Mar
04
2013
0

Protect Your Home From a Medi-Cal Lien With a Reserved Life Estate

Medi-Cal can pay for your stay in a skilled nursing facility if you qualify. Under the state’s regulations, your home can be confirmed as an exempt asset in the Medi-Cal application. This means that you can keep your home, if you are otherwise qualified, and still receive Medi-Cal. This is true whether you are single or married. The concept is that you should not have to lose your home in order to receive this public benefit.

 The problem is that the state will want to recoup the payments it has made to the nursing home for your benefit, when you die. If your home is in your estate when you die, the state will put a lien on your home for the amount it has paid to the nursing home on your behalf. If the state has paid out $150,000 for you, they will put a lien on your home for that amount. When you die and your estate is settled, the state will be satisfied first for their lien of $150,000, and your beneficiaries will receive what is left. The state will not pursue a lien against a surviving spouse who still owns the home, but when she dies, the state’s lien will attach to the home and the state will recoup their payments at that time. 

There is a legal technique which is permitted under the regulations, which will allow you to protect your home against a Medi-Cal lien. It is called a “reserved life estate,” and your elder law attorney or senior law attorney can advise you in this regard. If the Medi-Cal applicant owns a home, we can transfer her interest in the home to her spouse, or to her children, for instance. A life estate in the home is reserved on the deed in favor of the Medi-Cal applicant. This means that the applicant owns the home for the rest of her life, and that her spouse or children own the remainder interest. The applicant is entitled to rents, issues and profits derived from the real estate. These interests are confirmed on the county record. When the Medi-Cal applicant dies, the home is not in her estate because her life interest disappears at the time of her death by operation of law, and her spouse or her children then receive the full interest in the property. Elder law planning and asset protection planning can be further pursued for the surviving spouse with your elder law attorney, to likewise protect her interest in the home.

Although under real estate law the home is not in the Medi-Cal applicant’s estate when she dies, so that a Medi-Cal lien cannot attach to the home, another benefit in using this technique is that under the IRS regulations, the reserved life estate interest should be recognized as keeping enough interest in her home in her estate, so that there should be a “step-up in basis” for capital gains purposes at the time of her death.  

If you have lost mental capacity at the time we would like to make a transfer of your interest in your home and reserve a life estate in your favor, we will need to look at the language and powers in your revocable living trust and financial durable power of attorney. If the powers are not there, and they usually are not, you may have to pursue a court petition through an elder law attorney who is familiar with this area of the law, in order to reform your documents to allow for this transfer. Most revocable living trusts and financial durable powers of attorney do not contain this favorable language. As a result people who are “baby boomer” age or older should consider getting their “Ducks In A Row” and have their elder law attorney or senior law attorney create an elder care plan for them, which will include estate planning documents with this favorable, asset protection language. An elder law attorney who is familiar with Medi-Cal qualification can certainly help you in this regard. Michael J. Young is an elder law attorney who practices in Walnut Creek, CA.

Written Michael J. Young, elder law attorney, Medi-Cal attorney, senior law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. He is Medi-Cal attorney and is VA Certified.  www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney. Senior Law Attorney

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Jan
10
2013
0

It Is Difficult Being The Caregiver For Your Older Loved One

Many of our older clients are being taken care of by their spouse, or by one or more of their adult children or another family member. The older person of course appreciates the help, and the caregiver feels gratified in their role. The caregiver may also feel extremely guilty if they don not help. The care often takes place in the older person’s home or in the home of a child. Also, spouses and children will at times spend nights in their loved one’s care facility to help with the care.

But, being a caregiver for an older person can be a 24 hour a day, seven days a week job. And, the work can be exhausting. We receive calls all the time from family members or from spouses, who tell us that they can’t do it any more. I remember when my brother and I were trying to take care of our elderly father. My brother and I finally got to the point where we could barely pick our Dad up to help maneuver him to the bathroom. Toileting issues were difficult for everybody. Our Dad also would not cooperate with taking his medications, and there were other problems. My brother and I finally decided that we did not have the requisite skills to properly care for our Dad any longer, but we suffered with the guilt associated with making this decision. I do remember being amazed however, when we hired an experienced in-home care giver for our Dad, how the care giver, because of his training, could easily move our father around.

