Part 2
A Summary of Clark v. Dehner
Superior Court Decision
The Superior Court overturned MassHealth's decision, finding that the transaction between Susan and Michelle was valid and should not be considered a disqualifying transfer. The Court determined that the transaction was for fair market value, and that the promissory note satisfied all of the regulations requirements, in that it was actuarially sound, provided for equal payments, and prohibited cancellation at Susan's death. The Court disagreed with MassHealth's determination that the note was not reasonably enforceable because the transaction had occurred between family members. The Court acknowledged that there was no guarantee that Susan would sue Michelle in the event that she defaulted on the note. However, the Court noted that it was inappropriate of MassHealth to assume that Susan would not seek to enforce the note by all available means.
Conclusion
Practitioners and clients should be encouraged by the Court's decision in Clark. The decision validates transactions between family members using promissory notes, which can be a valuable last-minute planning option for clients needing immediate long-term care in a nursing home. Clark also offers practitioners with a creative planning opportunity to cure disqualifying transfers into irrevocable trusts, while preserving the value of the transferred asset for the family. The decision is also an important step in reversing MassHealth's trend of dissallowing long-term care planning techniques between family members set into motion by the implementation of the DRA. However, even in light of this favorable decision, practitioners are urged to be cautious and draft promissory notes and related agreements between family members in strict accordance with MassHealth's regulations.
United States Treasury Regulations require us to disclose the following in connection with this message: Any tax advice included in this message and its attachments was not intended or written to be used, and it cannot be used by the taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
Saturday, February 27, 2010
Friday, February 26, 2010
Superior Court Upholds MassHealth Applicant's Sale of Property to Daughter: A Summary of Clark v. Dehner
Overview
The implementation of the Deficit Reduction Act (DRA) has made it increasingly complicated for families to protect their assets from the high costs of long-term nursing home care. Many planning options were curtailed by the DRA, and state Medicaid agencies are implementing the revised rules at a disadvantage to families seeking government benefits. However, a 2009 Massachusetts Superior Court decision has validated a planning option involving the fair market value sale of assets to family members.
Background
In May of 2005, George and Susan Clark established the George E. & Susan Clark
Irrevocable Trust. They were named as grantors and trustees of the trust. George and Susan transferred title to their home located in Marshfield into the trust on the date the trust was executed. The home's value at that time was approximately $412,000. The trustees of the trust were to hold the property for the benefit of George and Susan's children, Michelle Dionne and Kerri Poole. This transfer disqualified George from MassHealth benefits for a period of fifty-two months beginning on the date of the transfer.
In August of 2006, George entered the Walden Nursing Home, a long-term care facility. He suffers from a degenerative condition called Pick's Disease. As George's date of admission was during the aforementioned fifty-two month ineligibility period, an alternative planning strategy was implemented. This strategy involved curing the original transfer through the sale of a partial interest in the home using a promissory note and mortgage executed between Susan and Michelle.
Promissory Note
The MassHealth regulations allow applicants for long-term care to sell assets through the use of a promissory note and mortgage if the following conditions are met: 1) the repayment of the note is actuarially sound, 2) the promissory note provides for equal payments during the life of the loan, 3) the promissory note prohibits cancellation of the balance on the death of the lender. See 130 C.M.R. 520.007(G)(3). The regulations do not specifically prohibit such transactions from occurring between family members, as long as the sales are for fair market value and meet the above requirements. However, in recent years, MassHealth has taken the position that such transactions between family members are not reasonably enforceable, and therefore should be treated as disqualifying transfers.
George submitted an application for Medicaid benefits on October 31, 2007. Although the promissory note executed between Susan and Michelle satisfied all of MassHealth's regulatory conditions, as described above, George's application for benefits was denied. The hearing officer determined that Michelle's purchase of the property interest was a disqualifying transfer of assets, due in large part to the fact that it occurred between family members.
