Category Archives: Estate Law

Can grandmother give money away after she is in a nursing home?

Q: How much can an independent senior (84 years old) gift money without getting penalized if admitted to a nursing home shortly after? How much money can be gifted to children each without penalization? How much money may be gifted to grandchildren?

A: The Federal Gift Tax Exclusion allows you to give $14,000 in cash or other assets each year to each of as many individuals as you want without dipping into the basic exclusion. However, if grandmother may need to apply for Medicaid funding in order to afford her nursing care in the next five years, these gifts may not be advisable. Medicaid eligibility rules have a five year look back on all such gifts or transfers made without consideration. Therefore, any gift made in the previous five (5) years of the Medicaid application and eligibility, can result in her being ineligible, or her being excluded from funding to the extent of the dollar amount of monetary gifts made without consideration. If you believe that Medicaid may be in her future, it would be wise to have grandmother consult with a lawyer versed in Medicaid law, now. There are ways of excluding some of her estate from a Medicaid claim. There are exclusions and exceptions, trusts can be created and there are allowable purchases that can be made in the Medicaid spend down process.

Brother changed dad’s will

Q: My mother died 7/24/13 in PA and she and my dad have had the same wills for the past 25-30 years dividing property equally between my brother and me. My dad went to Anchorage to live with my brother after my mom’s funeral service and I asked for a copy of their will. My brother is an attorney and works for the AG office and said it was just changed 11/1/13. It leaves everything to him. My dad is 84 and on 10/4/13 went unconscious with insufficient blood supply to his brain. He recovered but is not in good mental capacity. I would not have known anything about the change of will had I not asked. I think there is deceit and undue influence. I have numerous people who would verify what my mom’s wishes were because she spoke about it a lot before her death. My mom and dad’s other will was from PA where they lived and where all the property is. We are talking about a substantial amount of property. I don’t have the money to fight him and wonder what can be done if anything.

A: You need to confirm whether mom and dad had typical husband and wife wills in which each inherits from the other. If that is the case, your dad inherited from your mother. The issue is whether your father had competency to make the will that your brother speaks of. If you wish to have the will challenged, you probably need a doctor to opine that at the time it was signed by dad he was incompetent. For example, he was on medication at the time, did he suffer from dementia or Alzheimer’s disease, etc. In PA, you would need that to prove he was incompetent at the time. Proving undue influence would require witnesses to say your brother misled, bullied, coerced, or manipulated your dad into signing. Unless you have credible witnesses to support these allegations, it would be difficult. Unfortunately, you need to hire a lawyer in Alaska. He could contact your brother, ask for a copy of the will, and try to see if he can get an opinion from your dad’s doctor as to your dad’s competency when he entered the will. This is a tough battle. If there is a large amount of money at stake, an attorney may be able to forego a retainer if he believes there is a case.

Is dad’s vacation house part of his estate?

Q: Dad died. His will says his vacation home should be sold and proceeds distributed evenly among four sons. Residue of estate goes to sole sister. Problem is the vacation house was sold 6 months before Dad’s death. Brothers say they should divide proceeds of sale. Sister says it is all hers? Any advice that you can offer?

A: If the house was sold before his death it is not part of the estate and the proceeds, unless gifted or assigned to someone else, should have gone to dad? If there are still proceeds in dad’s bank account from this sale, that money falls into the estate residuary and in your case goes to sister. However, I am not looking at all the facts here and you should not rely fully on this opinion. You should really let an attorney look at all of these documents to answer with certainty. In addition, since this transfer was within one-year of death, it will be subject to inheritance tax on its full value minus a $3,000.00 deduction.

How can I get a copy of my Aunt’s will?

Q: My aunt died in 1982 in Adams County, PA. I have reason to believe I may have been a beneficiary of this will, Can you tell me where I could possibly obtain a copy of the will? Are they archived, in Fulton County?

A: No one usually files a will until a person dies. If your aunt owned property in her own name of a sufficient value, and she died with a will, there is a good chance the will was filed and an estate opened in Adams County. Call or contact the county Register of Wills where she died and have them run a search, if they will do that for you-there may be a fee. They can confirm if a will was filed. As far as examining the records to see if you inherited anything, you would need to hire a lawyer in that county to copy and review the file, or go there and do it yourself. The Adam’s County Courthouse is on Baltimore Street in Gettysburg. I do not want to discourage you, but if an attorney was involved, which one usually is when an estate is filed, you would have been notified unless they did not have an address for you. The attorneys are bound by state law to notify all heirs. Secondly, even if another heir or relative took your money, you may have statute of limitation problems in bringing a claim and the money may be gone. I would investigate as much as you can on your own at first.

Q: Should my parents put their house in my name?

Q: My parents are in their early 70s and in fair health and want to put their house in my name now to protect it. Is this a good idea for both of us.

