Jun
13
2017
0

Your Home and The “Heggstad” Petition

Your home should be transferred to your revocable living trust for various reasons. One reason is to avoid probate of your home upon your death. Another reason is that as of January 1, 2017, if you die after having been on Medi-Cal, the state will not be able to pursue recovery against your home if it is in your revocable living trust.

Some individuals, for various reasons, take their home out of their revocable living trust and do not transfer it back to their trust before they die. One reason the home is taken out of the trust is for re-finance purposes. Some lenders require that your home not be in your trust when you re-finance your mortgage. As a result, the escrow company may prepare a deed for you to sign, taking your home out of the trust. Escrow will usually not transfer your home back into your trust after escrow closes, because they would be violating the lender’s escrow instructions. As a result, you should transfer your home back into your trust after the close of escrow, unless there is a good reason for you not to do so. When you make this transfer back to your trust, your home will not be re-assessed, and the transfer will not trigger the due-on-transfer clause in the deed of trust which secures your mortgage.

The problem is that if you die, and title to your home is not in the trust, your home will need to be probated. A probate can take up to a year to complete, and is a costly process. Fortunately, there is a shorter court process in California that we can use to obtain a court order transferring your home back into your trust after you die. This is called the “Heggstad” Petition, which is named after a court case. If we can prove to the court through this court petition and supporting declarations that it was the obvious intention of the maker of the trust to keep his or her home in the trust, the court may grant an order, transferring the home back into the trust, thereby avoiding probate. This procedure is not guaranteed, but the courts have been more willing in recent years to grant this petition. As a result, if you take your home out of your trust, check to be sure that you have transferred it back into your trust, unless there is a good reason not to do so.

Please feel free to contact our office should you need help with estate planning, asset protection, and qualifying for and applying for Medi-Cal. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Jun
01
2017
0

Medi-Cal Qualification and Joint Accounts

If you are applying for Medi-Cal, you will be required to disclose all of your assets in your application package. Medi-Cal wants to see evidence of all of your accounts, even joint accounts that you may have with someone else. Joint accounts will be considered by Medi-Cal, at least initially, to belong to you alone. So for instance, if you have a joint savings account with your daughter, Medi-Cal will view that account as belonging to you alone. As a result, the value of the account may disqualify you for Medi-Cal.

You may be able to remedy the situation if you can prove to Medi-Cal that all or a portion of the fund does not belong to you. You can also spend the money in the account on yourself, make repairs to your home, pay down your mortgage, etc. You may also be able to gift the money, or a portion of it from the account. As we have explained in previous blogs however, gifting can create periods of ineligibility for Medi-Cal if it is not done correctly.

Planning for asset protection and Medi-Cal with your estate planning and asset protection attorney at an early stage, can be very beneficial. Your revocable living trust and financial durable powers of attorney can also be amended to have the required gifting and asset protection provisions for Medi-Cal qualification, should you become incapable at some point of handling these matters on your own.

Please feel free to contact our office should you need help with estate planning, applying for Medi-Cal and asset protection. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

May
31
2017
0

California Still Has A 30 Month Look Back for Gifting

California still has the 30 Month Look Back Penalty Period for Gifting. There is a federal law known as the Deficit Reduction Act (DRA), which has a 60 month look back penalty period. However, California has not to date implemented that law. Medi-Cal eligibility workers are required to use the 30 month look back period.

When you apply for Medi-Cal, the application asks whether you have given away any countable, or non-exempt assets within the last 30 months. If you have made such a gift without consideration, or for less than fair market value within the 30 months prior to making the application, a penalty period of ineligibility may be imposed. Transfers of any kind between spouses are exempt and do not create any periods of ineligibility.

The penalty transfer amount, which is also known as the monthly average nursing home private pay rate, is presently $8,515. The penalty period starts when the transfer is made, as opposed to when you make the Medi-Cal application. To calculate the penalty period, first check to see if it was made more than 30 months prior to making the Medi-Cal application. If more than 30 months have passed, there is no penalty.