Tomorrow we will share the supreme court decision.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
The implementation of the Deficit Reduction Act (DRA) has made it increasingly complicated for families to protect their assets from the high costs of long-term nursing home care. Many planning options were curtailed by the DRA, and state Medicaid agencies are implementing the revised rules at a disadvantage to families seeking government benefits. However, a 2009 Massachusetts Superior Court decision has validated a planning option involving the fair market value sale of assets to family members.
Background
In May of 2005, George and Susan Clark established the George E. & Susan Clark
Irrevocable Trust. They were named as grantors and trustees of the trust. George and Susan transferred title to their home located in Marshfield into the trust on the date the trust was executed. The home's value at that time was approximately $412,000. The trustees of the trust were to hold the property for the benefit of George and Susan's children, Michelle Dionne and Kerri Poole. This transfer disqualified George from MassHealth benefits for a period of fifty-two months beginning on the date of the transfer.
In August of 2006, George entered the Walden Nursing Home, a long-term care facility. He suffers from a degenerative condition called Pick's Disease. As George's date of admission was during the aforementioned fifty-two month ineligibility period, an alternative planning strategy was implemented. This strategy involved curing the original transfer through the sale of a partial interest in the home using a promissory note and mortgage executed between Susan and Michelle.
Promissory Note
The MassHealth regulations allow applicants for long-term care to sell assets through the use of a promissory note and mortgage if the following conditions are met: 1) the repayment of the note is actuarially sound, 2) the promissory note provides for equal payments during the life of the loan, 3) the promissory note prohibits cancellation of the balance on the death of the lender. See 130 C.M.R. 520.007(G)(3). The regulations do not specifically prohibit such transactions from occurring between family members, as long as the sales are for fair market value and meet the above requirements. However, in recent years, MassHealth has taken the position that such transactions between family members are not reasonably enforceable, and therefore should be treated as disqualifying transfers.
George submitted an application for Medicaid benefits on October 31, 2007. Although the promissory note executed between Susan and Michelle satisfied all of MassHealth's regulatory conditions, as described above, George's application for benefits was denied. The hearing officer determined that Michelle's purchase of the property interest was a disqualifying transfer of assets, due in large part to the fact that it occurred between family members.
Tomorrow we will share the supreme court decision.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
Wednesday, February 17, 2010
Review the Deed to Your Home - You Might be Surprised What it Says!
Did you know that how you own your home during your life determines who receives it upon your death? There are several ways a person can own a home. Therefore, there are different possible outcomes concerning who receives that house upon your death.
For most of our clients, the home is their most valuable asset. So, its often a big surprise when folks realize the deed will override a conflicting bequest in their will regarding the disposition of real estate. If you’re the only owner on the deed (meaning there are no other person identified as owners with you), then the real estate is a probate asset. This means that your will determines who receives that house when die. In that case, make certain your will represents your current wishes. Otherwise, that house could pass to that nephew you liked twenty years ago, but can’t stand any longer. By the way, if you don’t have a will, the state in which you live has one for you. That’s called “intestate” law and it’s a set of default rules about the who gets your property.
If you own a home with another person, the deed gets much more complicated. This is because deeds are chock full of old legal terms that can confound a homeowner. A good elder law attorney can explain the implications of the deed. However, to get a head start, look for certain terms in that deed.
Here’s a few critical terms to look for:
“Joint Tenants” - that means if you die, your share of the house automatically passes to the surviving other owners. In that case, it doesn’t matter what your will says, a joint deed determines where the house goes, not your will. One benefit of joint ownership is that it avoids probate. It’s a convenient way to pass on real estate as long as the joint owners are the persons you wish to receive your share of the property.
“Tenants-in-Common” is a deed which defers to your will. If you own your home as “tenants-in-common” with two other people and you die, your one-third of the house passes according to the terms of your will and not automatically to the other two owners of the house. The benefit of this type of ownership is that you can change who receives your share simply by signing a new will. The downside is that will must be probated with court to pass your interest in the real estate interest to your heirs.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
For most of our clients, the home is their most valuable asset. So, its often a big surprise when folks realize the deed will override a conflicting bequest in their will regarding the disposition of real estate. If you’re the only owner on the deed (meaning there are no other person identified as owners with you), then the real estate is a probate asset. This means that your will determines who receives that house when die. In that case, make certain your will represents your current wishes. Otherwise, that house could pass to that nephew you liked twenty years ago, but can’t stand any longer. By the way, if you don’t have a will, the state in which you live has one for you. That’s called “intestate” law and it’s a set of default rules about the who gets your property.
