CATEGORIES: Elder Law, Medicaid Planning, Crisis Planning, Advance Planning, Asset Protection, Nursing Home, Long Term Care, Elder Care Attorney, Medicaid Estate Recovery
Almost everyone realizes that medical care at the end of life can be incredibly expensive. Even though Medicare and private insurance may be available, the unreimbursed cost of hospital stays, medicines, and institutional care, including nursing home care, may be unaffordable for the senior or his family. Because of this, Medicaid, a federal poverty support program, remains the largest payer of long-term medical care expenses in the United States, paying 62% of the nation’s long-term medical care costs.
MEDICAID ESTATE RECOVERY
Many believe Medicaid to be another health insurance program like Medicare, but it is not. When a senior uses Medicaid to pay his care bills, Medicaid counts and records every dollar spent on the Medicaid recipient. Following the Medicaid recipient’s death, Medicare will place a lien on the recipient’s estate for every dollar Medicaid spent during life, through a program called Medicaid Estate Recovery.
The estate’s Medicaid bill can be tens of thousands of dollars. Because the home is frequently the most valuable asset left in a senior’s estate, and because the probate process requires an estate to pay all valid estate bills before distributing remaining assets to the deceased senior’s beneficiaries, the home must often be sold to pay off estate creditors. If the senior intended to pass down the home to a loved one following his death, Medicaid Estate Recovery can prevent the home from reaching that loved one.
Medicaid Estate Recovery is prohibited if the deceased Medicaid recipient is survived by a blind or disabled child of any age, a child under age 21, or is survived by a spouse. But Medicaid Estate Recovery can continue once the spouse has died.
PROTECTING THE HOME FROM MEDICAID ESTATE RECOVERY
Medicaid laws are complex. During life, a senior’s home is normally not a “countable asset” when the senior is trying to qualify for Medicaid, as long as the senior has the “intent to return” to his home even while he resides in managed care or a nursing home, or as long as his spouse or other dependent relatives live in the home. But even though the home is not a countable asset when qualifying for Medicaid, or while the applicant and his spouse are alive, it can still be attached by Medicaid Estate Recovery after the senior and his spouse die, as discussed above.
The JTWROS Deed
Real property which passes directly to heirs outside of probate by right of survivorship is not currently subject to being attached in a Medicaid Estate Recovery proceeding in North Carolina. An elder law attorney can thus retitle the real property containing the senior’s primary residence as “joint with the right of survivorship”, or JTWROS. A small percentage of the real property (frequently 1%) is sold to a beneficiary, such as a child (with the largest percentage ownership of the real property, frequently 99%, retained by the senior) so that the real property will now be owned jointly. Undivided real property owned jointly by a Medicaid applicant and a non-spouse third party may be treated in many North Carolina counties the same as “real property held by tenants-in-common” under the North Carolina Medicaid rules, which is not a countable asset when qualifying for Medicaid in North Carolina.
Adding the “right of survivorship” to the deed re-characterizes the real property to make it similar to a jointly owned bank account with survivorship rights. The senior’s ownership percentage (99% for example) automatically transfers to the minority (1% for example) beneficiary (frequently the senior’s child/children) at his death, so that the beneficiaries now own 100%. This becomes an out-of-probate transfer directly to the senior’s beneficiaries. The home passes immediately to the senior’s beneficiary(ies) without Medicaid being able to use it to repay Medicaid costs.
Another positive result is that the senior’s heirs will not have to pay taxes on any appreciation of the home during the senior’s life. Because the home will be includable in the senior’s gross estate for federal estate tax purposes, the tax basis will be reset to the market value of the property at the senior’s death, thereby potentially saving the senior’s heirs thousands of dollars in capital gains taxes.
The JTWROS procedure may not work properly if a mortgage remains on the senior’s home, particularly if the intended minority real estate undivided interest holder(s) is not a spouse, or a child of the senior. Otherwise, the sale of a minority percentage of the property to the senior’s beneficiary(ies) may trigger the bank loan’s “due on sale” clause, making the balance of the loan immediately due. For this reason, a bank loan attached to the senior’s primary residence typically must be paid off if anyone other than a spouse or child is to be added to the deed, before the elder law attorney can set up a JTWROS conveyance. If done early enough before the senior needs Medicaid, the mortgaged home may also be protected from Medicaid Estate Recovery by placing it in a Medicaid Asset Protection Trust (MAPT).
