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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 41027
Experience:  Texas lawyer for 30 years in Estate law
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My mother is 87 years old and interested in transferring her

Customer Question

Dear Sir:
My mother is 87 years old and interested in transferring her home into her 5 children’s names. One brother has lived in the home with her for 47 years. We think it would be better to put the home in his name only due to some material I read online (see below please).
It appears as though the home is better protected from Medicaid if only his name is ***** ***** deed because he is a primary resident. Is that correct?
She lives in New York.
Thank you
Best Regards
Cam
1. Transferring a Home
In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. There are circumstances in which it is legal to transfer a house, however, so consult an attorney before making any transfers. You may freely transfer your home to the following individuals without incurring a transfer penalty:
• Your spouse
• A child who is under age 21 or who is blind or disabled
• Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
• A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home
• A "caretaker child," who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's institutionalization and who during that period provided care that allowed the applicant to avoid a nursing home stay.
While you can sell your house for fair market value, it may make you ineligible for Medicaid and you may have to apply the proceeds of the sale to your nursing home bills.
2. Lien on Home
Except in certain circumstances, Medicaid may put a lien on your house for the amount of money spent on your care. If the property is sold while you are still living, you would have to satisfy the lien by paying back the state. The exceptions to this rule are cases where a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living there.
3. Estate Recovery
If your spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house, lives in the house, the state cannot file a claim against the house for reimbursement of Medicaid nursing home expenses. However, once your spouse or dependent relative dies or moves out, the state can try to collect.
But there are some circumstances under which the value of a house can be protected from Medicaid recovery. The state cannot recover if you and your spouse owned the home as tenants by the entireties or if the house is in your spouse's name and you have relinquished your interest. If the house is in an irrevocable trust, the state cannot recover from it.
In addition, some children or relatives may be able to protect a nursing home resident's house if they qualify for an undue hardship waiver. For example, if your daughter took care of you before you entered the nursing home and has no other permanent residence, she may be able to avoid a claim against your house after you die. Consult with an attorney to find out if the undue hardship waiver may be applicable.
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you tonight.

You are correct here that he may be the best choice if the idea is to avoid medicaid.Putting into his name rather than all would keep medicaid from claiming the house.The risk here is the the others will not have a legal interest and will depend on the integrity of the one to do right by the others.

This is probably the best medicaid option here to protect the home from NY medicaid.You have good information here and current law.

I appreciate the chance to help you tonight.Please let me know if you have more follow up.Thanks again.

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