If you own a home with another person, the deed gets much more complicated. This is because deeds are chock full of old legal terms that can confound a homeowner. A good elder law attorney can explain the implications of the deed. However, to get a head start, look for certain terms in that deed.
Here’s a few critical terms to look for:
“Joint Tenants” - that means if you die, your share of the house automatically passes to the surviving other owners. In that case, it doesn’t matter what your will says, a joint deed determines where the house goes, not your will. One benefit of joint ownership is that it avoids probate. It’s a convenient way to pass on real estate as long as the joint owners are the persons you wish to receive your share of the property.
“Tenants-in-Common” is a deed which defers to your will. If you own your home as “tenants-in-common” with two other people and you die, your one-third of the house passes according to the terms of your will and not automatically to the other two owners of the house. The benefit of this type of ownership is that you can change who receives your share simply by signing a new will. The downside is that will must be probated with court to pass your interest in the real estate interest to your heirs.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
Friday, February 12, 2010
Real Estate Tax Abatements
Real Estate Tax Abatements
Think your home is overvalued? If so, consider filing an application for a real estate tax abatement. A real estate tax abatement reduces the tax you pay on the value of your home. To obtain the abatement form, contact your town's tax assessor's office. This is an important first step because each of the 351 cities and towns in Massachusetts may have different forms. Most towns have their own website with instructions on how to complete the form.
Applications for abatements must be submitted by the due date of the first actual tax bill of the year. In communities that have quarterly tax bills, the application is due with the 3rd quarter tax bill, usually on February 1st. To meet the deadline, the application must be in the tax assessor's office by close of business day, or postmarked no later than the due date.
To determine if a bill is an actual tax bill or an estimated bill, the taxpayer should look on their bill for a property assessment value and a designated tax-rate. The application must be completed and filed by the current owner or their agent. Under certain circumstances other parties with an interest in the property may file the abatement. You should contact your assessor's office for any special rules that may apply.
Filing an abatement does not guarantee that your tax bill will be reduced. However, you won't know unless you ask. Remember the deadline is February 1, 2010. You can obtain additional information by clicking on the following link:
MA state website.
If you have any questions, please see our contact information below or visit our website: Cohen & Oalican.
Cohen & Oalican, LLP.
18 Tremont Street, Suite 903
Boston, MA 02108
Telephone 617-263-1035 x310
Fax 617-263-1038
scohen@cohenoalican.com
Think your home is overvalued? If so, consider filing an application for a real estate tax abatement. A real estate tax abatement reduces the tax you pay on the value of your home. To obtain the abatement form, contact your town's tax assessor's office. This is an important first step because each of the 351 cities and towns in Massachusetts may have different forms. Most towns have their own website with instructions on how to complete the form.
Applications for abatements must be submitted by the due date of the first actual tax bill of the year. In communities that have quarterly tax bills, the application is due with the 3rd quarter tax bill, usually on February 1st. To meet the deadline, the application must be in the tax assessor's office by close of business day, or postmarked no later than the due date.
To determine if a bill is an actual tax bill or an estimated bill, the taxpayer should look on their bill for a property assessment value and a designated tax-rate. The application must be completed and filed by the current owner or their agent. Under certain circumstances other parties with an interest in the property may file the abatement. You should contact your assessor's office for any special rules that may apply.
Filing an abatement does not guarantee that your tax bill will be reduced. However, you won't know unless you ask. Remember the deadline is February 1, 2010. You can obtain additional information by clicking on the following link:
MA state website.
If you have any questions, please see our contact information below or visit our website: Cohen & Oalican.
Cohen & Oalican, LLP.
