Estate Law

Estate Law Questions? Ask an Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Estate Law
This answer was rated:

Another question, my husband has dementia and he is rapidly

going down hill. I...
Another question, my husband has dementia and he is rapidly going down hill. I have found a day care, but have yet to take him. Looking ahead. to protect my assets in our monies, should I consider divorce before putting him in a real nursing home. I've been told it would probably be less than a year until I can no longer take care of him in our home. I live in Missouri fyi. Is there a time frame involved. I do not want to be without my home and adequate finances to live here. I have worked long and hard and made more money in my lifetime than he has so I want to protect what I have put aside for myself. I don't want to throw him to the dogs, but need to protect my interest as I am 69 and in fairly good health. We have been married almost 52 years and I have no intention of putting him out, am I between a rock and a hard spot. How does the nursing home system work in Mo as far as paydown before medicare starts paying? What can I keep and what goes for the nursing home. PS my car is 10 years old and needs to be replaced. Should I go get a newer one and pay for it out of his money. We have separate IRAS, annuities, I have a roth and a 401K that I am still paying into. I do not want to live with my children, I would feel like I was a servant or a kept person. I am active and have a social life, I just take my husband with me whenever I go anywhere.
He is physically in good health, but does not remember day,month,year, whether hot water is on the left or the right, is now not remembering our children and in-laws names, doesn't recognize some of grandchildren, can't remember what he did 5 minutes ago.
I feel I need lots of legal help to maximize my interest without hurting him and his interests. Thanks a bunch if you can struggle thru my letter as I am stressing a bit. \
Show More
Show Less
Ask Your Own Estate Law Question
Answered in 6 hours by:
5/8/2013
Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 16,388
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
Verified

Hello there

-

Is there any other property in the both names?

-

Has he / you been making regular withdrawals from his annuities/401k's etc.

-

When you put the house in trust and had other docs prepared regarding the estate, did you use an attorney at that time?

-

-

MARY

Ask Your Own Estate Law Question
Customer reply replied 4 years ago

Car, popup camper


He has been making regular withdrawals from his accounts


I should start making them this month from my ira


Yes we used an elder law attorney

Hello again Diane --

-

I apologize for the delay -- I was offline for a while. When considering nursing home care and the Medicaid system, the federal government's Medicaid program will make him spend down his assets before they will pay for any of the nursing home care. There are a few legal maneuvers that can be made by the patient and spouse in order to try to avoid losing everything that you have worked for. Putting the house in trust was a good idea but if he goes into the nursing home before 2016, Medicaid has the legal right to perform a five year "look back" as of the date of nursing home entry and any assets that were transferred out of the name of the patient can, in many instances, be brought back into the patient's estate and the value can be claimed by Medicaid as an asset to be placed towards the nursing home fees (prior to 2005, it was a 3 year lookback, but President Bush decided that it should be a 5 year lookback and that is the current number of years on the lookback). So, if your husband goes into the nursing home before the 5 years has passed, the house trust will be discounted by Medicare and for all intents and purposes you and he will still be the owners of the house. If that happens, then the amount of money the house is appraised at can be used by Medicare towards nursing home "payments" - and it is your decision whether or not to pay the nursing home fees out of the proceeds from the sale of the home or if you want to use other assets to pay the fees until a later date that Medicare has set as the date that the full value of the house has been spent down for the medical and nursing home bills. Now, if your husband is able to live outside of a nursing facility through the five year look back period, then the house will be safe from the Medicare look back rules and the trust will stand. In the event of his entering the nursing home before the look back period is over, there is an exception to the rules regarding the federal government's right to either use house proceeds to pay for the care OR to include the amount in his assets (requiring him to spend down that amount on the nursing home bills before he could qualify for Medicaid). The spouse or the child of the patient who has lived in the house with the patient for more than 2 years prior to the nursing home entry date is entitled to receive the transfer of the patient's interest in the primary residence and it will not be forefeited to Medicare or used in the calculation to determine when he can receive Medicare benefits to pay for the nursing home care. So, in your case it appears that if you do not qualify to retain the house or the value of the house under the look back rule, you will be entitled to his portion of the house by virtue of your role as caretaker to him before he entered the nursing home (you want to keep detailed records and a journal to show your caretaking duties for as long as possible leading up to the date that he moves into the nursing home so that you can show the federal government that you are the only one who was the primary caretaker in the primary residence. Other than the primary residence, if there are any second homes or timeshares, they will require a sale to pay for the nursing care or the family to make up the value of the additional second property towards the Medicare spend down amount.