Because family relationships can be more complex than what can be captured on a JTWROS deed, in addition to the JTWROS deed, the elder lawyer may create a real estate contract to be signed by the involved family members to better clarify the results of the JTWROS transfer.
The JTWROS procedure has limits protecting real property against creditor problems during the senior’s life (in bankruptcy proceedings for example), because the senior still owns an attachable interest in his or her real property. In addition, the JTWROS procedure has limits protecting real property against medical estate creditors other than Medicaid if the senior is married. That is because under the “Doctrine of Necessaries” in North Carolina, both members of a married couple may be individually obligated to pay an ill spouse’s medical bills, including after an indebted spouse has passed away.
Other Real Property
The JTWROS procedure may also be used to protect real property owned by the senior other than the home from Medicaid Estate Recovery in many (but not all) North Carolina counties. In addition, because other real property may be a countable asset(s) when trying to qualify for Medicaid, in many NC counties, converting such real property from single ownership to JTWROS ownership prior to applying for Medicaid can work to convert the property to a non-countable asset for Medicaid qualification purposes.
GIFT TRANSFER OF THE HOME TO HEIRS WHILE RETAINING A LIFE ESTATE
The JTWROS procedure may work to prevent against Medicaid Estate Recovery and other estate creditors, but it may not work in North Carolina to protect the senior’s home from medical or other creditors during the senior’s lifetime.
To shield the senior’s home from all creditors, including creditors during life, the senior may gift the remainder interest in his home away to his beneficiaries during life, while retaining a life estate so that he may legally remain in his home during his lifetime. This assures that no future creditors, including medical creditors such as Medicaid, will be able to “take” the home from the senior following the conveyance.
In addition to allowing the senior to continue to use his home during his lifetime, retaining the life estate allows the senior to include the home in his gross estate for federal estate tax purposes under Internal Revenue Code Section 2036. His heirs will then receive a step up in (tax) basis, re-setting the tax basis of the property to its market value at the time of the senior’s death. Because the senior’s heirs will not have to pay capital gains taxes on the senior’s home appreciation during the senior’s lifetime, this can save the family thousands in capital gains taxes.
If the senior transfers his home to his heirs without including a life estate for himself, his heirs will have to pay capital gains taxes on all home appreciation from the time that the senior originally purchased the property forward.
The gift transfer while retaining a life estate technique is often not appropriate for seniors who may need Medicaid within 5 years. If the senior attempts to qualify for Medicaid within five years of this transfer, Medicaid will require the senior to private pay the value of the life estate interest that has been gifted to the remainder interest owner(s), using their procedure for assigning gift transfer sanctions.
DO NOT WAIT TOO LONG TO CONVEY PROPERTY
The family should not wait too long to shield the senior’s home against creditors, including medical creditors. Under North Carolina law, such procedures such as the home gift transfer with the retention of a life estate work to protect against future creditors, but may not work to protect against any already known or current creditors.
In addition, seniors could encounter sudden illness at any time which could make them mentally incompetent, and unable to sign the legal documents needed to protect their home from creditors.
It may frequently make good sense in many cases to use a JTWROS deed as insurance to shield a senior’s home from Medicaid Estate Recovery. Because a senior’s Medicaid bill can be so large, the JTWROS deed could help the family keep from losing the home to creditors in probate. Because the senior retains as much as 99% ownership in his home as part of a JTWROS conveyance, the senior retains control of his home and can use it like he or she always did. Thus, the JTWROS deed is a “low impact” asset preservation technique.
To guard against all creditors, including future creditors during the senior’s lifetime, the senior may gift away the remainder interest in his home, and retain a life estate. This can work well when done early, but frequently should not be done if the the senior will need Medicaid in less than five years. Other asset preservation techniques may also be available if used early, including deeding the home to an irrevocable asset protection trust (APT), while retaining the continued right to occupy and use the home while living.