18 Tremont Street, Suite 903
Boston, MA 02108
Telephone 617-263-1035 x310
Fax 617-263-1038
scohen@cohenoalican.com
Tuesday, February 9, 2010
Protecting Your Spouse/Assets/Annuities
Cohen & Oalican LLP, Boston, Raynham and Andover Present:
The Final Article in the Series "Protecting Your Assets from the Cost of Nursing Home Care"
Protecting Your Spouse/Assets
Medicaid law provides for special protections for the spouse of a nursing home resident, known in the law as the "community" spouse. The spouse of a Medicaid applicant is entitled to keep a portion of the couple’s assets. The community spouse is entitled to keep a maximum of $109,560 (2010 figures). This assessment is not affected whether the assets are jointly held by the couple or they are all in the name of the nursing home spouse. For example, if a couple owns $75,000 in countable assets on the date the applicant enters a hospital, the community spouse will be entitled to a resource allowance of $75,000. If they have $250,000, the community spouse can keep the maximum of $109,560.
Protecting Your Spouse/Annuities
One means of protecting assets for the community spouse is through the purchase of an annuity. The purchase of an annuity transforms excess assets that would otherwise make the nursing home spouse ineligible for Medicaid into a non-countable stream of income for the community spouse. In other words, we can typically protect all of a couple’s savings for the at-home spouse and obtain Medicaid eligibility for the nursing home spouse, even at the last minute through the purchase of a Medicaid qualified annuity. However, the annuity does not need to be purchased ahead of time. In fact, the annuity should not be purchased until the spouse enters a nursing home.
Conclusion
The possibility for a spouse or parent to need nursing home care is the greatest financial risk facing most seniors. Given the State’s tightening budget, it has become even more difficult to obtain Medicaid eligibility and protect your assets. For your own peace of mind, it’s more important than ever to hire an experienced Elder Law Attorney to create a comprehensive Asset Protection Plan to preserve all that you have worked for.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
The Final Article in the Series "Protecting Your Assets from the Cost of Nursing Home Care"
Protecting Your Spouse/Assets
Medicaid law provides for special protections for the spouse of a nursing home resident, known in the law as the "community" spouse. The spouse of a Medicaid applicant is entitled to keep a portion of the couple’s assets. The community spouse is entitled to keep a maximum of $109,560 (2010 figures). This assessment is not affected whether the assets are jointly held by the couple or they are all in the name of the nursing home spouse. For example, if a couple owns $75,000 in countable assets on the date the applicant enters a hospital, the community spouse will be entitled to a resource allowance of $75,000. If they have $250,000, the community spouse can keep the maximum of $109,560.
Protecting Your Spouse/Annuities
One means of protecting assets for the community spouse is through the purchase of an annuity. The purchase of an annuity transforms excess assets that would otherwise make the nursing home spouse ineligible for Medicaid into a non-countable stream of income for the community spouse. In other words, we can typically protect all of a couple’s savings for the at-home spouse and obtain Medicaid eligibility for the nursing home spouse, even at the last minute through the purchase of a Medicaid qualified annuity. However, the annuity does not need to be purchased ahead of time. In fact, the annuity should not be purchased until the spouse enters a nursing home.
Conclusion
The possibility for a spouse or parent to need nursing home care is the greatest financial risk facing most seniors. Given the State’s tightening budget, it has become even more difficult to obtain Medicaid eligibility and protect your assets. For your own peace of mind, it’s more important than ever to hire an experienced Elder Law Attorney to create a comprehensive Asset Protection Plan to preserve all that you have worked for.