-

Regarding his assets -- Medicare will require that any amounts of money solely in his name to be used for medical and nursing home care bills before they will permit him to qualify for Medicare. At this point, because you believe that he is only about a year or so away from needing full time nursing home care, any large depletions of his assets or large expenditures from his assets can be reviewed for the year prior to his entering the nursing home and the federal government may charge that you and your family fraudulently moved or depleted his assets to avoid paying the bills in the legitimate spend down period after he enters the nursing home. There are exceptions to these rules also and a large expenditure for a car from his assets can be shown to be a necessary expense particularly if you must drive him to doctors appointments and everywhere else that he needs to go while he is still able to live at home. My suggestion to you regarding his assets is to contact a local estate law elder law attorney in your area and have a sit down consultation regarding what expenditures are appropriate and necessary in the year or so leading up to the nursing home admission and keep detailed records and documentation of any such expenditures in the event that any of the expenditures may raise a red flag and possibly set them off into an in depth of review of your finances at any point before or after you apply for the Medicare benefits for him.

-

MARY

-

Please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am paid NOTHING unless you press the 3rd, 4th or 5th smile face underneath this ANSWER box so I do appreciate it !. Pressing a positive rating below will NOT cost you any additional money -- it simply acts as a trigger to Just Answer to pay me for my time. THANK YOU

Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 16,388
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
Verified
Legalease and 87 other Estate Law Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago

I just feel like I will be a caregiver until I give out. When I ask him to stay in one place while I go to the bathroom or to go get a coke or drink, he may or may not be there when I come back. He says, "Well I didn't know where you were, so I went looking for you." Even if I tell him previously where I am going or even when I write him a note that tells him where I am going. He has wandered in the neighborhood, but neighbors have alerted me and I have found him quickly. I just feel I am between a rock and a hard spot, and it is an uncomfortable feeling.

Hello again Diane --

-

It is not easy to be a caregiver (my mother suffered from emphysema for 7 years and I cared for her until she died) - and no one even understands the time period after the ill person passes away - it is like having post traumatic stress disorder. You have my sympathy on this you really do. Please get to a lawyer to talk about spending down his assets because you want to save as much as you can for you and your children.

-

MARY

Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 16,388
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
Verified
Legalease and 87 other Estate Law Specialists are ready to help you
Ask your own question now
Ask Legalease Your Own Question
Legalease
Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 16,388
16,388 Satisfied Customers
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues

Legalease is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns.

Loretta TIllinois

Thanks Adam!! - A very direct and understandable response - you have been a great help!

Happy CustomerEllicott City, MD

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Thomas McJD

Thomas McJD

Attorney

3,170 satisfied customers

Wills, Trusts, Probate & other Estate Matters

Barrister

Barrister

Attorney

5,488 satisfied customers

17 yrs estate law, real estate. Wills/Trusts/Probate

RayAnswers

RayAnswers

Attorney

5,126 satisfied customers

Texas lawyer for 30 years in Estate law

Infolawyer

Infolawyer

Attorney

5,032 satisfied customers

Licensed attorney helping individuals and businesses.

Ely

Ely

Counselor at Law

1,841 satisfied customers

Fully licensed attorney in Texas in private practice.

RobertJDFL

RobertJDFL

Attorney

1,454 satisfied customers

Experienced in multiple areas of the law.

