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Question

My wife's stepfather has put all of their assets into a living trust (Arizona). Her mother has Alzheimers and needs to be placed into an assisted living facility that will be paid by Medicare, however they will not approve because they state the house must be taken out of the trust in order to cover the costs. The stepfather refuses to take the house out of the trust. Are there legal steps to "force" him to do so?

Submitted: 234 days and 16 hours ago.
Category: Estate Law
Value: $15
Status: CLOSED
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Phoenix, Arizona

Already Tried:
nothing. Since the mother signed a quick claim deed to the house turning it over to the trust, we are not sure there is any recourse.

Posted by lwpat 234 days and 16 hours ago.

Answer

As her husband he is legally responsible for her support. If he is not paying for her support, someone, as in you, can go to court and get guardianship/conservatorship over her and then that person can require that her portion of the house be removed from the trust. In a living trust the person who owned the asset still has control over the asset and I assume that the house is in both of their names. He has probably named himself trustee but I question how he could transfer the house to the trust if she is not competent.

 

You would file at your local probate court and most have a self help page with instructions and forms. In most states, you will need two doctors to examine her and certify that she requires a guardian.

 

If I have answered your question, an accept and positive feedback is appreciated. Thanks!!!

234 days and 16 hours ago.

Reply

clarification: she signed over her half of the house to the trust when she was competent approximately 5 years ago. She had to file personal bankruptcy and the stepfather convinced her that if she signed the house over to the trust the bankruptcy court would not be able to "get it". Of course this was not true but she did not know that and did it out of fear the house would be lost.

Accepted Answer

I imagine the problem with Medicaid (I don't think it is Medicare) is that the transfer was made within the five year "lookback" period. Once you are past the five years, then she should be eligible. However, this does not change the fact that as the spouse he is responsible for her care. Someone would really need to look at the trust document and see exactly what transpired. Based on his actions, I still recommend getting a guardianship.

 

 

If I have answered your question, an accept and positive feedback is appreciated. Thanks!!!

 

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Expert: lwpat
Pos. Feedback: 98.7 %
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Answered: 4/1/2009

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Practicing attorney with extensive experience in wills, estates and trusts

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