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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33803
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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I live in NY and I have a property in CA. I am trying to avoid

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I live in NY and I have a property in CA. I am trying to avoid any type of medi cal or medicaid issues with liens or estate claims on my property. I want to transfer it to my children and I want to do it in the easiest manner possible with hte least issues. I was told that an irrevocable trust would work best. any thoughts?

Also, will law would apply..the NY or CA in regards XXXXX XXXXX medical/medicaid application in the future?
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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If you anticipate needing to file for Medicaid in the next 5 years, then you would need to get the property out of your name as soon as possible because Medicaid has a 60 month lookback period that would penalize you by making you ineligible for benefits for a period of time equal to the number of months that results from dividing the value of the transferred asset by the monthly care costs.
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So it is critical that any transfers be outside that 60 month lookback period.
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With that said, an irrevocable trust would serve to get the property out of your name and start the clock running on the 60 month lookback period if you didn't want to transfer it outright to your children now.
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As for what state's law would apply, it would be the state where you are a legal resident when you apply. So if you live in NY, it is NY law that would apply.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 3 years ago.

So if i create an irrevocable trust..who would have title of teh property? I would like my kids to ahve the property when I die..but I also dont want them to be hit with a big tax bill. Will the property pass to them when I die or when I create the trust?


 


Thanks.

So if i create an irrevocable trust..who would have title of teh property?
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The trust is a legal entity, like a corporation, so it would actually be the owner of the property. So you would actually deed the property to the "XYZ Trust" and it would be the owner. The trustee you name would be in charge of the trust and be responsible for managing it.
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You would put directives in the trust that the property should transfer to them when you pass and as long as your estate is not over the estate tax exemption when you pass, currently $5.25 million, there would not be any estate tax due.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

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Customer: replied 3 years ago.

waht about tax on my kids when they get the property?


 


Also, is there a difference between NY vs CA law in regards XXXXX XXXXX?


 

The recipient of an inheritance in those states doesn't pay any inheritance tax. It is only the estate that pays estate taxes if the total value of the estate is over the estate exemption amount.
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Also, is there a difference between NY vs CA law in regards XXXXX XXXXX?

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No, Medicaid is a federal program, so the lookback period applies the same in either state. There may be minor differences in forms, what they call it, etc., but the big picture is still the same. For example, NY calls it Medicaid, but CA thinks it is clever to call it Medi-Cal.

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Thanks

Barrister

Customer: replied 3 years ago.

Ok. so then essentially I transfer to the trust and then I also attach to it a will so that it then makes the transfer at death to the ppl I want, right?


 


Also, the property is under my husband's name too..would we both need to leave the same will within the trust?


 


Finally, is there any problem if the property I own has a mortgage and line of credit? THere is a lot of equity (250k) on the property to pass to my kids.


Thanks.

Ok. so then essentially I transfer to the trust and then I also attach to it a will so that it then makes the transfer at death to the ppl I want, right?

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No, you put in the trust documents the directives that it transfer on your death to your children. It is not included in your estate because you don't own it any longer, your trust does, so your will wouldn't dispose of it. That is why you put the instructions in the trust.

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Also, the property is under my husband's name too..would we both need to leave the same will within the trust?

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There is no will...just the trust that would transfer it to your children.. But you both have to agree to deed it over to the trust.

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Finally, is there any problem if the property I own has a mortgage and line of credit? THere is a lot of equity (250k) on the property to pass to my kids.

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No, they would take it subject to any mortgage or outstanding loans when it transfers to them. There may be a "due on transfer" clause in your mortgage that would give the lender the right to call the loan due, but I have never seen a lender do that as long as someone was making the payments.

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Thanks

Barrister

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