MSW Recognized in Tier 1 by Best Law Firms/US News & World Report

We are proud to share  the news that our firm has been recognized in Tier 1 by Best Law Firms  — in conjunction with U.S. News & World Report — in the practice area of Closely Held Companies and Family Business Law.

The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys, and review of additional information provided by law firms as part of the formal submission process.

The professionals at Moonan, Stratton & Waldman organize and maintain your business entity, whether it be a for-profit corporation, limited liability company, general or limited partnership, or a non-profit corporation.

Learn more here.

 

Thanks to All for Support in Walk to End Alzheimer’s

 

It was a blustery day on Sunday, October 3rd when we gathered to participate in the annual Walk to End Alzheimer’s. Thanks to our clients, colleagues, friends and staff for being part of our efforts on behalf of the 2022 Walk to End Alzheimer’s.

If you missed it, look for our activity next year. We gather a team every year to support this cause which is close to our hearts.

Pictured here are some members of this year’s MSW team from our walk at Roger Williams Park.

Held around the nation, the Alzheimer’s Association Walk to End Alzheimer’s® is the world’s largest event to raise awareness and funds for Alzheimer’s care, support and research.

5 Smart Estate Planning Strategies for High-Net-Worth Families

Smiling multigenerational family in vineyard.If you are a high-net-worth individual, it’s essential to have a comprehensive estate plan in place. However, every family’s circumstances are unique, and there is no one-size-fits-all solution for estate planning.

Below are five estate planning strategies that may be right for you:

1. Make Sure You Have An Estate Plan

For higher-net-worth individuals or families, it is essential to have basic documents in place, such as a will, power of attorney, and advance directives. However, it is equally important to consider whether you need to take additional steps to avoid estate taxes or ensure long-term care, should you need it.

Start planning sooner rather than later. More options are available to you when you have time on your side.

2. Consider Options to Avoid Estate Taxes

There are numerous ways to avoid estate taxes, many of which require you to make an “irrevocable” transfer of your assets. This does not mean you cannot benefit from the income generated by your assets, but rather that you title the assets to a trust managed by someone else.

Here are some examples of options that can help lower your estate taxes and accomplish other goals you may have:

  • Charitable Remainder Trusts: These irrevocable trusts can pay you or beneficiaries annual income from assets you donate to the trust. The remainder of the assets will go to one or more charities you designate. They can help you plan for retirement, reduce your taxable estate, and accomplish your philanthropic goals.
  • Spousal Lifetime Access Trusts: A spousal lifetime access trust (SLAT) is one way to transfer your wealth to the next generation. In a SLAT, a spouse makes a gift into the trust to benefit the other spouse. As a result, this removes the gifted asset from the spouse’s combined estates.This allows you to take advantage of the current

    federal lifetime gift and estate tax exclusion (currently $12.06 million per person, or $24.12 million for married couples), which is set to expire in 2026. The spouses can still retain some access to the assets. Any post-gift appreciation in value is excluded from federal taxation for both spouses’ estates. However, federal rules permitting this trust will sunset on December 31, 2025.

  • Grantor Retained Annuity Trusts: A Grantor Retained Annuity Trust (GRAT) is a trust through which you may transfer appreciating assets to your heirs and minimize gift or estate taxes. High-net-worth individuals and couples can use GRATs to freeze the worth of their estates and transfer any increase in the value of their assets to their loved ones, all with minimal tax consequences. A GRAT is also another way for you to plan for your retirement.To establish a GRAT, a donor creates a trust for a certain number of years and, during those years, is paid an income stream or annuity from the GRAT. When the GRAT ends, whatever assets remain will pass to your chosen beneficiaries. If certain conditions are met, you can minimize estate and gift taxes.

3. Engage in Gift Planning

Gifting wealth up to your lifetime exclusion may be a smart estate planning strategy for many high-net-worth families. This allows you to gift up to your lifetime exclusion before your death and not owe any gift tax on gifted amounts until you exceed this threshold.

Based on 2022 gift tax exclusions, a married couple could give away up to $24.12 million without tax consequences. In addition, after they exceed the lifetime amount, they can continue to gift at the annual limit of $16,000 (as of 2022) every year without owing gift taxes.

However, you should gift cautiously while fully informed of your state’s rules. Many states have their own rules regarding gift and estate taxes, which may be incompatible with federal tax rules.

4. Invest in Life Insurance

Another strategy to consider is investing in a good life insurance policy. Life insurance can be used to pay estate taxes and to devise assets or specific amounts to your loved ones.

