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My father and his two siblings are the remaindermen in my grandmothers

My father and his two...
My father and his two siblings are the remaindermen in my grandmother's life estate. My father died before my grandmother with no will and way more debt than assets. Can his creditors (aka Medicaid is the largest amount) put a lien on my grandmother's life estate? My attorney says Nebraska case law and statutory law have no information to serve as a guide.
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Answered in 1 minute by:
7/2/2013
LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 10,847
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
Verified

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I am sorry to hear of your loss. This is an unusual situation so please give me a few moments while I look into this for you.

LegalGems :

Generally, the portion of the property that was to go to the remainderman would pass to his heirs - you mentioned there was no will, so it would go via intestate succession (i.e. next of kin). If your father was a recipient of MedicAid, MedicAid would be permitted, via its estate recovery division, to put a lien on that portion of the property that would have gone to your father. However, it would be a good idea to view the initial will/trust that set this up, as it may have had a provision regarding pre-deceased remaindermen.

LegalGems :

Since the grandmother has a life estate, they would not be able to pursue the lien until after your grandmother passes, as she is technically the legal owner while alive.

LegalGems :

If the remaindermen hold the property as joint tenants, by operation of law it automatically passes to the siblings, and does not go through probate; so the creditors would not be able to access it.

Customer:

My guess is that the initial will/trust does not have a provision regarding such as I'm using the same attorney that set it up.

LegalGems :

OK. Then surely s/he would have alerted you to this if it was applicable. I'm trying to see if I can find anything specific from MedicAid regarding this.

LegalGems :

According to Nebraska's MedicAid policy, the state MUST recover any assets that pass through probate; they MAY recover assets that don't pass through probate.

Customer:

No one current lives on the property, although my brother and I would like to - would we be considered joint tenants?

Customer:

So "may" as in we won't know until my grandmother passes away?

LegalGems :

I was just going to ask that - as siblings that reside on the property for a specified time could render the property exempt; but since your dad has already passed, this would not be an option.

LegalGems :

Joint tenancy is a matter of holding title. If you go to the recorder's office and get a copy of the deed, that will indicate how the title was held. It can be held as Tenants in Common (no automatic survivorship provision - each owner can distribute the property via their will/trust) or Joint Tenancy with Right of Survivorship (it automatically passes to the surviving owner upon the death of one owner).

LegalGems :

"May" as in it is within the state's discretion; verses being federally required to do so.

Customer:

What about unsecured bank loans? Can they put a lien on the property as well?

LegalGems :

If it went through probate, it would be subject to all creditor claims. Did the attorney mention how title was held?

Customer:

No, I don't see anything.

LegalGems :

Here is some general information on the estate recovery process: http://www.sos.state.ne.us/rules-and-regs/regsearch/Rules/Health_and_Human_Services_System/Title-471/Chapter-38.pdf

LegalGems :

Meanwhile, let me continue to try and find something on point. Life estates aren't as common as they used to be, and the MedicAid estate Recovery program was instituted in the 90's I believe, so there may be nothing on point.

LegalGems :

For Nebraska, MedicAid is only permitted to put liens on property that pass through the probate estate. So when this was set up, it was probably with the idea that your grandmother retaining a life estate, while giving the children (your father) a remainder interest, would protect the house from a lien. However, since your dad predeceased, his interest would generally go through his estate, so that his heirs (since no will, his next of kin) would inherit it via the probate process. However, if the property is held with a survivorship provision, then it would not pass through probate, so then MedicAid could not access it via the estate recovery process.

LegalGems :

The amount of your dad's interest would be determined based on a formula determined by the state: http://law.justia.com/codes/nebraska/2006/s77index/s7720008000.html. The state has a table; I will get that in a moment.

Customer:

So is my grandmother's property considered held with a survivorship provision?

LegalGems :

http://www.revenue.ne.gov/practitioner/int_table.html - your attorney will be able to estimate your father's portion.

LegalGems :

I really can't determine that; you would need to see the deed - which your attorney may have. Otherwise you can get a copy from the recorder's office.

Customer:

Yes my attorney said he is figuring my father's portion. So basically I guess we just have to wait to see if Medicaid comes after than portion.

LegalGems :

If there was no survivorship provision, then yes; it would be a matter of whether MedicAid intends to pursue it. Some states are more aggressive than others. Generally they send the heirs an Estate Recovery form where the heir lists all property that the decedent had; MedicAid then determines if they can make a claim on any of it. They generally have 4 months from the date they are notified of the death to make a claim.

Customer:

They have filed an claim with the courts, not the heirs.

LegalGems :

MedicAid has filed with the court? That generally means they are aware that there the estate has property (probably based on paperwork your father filled out in order to qualify).

Customer:

His estate does/did have his own property, but he owed more on it than it's worth.

LegalGems :

Then all the creditors will put claims in to the court, unfortunately. Did your attorney explain that process?

Customer:

Yes.

Customer:

Thanks for your help.

LegalGems :

You are welcome. Again, very sorry for your loss.

LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 10,847
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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If you would like to request me for your future legal inquires, please put TO LEGAL GEMS in front of the question, and I will do my best!
Take care.
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LegalGems
LegalGems
LegalGems, Attorney
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