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
Thursday, February 4, 2010
PROTECTING YOUR ASSETS FROM THE COST OF NURSING HOME CARE
Cohen & Oalican LLP, Boston, Raynham and Andover Present Part 3: The Transfer Penalty and the Look-Back
The Transfer Penalty and the Look-Back
If you give away your assets it will make you and your spouse ineligible for Medicaid benefits for up to five years. When you apply for benefits, Medicaid reviews five years of bank statements in order to identify any disqualifying transfers. This is known as the “look-back period.” Any transfers that happened before the five year period are protected and do not have to be reported to Medicaid. However, if you apply for benefits during the look-back period, Medicaid imposes one month of ineligibility for approximately every $8,000 you give away. In addition, the clock does not start “ticking” on the ineligibility period until you are in a nursing and have spent down your assets. The easiest way to explain the transfer rules is by way of an example. Let’s assume Mrs. Smith transfers $24,000 to her grandson on March 15, 2009. On April 15, 2010, Mrs. Smith suffers a stroke and is admitted to a nursing home. Assume she spends down her assets below $2,000 as of August 2010. Because she would be applying during the look-back period, Medicaid would impose three months of ineligibility ($24,000 ÷ $8,000 = 3 months). The transfer penalty would not start until August 1, 2010 and would end in November 2010.
In Part 4 Cohen & Oalican will discuss Protecting Your Spouse/Assets
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
The Transfer Penalty and the Look-Back
If you give away your assets it will make you and your spouse ineligible for Medicaid benefits for up to five years. When you apply for benefits, Medicaid reviews five years of bank statements in order to identify any disqualifying transfers. This is known as the “look-back period.” Any transfers that happened before the five year period are protected and do not have to be reported to Medicaid. However, if you apply for benefits during the look-back period, Medicaid imposes one month of ineligibility for approximately every $8,000 you give away. In addition, the clock does not start “ticking” on the ineligibility period until you are in a nursing and have spent down your assets. The easiest way to explain the transfer rules is by way of an example. Let’s assume Mrs. Smith transfers $24,000 to her grandson on March 15, 2009. On April 15, 2010, Mrs. Smith suffers a stroke and is admitted to a nursing home. Assume she spends down her assets below $2,000 as of August 2010. Because she would be applying during the look-back period, Medicaid would impose three months of ineligibility ($24,000 ÷ $8,000 = 3 months). The transfer penalty would not start until August 1, 2010 and would end in November 2010.
In Part 4 Cohen & Oalican will discuss Protecting Your Spouse/Assets
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
Monday, February 1, 2010
PROTECTING YOUR ASSETS FROM THE COST OF NURSING HOME CARE
Cohen & Oalican LLP, Boston, Raynham and Andover PResent Part 2: The Home
The Home
Homes with equity of less than $750,000 are not considered a noncountable asset. However this does not mean that the house is protected. Without proper planning, at death the State will have a lien against your house and at death Medicaid will seek reimbursement for benefits provided. With proper legal planning you can avoid a Medicaid lien and protect your home saving hundreds of thousands of dollars. Many people think the best way to protect their home is to give it outright to their children. Although this may sound like the simplest solution -- it may be the worst choice. Transferring a home outright to children can result in large capital gains taxes. Secondly, things can happen to children that can place the house at risk. What happens if a child gets divorced, is sued or has creditor problems? Seniors have been literally forced out of their own home as a result of ‘gifting’ their house to their children. One strategy our office uses to protect homes from the Medicaid lien is an irrevocable trust. An irrevocable trust can protect your home from a Medicaid lien and avoid the risks of outright gifts.
In Part 3 Cohen & Oalican will discuss The Transfer Penalty and the Look-Back
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
The Home
Homes with equity of less than $750,000 are not considered a noncountable asset. However this does not mean that the house is protected. Without proper planning, at death the State will have a lien against your house and at death Medicaid will seek reimbursement for benefits provided. With proper legal planning you can avoid a Medicaid lien and protect your home saving hundreds of thousands of dollars. Many people think the best way to protect their home is to give it outright to their children. Although this may sound like the simplest solution -- it may be the worst choice. Transferring a home outright to children can result in large capital gains taxes. Secondly, things can happen to children that can place the house at risk. What happens if a child gets divorced, is sued or has creditor problems? Seniors have been literally forced out of their own home as a result of ‘gifting’ their house to their children. One strategy our office uses to protect homes from the Medicaid lien is an irrevocable trust. An irrevocable trust can protect your home from a Medicaid lien and avoid the risks of outright gifts.
In Part 3 Cohen & Oalican will discuss The Transfer Penalty and the Look-Back
Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.
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