For example, if a large part of your family’s estate will be illiquid assets, such as real estate or a business, your estate could owe more in taxes than is available to it in liquid funds. Your estate can use the proceeds of a life insurance policy to pay these taxes, so your heirs do not have to sell a family business or investment properties.

You can also use your life insurance policy to “equalize” inheritance. For example, perhaps one child is better suited to run a family business. In this case, you could leave this child your business and another child a life insurance policy equal to the company’s value.

5. Don’t Forget About Portability

Consider whether you may qualify for portability before the current federal estate and gift tax exclusions expire in 2026. If your spouse passed away within the past five years, you might be able to file an estate tax return and transfer their unused estate tax exclusion to yourself. So even if you do not pass away until after 2026, you may be able to add millions in tax exclusions to the benefit of your heirs.

You must follow specific procedures to elect “portability” of your spouse’s unused gift and estate tax exemption, and there are exceptions to which estates may qualify. However, if this is an option in your family’s case, it could result in hundreds of thousands of dollars in tax savings.

Speak With a Professional

In considering all the estate planning strategies available to you, it is important to speak with an experienced estate planner. Keep in mind, too, that when it comes to trusts, each state has its rules and laws that govern which ones are or are not permissible, in addition to varying estate or gift tax rules.

Your estate planner can help determine which strategy is best for your circumstances. Reach out to the MSW team: Amy Stratton or Kristen Prull Moonan

No Will? You’re Putting Your Kids at Risk

Actress Anne Heche at NBCUniversal's 2014 Summer TCA Tour.Many people delay the conversation or thoughts of having to prepare a will. Confronting the possibility of one’s death is not easy. However, as the recent death of Anne Heche shows us, not having a will can place a significant burden on your children and cause undesirable complications. Even if difficult, planning ahead may be a better solution than the alternative.

What Happened With Actress Anne Heche?

Anne Heche’s case is a good example of why a person may want to consider creating a will sooner rather than later. Heche was divorced with two children from different relationships when she passed away. Her eldest son is 20 years old, but her younger son is still a minor.

Although they are assumed to be her sole heirs, only her oldest son is of age to administer her estate. He has filed a petition for a guardian ad litem to be put in place to protect his younger brother’s interests. The guardian ad litem may be a financial burden to Heche’s estate, and the costs of securing this professional will potentially reduce the assets available to her sons.

Even though her eldest son is dealing with his mother’s estate, this is undoubtedly very difficult for a person to go through at such a young age. Heche’s eldest son likely will not be able to do this all on his own and will need the services of a probate attorney — likely further increasing the costs of administering her estate and depleting how much is left for her children.

It has also been reported that an inventory and appraisal of her estate is needed to determine its worth and what assets she had. This process requires further professional involvement and fees that her estate must pay. In addition, it is possible that the father of her youngest son may seek to intervene in the estate’s administration to ensure he is treated fairly. Litigation costs could rack up quickly if there is any disagreement related to this.

Preparing a will and other estate planning documents can make legal proceedings significantly less complex and expensive and keep your situation as private as possible. It can also make it easier for your loved ones to know exactly what you want to happen to your assets and possessions.

Who Inherits When You Die Without a Will?

Many people do not realize that if you pass away without a will, your local state laws on intestacy will determine who qualifies as your heirs and inherits your property.

For example, in many states, if a person passes away unmarried but with children, the children will inherit everything. But what if the person had a long-term partner or was engaged to be married? They may have wanted their significant other to inherit some of their assets, but a “default” state law may lead to a different result. Or, what if you have no living children, siblings, parents, or spouse? Your property may go to the government instead of friends, grandchildren, nieces, or nephews. Having a will prevents these scenarios from happening.

Choose a Guardian for Your Children

Another benefit parents should consider is their ability to choose a guardian for their children in advance.

This matters, for example, when the other parent is not living or cannot be located. If a person does not set forth their wishes ahead of time, multiple parties may step up after a person’s death and argue over who should care for any minor children.

A court may be tasked with making this decision, and it may not be what you would have wanted. This can be expensive, traumatic for all involved, and a long process. Courts will generally try to appoint the individual a person has selected if your wishes are in a will or other planning document.

The Bottom Line

The bottom line is that having estate planning documents in place makes your wishes more likely to be honored and less likely that a court will decide what happens. This is also true where you may be incapacitated and unable to voice your wishes. While Anne Heche’s situation is not unusual, it is avoidable.

