Category Archives: Estate Law

Will Medicaid take my inheritance?

Q: If I am on Medicaid and I receive and inheritance will Medicaid take the inheritance for past services they have paid?

A: No, Medicaid will not take it, but as you are aware, the inheritance will render you ineligible for Medicaid, very generally to the extent of the amount of the inheritance. With a little bit of planning, however, it is possible the receive the benefit of the inheritance while remaining on Medicaid. A special needs trust can be established into which the funds are transferred, or the funds could be transferred into an account in an established pooled trust without causing you to be disqualified. The trustee would then spend the funds on those things not covered by Medicaid. I am over-simplifying the nature of these trusts, but the point is that you get the best of both worlds. This is a very complex area of the law and it will take time to set up the proper trust to catch the inheritance. Don’t delay.

Mother is Florida resident, living in Pittsburgh. Do we need FLA or PA lawyer?

Q: My mother is 94 years old and is a Florida resident. She has been living with me here in Pittsburgh. Do we need to contact a lawyer in Florida or Pittsburgh?

A: It depends where she intends to reside. Normally, her estate will need to be opened in the state where she has established residency. Each state has law which defines residency. If she has property located in PA and FLA when she dies in PA, and she has residency in PA, you may have to hire an attorney in PA and he or she may have to open and estate in PA and ancillary estate in FLA. Many times, the PA lawyer will seek and hire a FLA lawyer to do the ancillary estate work in FLA. FLA has no state inheritance tax so there may be obvious advantages for her keeping property in FLA. I would consult with a lawyer in the state that you feel she will most likely have residence in when she dies.

If I am in Bankruptcy, can my aunt put my name on the deed to her house?

Q: In Chapter 13 can I be put on another house’s deed? I declared Chapter 13 about 3 years ago and have been making payments. My aunt wants to put me on her deed. What are the ramifications of that, and the risks to her? She will be entering a nursing home and doesn’t wish to sell the home.

A: Two issues. Is this wise to do for estate planning purposes for your aunt and is this wise for you to do while you are in bankruptcy? From an estate planning point of view, if she titles the house jointly with you, only half of the value of the house will be subject to inheritance tax when she dies. Since the applicable inheritance tax rate for a nephew is 15%, this could save some money. The negative side of such transfer is that if in within five years following the transfer, your aunt needs to apply for Medicaid, such a transfer could make her ineligible for Medicaid funding. The house would have to be included in her assets subject to the Medicaid claim and you may be forced to sell this house unless you could pay the fair market value to Medicaid. This is of course unless some Medicaid exclusion applies for example if you lived in the home as her caretaker for a period of two years prior to the application date. If your aunt really foresees Medicaid funding in her future, you should have her consult with an attorney versed in Medicaid law in order determine if she can shelter some of her estate now perhaps through a Medicaid trust. As far as your bankruptcy, I would check with your bankruptcy attorney as the acquisition of an interest in real estate while under a bankruptcy plan, may,  violate your agreement with the trustee assigned to your bankruptcy case.

I am POA for my dad. Do I have to produce financial records for a VA social worker?

Q:  I have a Durable Power of Attorney signed over by my father with Alzheimer, about 3 years ago. He already has a social worker at the VA where he goes to the doctor. They have all of our POA/Healthcare Proxy forms on record. Suddenly this other social worked came to my home (dad lives with me) and is now demanding to see his finances. Do I have to comply? I already spent plenty of time documenting all of this and there are no problems at home, dad is content. I am an only child and mom passed away so there aren’t even other family members who would have a say in this. I don’t think I should have to jump through hoops every time some random stranger shows up and wants his curiosity satisfied. What authority do these people have, anyway?

A:  Hi, The answer to your question is yes. However, you have the right to respectfully reply, “my father has a right to privacy in his records, so no I will not unless or until you obtain a court order requiring me to do so”. However, how much more do you want the problem to grow? They will get suspicious and possibly get a court order so be prepared to face more requests. If you have nothing to hide you may want to comply.

Can Executor sell real estate before the estate is closed?

Q: Can an Executor sell Real Estate with a mortgage before Estate is closed? Spouse has document, notarized stating that she is entitled to 1/3 ownership. Name is not on Deed.

A: An executor can sell real estate which is mortgaged, before the estate is closed. Any balance owed on the mortgage would come out of estate assets. Normally, the buyer’s title company will need clean title which would involve the heirs of the estate being in agreement with the terms of the sale and by signing a Family Agreement or signing off on the deed to memorialize their consent. If your wife is claiming an interest in this house, she needs to inform the attorney for the estate. As far as a notarized document, I have no idea what to advise you unless I would see it. Perhaps you and she should seek the opinion of an attorney.