ScottyMacEsq

ScottyMacEsq

Attorney

1,167 satisfied customers

Licensed Texas General Practice Attorney

< Previous | Next >

Related Estate Law Questions
Wealth Management Question When the Estate tax is supposed
Wealth Management QuestionWhen the Estate tax is supposed to be paid in case If one buys his son a house as a gift while he is still alive? Does the son need to pay the taxes immediately after his fat… read more
RayAnswers
RayAnswers
Attorney
Doctoral Degree
5,126 satisfied customers
If there is sale of property in an estate, is the allocation
If there is sale of property in an estate, is the allocation of funds up to the executors or all the heirs?… read more
LegalGems
LegalGems
Juris Doctorate
10,717 satisfied customers
I am one of the beneficiaries of my grandparents estate. In
I am one of the beneficiaries of my grandparents estate. In the closing documents, my grandparents put in a paragraph regarding the trust for my aunt. It states that the bank which is currently the tr… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
Is the executor of an estate responsible for deceased's
Hello,Is the executor of an estate responsible for deceased's credit card debt . Deceased had no property and no car just a few certificates of deposit she left to her daughter who is the wife of the … read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
I am an executrix of an estate. We are selling Real Estate.
I am an executrix of an estate. We are selling Real Estate. I was notified that in order to get Title Insurance the insurance company needs me to fill our a questionnaire. They are asking if Fed/State… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
Are you an estate lawyer? Mother and father divorced. Fathet
Are you an estate lawyer? Mother and father divorced. Fathet signed house share of the house to ex wife under rights of survivorship which is indicated on deed. … read more
RayAnswers
RayAnswers
Attorney
Doctoral Degree
5,126 satisfied customers
I was just corresponding with Barrister, an Estate Lawyer. I
I was just corresponding with Barrister, an Estate Lawyer. I have another question. I am the Executrix of my father's estate. My step mother who has Alzheimer's and lives in a memory care unit will re… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
Inasmuch as the current federal estate tax for 2010 is zero
Inasmuch as the current federal estate tax for 2010 is zero (until changed), it is important to know whether there is a 100% carryover basis for estate assets or whether there is an allocable $1.3 mil… read more
Bill
Bill
Master's Degree
2,278 satisfied customers
My sister is the executor of my parents estate. The will
My sister is the executor of my parents estate. The will states that everything is distributed 50/50 (just 2 of us). My mom passed away May 2016 and my dad December 2016. The house was sold in June 20… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
The question regards to an estate if there was a will naming
Hi the question regards ***** ***** estate if there was a will naming 2 family members each get 50% of the bank accounts normally how long does it take to transfer the assets?… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
I"m an executor of an estate that has designated real estate
Hello - I"m an executor of an estate that has designated real estate to be inherited by a relative. There is no mortgage associated with the property.The issue is that the estate, without the property… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
This is regarding an ESTATE if the named beneficiary (who is
this is regarding an ESTATE if the named beneficiary (who is not in the will), they have to turn over the 401k assets from the deceased to be dispursed according to the will?? … read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
I am a beneficiary of real estate property in an estate by a
Hello, I am a beneficiary of real estate property in an estate by a man that is now incapacitated. His power of attorney is the only other beneficiary for the estate. He will receive everything except… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers
When considering the value of an estate in probate, is the
When considering the value of an estate in probate, is the value of the non-probate inventory added?… read more
originallawyer
originallawyer
Attorney at Law
Doctoral Degree
905 satisfied customers
The executrix of my aunt's estate sold the real estate and
The executrix of my aunt's estate sold the real estate and didn't inform the beneficiarys or make any payments as the will instructed. … read more
LegalGems
LegalGems
Juris Doctorate
10,717 satisfied customers
Estate question. I am an Executor of an Estate. The person
Estate question. I am an Executor of an Estate. The person who's Estate I am administering was in the middle of administering her husband's estate with the assistance of her lawyer, when the Executor … read more
TaxAttorneytoHelp
TaxAttorneytoHelp
Owner
Doctoral Degree
2,542 satisfied customers
I have more estate issue: right to occupancy vs. life estate
I have more estate issue: right to occupancy vs. life estate and what it means if a tenant is renting outside the primary residence. The deed is set up 50% trustee (me) and 50% stepmom's trust. Trust … read more
jb156200
jb156200
Associate Attorney
Doctoral Degree
461 satisfied customers
Does CO Estate or CA estate law, since the home is located
Does CO Estate or CA estate law, since the home is located in California, require the home to have an appraisal at a required point in time after the death of the decedent whose home is in a trust?I a… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,488 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x