For information on preparing a will or other estate planning documents, reach out to the MSW team: Amy Stratton or Kristen Prull Moonan

Photo credit: Mingle Media TV

Majority of Adult Children Cannot Support Boomer Parents, Surveys Find

Boomer dad and GenX son sitting on couch at home and talking.A recent survey by the American Advisors Group (AAG) finds that 55 percent of adult children say they are not financially prepared to help their Baby Boomer parents cope with rising inflation and living expenses.

“Americans want to see their parents age with grace and dignity and have the resources they need to live comfortably, but for many families the current economy is making that difficult,” AAG Chief of Marketing Martin Lenoir said in a news release.

AAG surveyed more than 1,500 adult children, ages 40 to 55, across the country. Known as the “sandwich generation,” this group faces the responsibilities not only of raising their children, but also of serving as caregivers for their aging parents.

Among the survey’s other key findings:

  • More than a third of adult children say they worry that their parents will become a financial burden for them.
  • Nearly 60 percent say they cannot afford any kind of professional elder care for their parents.
  • Yet almost half admit they have never broached the subject of finances with their senior parents.
  • A full 50 percent of them do not know how much debt their parents are carrying.

1 in 3 Adult Children Already Assisting Their Parents Financially

Another survey, conducted in 2020 by GoHealth, Inc., explored GenXers’ and millennials’ involvement in their parents’ financial and health care needs. It found that one in three GenXers and millennials are supporting their parents financially. Nearly the same number are managing, or helping to manage, their parents’ health care.

The survey’s 2,000 GenX and millennial respondents also reported the following:

  • On average, they spend 11.5 hours per week managing their parents’ health care by providing transportation, scheduling doctor visits, and explaining insurance claims. They also estimate they’ll spend 14 to 16 years continuing to do so.
  • 2 in 5 spent more than $10,000 of their own money supporting their parents in 2020.
  • The vast majority (86 percent of GenXers and 82 percent of millennials) worry about having enough money to support themselves and their parents.

Squeezing the Sandwich Generation

Adult children will continue to feel the pressure for the foreseeable future. Every day, on average, 10,000 Boomers (those born between 1946 and 1964) reach age 65, and another 10,000 of them turn 75. According to research by the Blackstone Group, an independent research firm, nearly 80 percent of middle-income Boomers do not have any savings designated to cover their retirement care.

Meanwhile, 30 million Boomers retired from the workforce amid the COVID-19 pandemic. Saddled with college debt, as well as rising inflation and housing costs, those GenXers and millennials who still depend on their parents for financial assistance or housing may no longer be able to count on that support.

Have ‘The Talk’

It’s important for families to have an honest and respectful financial conversation before a medical event occurs or the need for care arises. Talking about money with aging parents can be a delicate matter, but it’s necessary to understand both the degree of care that may be needed and the financial resources available to provide it.

For help planning for the future of your Boomer parents, or for your GenXer and millennial children, reach out to the MSW team: Amy Stratton or Kristen Prull Moonan

Do Frequent Flier Miles Expire When You Do?

Airplane flying above clouds toward sunset.

Accumulated frequent flier miles can be valuable assets, but what happens to those miles after someone dies? Can a spouse or other heirs inherit them, or do the miles simply evaporate like a contrail?

Whether they can be inherited depends on the airline, and in most cases, airlines will point out in their terms and conditions that frequent flier miles are not, in fact, your property. Regardless, even if the airline’s official policy is “no,” with a little perseverance, there is always the chance that the answer could be “yes.”

Here’s a look at several major airlines’ current mileage transfer rules:

Alaska Airlines’ Memorial Miles

Alaska Airlines, according to travel website and blog The Points Guy, may require only a copy of a death certificate to transfer your deceased loved one’s miles to you – without a fee. Call 1-800-654-5669 to reach Alaska Airlines customer service.

Transferring Miles With American Airlines

While current AAdvantage members do have the ability to move their miles to another member’s account (with the payment of fees and certain limitations), American Airlines will not generally allow for accrued mileage credit to be “transferable by the member upon death.” That said, the airline’s regulations do seem to offer such transfers in certain cases: “American Airlines, in its sole discretion, may credit accrued mileage to persons specifically identified in … wills upon receipt of documentation satisfactory to American Airlines and upon payment of any applicable fees.”

If your deceased loved one was an AAdvantage member, it may be worth a visit to American Airlines’ Buy, Gift, and Transfer Miles webpage to learn more.