Lets assume however that you have gifted $50,000 to your grandchild on October 1, 2016, and that you are applying for Medi-Cal on January 1, 2017. The gift was made 3 months prior to the application, so the 30 month look back penalty rule applies. You then divide $50,000 by $8,515, which reflects 5.87, which is rounded down to 5 months of ineligibility, starting from the date of the transfer. As a result, you would be ineligible for Medi-Cal during the months of October, when the gift was made, November, December, January and February, but you would be eligible March 1, 2017. There are of course other rules to consider, which may be to your benefit, which your elder law attorney can help you with.

Please feel free to contact our office should you need help with applying for Medi-Cal, and asset protection. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Apr
11
2017
0

How Much Are Probate Fees?

In California, Probate Code section 10810 statutorily sets the maximum amounts that executors and attorneys may be paid for their fees. The amount of attorney fees and executor fees are ordered by the court at the end of case. If the case is complicated, for instance where litigation is involved, the attorney can request that the court allow additional fees for the attorney’s extraordinary services.

The formula for calculating statutory fees for the attorney and for the executor are as follows: (1) Four percent for the first $100,000 of the estate; (2) Three percent for the next $100,000; (3) Two percent on the next eight hundred thousand dollars; (4) One percent on the next nine million dollars.

So for instance, if the amount probated is $100,000, the executor and the attorney can each be awarded $4,000 for their fees. If the amount probated is $200,000, the executor and the attorney can each be awarded $7,000 for their fees. The following chart reflects the statutory fees for the attorney and the executor for an estate with a value up to $5,000,000.

PROBATE ESTATE VALUES TOTAL ATTORNEY AND EXECUTOR FEES*
$100,000 $8,000
200,000 14,000
300,000 18,000
400,000 22,000
500,000 26,000
600,000 30,000
700,000 34,000
800,000 38,000
900,000 42,000
1,000,000 46,000
2,000,000 66,000
3,000,000 86,000
4,000,000 106,000
5,000,000 126,000

Please feel free to contact our office should you need help with a probate. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Feb
13
2017
0

Using An Annuity For Medi-Cal Eligibility For Spouses

In previous blogs, we have discussed various techniques, within the regulations, for obtaining Medi-Cal qualification for an ill spouse, when the couple has excess assets. These techniques include “spending down,” gifting and filing a court petition to obtain an order that allows the couple to keep all of their assets. In certain circumstances, especially between spouses, an annuity can be a useful tool to consider for Medi-Cal qualification.

As discussed in previous blogs, the ill spouse (Medi-Cal applicant) and the well spouse, can keep all of their qualified funds, like IRAs and 401(k)s, in any amounts, and still qualify for Medi-Cal. Then, the ill spouse cannot have more than $2,000 in non-qualified funds, like a savings or brokerage account in his name. The well spouse can have up to $120,900 in non-qualified funds in her name. So for instance, if the couple has $300,000 in non-qualified funds, they would have $177,100 too much for the ill spouse to qualify for Medi-Cal.

To use an annuity for qualification, the ill spouse would transfer his non-qualified assets to the well spouse. There is no Medi-Cal penalty for inter-spousal transfers. Then the well spouse would purchase an annuity with that money in her name, and name someone other than her ill spouse as the pay on death beneficiary of the annuity. Distributions would be made periodically from the annuity to the well spouse in payments scheduled to be exhausted during her life expectancy, pursuant to social security life expectancy tables. The well spouse can keep all of her income from the annuity, without penalty. In addition, as of January 1, 2017, there can be no recoupment by Medi-Cal against the annuity after the ill spouse passes away, because a pay on death beneficiary has been named in the annuity. This technique is not appropriate in all situations, and may be discussed with your elder law attorney along with other options.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Oct
10
2016
0

October, 2016 Medi-Cal Reference Guide

This Medi-Cal Reference Guide reflects some of the most frequently requested information we receive regarding Medi-Cal qualification.

Community Spouse Resource Allowance (CSRA) $119,220. This is the amount of non-qualified money or investments that the well spouse may keep. Either spouse may keep any amount of qualified assets, such as IRAs.

Monthly Maintenance Needs Allowance (MMMNA) $2,981. The well spouse is allowed to keep all of her income. The MMMNA is the minimum amount of monthly income that the well spouse is allowed to keep. If she is under this amount, the income of the ill spouse is applied to bring the well spouse up to the $2,981 amount. This calculation is set forth in the accounting that is presented with the application to Medi-Cal.

