Consult an NAELA attorney. Be advised that Medicaid's five year lookback includes all these asset transfers that don't occur BEFORE you apply for Medicaid.
Generally living trusts provide asset protection, to an extent.
I have the feeling there's more to this issue and that the immediate need for asset protection arises from something other than the desire to avoid probate.
If the desire is to protect assets from creditors, this is definitely a question for an estate planning attorney (not just an elder law attorney). If the desire is to protect assets from family, a well drafted trust with a pour-over will and specific disinheritance or limitation clauses might be more appropriate.
Get an atty, none of this is a DIY project as the nuances of your state laws will be very important to have things done properly & valid & without issues.
Realize that some things done to avoid probate - like annuities, which are an insurance product - lock up your funds so that if say something not ever planned for changes in the future, the surrender charges will be quite, quite significant. At 88, that is probably either outside of or at the edge of actuarial tables used by companies.
To avoid parts of probate (which took about 8 months for my father even though problem free in Minnesota) we put remaining assets in a revokable living trust with Mom as the trustee and named two daughters as successor trustees. Once she became unable to manage her financial affairs as evidenced by a doctor's letter and letters signed by all 4 daughters, the successor trustees went in place. The stated purpose of the trust is for Mom's support and maintenance, and we are paying private pay for her life out of that trust. So, mainly it was just to avoid having assets locked up in probate (such as her home) for so long after her death. However, as years went by and she got more incapacitated, it became a way to control her spending based on remaining life expectancy and projected costs which she could never have done.
What types of assets does the person own? Your question requires an understanding of the categories of assets. There are simple ways to avoid probate of some types of assets using beneficiary designations on the account records kept by the financial institution or custodian; other asset categories (like real estate) require careful consideration. Don't try to transfer real estate without professional counsel. Let an attorney take responsibility for protecting the owner's interests.
Your question indicates an interest in asset protection. If this means protecting assets from financial predators and scammers, fiduciary services of a Trustee can establish a fire wall of protection.
If your question is asking about protecting assets from long term care expenses, you should hire an elder law attorney who understands Medicaid eligibility rules, and is committed to protect the elder's quality of life as a first priority.
Roger - in another post you mention your mom is 85 & looking for a way to protect assets. But whether mom is 88 or 85 doing anything to transfer or gift assets between now and the Spring of 2021 will mean a transfer penalty inquiry by Medicaid. You say Medicaid is not involved but really isn't this a ? about how to get around the spend down or "at need" requirement by Medicaid?
2021 is a really really long time from now........
The costs of ltc care are pretty staggering. If mom has a solid mid or upper 6 figures or even more, then she has funds to set aside in something liquid to pay for care (maybe 300k for 3 years in NH) and also do something more creative with the left over. See an elder law atty on this as they will have FA they work with.
But if mom is like most elderly with older house with assessor of 100k/200k and under 100k in savings, she will likely need both to pay for her care as an event is going to happen (a fall, a fire, wandering) that causes her to move from her home to a facility for her own safety & health.
Once they get into their 80's there is imho no "silver bullet" to get asset avoidance / protection done unless they have a huge existing amount of money. Most elderly need their $ to pay for their care first & foremost. And only when thats spent down can they get medicaid. Really even a short period of IL or AL or NH and paying for things outside of Medicare, like dental, and doing a full paid funeral will run through their $. And these are legit no transfer penalty expenses.
If the elder wants to keep their home, they can under Medicaid rules. But family will need to pay on all costs on the house either from their own wallet or rent the home. And after the elders death deal with Medicaid estate recovery /MERP.
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medicaid is not involved.
I have the feeling there's more to this issue and that the immediate need for asset protection arises from something other than the desire to avoid probate.
If the desire is to protect assets from creditors, this is definitely a question for an estate planning attorney (not just an elder law attorney). If the desire is to protect assets from family, a well drafted trust with a pour-over will and specific disinheritance or limitation clauses might be more appropriate.
Realize that some things done to avoid probate - like annuities, which are an insurance product - lock up your funds so that if say something not ever planned for changes in the future, the surrender charges will be quite, quite significant. At 88, that is probably either outside of or at the edge of actuarial tables used by companies.
Your question indicates an interest in asset protection. If this means protecting assets from financial predators and scammers, fiduciary services of a Trustee can establish a fire wall of protection.
If your question is asking about protecting assets from long term care expenses, you should hire an elder law attorney who understands Medicaid eligibility rules, and is committed to protect the elder's quality of life as a first priority.
2021 is a really really long time from now........
The costs of ltc care are pretty staggering. If mom has a solid mid or upper 6 figures or even more, then she has funds to set aside in something liquid to pay for care (maybe 300k for 3 years in NH) and also do something more creative with the left over. See an elder law atty on this as they will have FA they work with.
But if mom is like most elderly with older house with assessor of 100k/200k and under 100k in savings, she will likely need both to pay for her care as an event is going to happen (a fall, a fire, wandering) that causes her to move from her home to a facility for her own safety & health.
Once they get into their 80's there is imho no "silver bullet" to get asset avoidance / protection done unless they have a huge existing amount of money. Most elderly need their $ to pay for their care first & foremost. And only when thats spent down can they get medicaid. Really even a short period of IL or AL or NH and paying for things outside of Medicare, like dental, and doing a full paid funeral will run through their $. And these are legit no transfer penalty expenses.
If the elder wants to keep their home, they can under Medicaid rules. But family will need to pay on all costs on the house either from their own wallet or rent the home. And after the elders death deal with Medicaid estate recovery /MERP.