JetBlue’s Points Pooling

In 2018, JetBlue launched the Points Pooling program to its TrueBlue loyalty members. Two to seven TrueBlue members, regardless of whether they are family, can join a “pool” and each contribute their points to it. Any member of your pool can leave their unused points for the remaining members of their pool to redeem. In theory, this would allow you to inherit the points of a loved one who passes away.

United Airlines: MileagePlus

For United Airlines customers who are part of the MileagePlus Program, it may be possible to transfer accumulated United Airlines miles upon the death of an individual.

Similar to American, the following is outlined on the airline’s website: “In the event of the death … of a Member, United may, in its sole discretion, credit all or a portion of such Member’s accrued mileage to authorized persons upon receipt of documentation satisfactory to United and payment of applicable fees.”

Call United’s customer service line at 1-800-421-4655 for guidance on the airline’s Transfer Miles Program.

Delta SkyMiles

Looking to transfer miles from a deceased Delta SkyMiles member into your name?

If you have the login details for their account, you may be able to make the transfer online via Delta’s website. Consider opening your own SkyMiles account first to simplify the process. Note that Delta charges 1¢ for each mile transferred, plus a $30 processing fee. Taxes may also apply. Miles can be transferred in 1,000-mile increments, and the maximum that can be transferred from one SkyMiles account to another is 150,000 miles per year.

Even if you have only the name of the individual and their SkyMiles number, you may still consider calling Delta’s SkyMiles customer service number at 800-323-2323 to ask for help.

Southwest Airlines

The account of a Southwest Airlines’ Rapid Rewards member who dies will become inactive and the points will be unavailable, according to the airline. In fact, its site explicitly states: “Points may not be transferred to a Member’s estate or as part of a settlement, inheritance, or will.”

Plan Ahead for Your Own Loved Ones

If you are part of an airline loyalty program and have accumulated a substantial number of miles, you may want to give your loved ones the details they need to access your frequent flier accounts so that they can log in directly in the event of your death.

Or, ask your estate planning attorney about how to go about adding into your will your wishes for passing those miles along to someone, should your preferred airline allow it.  Reach out here to the MSW team: Amy Stratton or Kristen Prull Moonan

What Are Medicaid Asset Protection Trusts?

Paper cutouts of a family with a house, covered by an umbrella labeled 'Medicaid.'Medicaid imposes strict rules on how much money and assets an applicant can have. To qualify for Medicaid, you must fall under the asset limit, which is $2,000 in most states.

Even with greater than $2,000 in assets, however, you may be able to get on Medicaid by establishing a Medicaid Asset Protection Trust (MAPT). When you put your assets in a MAPT, Medicaid will not count the money in the trust toward its resource limit.

Using Medicaid Asset Protection Trusts to Transfer Assets

After you create a Medicaid Asset Protection Trust, you no longer own the assets within it, allowing you to qualify for Medicaid following the five-year lookback period. People who are currently healthy but plan to go on Medicaid in the future might choose to use this Medicaid planning strategy.

It is essential to understand that MAPTs are irrevocable: Once you make the trust, you cannot change your mind and take those assets back. Your trust must be irrevocable for you to qualify for Medicaid because it means that you no longer own or control these assets.

In contrast to MAPTs, many types of revocable trusts, such as family trusts, are often ineffective in preparing for Medicaid. Having the power to revoke your trust would allow to retain control over your assets, and Medicaid would count the contents of your trust as part of your resources.

Creating a Medicaid Asset Protection Trust

Three parties are involved in a MAPT: the grantor, the trustee, and the beneficiary. When you make a trust, you become the grantor, the person who places assets into the trust. The trustee manages the trust, and the beneficiary — or beneficiaries — will receive your assets.

If you want your MAPT to ensure you qualify for Medicaid, you must name someone other than yourself or your spouse as the beneficiary. Designating yourself as the beneficiary would mean giving yourself assets, which Medicaid would count toward its asset limit.

You can, however, select your children or parents as beneficiaries. Using a MAPT, you can also make sure they get those assets when you pass away.

What Can You Place in a Medicaid Asset Protection Trust?

As part of your Medicaid planning strategy, you can place many types of assets in a MAPT, including:

  • Checking and savings accounts
  • Stocks and bonds
  • Mutual funds
  • Certificates of deposit
  • Real estate that is not your primary residence
  • In most states, your home

Although many states allow you to place your home in MAPT so that it will not count toward Medicaid’s resource limit after five years, Medicaid regulations vary by state. In Michigan, for example, placing your home in a MAPT will not prevent it from counting toward the asset limit.