Divestment Penalty Divisor (APPR) $8,189. This is the monthly amount that the state pays to Medi-Cal nursing homes, minus a share of cost from the applicant. The APPR is also the gifting penalty divisor which is used in calculating periods of ineligibility for Medi-Cal, using the current 30 month look back period. So for instance, if the Medi-Cal applicant gifted $20,000 to a child in October, 2016, she would be ineligible for Medi-Cal for two months. Divide $20,000 by $8,189 and round down to two. The applicant would be ineligible in October and November, but would be eligible in December. There is no penalty for gifting between spouses.

Applicant Resource Allowance $2,000. This is the amount of assets that the applicant can keep, whether he is single or married.

Monthly Personal Needs Allowance $35. This is the amount of income the applicant can keep. The applicant is also given credit for his part B Medicare premium.

This off course is only part of the picture. Please feel free to contact our office for additional information.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Sep
28
2016
0

Consider A Joint Checking Account With Your Parents

Many older people insist on handling their own financial affairs without assistance, for as long as as possible. This is admirable, but what if something bad happens to the older person, like a medical event which lands the older person in the hospital, and ready access to cash is needed? And, what if the older person begins to lose capacity and starts to make bad decisions with their money?

For access to immediate cash, a child or other loved one should be a joint owner on a checking account with the older person. If the older person is hospitalized and indisposed for a period of time, the child will be able to take care of finances, and pay bills for their parent. If the older person starts to make bad financial decisions, or is the subject of fraud, the child could shut the account down.

The bank and financial accounts, except for IRAs, should be transferred to the revocable living trust of the older person, with a child or other person named as successor trustee. These transfers to the revocable living trust are completed through the bank or financial institution, and these trust assets are reflected on the schedules of assets attached to the revocable living trust. The trust is set up so that if the older person loses capacity, a doctor’s note is obtained, and the child can act as the new trustee to control the assets for the benefit of the parent.

But what if the parent refuses to cooperate and do any of these things? You should try to maintain a dialogue of communication with the parent, and try to stay informed about what is happening with his daily life. If the parent becomes unusually defensive when asked about his finances, this should be a red flag. At this point, a geriatric social worker may be able to help you communicate with your parent. If the estate plan and finances aren’t properly set up, and the parent loses mental capacity, a court conservatorship may be required for you to be able to gain control of the accounts. The earlier the estate plan and joint checking account is set up, the easier it will be for all concerned.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Written by mike in: Aid & Attendance Brentwood,Alzheimer's Care,Alzheimer's Medi-Cal,Asset Protection Attorney Walnut Creek,Baby Boomer Estate Planning,Baby Boomer Estate Planning,Brentwood Attorney Senior,Brentwood CA Asset Protection Attorney,Brentwood Elder Law,Brentwood Elder Law Atorney,Brentwood Elder Law Attorney,Brentwood Nursing Home Attorney,Brentwood Senior Law Attorney,Contra Costa Nursing Home Attorney,Elder Law Attorney Walnut Creek,Estate Planning for Baby Boomers,Hospice Care Walnut Creek,Medi-Cal Attorney Pleasant Hill CA,Medi-Cal Attorney Walnut Creek,Medi-Cal Attorney Walnut Creek CA,Medi-Cal Gifting Walnut Creek,Medi-Cal Planning & Qualification,Nursing Home Attorney Brentwood,Nursing Home Attorney Walnut Creek,Parkinson's disease Walnut Creek,Pay Nursing Home Care Walnut Creek,Pay for Cost of Long Term Care Walnut Creek,Pleasant Hill Elder Law Attorney,Pleasant Hill Senior Law Attorney,Probate Attorney Contra Costa County,Senior Law Attorney Walnut Creek,Special Needs Trusts,Sustainable Estate Planning Walnut Creek CA,Walnut Creek Elder Law,Walnut Creek Medi-Cal Qualification,elder law attorney Pleasant Hill,senior law walnut creek | Tags: , , , , , , , , , , ,
Jun
01
2016
0

