K. Gabriel Heiser
Attorney, author, Medicaid asset protection planning
K. Gabriel Heiser, J.D., is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.
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Question
Does Medicaid allow my daughter whom will inherit my house to sell it and buy another?
If you sell the home, the proceeds from the sale will continue to be excluded so long as they are reinvested in another excluded home... If you sell the home, the proceeds from the sale will continue to be excluded so long as they are reinvested in another excluded home within three months of the sale. Whatever is not re-invested will become countable assets for Medicaid eligibility purposes. see more
Question
My name is on my Dad's house as joint tenants. If he goes into a nursing home, can they take the whole price o...
As co-owner of the house, you are entitled to 50% of the net proceeds of a sale of the house. Only the 50% that your father is entitled to... As co-owner of the house, you are entitled to 50% of the net proceeds of a sale of the house. Only the 50% that your father is entitled to would possibly be subject to recoupment by the state following your father's death, IF he had been covered by Medicaid for his nursing home stay. Note that in many states, recoupment cannot be made against a house that passes automatically by state law to the other joint owner (called "joint tenants with right of survivorship" in the deed). see more
Question
My son has used POA to change banking info.
Naming someone as your "agent" under a power of attorney does not remove you from having full powers, it simply extends your... Naming someone as your "agent" under a power of attorney does not remove you from having full powers, it simply extends your powers to the person you named. So the named agent can handle banking, but so can you. However, if conflicts arise, you need to talk to your agent to straighten things out, otherwise you may need to revoke the POA, which you can do at any time. see more
Question
Are details of a trust confidential and can the executrix provide info to confused former family member?
The term "per stirpes" means "by the roots" or "by the stock"; in a will or trust, the term means that the... The term "per stirpes" means "by the roots" or "by the stock"; in a will or trust, the term means that the share of a person named in the will or trust passes to their descendants should the named person not be alive at the time of death of the testator or grantor of the trust, as the case may be, or at some other point of distribution as set out in the document. The descendants share as follows: equally to the children, with a then-deceased child's share passing equally to their children, etc. It's like the branching of tree roots, hence the latin name.
You say that "legally" the property will pass to the surviving children. I assume you mean that this is what the will or trust actually says. If so, then you are correct that your sister-in-law will receive no share of the property upon your father's death (unless, of course, he changes his will/trust).
Finally, you indicate you are the executor. Of your father's estate? If he is still living, there is no estate and no one is executor until he dies and the court appoints an executor of the estate. Perhaps you mean he set up a living trust, which has named trustees, not executors. see more
You say that "legally" the property will pass to the surviving children. I assume you mean that this is what the will or trust actually says. If so, then you are correct that your sister-in-law will receive no share of the property upon your father's death (unless, of course, he changes his will/trust).
Finally, you indicate you are the executor. Of your father's estate? If he is still living, there is no estate and no one is executor until he dies and the court appoints an executor of the estate. Perhaps you mean he set up a living trust, which has named trustees, not executors. see more
Question
If Medicaid is needed will they look back and see that a portion of my dad's savings went towards gambling and...
The government does not set out limits on how a person can spend their money, be it wisely or not. If the money is spent to benefit... The government does not set out limits on how a person can spend their money, be it wisely or not. If the money is spent to benefit (potentially, at least) the person doing the spending (or gambling, in this case), then it is not a gift and thus would not trigger any penalty periods when that person applies for Medicaid. see more
Question
How much cash can my mom have in a savings account to qualify for Medicaid?
A person can have up to $2,000 in countable assets, which includes cash in the bank. Non-countable would be personal property, one house... A person can have up to $2,000 in countable assets, which includes cash in the bank. Non-countable would be personal property, one house where they have been living, one car, jewelry, etc. see more
Question
Will my IRA have to be depleted before I can apply for assistance from Medicaid?
A transfer of your IRA money to your children will be viewed by the IRS as a taxable withdrawal followed by a gift. As mentioned by others,... A transfer of your IRA money to your children will be viewed by the IRS as a taxable withdrawal followed by a gift. As mentioned by others, any gifts you make within 5 years of applying for Medicaid will normally result in a period of disqualification from receiving Medicaid coverage: the more you give, the longer the penalty period (exactly how long depends on the cost of a nursing home in your state).
