How to Transfer Your Home Without Jeopardizing Your Medicaid Eligibility

There are many Long-Term Care Medicaid Rules in place which help pay for senior’s care costs. However, it is important for those receiving Medicaid to understand that there is a five year “look back” period where the state can actually penalize an individual from Medicaid eligibility, if there was an uncompensated transfer during this time. This can prevent your application from getting approved.

The good news is, there are ways to transfer your property to someone else, without risking your Medicaid eligibility. These exceptions on home transfers can help you and your family during this time. Here are the primary ways to transfer your property while maintaining your Medicaid eligibility.

Transfer the Home to the Right Family Member

There are a few types of family members you can transfer your property to:

  • You can transfer it to your spouse who already lives in the home.
  • You can transfer the property to a child under the age of 21 or a child who has been determined disabled by the Social Security Administration.
  • You can transfer the property to an adult child who has lived in the home for at least two years before you were institutionalized and provided care that prevented institutionalization. This requires proof by your doctor or social worker that the care was essential.
  • You can transfer the property to a sibling with equity interest in the home and who has lived in the property for one year before your institutionalization.

These transfers will not impact your eligibility for Medicaid. Be prepared to provide proof of residence in these situations.

Transfer Through Deeds

The primary deed we recommend for transfer after death is the Lady Bird Deed. This is an enhanced life estate deed that also avoids Medicaid Estate Recovery. In these situations, the person maintains control of their property during their lifetime, including the power to sell and retain proceeds assuming the Medicaid applicant signs a document stating they intend to return home.

There are also a number of tax issues that you need to be considered first before going with this type of transfer. Depending on your individual situation, the deeds may or may not be the best choice.

If you have questions about how you can transfer your property to a loved one, without risking your Medicaid eligibility, give the attorneys at Hegwood Law Firm a call at (281) 218-0880 to discover your best Medicaid options.

What to Expect During Probate When There Isn’t a Will

Most people know about a last will and testament that helps transfer assets from an individual who has passed away to their listed beneficiaries. In the time following the death of the benefactor or the “decedent” the property and assets go into what has known as probate.

Probate is the legal process involved in transferring property from the deceased’s estate to their beneficiaries. Probate typically occurs when there are real properties or financial accounts involved.

However, if a loved one dies without a will or if they die “intestate,” it does not mean there isn’t hope. In the State of Texas, there are default inheritance rules in place for situations such as this. When this happens, the decedent’s heirs can still be determined and probated. Here is everything you need to know about this process when it happens.

Selecting the Type of Administration

In situations where there is not a will, the first thing you will need to do is to select the type of administration.

Affidavit of Heirship- No administration, or the Affidavit of Heirship is used to establish the title to real estate when the asset is the actual property. No formal administration is needed in these situations where the decedent died without a will and the affidavit of heirship is filed with the county clerk, not the court.

Small Estate Affidavit – This administration is used to collect a small amount of money owed to the estate, like a small bank account. The entire assets of the estate, aside from the homestead, must be less than $50,000 and 30 days must have elapsed since the death of the decedent.

Determination of Heirship – This type of administration is used when all of the heirs of the estate cannot or will not sign a small estate affidavit. The decedent must have died without a will or with a will that didn’t include any real personal property. There must be no debts due on the real estate. After a hearing in court (without administration) the court will declare the identity of the heirs of the estate.

Independent Administration- This type of probate can only occur when the decedent’s date of death was in the last four years. The heirs must all agree on a qualified independent administration (can be a person, firm or corporation). If not, the court will appoint an Independent Administration of the Estate.

Dependent Administration- This probate is used when all of the heirs cannot agree on beneficiaries and there is argument regarding the decedent’s estate. The decedent must have died within the last four years and there has to be a need for a formal administration. This may also be used when one of the beneficiaries is a minor.

Collecting All the Information They Can on Decedent

With the help of an attorney, it is important that the beneficiaries involved are able to get as much information as possible on the decedent. This will only help the attorney assisting you through the process.

If you have any questions about how the process works or are looking for an attorney to help you through this process, contact the attorneys at Hegwood Law Firm today at (281) 218-0880 for more information on probate.

