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Medicaid planning can be a difficult and confusing process. The following are some common mistakes people make when planning to apply for Medicaid.

• Thinking it’s too late to plan. It’s almost never too late to take planning steps, even after a senior has moved to a nursing home.
• Giving away assets too early. First, it’s your money (or your house, or both). Make sure you take care of yourself first. Don’t put your security at risk by putting it in the hands of your children. Precipitous transfers can cause difficult tax and Medicaid problems as well.
• Ignoring important safe harbors created by Congress. Certain transfers are allowable without jeopardizing Medicaid eligibility. These include: transfers to disabled children, caretaker children, certain siblings and into a trust for anyone who is disabled and under age 65; a transfer to a ‘pay-back’ trust if under age 65; and a transfer to a pooled disability trust at any age.
• Failing to take advantage of protections for the spouse of a nursing home resident. These protections include the purchase of an immediate annuity, petitioning for an increased community spouse resource allowance, and in some instances petitioning for an increased income allowance or refusing to cooperate with the nursing home spouse’s Medicaid application.
• Applying for Medicaid too early. This can result in a longer ineligibility period in some instances.
• Applying for Medicaid too late. This can mean the loss of many months of eligibility.
• Not understanding how Medicaid affects your home. Nursing home residents do not automatically have to sell their homes in order to qualify for Medicaid, but that doesn’t mean the house is completely protected. The state will likely put a lien on the house while the resident is living and attempt to recover the property after the resident has passed away.
• Not getting expert help. This is a complicated field that most people deal with only once in their lives. Tens of thousands of dollars are at stake. It’s penny wise and pound foolish not to consult with an attorney who knows how to guide clients through the process.

You may be afraid of losing your home if you have to enter a nursing home and apply for Medicaid. While this fear is well-founded, transferring the home to your children is usually not the best way to protect it.

Although you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, the state could file a claim against the house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery.” If you want to protect your home from this recovery, you may be tempted to give it to your children. Here are three reasons not to:

1. Medicaid ineligibility. Transferring your house to your children (or someone else) may make you ineligible for Medicaid for a period of time. The state Medicaid agency looks at any transfers made within five years of the Medicaid application. If you made a transfer for less than market value within that time period, the state will impose a penalty period during which you will not be eligible for benefits. Depending on the house’s value, the period of Medicaid ineligibility could stretch on for years, and it would not start until the Medicaid applicant is almost completely out of money.

There are circumstances under which you can transfer a home without penalty, however, so consult a qualified elder law 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.

2. Loss of control. By transferring your house to your children, you will no longer own the house, which means you will not have control of it. Your children can do what they want with it. In addition, if your children are sued or get divorced, the house will be vulnerable to their creditors.

3. Adverse tax consequences. Inherited property receives a “step up” in basis when you die, which means the basis is the current value of the property. However, when you give property to a child, the tax basis for the property is the same price that you purchased the property for. If your child sells the house after you die, he or she would have to pay capital gains taxes on the difference between the tax basis and the selling price. The only way to avoid some or all of the tax is for the child to live in the house for at least two years before selling it. In that case, the child can exclude up to $250,000 ($500,000 for a couple) of capital gains from taxes.

There are other ways to protect a house from Medicaid estate recovery, including putting the home in a trust. Contact our office to find out the best option in your circumstances.

Prepaying for your funeral is one way to ease the burden on your family following your death and make sure your wishes are carried out. But pre-paid funeral plans come with risks, so you need to exercise care when purchasing a plan.

Funerals are expensive and can take a lot of effort to plan. To help relieve your family of some of this expense and effort, you can pay for your funeral in advance with a pre-paid funeral plan purchased through a funeral home. In addition to making things easier for your family during a difficult time, pre-paid funeral plans can also be a good way to spend money in order to qualify for Medicaid.

However, consumers lose money every year when funeral homes go out of business before the need for a funeral arises. If the funeral home mismanages your funds, there may be no way to recover them. In addition, customers are not always entitled to refunds if they change their minds, and some funeral homes sell policies that require additional payments or that can’t be transferred if the customer moves.

If you decide to go ahead with a pre-paid funeral plan, the following are things to consider:

• Shop around. Prices among funeral homes can vary greatly, so it is a good idea to check with a few different ones before settling on the one you want. The Federal Trade Commission’s Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. The rule also stipulates what kinds of misrepresentations are prohibited and explains what items consumers cannot be required to purchase, among other things.
• Make sure you have a reputable funeral home. There have been cases of unscrupulous funeral providers taking advantage of customers, so make sure you choose a funeral home with a solid reputation.
• Read the contract carefully. Before signing, it is important to know what you are agreeing to. Can you cancel the plan and get a refund? Is the plan transferrable if you move to another area? Are you paying just for merchandise or for funeral services as well? If prices for funeral merchandise and services rise, will your estate be responsible for paying additional costs?
• Find out where your money goes. The pre-paid plan should provide information on what the funeral home will do with the money you pay them. Some states have protections in place to make sure the money is safeguarded, but other states offer no protections. Is the money put into a trust account? What happens to the interest income? Is there a plan if the funeral home goes out of business? What happens to any money left over?
• Make sure the plan won’t affect Medicaid benefits. If you are buying the policy as part of Medicaid planning, you must purchase an irrevocable plan, which means you can’t cancel or change it once it is bought.
• Once you’ve purchased a plan, be sure to tell your family about the plan you’ve made and let them know where the documents are filed. If your family isn’t aware that you’ve obtained a plan, then the plan is useless. Contact our office to find out the best option in your circumstances.