If you find yourself in the caregiver role, please keep in mind that your own health can suffer as the result of helping your loved one. How many times have we heard of the well spouse passing away from exhaustion caused by her helping her ill spouse? Please give yourself a break. Call other family members and friends to help you. You can utilize adult care services, where you take your loved one to spend several hours during the day. You can also hire a caregiver, and there are many fine agencies in the area who have qualified people who can help you.

Please feel free to contact us if you have questions along these lines, as we may have suggestions for help you can receive within the elder care community 

At the Law Offices of Michael J. Young in Walnut Creek, for many years now, we have helped clients and their families with questions such as these. We also continue to help seniors keep what they have earned. We do this through the preparation of asset protection plans, long term care plans, revocable living trusts, powers of attorney and wills, and assistance with applications for Medi-Cal and the VA Aid and attendance Pension Benefit.

Written Michael J. Young, elder law attorney, Medi-Cal attorney, senior law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. He is Medi-Cal attorney and is VA Certified.  www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney. Senior Law Attorney

Jan
09
2013
0

MY DAD IS IN A NURSING HOME AND KEEPS LOSING HIS GLASSES, WALLET AND “TEETH”

This is a common complaint we receive from clients. My own father, while he was in a nursing home during his late 80’s, would constantly complain about losing his dentures, which he called his “teeth”. He would complain that someone kept stealing his teeth. I would say, “Dad, no one wants to steal your teeth!” We asked for help from the nursing home administrator to help monitor where our Dad put his teeth, and this solved the problem.

One of our elderly clients, who is in a nursing home, keeps misplacing her glasses, and cannot remember from one moment to the next where she placed them. Her daughter, who is very exasperated about this, keeps telling her mother to put her glasses in the same place each time she takes them off, but that her mother does not listen. We advised the daughter to talk to the nursing home administrators to help monitor the glasses.  

My father also lost his wallet on one occasion, which we were fortunately able to recover. To remedy the situation of losing his wallet again, my brother took our father’s wallet home with him, and gave our father a new wallet with the items in it our father felt he needed. Those items were his red Safeway card and a one hundred dollar bill. This satisfied our father and eliminated the wallet issue.   

Glasses and dentures are expensive to replace, but we should keep in mind that elderly people who are in nursing homes may be suffering from memory loss, which could be why they are losing things, and we should be patient with our loved ones.

At the Law Offices of Michael J. Young, for many years now, we have helped clients and their families with questions such as these. We also continue to help seniors keep what they have earned. We do this through the preparation of asset protection plans, revocable living trusts, powers of attorney and wills, and assistance with applications for Medi-Cal and the VA Aid and attendance Pension Benefit.

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney. Senior Law Attorney.

Jan
07
2013
0

BEWARE OF SCAMMERS WHO PREY ON SENIORS

Scammers are consistently targeting older people. An older client of ours in Walnut Creek called us to ask how she could be taken to the airport so that she could give a courier $2,500 for a service fee. The service fee was apparently to ensure that she would receive $25,000 that she was told she won in a contest. Our client said that she had made the check out and was ready to have it delivered, and that it had to be delivered no later than 3:00 p.m. that afternoon. We instructed our client to do nothing. We followed up by calling the person back who called her. It was an obvious scam, and we contacted the FBI.

Another client told us that she received an e-mail, purportedly from her grandson, stating that he was in Europe and needed money wired to him right away. The e-mail stated that the grandson had been robbed, had no money, and was living in the street waiting for the money to be wired to him. This was a ridiculous story and an obvious scam Please do not respond to e-mails like these or click their links.

In another case, a man who was almost 90 years old and who was suffering from some dementia, was the victim of a scam involving time shares. An unscrupulous salesman sold the senior a number of time shares, which the older person would never be able to use. Fortunately, the timeshare contracts were reversed by his daughter, but not without a lot of time and effort.

