal with after death related to the home. Each state approaches recovery differently, some very aggressive others not. So much of this depends on how the state does death (estate laws) & probate.
Imho – these are your options: 1. Transfer the home & hope/plan they don’t need Medicaid till 2017. Which would put house outside the 5 yr loopback for Medicaid.
2. Do a living trust - all assets are placed in a trust. The title on the house deed and ALL other assets would change to reflect the trustee ownership. You would be the successor or grantor in the trust. If you do this – must be done by an attorney and it needs to be maintained (funded) too -then you don't need to worry as LT doesn’t go to probate. Probate is how states enforce MERP (Medicaid Estate Recovery) lien or claim.
In theory, Living Trust = No MERP.Some states don’t view a trust as valid for MERP avoidance, but other states do if done as a “Lady Bird Deed”. Trusts MUST have good legal counsel.
IMHO you need to have real $$ for LT as it must be maintained and funded. It’s living and needs a source of income to “live”.But LT can’t be contested, it’s all private unlike a will & probate.
3. Transfer the home to your name & pay a penalty based on when they apply for Medicaid against the transfer period. There is a formula on how each state calculates this. They move in NH, Medicaid penalty pending. You pay the penalty & they are on Medicaid. No MERP as the property is now in your name.
4. She sells the house to you for whatever is a true appraisal. She gets the money. No MERP or Medicaid penalty as it is a valid sale. Since you own the house, she continues to live there if that is what she and you all choose to do.
She uses the money from the sale to pay for her daily needs & also does a “personal services contract” to pay you monthly for her care base on rates in your area. An elder care attorney really has to do these as they are sticky. If you have the $ to buy the house, & can really be a caregiver, this makes sense. Or she uses the $ from the sale to pay for the NH. No MERP.
5. Now you don’t do any of the above, they have a homestead that is in their name but now need to move into NH. Home is an exempted asset except in unusual circumstances. Home does not have to be sold to qualify for Medicaid, but has to be under $ 500K in value (some states 750K). What matters is being under the state’s Medicaid asset ceiling for all other assets & income. You do the Medicaid application that states that any assets are subject to MERP, and they get on Medicaid. (Yes, I know 500K seems high but you'd be surprised at what property values are especially if your parents bought it in the 1950's and their taxes are frozen so they didn’t worry about it). MERP can be done on their estate when they die via a claim or a leon.
Say they are in NH 4 years then die. Now after death, MERP can place a lien or a claim on the home through probate (this is how most states do it - this is why it's important to know if assets were in a "living trust". LT shouldn’t have to go thru probate if done right). So when the executor of the estate wants to transfer property (house) to settle the will in probate the lien or claim from MERP has to be released in order to do so. But you can do your own claim against the estate but you need to let MERP know you plan to do this.
Remember, once they are in NH/LTC there will be no $ to be used on the home as ALL money less personal needs of $ 30-60 a month MUST be paid to the facility. So someone will need to pay for all house expenses that is in parent’s name. If the home still has a mortgage, this can be a lot of $$ every mo.
It is CRITICAL that you keep track of every $ spent as you will let MERP know you are filing your own claim in probate for every penny spent, against the estate within 30/90 days of death. I think this is only if the house is empty. How this is done depends on how their state manages MERP.
Say you have paid tax, insurance, repairs for 4 yrs @ 8K=32K. Medicaid paid over 4 yrs for NH, medications, therapists=70K House value is 90K which could net a max of 81K.
But you let MERP know you are filing your own claim for 32K. The most MERP could get is 49K (81 – 32) but only if you did a sale quickly (fat chance) before maintenance and taxes etc continue. MERP declines to do a claim as not cost effective. You finish probate, transfer house 100%. Happiness all around!
Some states have zero recovery & others aggressive. As states face $ shortfalls, MERP should increase. Imho MERP wasn’t well thought out. What are states going to do with a ton of empty homes with old people stuff in them that likely has a decade ++ of delayed maintenance? This on top of foreclosure homes – which usually are newer and more sellable properties. MERP came about 2000-2003 when housing was all a go-go. Totally different real estate conditions now.
My gut feeling is MERP doesn't persue claim unless they can recoup $100/150K+. MERP is done mainly by state contractors so small estate w/an expense claim, low value home is going to take too much time to be worth it.