A: This is something you should sit down with a local estate/elder lawyer and discuss. There are pros and cons. Pros-it reduces inheritance tax. 1) If they transfer title to you, there is no need to have the house part of the estate when the surviving parent dies. 2) You may avoid a Medicaid lien if the surviving parent never needs to apply for Medicaid within 5 years of the transfer. Cons-inheritance tax is not much for children (4.5%) so depending on the size of the estate it may not be that big of a savings. If the surviving parent needs to apply for Medicaid within 5 years of the transfer of the house for no consideration, this can give rise to Medicaid eligibility problems. Also, the parent loses control of what is often their most valuable asset which they may need to liquidate for money in order to afford a better nursing home. If the home is transferred totally out of the parent’s names, in Allegheny County, they will lose senior citizen real estate tax discounts. Just putting you on the deed with them will not result in a loss of senior citizen’s discounts. In addition, if title is transferred to you, and you subsequently sell this home, you will lose the benefit of the stepped up value you would have had if the transfer came from the estate to the buyer and you will have a full capital gains tax minus allowable deductions. There is more to this than you think, so I advise your parent to seek a legal opinion.

How do we get the hospital to follow dad’s request and consult with us?

Q: Dad had two leg surgeries in the last 5 days. He signed a living will and Durable Power of a Attorney. I am his health care agent. He is on pain meds and little sleep. He does not remember what doctors are telling him. He thinks he is being given pills to medicate himself, which he is not. He thinks he is signing paperwork when they have not given him any. He is clearly confused and cannot make clear decisions for himself. He requested that the hospital call me every time they discuss his treatment. Surgeons are talking to him at midnight and not calling me. They are pushing him to leg amputation. How do we get hospital to follow Dad’s request to have me present for each consultation? We both feel his rights are being violated.

A: Relationships between hospital employees and family members of patients can be stressful, for both sides. However, you have to let them know your concerns, but do it in a professional and tactful way and be persistent. Send the administrator a letter along with a copy of the POA. Clearly state what you want in the letter. You can also request a sit down with the administrator. Let your requests be known. Maybe you are telling staff and the message isn’t getting up to the top. If this does not work, have your lawyer write a letter. However, try everything you can on your own as a concern for a loved one, at first. If he has a personal doctor or PCP that knows his history, can you have him or her communicate with the hospital doctors?

Cousin gave us money. Will we have to give it back to cousin’s nursing home?

Q: Pa and NJ nursing home 5 year look back. My wife and I each received $10,000 from her cousin in February of 2010. Can nursing take money back? We reside in NJ and PA. Wife’s cousin will have to go into nursing home prior to the 5 years in February 2015. The cousin currently receives PA Medicaid for health coverage. Will the nursing home make us give the money back? (which has been spent) Will there be a penalty term?

A: There is some confusion in your question so I strongly urge you to sit down with an attorney with all of your information. Simply put, a nursing home cannot make a donee who did nothing wrong return a gift. However, most gifts within the look back period trigger Medicaid penalties. It would be well worth an elder law attorney consult to determine gift ramifications and Medicaid planning options. It is the Medicaid look back, which is 5 years back from the date of eligibility, which matters. The transfer may be questioned. If you are alleging it was payment for caretaker services, you better have such services documented.

Will my Aunt lose her home to Medicare?

Q: My aunt might need nursing home care. I have been giving care at her house. Will she lose her house? She is single and owns her home. I am her executor when she dies. My aunt is on Medicare and I have lived there for 5 years.

A: Receiving Medicare benefits will not result in a claim on her home. I will assume for the purposes of this question, you mean, will she lose her home to a Medicaid claim if she should enter a nursing home. You really need to talk this over with a local elder law or estate planning attorney versed in Medicaid law. Generally, Medicaid requires the value of all property owned by the applicant in the last 5 years to be considered in the look back period, relating to their potential claim. So, if your aunt applies for Medicaid assistance in the next five years, the house may be subject to a Medicaid claim if it is still in her name. There are exceptions to this claim that may allow you to shelter the home completely or at least a portion of its value. For example, if you have been her primary caretaker and living in the home for a period of two years prior to her admittance to a nursing care facility, you may qualify for an undue hardship exception under the PA Department of Public Welfare rules. An attorney may also be able to create a trust for you that shelters a portion of her estate. This is a gross simplification of the issue, so once again, please consult with an attorney.

If wife transfers house to me, then goes into a nursing home, will she obtain Medicaid?

Q: If my wife transfers her house to me, is that a disqualifying transfer under Medicaid in Pennsylvania? I was told that if my wife goes into a nursing home and then immediately transfers her home to me (the house is in her name only), then she can still qualify for Medicaid – is this true? Isn’t there a 5-year look back period? I was also told that the look back period was eliminated.

A: Transfers between spouses generally don’t trigger penalties. The five year look back is alive and well. A spouse’s principal residence is an exempt resource. The PA Department of Public Welfare and Medicaid rules are complicated and if you have assets worthy of preserving, doing this alone without the assistance of an attorney can end up costing you. Consult an elder law attorney to make sense of all of this.

How does the Medicaid look-back rule affect property transferred to adult children?

Q: I’ve been told the rules differ from state to state. The surviving parent lives in Massachusetts. We live in Pittsburgh. If property is transferred to an adult child more than 5 years before the parent requires Medicaid assistance, how is the look-back rule handled?

A: Per federal law, the look back period runs forward 60 months preceding a transfer, so gifts 61 months before a Medicaid application are outside the look back period. Consult an elder law attorney or estate attorney versed in Medicaid law. Minor timing errors can cause thousands of dollars of loss. It sounds like you made the look back period but would consult with a local Massachusetts attorney.