These stories are very disheartening to me, as an Elder Law Attorney in Walnut Creek, who for many years has endeavored to help seniors keep what they have earned. We do this through the preparation of asset protection plans, revocable living trusts, powers of attorney and wills, and assistance with applications for Medi-Cal and the VA Aid and attendance Pension Benefit.

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney.

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Nov
02
2012
0

The New More Stringent Medi-Cal Qualification Rules Will Be Here Soon

Congress passed the DRA (Deficit Reduction Act) on February 8, 2006. This act makes qualification for Medi-Cal benefits much more difficult. Congress mandated that the various states adopt the DRA into their rules, and Governor Schwarzenegger signed the DRA into law in California on September 27, 2008. We have been informed that the new DRA rules will become effective in California in the next several months.

One of the most onerous changes for Medi-Cal qualification will involve the penalty period which is created when a gift has been made by the Medi-Cal applicant. There is presently a 30 month look back period for gifts of non-exempt assets. So for example, if a gift was made by the Medi-Cal applicant in the amount of $30,000 within the last 30 months, this amount is divided by the penalty divisor of $7,092, which creates 4.23 months of ineligibility, which is rounded down to 4 months of ineligibility. If this gift was made in November 2012, the applicant would be eligible for Medi-Cal in March 2013, if otherwise qualified. These are the present rules, which we can use for pre-planning for Medi-Cal qualification. 

Under  the new DRA rules, there is a 60 month look back period, with an added, very negative twist. If the applicant gifted the same $30,000 within the last 60 months, 4.23 months of ineligibility would be created, and that number is not rounded down. If this gift was made in November 2012, she would not be eligible for Medi-Cal for 4.23 months AFTER she is admitted to a nursing home, and is otherwise qualified. For a single person to be otherwise qualified, she could have no more than $2,000 of non-qualified assets. The question will be how to be able to pay for the nursing home for the 4.23 months, and this will be extremely difficult for many people.

If you are considering planning for Medi-Cal and asset protection, you should have your estate planning documents updated to include asset protection and public benefits planning language, and you should consider visiting your elder law attorney as soon as you can for pre-planning.  

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

Oct
23
2012
0

Dogs Have a Therapeutic Effect on Older People

My father spent some of his final months in a large assisted living facility. He was in his late 80’s, and was at times depressed and grouchy. Since the passing of my mother, he would not socialize easily, and would reject the entreaties of the resident ladies in the facility. He also would not participate in any of the activities that the “social director” would arrange. When I would visit my father, he would be waiting for me in the lobby of the facility, sitting alone, and not talking to anyone. When I would meet with him he would say, “Where the hell have you been?” I noticed that there were many other residents just like him, all sitting alone, and not talking to anyone.

 One Saturday I picked up my brother to go with me to visit our father. My brother had a 10 year old Labrador retriever named Gracie. This dog was very friendly, to say the least. She loved everybody, and would make herself at home wherever she was. I asked my brother to bring Gracie with us.

When we arrived at the facility, Gracie pulled us in, immediately went up to an elderly man, not our father, and put her head in his lap! The man was not at all offended, his face lit up, and he started to pet Gracie. My brother apologized and pulled Gracie away. We started to look for my father, and Gracie spotted an elderly lady who was standing up, and leaning against her cane. Gracie walked up to the lady and pushed her snout against the lady’s thigh to say hello. The lady was startled at first, but started to pet Gracie and rub her ears, for which Gracie was grateful.

 Finally, we saw my father, sitting alone in a chair, sitting up straight with his cane out in front of him. Gracie went up to my father, and put her head in his lap. My dad’s face lit up, and he began to pet Gracie. This was the first time my father did not say to my brother and I, “Where the hell have you been?” when we went to visit him.

 After that meeting, we took Gracie with us to visit our father whenever we could. We noticed also that therapy dogs were brought into the facility on a regular basis for visits, which was always a big hit with the residents. Dogs can be very soothing for older people, and for my father it softened him and brought a smile to his face. Studies have shown that after visits with therapy dogs in care facilities, that the loneliness factor is lessened and that the blood pressure of the residents is lowered. You should consider bringing a dog with you when you visit your older loved ones.