Benefits and Drawbacks of Medicaid Asset Protection Trusts

Medicaid Asset Protection Trusts offer several benefits to individuals planning to apply for Medicaid:

  • MAPTs preserve generational wealth, safeguarding assets for family members.
  • After you pass away, the state cannot take your assets from your beneficiaries to reimburse them for your long-term care, as MAPTs avoid probate.
  • Since nursing home fees can be exorbitant, MAPTs can save your family money, as they let you qualify for Medicaid once the lookback period has ended.

The drawbacks of MAPTs include the following:

  • Once you establish a MAPT, you forfeit the control and use of your assets. If you need money, you will not be able to draw from the trust.
  • The fees associated with preparing a MAPT can be costly, ranging from $2,000 to $12,000.

To learn about how using a Medicaid Asset Protection Trust could help you plan for your future, reach out to the MSW team: Amy Stratton or Kristen Prull Moonan.

ElderCounsel, the creator of Medicaid Asset Protection Trusts (MAPTs), offers them on its website.

What Is the Difference Between a Springing and Non-Springing Power of Attorney?

Man signing power of attorney document.A power of attorney is a document that grants various powers and responsibilities to a trusted third party or “agent” who can act on your behalf. This document usually only allows an agent to make non-medical decisions on your behalf. A power of attorney can be a valuable planning tool that lets you decide in advance who will manage your affairs should you become unable to do so. It can also be a way to avoid expensive guardianship or conservatorship proceedings if you become disabled or incapacitated.

The way a power of attorney is formalized varies from state to state. Some states have particular requirements and wording that must be in a power of attorney for it to be valid and accepted. You may have heard of the terms “springing” and “non-springing” power of attorney and wonder what they mean.

Springing Power of Attorney

A springing power of attorney is a document executed now, but that does not take effect unless the principal becomes incapacitated or a particular event occurs. This type of power of attorney is contingent on something specific happening before it comes into force. If the event or incapacity never occurs, an agent will not be empowered to act on behalf of the principal.

Many people want a springing power of attorney because they feel more comfortable knowing their agent can only exercise powers if a triggering event occurs. This can alleviate any concern that the agent may try to misuse a power of attorney.

A springing power of attorney is not always easy to use. Depending on your jurisdiction, it may be necessary to have a medical professional such as a doctor certify that a triggering condition has occurred.

Let’s say you become medically incapacitated. Where required, the professional will likely have to complete an affidavit attesting to your condition or that certain events occurred. Often, a medical professional will not be comfortable signing an affidavit or may require their own attorney to advise them on how to proceed. This can cause delays that can frustrate an agent’s ability to act, especially in time-sensitive situations.

Additionally, financial institutions may be reluctant to accept this type of power of attorney because it is difficult for them to judge whether you truly are incapacitated or if a triggering event has in fact occurred. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the individual indeed has the authority to act for the principal.

Non-Springing Power of Attorney

With a non-springing power of attorney, the agent has the powers granted in the document the moment it is signed by you and the agent(s) you designate. So, even if you are capable of signing for yourself or handling certain transactions, your agent could still sign for you without your involvement.

How Some States Approach Powers of Attorney

Many states have taken steps to address some of these problems. New York, for example, implemented a statutory form in 2021 that, if filled out and executed correctly, financial and other institutions will be more likely to accept. In particular, it has a provision where the agent agrees to reimburse the third party for any claims that may arise against the third party because of reliance on a power of attorney.

To help limit the potential for abuse by an agent, New York’s form also allows a power of attorney to be narrowly tailored to a specific purpose.

The laws of each state will vary when it comes to powers of attorney. For guidance on a springing or non-springing power of attorney, reach out to the MSW team: Amy Stratton or Kristen Prull Moonan

Can a Nursing Home Hold Friends or Family Members Responsible For a Resident’s Care?

View of woman's hands as she reviews contract with health care provider before signing.If your loved one is entering a nursing home, you may worry whether you could be liable for their care. Under federal law, a facility cannot require a family member or friend to co-sign an admission agreement and take on personal liability. However, nursing homes around the country still try to do so, and often these matters end up in court.

What can you do to prevent this from happening to you? It starts with educating yourself on what is and is not allowed.

A law known as the Federal Nursing Home Reform Law prohibits a nursing home or facility from requiring or asking for a financial guarantee from a third party. Federal regulations regarding Medicare and Medicaid have similar restrictions.