It may be possible to convert the IRA into a fixed annuity WITHIN the IRA, which will not be a countable asset for Medicaid purposes. Whether that will benefit you in the long run depends on the amount of your IRA as well as your life expectancy. see more
It may be possible to convert the IRA into a fixed annuity WITHIN the IRA, which will not be a countable asset for Medicaid purposes. Whether that will benefit you in the long run depends on the amount of your IRA as well as your life expectancy. see more
Question
Medicaid and a quit claim deed.
Some states do require that following a deed of transfer of real estate the deed be recorded in the local register of deeds, in order for... Some states do require that following a deed of transfer of real estate the deed be recorded in the local register of deeds, in order for them to recognize the transfer. Hopefully this was done 10 years ago! If so, the state will not count the house as an asset of your father's and nor will they seek recovery against the house following his death for the Medicaid benefits provided to him. The state can only seek such recovery against assets in your father's name at the time of his death; they cannot seek recovery against other family members. see more
Question
Can a POA who is one of three children say if the other children can come see their mother if she is asking to...
Naming someone your agent in a power of attorney does not take away any of the rights and powers of the person signing the POA form, it... Naming someone your agent in a power of attorney does not take away any of the rights and powers of the person signing the POA form, it simply extends the powers of the signer to someone else. However, it generally would not give the POA holder (the agent) the right to control access to other family members. see more
Question
How much money can Mom give her kids per Medicaid requirements?
Any transfers of funds to family members, even for reimbursements for various expenses you mentioned, will be deemed gifts with a resultant... Any transfers of funds to family members, even for reimbursements for various expenses you mentioned, will be deemed gifts with a resultant penalty period, if she applies for Medicaid within 5 years of the gift. If she is already on Medicaid, it will cause a disqualification period. Depending on the amount of the inheritance she received, she can purchase a "Medicaid-friendly annuity" to convert the money into an income stream. The income would go to the nursing home but at least your mother could qualify or continue to qualify for Medicaid without a penalty period.
Another option is to gift approximately half the money and use the other half to purchase the Medicaid annuity, the monthly payments from which will be used to pay the nursing home during the resultant penalty period. I have lots of examples of how to calculate this in my book. Good luck with everything!! see more
Another option is to gift approximately half the money and use the other half to purchase the Medicaid annuity, the monthly payments from which will be used to pay the nursing home during the resultant penalty period. I have lots of examples of how to calculate this in my book. Good luck with everything!! see more
Question
My brother is on Medicaid and wants to sell some assets but how can he not get disqualified?
Unless the terms of the LLC agreement itself prevent a transfer of your brother's interest, then it is a countable asset. Its value... Unless the terms of the LLC agreement itself prevent a transfer of your brother's interest, then it is a countable asset. Its value would be what he can sell it for on the open market; there are companies that specialize in valuing LLC interests, but clearly if it generates $12,500 for him annually, it would be worth more than the $2,000 limit for countable assets.
If he cannot transfer it, then it only has a value as income, not as an asset. But of course, that means that he cannot sell his interest. He could still qualify for Medicaid, depending on the rules in his state for Medicaid health coverage.
I agree with other commenters that he is only allowed ONE car of any value; the second car is a countable asset, and he cannot have more than $2,000 in countable assets (includes all cash, investment assets, etc.). see more
If he cannot transfer it, then it only has a value as income, not as an asset. But of course, that means that he cannot sell his interest. He could still qualify for Medicaid, depending on the rules in his state for Medicaid health coverage.
I agree with other commenters that he is only allowed ONE car of any value; the second car is a countable asset, and he cannot have more than $2,000 in countable assets (includes all cash, investment assets, etc.). see more
Question
Where to find free help with a will?
Although it is indeed possible to use an online will service, the problem is that you don't know what you don't know. Often a... Although it is indeed possible to use an online will service, the problem is that you don't know what you don't know. Often a seemingly minor issue may require a complex solution that only an attorney with knowledge of estate planning can solve via a carefully drafted will. A straightforward basic will should not cost that much ($100-$500), and you can get your powers of attorney, health care powers of attorney, and living will--all documents sometimes even more important that your will--done at the same time.