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

Oct
11
2012
0

Where are Mom’s Papers?

It is very important to know where your loved one’s papers are!

We are always trying to accomplish elder care planning as early

as possible, so that we can get all of our ducks in a

row before memories fade.

 

Last week we helped a family whose elderly mother needed

long term care planning. The father had died almost two years

earlier, and he had been in charge of all legal

and financial matters for the couple. The mother was in a nursing home

and could not remember for sure if she had a trust or any estate planning

documents, or whether her home was in a trust. The family also did not know

if there were any estate planning documents, could not find any, and did

not know about a trust. They wanted us to apply for Medi-Cal for their mother,

and to protect her home from a potential Medi-Cal lien. 

 

I asked the children to keep looking for the legal documents.

I checked with my resources at a title company, and was able

to a get a copy of the last deed of record for the home,

and the deed confirmed that the home was indeed in the mother’s family trust. 

Fortunately, the deed referenced the attorney who prepared it. I called

the attorney, who said he had retired, but thought that he had

copies of his clients’ documents in a storage facility. It took awhile,

but the attorney eventually provided us with copies of the estate

planning documents, including the trust. We were able to amend the

various documents for government benefits and asset protection purposes,

and we proceeded to protect the home from a potential Medi-Cal lien.

 

We also needed to see recent statements of all bank accounts, IRA

accounts, etc., for Medi-Cal qualification. We also needed to see life

insurance policies that the mother owned.

The mother was not sure about any of this,

nor were her children. I asked the children to please look for

these documents, to watch the mail for new statements, and to

familiarize themselves with these matters. The mother confirmed

that she wanted her children to help her.

 

The children were able to find the statements, and

also found a life insurance policy that the mother owned. Fortunately, at least

for Medi-Cal qualification, there was no cash in value that

we would have to deal with to create Medi-Cal

eligibility for the mother.

 

The mother was thankful that her children were helping.

The father had apparently been a very strong willed person,

who for whatever reason, did not choose to involve his

children, let alone his own wife, with any of these important issues.

 

All worked out well in this case, but not without loss of time

and with additional angst and tension that the family

and their mother did not need at this time. 

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

Sep
17
2012
0

Medi-Cal Qualification – (CSRA) The Community Spouse Resource Allowance

For Medi-Cal qualification for married couples, generally speaking, the ill spouse can only keep $2,000 in liquid assets, plus exempt assets such as the home and IRAs.  In addition, the well spouse, also known as the community or at home spouse, can keep up to $113,640 in liquid assets, plus exempt assets. Any assets above these limits, $2,000 for the ill spouse and $113,640 for the well spouse, and excluding exemptions, will be counted for Medi-Cal qualification.

For planning purposes for a married couple, the Medi-Cal regulations allow us to “transmute” or transfer any assets from the ill spouse to the well spouse. There is no penalty for doing this, and no “look back” penalty period is calculated when the transfer is made between spouses. If the well spouse cannot live on the $113,640 plus exempt assets, we can either petition the court or request an administrative hearing to raise that amount, under the impoverished spouse statutes. In addition, we can make gifting transfers to other family members to lower the $113,640.

We can protect the home from a Medi-Cal lien by “transmuting” or transferring title of the home from the ill spouse to the well spouse. This title transfer must be done correctly on the record, and capital gains and other penalties and issues must be taken into account.      

These regulations which allow for transfers between spouses for asset protection and Medi-Cal qualification, cannot be implemented however, unless the ill spouse has sufficient mental capacity to make the transfers. If the ill spouse has sufficient mental capacity, she can sign the necessary documents. If she lacks sufficient mental capacity, we must look to her estate planning documents, including the trust and financial durable powers of attorney for the powers.

The estate planning documents must have sufficient expanded fiduciary powers under “gifting” and “revocation” sections in order to make these transfers. Please be advised that most estate planning documents do not have sufficient expanded fiduciary powers, unless an elder law attorney has prepared the documents or has amended the documents. If no such powers exist in the documents, we can go to court on a petition to request that the documents be amended to include these powers.