These laws and regulations state that a home cannot have a resident’s family member or friend co-sign an admission agreement to take on financial liability. However, a nursing facility may obtain the signature of the resident’s agent, who has access to the resident’s income or assets, agreeing to use these resources to pay for care. Still, this agreement may not impose personal financial liability on the agent.

Review Before You Sign

If you are assisting a loved one with entering a nursing home, you should carefully review all the admission paperwork before you sign it. Many facilities have unscrupulous practices of using admission agreements that violate federal law or regulations.

You do not have to sign or “volunteer” to sign a financial guarantee that makes you personally responsible. It is incorrect if a nursing home claims a guarantee is necessary because the federal law only applies to Medicaid-eligible individuals. Nursing homes are also not allowed to condition admitting or keeping a person on receipt of a third-party guarantee.

Today, the most common tactic used by nursing homes is an admission agreement that obligates the signor as an agent with supposed control over the resident’s money. These agreements stipulate the agent will apply these resources to the nursing home expenses and apply for Medicaid on the resident’s behalf. Often, the person signing this document doesn’t know how to handle this situation, does not have this control, or makes mistakes in the resident’s Medicaid application, causing coverage to be denied.

What follows may be a lawsuit by the nursing home, claiming the agent violated their duties in the agreement and must pay the care costs. Courts have gone both ways on whether these agreements are enforceable, and the agent’s conduct often influences a court’s decision. Egregious conduct can lead to courts ruling in favor of the nursing home. An example is where an agent used the resident’s money for luxury items or other people’s expenses rather than their loved one’s care.

Plan Ahead As Much As Possible

The best action is to plan before nursing home care is necessary. This can put you or your loved ones in a position to be ready to apply for Medicaid should the need arise. At the same time, an aging individual can do proper asset protection planning and avoid look-back periods creditors could otherwise exploit against the resident or an agent.

However, this is not always possible for many older adults and their family members. Individuals who will take on the responsibility of being an agent should understand what this entails and seek the advice of your elder law attorney before starting the admission process.

To learn more, reach out to the MSW team: Amy Stratton or Kristen Prull Moonan

What Is a Life Estate?

Single-family home with yard.The phrase “life estate” often comes up in discussions of estate and Medicaid planning, but what exactly does it mean? A life estate is a form of joint ownership that allows one person to remain in a house until his or her death, when it passes to the other owner. Life estates can be used to avoid probate and to give a house to children without giving up the ability to live in it. They also can play an important role in Medicaid planning.

In a life estate, two or more people each have an ownership interest in a property, but for different periods of time. The person holding the life estate — the life tenant — possesses the property during his or her life. The other owner — the remainderman — has a current ownership interest but cannot take possession until the death of the life estate holder. The life tenant has full control of the property during his or her lifetime and has the legal responsibility to maintain the property as well as the right to use it, rent it out, and make improvements to it.

When the life tenant dies, the house will not go through probate, since at the life tenant’s death the ownership will pass automatically to the holders of the remainder interest. Because the property is not included in the life tenant’s probate estate, it can avoid Medicaid estate recovery in states that have not expanded the definition of estate recovery to include non-probate assets. Even if the state does place a lien on the property to recoup Medicaid costs, the lien will be for the value of the life estate, not the full value of the property.

Although the property will not be included in the probate estate, it will be included in the taxable estate. Depending on the size of the estate and the state’s estate tax threshold, the property may be subject to estate taxation.

The life tenant cannot sell or mortgage the property without the agreement of the remaindermen. If the property is sold, the proceeds are divided up between the life tenant and the remaindermen. The shares are determined based on the life tenant’s age at the time — the older the life tenant, the smaller his or her share and the larger the share of the remaindermen.

Be aware that transferring your property and retaining a life estate can trigger a Medicaid ineligibility period if you apply for Medicaid within five years of the transfer. Purchasing a life estate should not result in a transfer penalty if you buy a life estate in someone else’s home, pay an appropriate amount for the property and live in the house for more than a year.

For example, an elderly man who can no longer live in his home might sell the home and use the proceeds to buy a home for himself and his son and daughter-in-law, with the father holding a life estate and the younger couple as the remaindermen. Alternatively, the father could purchase a life estate interest in the children’s existing home. Assuming the father lives in the home for more than a year and he paid a fair amount for the life estate, the purchase of the life estate should not be a disqualifying transfer for Medicaid. Just be aware that there may be some local variations on how this is applied, so check with your attorney.

To find out if a life estate is the right plan for you, reach out to the MSW team: Amy Stratton or Kristen Prull Moonan