I always thought it funny that people will seek out free legal documents or advice but never free plumbing work in their house! see more
I always thought it funny that people will seek out free legal documents or advice but never free plumbing work in their house! see more
Question
My husband needs to be into a nursing facility but worried how this affects me financially?
May I suggest you pick up a copy of my book, "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid... May I suggest you pick up a copy of my book, "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets"? You need a good understanding of the very complex rules covering Medicaid for nursing home residents. For example, for married couples, how something is titled makes no difference, it will all be counted in determining eligibility. However, the at-home spouse can protect $119,220 of countable assets (home, car, personal property is all non-countable; retirement plan assets (401(k), etc.) may or may not be countable, depending your state's rule). Good luck! see more
Question
Can I receive back pay for caregiving for my cousin that was a retired army vet?
Unfortunately, unless you are paid concurrently at the time you perform the services,Medicaid views payment for past services as a gift,... Unfortunately, unless you are paid concurrently at the time you perform the services,Medicaid views payment for past services as a gift, subject to a penalty period if the person cared for applies for Medicaid within the five-year period after the date you are paid. see more
Question
When my mother is gone who will be responsible for her debt?
Strictly from a legal standpoint, if she had no co-signer on her credit cards, then when she dies if there is an outstanding debt, the... Strictly from a legal standpoint, if she had no co-signer on her credit cards, then when she dies if there is an outstanding debt, the company must file a claim against her probate estate. If she does not have enough assets in her estate to pay all the creditors, they are out of luck (it's called a bankrupt estate). No other family members would be liable for her debts, since they are personal to her. see more
Question
Can a state home take her trust money as an asset after she moves in?
The answer depends on (i) whose money is in the trust and (ii) the terms of the trust, i.e., if it says she has ANY right to get the money,... The answer depends on (i) whose money is in the trust and (ii) the terms of the trust, i.e., if it says she has ANY right to get the money, it may be countable as her asset for these purposes. You'll need an attorney to read the trust document and advise you about that. see more
Question
Will Medicaid come back on the family for repayment of nursing home fees if parent dies?
Upon Dad's death, the state must make a claim against any property or cash or other assets that had been in his name, to repay up to... Upon Dad's death, the state must make a claim against any property or cash or other assets that had been in his name, to repay up to the amount the state spent on him for his care in a nursing home. If he dies broke, the state is out of luck; they cannot go after family members for his Medicaid debt. see more
Question
An attorney told me to buy a car and put in my father's name which would make him eligible for Medicaid. Does...
Some states follow the rule that a transfer of an exempt asset (e.g., a car) is not a penalty-causing gift. (Note: Even in such states, a... Some states follow the rule that a transfer of an exempt asset (e.g., a car) is not a penalty-causing gift. (Note: Even in such states, a transfer of the home, normally exempt from Medicaid, will indeed trigger a penalty.) What the rule is in your state I have no idea, so if you really wish to be sure about this, you would need to check with your state's Medicaid department.
If you are nervous about an attorney's advice, it is within your rights to ask the attorney (i) if he or she has successfully used a particular planning technique, how many times, and how recently (states change their rules), and (ii) if he or she can make a copy of the state's applicable statute or regulation that permits such a technique. No reputable attorney will be offended by the foregoing. see more
If you are nervous about an attorney's advice, it is within your rights to ask the attorney (i) if he or she has successfully used a particular planning technique, how many times, and how recently (states change their rules), and (ii) if he or she can make a copy of the state's applicable statute or regulation that permits such a technique. No reputable attorney will be offended by the foregoing. see more
Question
Will Medicaid take the money from life insurance to pay past Medicaid benefits?
Only the cash value of a life insurance policy is counted, for Medicaid eligibility purposes. Since a term policy has no cash value, it is... Only the cash value of a life insurance policy is counted, for Medicaid eligibility purposes. Since a term policy has no cash value, it is exempt for Medicaid eligibility purposes. Upon the death of the insured, unless the beneficiary is the estate of the insured, it will not be subject to estate recovery by the state if the insured received Medicaid benefits (in most states). see more
Can power of attorney determine who gets personal property?