Whatever you do, you kinda need to be deliberate about it as the countdown starts when the property is transferred. 2017 really isn't that far away. Good Luck.
If there is a home & they get Medicaid to pay for NH then there will be MERP - Medicaid Estate Recovery Program to deal with after death related to the home. Each state approaches recovery differently, some very aggressive others not. So much of this depends on how the state does death (estate laws) & probate.
Imho – these are your options:
1. Transfer the home & hope/plan they don’t need Medicaid till 2017. Which would put house outside the 5 yr loopback for Medicaid.
2. Do a living trust - all assets are placed in a trust. The title on the house deed and ALL other assets would change to reflect the trustee ownership. You would be the successor or grantor in the trust. If you do this – must be done by an attorney and it needs to be maintained (funded) too -then you don't need to worry as LT doesn’t go to probate. Probate is how states enforce MERP (Medicaid Estate Recovery) lien or claim.
In theory, Living Trust = No MERP.Some states don’t view a trust as valid for MERP avoidance, but other states do if done as a “Lady Bird Deed”. Trusts MUST have good legal counsel.
IMHO you need to have real $$ for LT as it must be maintained and funded. It’s living and needs a source of income to “live”.But LT can’t be contested, it’s all private unlike a will & probate.
3. Transfer the home to your name & pay a penalty based on when they apply for Medicaid against the transfer period. There is a formula on how each state calculates this. They move in NH, Medicaid penalty pending. You pay the penalty & they are on Medicaid. No MERP as the property is now in your name.
4. She sells the house to you for whatever is a true appraisal. She gets the money. No MERP or Medicaid penalty as it is a valid sale. Since you own the house, she continues to live there
if that is what she and you all choose to do.
She uses the money from the sale to pay for her daily needs & also does a “personal services contract” to pay you monthly for her care base on rates in your area. An elder care attorney really has to do these as they are sticky. If you have the $ to buy the house, & can really be a caregiver, this makes sense.
Or she uses the $ from the sale to pay for the NH. No MERP.
Say they are in NH 4 years then die. Now after death, MERP can place a lien or a claim on the home through probate (this is how most states do it - this is why it's important to know if assets were in a "living trust". LT shouldn’t have to go thru probate if done right). So when the executor of the estate wants to transfer property (house) to settle the will in probate the lien or claim from MERP has to be released in order to do so. But you can do your own claim against the estate but you need to let MERP know you plan to do this.
Remember, once they are in NH/LTC there will be no $ to be used on the home as ALL money less personal needs of $ 30-60 a month MUST be paid to the facility. So someone will need to pay for all house expenses that is in parent’s name. If the home still has a mortgage, this can be a lot of $$ every mo.
It is CRITICAL
that you keep track of every $ spent as you will let MERP know you are filing your own claim in probate for every penny spent, against the estate within 30/90 days of death. I think this is only if the house is empty. How this is done depends on how their state manages MERP.
Say you have paid tax, insurance, repairs for 4 yrs @ 8K=32K.
Medicaid
paid over 4 yrs for NH, medications, therapists=70K
House value is 90K which could net a max of 81K.
But you let MERP know you are filing your own claim for 32K. The most MERP could get is 49K (81 – 32) but only if you did a sale quickly (fat chance) before maintenance and taxes etc continue. MERP declines to do a claim as not cost effective. You finish probate, transfer house 100%. Happiness all around!
Some states have zero recovery & others aggressive. As states face $ shortfalls, MERP should increase. Imho MERP wasn’t well thought out. What are states going to do with a ton of empty homes with old people stuff in them that likely has a decade ++ of delayed maintenance? This on top of foreclosure homes – which usually are newer and more sellable properties. MERP came about 2000-2003 when housing was all a go-go. Totally different real estate conditions now.
My gut feeling is MERP doesn't persue claim unless they can recoup $100/150K+. MERP is done mainly by state contractors so small estate w/an expense claim, low value home is going to take too much time to be worth it.
Whatever you do, you kinda need to be deliberate about it as the countdown starts when the property is transferred. 2017 really isn't that far away. Good Luck.
Thanks so much for the wealth of information!! You took LOTS of time to be so thorough and I truly appreciate that! God bless!
jeanbean53