Nursing home residents do not automatically have to sell their other homes in order to qualify for Medicaid. That doesn’t mean, however, that their homes are completely protected. In Pennsylvania and New Jersey, the state will likely put a lien on a house while the resident is living and attempt to recover the property after the resident has passed away. Attorney E. Nego Pile, Southeastern Pennsylvania’s go-to elder law advocate, can help you avoid these difficulties.

Medicaid Eligibility and Your Home

Medicaid will not count a nursing home resident’s home as an asset when determining eligibility for Medicaid as long as the resident intends to return home. In some states, the nursing home resident must prove a likelihood of returning home. In addition, the resident’s equity interest in the home must be less than $585,000, with the states having the option of raising this limit to $878,000. Figures are adjusted annually for inflation; these are for 2019.

The Home Equity Rule

The equity value of the home is the fair market value minus any debts secured by the home, such as a mortgage or a home equity loan. For example, if your home has a fair market value of $400,000 and an outstanding mortgage of $100,000, the equity value is $300,000. Your equity interest depends on whether you own the home by yourself or with someone else. If you own the home by yourself, your equity interest is the entire equity value. If you own your home jointly with your spouse or someone else, your equity interest is only half of the home’s equity value.

The home equity rule does not apply if the Medicaid applicant’s spouse or a child who is under 21 or is blind or disabled lives in the home.

Dealing with Liens

While the house may not need to be sold in order to qualify for Medicaid, state Medicaid agencies will likely place a lien on any real estate owned by a Medicaid beneficiary during his or her life. The state cannot impose a lien if a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living in the house.

Once a lien is placed on the property, if the property is sold while the Medicaid beneficiary is living, not only will the beneficiary cease to be eligible for Medicaid due to the cash from the sale, but the beneficiary would have to satisfy the lien by paying back the state for its coverage of care to date. In some states, the lien may be removed upon the beneficiary’s death. In other states, the state can collect on the lien after the Medicaid recipient dies. Check with your attorney to see how your local agency handles this.

Even if the state did not place a lien on the home during the Medicaid beneficiary’s life, the home may still be subject to estate recovery after the Medicaid recipient’s death, again depending on the state.

Pile Law Can Help

Confused? That’s understandable. It is complicated. Just know that there are steps you can take to protect your home and still qualify for Medicaid. Contact Pile Law Firm for further information and help.

Good grief, it’s tax time again! Attorney E. Nego Pile, an estate planning lawyer with considerable experience in tax matters, offers this advice to the elderly in Pennsylvania and New Jersey:

Seniors and retirees should know that they may qualify for free tax preparation help. Specifically, they may be able to use online tax preparation software free of charge. Besides that, seniors are eligible for free counseling assistance from the IRS. In fact, most low- and middle-income Americans qualify for free tax help but don’t take advantage of it.

The Tax Preparation Industry and the IRS

The tax preparation software industry has had a decades-long deal with the Internal Revenue Service (IRS) to make free versions of its software available to low- and middle-income individuals. However, a report by ProPublica in April 2019 revealed that the software companies were making it difficult for customers to find the free tax filing software, even going so far as to hide it from a Google search. According to the IRS’s Taxpayer Advocate Service, around 70 percent of taxpayers qualified for free filing, but only 1.6 percent used the free software in 2018. The IRS has now amended its agreement with the software industry to bar the companies from hiding free products.

Links to Free Tax Preparation Help

The IRS Free File website links to the available free products. Each company sets its own eligibility standards based on income, age, and state residency. As long as your adjusted gross income was $69,000 or less, you will find at least one free product to use. There are also two products available in Spanish.

If you’re a senior who would rather not prepare your own tax return, you can use the IRS’s Tax Counseling for the Elderly (TCE) program. It’s available to taxpayers who are 60 years old or older and specializes in answering questions about pensions and retirement plans.

Tax Preparation Help Is Close at Hand

Contact Pile Law Firm, your Pennsylvania and New Jersey estate planning resource, to learn more about these free tax preparation services.

Parents want their children to be taken care of after they die. Children with disabilities have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning by parents is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the caretaking responsibility. That’s why so many people throughout Pennsylvania and New Jersey engage the legal services of Attorney E. Nego Pile and his associates at Pile Law Firm.

As Nego so often advises, the best and most comprehensive option to protect a loved one is to set up a Special Needs Trust (also called a Supplemental Needs Trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining their eligibility for public benefits.

The 3 Main Types of Special Needs Trusts

A First-Party Special Needs Trust is designed to hold a beneficiary’s own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary’s benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care. These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI, or other needs-based benefits and come into large amounts of money because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.

A Third-Party Special Needs Trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The Third-Party Trust functions like a First-Party Special Needs Trust in that the assets held in the trust do not affect a beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. But a Third-Party Special Needs Trust does not contain the “payback” provision found in First-Party Trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.

A Pooled Trust is an alternative to the First-Party Special Needs Trust.  Essentially, a charity sets up this type of trust, which allows beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance

Not everyone has a large chunk of money that can be left to a Special Needs Trust, so life insurance can be an essential tool. If you’ve established a Special Needs Trust, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child. You should also make sure you have enough insurance to pay for your child’s care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents’ estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy pays out only after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies.

ABLE Accounts

An ABLE (Achieving a Better Life Experience) Account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him or her money.

These accounts can be used to pay for any qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing, and health care, among other things.

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary, and then the remaining funds will have to pass through probate in order to be transferred to the beneficiary’s heirs.

Get Help With Your Estate Plan

Proper planning is essential no matter how you decide to provide for a child with special needs. If you live in Pennsylvania or New Jersey, talk to an attorney at Pile Law Firm to determine the best plan for your family.