The Personal Residence Exclusion

When we are doing long term care planning with our clients, we often discuss the fact that if you sell your home during your life, you may have to pay tax on the capital gain. Capital Gain is the difference between the “basis” in the property, basically what you paid for it, and its selling price. The federal tax can be up to 15% of the gain, and there is a smaller tax to the state which is determined by your tax bracket. You may exclude up to $250,000 of gain on the sale of your personal residence. If you are married, you can exclude up to $500,000.  To qualify, you or your spouse must have lived in and owned the home for at least two out of the five years prior to the sale. When doing long term care planning, we also discuss methods under the IRS regulations, which may allow us to avoid capital gains.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Apr
25
2016
0

When Can The State Recover Medi-Cal Payments?

If you die after having been on Medi-Cal, the state will want to recover from your estate. They will want to recover what they paid for your nursing home care while you were on Medi-Cal. If there is nothing in your estate when you die, there will have nothing in your estate for them to recover. That it why it is important for you to see an elder law attorney in order to get your “Ducks In A Row” for Medi-Cal qualification, and to avoid state recovery. For instance, if your home is in your estate when you die, the state can recover against it. If you have transferred your home out of your estate prior to your death, there can be no recovery against your home. If you have lost capacity, your fiduciary will not be able to transfer the home out of your estate without consideration, unless you have specialized language in your revocable living trust and financial durable power of attorney which provides for such a transfer without consideration. Most revocable living trusts and financial durable powers of attorney do not have the requisite language to make real estate and asset transfers, without consideration, if you lose capacity. Most revocable living trusts and financial powers of attorney provide only that a sale of assets can be made, for adequate consideration or fair market value. This language is not helpful for Medi-Cal qualification and state recovery.

The state cannot recover against your estate, after you have been on Medi-Cal, until you die. If you are survived by a spouse, the state claim is prohibited until the surviving spouse dies. But again, if there are no assets in your name when you die, if you were a Medi-Cal recipient, the state will not be able to pursue a claim against your spouse. If you are a Medi-Cal recipient who is survived by a minor child under the age of 21, the claim is barred against the state. Also, if  you are a Medi-Cal recipient who is survived by a disabled child of any age, the claim is barred against the state.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Feb
29
2016
0

Do-It-Yourself Estate Plans

If you do an on-line search, you will immediately find websites that will help you create estate planning documents like revocable living trusts and wills. The selling point of these websites is that you will save on legal fees. Accordingly, you do not receive legal representation from these web sites. But, are you being “penny wise and pound foolish” by creating your own on-line estate plan?

In our firm, we do long term care planning and asset protection for the older client. Some of the legal documents that are included in the long term care plan are also revocable living trusts and wills. However, the provisions and language in the documents created by an elder law attorney are quite different from what you will find on line. The documents created by an elder law attorney include mechanisms for asset protection and long term care planning for your care, which can be implemented when needed. As my mother once told me, she wanted a plan that would be effective if she did not die, and became ill along the way.

In California, we have Medi-Cal which will pay for an extended stay in a skilled nursing facility, provided that you have your ducks in a row. There are regulations and codes which you can take advantage of for asset protection and qualification for Medi-Cal. In a properly drafted long term care plan, if you lose mental capacity or otherwise become incapable of handling your own affairs, your fiduciary will be able to take advantage of these codes and Medi-Cal regulations for asset protection and qualification for Medi-Cal. Without a properly drafted long term care plan, you may be required to spend down your assets first, in order to qualify for Medi-Cal. In addition, your home may be left exposed to a Medi-Cal lien for reimbursement to the state after you die. As a result, you may be required to prematurely spend all of your assets to create qualification for Medi-Cal. In addition, you may end up leaving nothing for your family when you die.

Long term care planning is as much for your loved ones as it is for yourself.  It is your loved ones who will have to deal with the consequences of your decisions during your life, and after you die. No website that I have observed is capable of giving tailored legal advice for asset protection and long term care planning that can help clients save tens of thousands and in some cases hundreds of thousands of dollars. The old adage, “you get what you pay for,” still holds true.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Powered by WordPress | Theme: Aeros 2.0 by TheBuckmaker.com