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Loren, Attorney
Category: Legal
Satisfied Customers: 28517
Experience:  30 years experience representing clients.
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We, myself and two brothers, are looking at whether to get

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We, myself and two brothers, are looking at whether to get a Living Estate or a Living Trust for my mother's farm. She is 87, in great health, has two good nursing home polices, owns her home, and has about a 200 acre farm. We are concerned about protecting the farm as many in our area have lost their property when the parent goes into the nursing home. We were told that the Living Estate is much more affordable and easier to do than the Living Trust. Any advice would be greatly appreciated.
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Are you referring to a "life estate"?
Customer: replied 4 years ago.

Yes, I think that's what its called--!?

Creating a life estate without the power to sell the house is a disposal of a resource that may disqualify your mother from Medical Assistance. If a life estate deed without the power to sell was created long enough ago (5 years) that there is no penalty, the house is a countable resource, but your mother's life estate without the power to sell has a market value of $0, so it would not disqualify her from Medical Assistance. The purchase of a life estate will be included in the definition of "assets" unless the purchaser resides in the home for at least one year after the date of purchase.

Creating a life estate deed with the power to sell the house is not a disposal, because you still have the power to sell the house at any time without anyone else's permission. However, the house could not be an exempt resource based only on your mother saying she intends to return home, because the State cannot put a lien on a house owned this way. The market value of the house would be counted as an available resource. If the house would be exempt for other reasons, such as because a spouse or a dependent relative lives in it, then it still would be exempt.

In any event, it is advisable to refer to local estate planning counsel to protect her and your rights in this matter before taking any action.
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