Texas Lady Bird Deed vs. Transfer on Death Deed

There are so many adults today who don’t take the time to create their last will and testament and their loved ones are forced to learn the hard way about the processes involved with transferring a property once someone has passed. Unfortunately, passing on your belongings is not as quick and simple as it seems in movies and televisions, and many times the assets you are attempting to pass on, will get tied up in a long and costly process called probate.

Estate planning can be quite complex, but there are two very important deeds that can help you avoid probate in the state of Texas: the lady bird deed and the transfer of death deed.

These deeds have similar goals, to avoid real estate recovery but a few key differences. The more you know about each of these deeds and what they entail, the better prepared you will be with your future estate planning efforts.

The Lady Bird Deed

Also known as the Enhanced Life Estate Deed, the Lady Bird Deed was designed to help pass property on from one individual to the next, outside of probate. The Lady Bird Deed typically allows the grantor to maintain the right to keep the property, sell it, lease it or mortgage it and keep all proceeds of the property.

This enhanced life state arrangement can do a number of things, including:

  • Allows for the transfer of the remaining interest on a piece of real estate
  • Allows the current owner to reside in the property
  • Allows the current owner to terminate the remaining interest on a property and transfer it to someone else
  • Allows individuals to bypass gift tax

The Lady Bird Deed can be signed by an agent acting as a Power of Attorney. In most situations, if the grantor lacks mental capacity, it is best to use the Lady Bird Deed, instead of the Transfer on Death Deed.

Transfer on Death Deed

Much like the Lady Bird Deed, the Transfer on Death Deed is designed to avoid real estate recovery. However, the Transfer on Death Deed is relatively new, is untested in any published court opinions, and has some drawbacks the Lady Bird Deed does not.

  • It may not be executed by an agent under a power of attorney.
  • The beneficiary must survive the grantor by 120 hours. This is not the case with a Lady Bird Deed.
  • A Transfer on Death Deed is subject to claims against the estate for two years after the death of the grantor.

Every situation is different, which is why there are situations where the Lady Bird Deed may be more desirable than a Transfer On Death Deed. Want to know which one is right for you? You can always speak to an attorney here at Hegwood Law Group by calling us at (281) 218-0880.

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Long-Term Care Facilities Required to Request Guardianship Orders

When a loved one becomes mentally or physically incapacitated and unfit to care for themselves on their own it is a devastating issue that their families have to go through. When this happens, family members and loved ones can legally request to be named as “guardians” of the individual. This is a large responsibility and one that helps ensure there is a competent adult making decisions in the best interest of the individual.

The Responsibilities of the Guardian

Guardianship is designed to be a legal relationship between one competent adult and an individual who is no longer able to care for their own affairs. In this situation, the individual who is needing care is legally known as the “ward.” Once the agreement has been finalized, the guardian is able to make any legal, financial and healthcare decisions for “the ward.”

How Are Guardians Appointed?

With the help of an attorney, you can file a petition for a hearing in probate court in the county that the senior currently resides. The senior typically has legal representation at the hearing as well. The court then attempts to determine if the “ward” is incapacitated and to what extent they are capacitated and how much assistance they really need.

The court then determines whether or not the individual looking to be the responsible guardian is fit for that role.

How Do Long-Term Care Facilities Handle Guardianship Orders?

Guardianship orders are not new. However, there are new rules to govern the way that long-term care facilities handle guardianship orders, as a way to help protect their senior residents and their needs. These policies that are ensuring that both nursing homes and assisted living facilities have legal proof of who the legal resident’s guardian is.

As of September 2015, all nursing homes and assisted living facilities in the state of Texas were required to request a copy of any court order that appoints guardianship of a resident or resident’s estate. It is the responsibility of the residents nearest relative or the individual responsible for the resident’s support.

The guardians will not only be responsible for deciding what long-term facility the senior will be living in, but they will also monitor their experience at the residence and handling finances and monitoring different services they receive while under care.

The Guardian has a great deal of responsibility when it comes to their loved one’s experience in a long-term care facility. When the nursing home or assisted living facility is fully-informed of who the legal guardian is, they know who they must communicate with and who is responsible for major decisions while the senior is under their care. If you have any questions regarding the guardianship process or submitting guardianship orders to long-term care facilities, contact the experts at Hegwood Law Firm at (281) 218-0880.