Are my transactions on my mother’s credit card part of her estate debt?

Q: My mother gave me permission over the past 2 years to use her credit card and I have paid faithfully every month assuming  the debt as my responsibility. Just recently my mother passed away. I immediately contacted the card company and they said the debt can’t be transferred to my name, that it has to be turned into the estate. My family is up in arms and is now trying to get me for embezzlement, which my mom allowed me to use her card with her permission and she gave me the statement each month when it came in the mail for me to pay. Please help me with this matter. I know a time or two my mother has had the card company on the phone and told them that it was ok for them to talk with me about the card. But not sure if she actually had my name listed with the card company to us.

A: This isn’t the first time this has happened. If the creditor files a claim against the estate, the estate attorney can put them on notice that certain debts will not be honored by the estate as they were not your mother’s expenditures or your mother did not authorize them. The attorney can win this argument as long as he has proof, which you would assist him with, i.e., a statement from you, copies of all of the statements which show items that an older woman would not purchase, i.e. i tunes, designer jeans, concert tickets, etc. just for an example. If you acknowledge these debts and are capable of paying them , there should be no problem. If you cannot afford to pay them now, the credit card company is unlikely to separate them out from your mother’s debts. I am sure the credit card company wants the estate to be obligated as it is easier to be paid than suing you, I am assuming. I would tell the estate attorney where you stand .

When elderly mom enters nursing home, can I keep her house?

Q. When my elderly mother enters a nursing home, can I keep her house? I am her 24/7 caregiver and have no home otherwise. I have both medical and durable POA and I am responsible for 100% of the household expenses, upkeep and taxes. The deed is in her name. I don’t know what other details are required here. I have lived here and been her caregiver for 12 years.

A. Make sure your mother has a will in place that leaves the house to you. If there are no other children and she has no surviving spouse, you can inherit the house even without a will. However, it is best for her to have a will. If she eventually runs out of cash or liquid assets to afford the nursing home, you may have to apply for Medicaid/PA Department of Public Welfare (DPW) for her. They may have an interest in the home but as a surviving child/caretaker living in the home, they will not force you out of it. When she dies, DPW can go after the deceased person’s property under the Medicaid Recovery Program. However, given the fact that you were her caretaker for over two years prior to DPW eligibility, you can file for relief as an “undue hardship” under the DPW rules and probably keep the house. See a lawyer for a more thorough examination of your mother’s situation in light of Medicaid rules and regulations.

Denied Medicaid because I have too much money in my bank account.

Q. I have been denied Medicaid because I have too much money in my bank account. What can I do with the excess without spending it? The state has asked for receipts or detailed list of expenditures.

A: There are various ways to spend down excess Medicaid resources. Sometimes gifts are useful but other they can also disqualify you. Buying things and paying debts often are good spend down techniques. However, you really need to consult with an elder law attorney before you set out to do this.

Can I become my aunt’s power of attorney?

Q. Is it possible that i can become my aunt power of attorney? Her mental state of mind is going downhill and she has no children. The friend that she was staying with just recently died. He was the one that took care of her. Helped her pay her bills and keep up with her hygiene. Right now she is staying with me but i don’t feel as though I am capable of taking care of her myself.

A. Yes, I assume you can become the agent on a Power of Attorney for your aunt, unless there is some reason you cannot. A General Durable Power of Attorney (GDPOA) is probably recommended but you really need to sit down with an attorney and discuss all of the facts. She needs to be mentally competent to sign a GPOA. Don’t wait longer to do so, as her condition may deteriorate and render her incompetent to sign. You may also need to contact the Department of Aging to see what help you can get. An attorney can also advise you about applying for Medicaid if she has insufficient money to pay for her care.

Can Administrator deposit IRA beneficiary money into estate account?

Q: Can an estate administrator defraud a sole beneficiary of an IRA account mom left her by telling her that monies HAVE to go into the estate account. The beneficiary can prove she’s sole beneficiary of the account and can prove the administrator told her it had to go into estate. Can administrator use the “I didn’t know it didn’t need to go through estate” as a defense? Is ignorance a defense? Or, isn’t that her fiduciary responsibility as administrator to KNOW what accounts are placed in estate or not

A: Yes, she should know. If an attorney was representing the administrator, this wouldn’t have happened. I find it highly unusual that a financial company would pay out a claim to and estate when there was a beneficiary listed on the IRA. It is highly unusual. You may want to hire an attorney to inquire and/or file a petition for a court accounting.