The best advice is to update your estate planning documents with the recognized asset protection and government benefits planning language while mental capacities are intact.   

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

Aug
14
2012
0

VA Aid & Attendance Pension Benefit Changes on the Horizon

We have qualified many of our clients for the VA Aid & Attendance Pension benefit, (A&A) which is available for wartime veterans or their surviving spouses, as part of their long term care plans. This program can pay the veteran over $19,000 per year, or the surviving spouse of the veteran over $12,000 per year.  This benefit is very helpful for the payment of in-home care, assisted living and board and care costs. 

             For many of our clients, planning for qualification for this benefit is required. Any planning for A&A must be coordinated with planning for Medi-Cal, which helps pay for the cost of skilled nursing facilities. As part of the planning, the Medi-Cal regulations allow for the gifting of assets in order to obtain eligibility. These regulations also provide for periods of ineligibility for Medi-Cal, if the gifting is not done properly.

             The VA, Aid and Attendance program presently has no penalties for gifting. As a result, the veteran can theoretically give all of his money away today, and be eligible for the VA benefit tomorrow. However, if the gifting is not done properly, and pursuant to the Medi-Cal regulations, the veteran may not be eligible for Medi-Cal for many months. The cost of nursing homes can be $10,000 per month, and we never know when we may end up in a nursing home.

             The Aid and Attendance Pension benefit has become very popular as of late, and the United States Congress has expressed concern lately about complaints concerning the length of time it now takes for the A&A applications to be processed. Congress has also been concerned about complaints concerning abusive practices by some within the financial investment community, who advocate asset transfers from veterans or their surviving spouses, and who then sell annuities in order get people qualified for the benefit. In many instances the applicants do not qualify for A&A, and their chances of obtaining Medi-Cal may have been jeopardized for many months. In addition, qualification for A&A does not require the purchase of an annuity.

             As a result, Congress is considering imposing a “look back penalty period” for gifting of assets in order to obtain qualification for A&A. The result will be a penalty period for eligibility for A&A. A three year look back penalty period has been suggested by a U.S. Senator. Any such new legislation would probably not take effect for another year. As a result, long term care planning should begin as soon as practicable. After all, to quote my mother, “None of us are getting any younger.”      

 To view our “Nuts and Bolts” Guide to Veteran’s Benefits, please follow this link:

 http://www.walnutcreekelderlaw.com/GuideToVeteransBenefits.html

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

Jun
05
2012
0

Probate – Joint Tenancy Transfer Without Probate

Real property held in joint tenancy can be transferred upon the death of one of the owners of the property without a probate. However, this is not always a good idea.

For instance, lets assume that John Doe is the owner of 123 Wilkins St., and John Doe wants his friend Jim Smith to obtain title to the property upon John Doe’s death. This can be accomplished by John Doe granting the property with the use of a Grant Deed to himslef, John Doe and to Jim Smith, as joint tenants. Upon the death of one of the parties, an affidavit death of joint tenant with a death certificate attached is recorded with the county recorder. The survivor of the two individuals will now have sole title to the property. No probate is necessary. A probate will be necessary on the second death if nothing else is done.

This method of estate planning can avoid probate, but can create other issues. We have seen situations where parents have transferred their home to their children for government benefits planning and asset protection purposes. For Medi-Cal, the home can be established as an exempt asset and then transferred. But what happens if the child who has come onto title is having financial difficulties? If there is an abstract of judgment in the amount of $100,000 recorded with the county recorder against the child who is now on title, the lien created by the abstract of judgment in the amount of $100,000 has now attached to the parents’ home. This is not a good result.

A better method may be for the parents to create a revocable living trust in their names, and then transfer the property on the record to the trustees of the trust. Upon the passing of both spouses, the property should pass to the children without a probate and court involvement.

For government benefits planning and asset protection purposes, an elder law attorney such as Michael J. Young, probate and elder law attorney in Walnut Creek, CA, Contra Costa County, can draft the trust and related financial durable powers of attorney in such a way as to allow for intervivos, or lifetime transfers of real proprty between spouses and children, if necessary in the event of incapacity.

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

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