Medicaid Trusts

Tax and Medicaid Law Changes for 2024

Published on: January 18, 2024 | by Ettinger Law Firm

For 2024, the exemptions for estate taxes rise to 6.94 million for New York estate taxes, and to 13.61 million for Federal estate taxes. The annual gift tax exclusion rises to $18,000. If your estate is, or may become, greater than the New York threshold, early intervention can avoid the hefty New York estate taxes, which start at over $500,000. Some of the techniques are (1) setting up two trusts, one for husband and one for wife, and using them to double the New York exemption, (2) gifting out so much of the estate so as to reduce it below the New York exemption, at least three years before the death of the donor, and (3) using the “Santa Clause” providing that the amount over the threshold be donated to a charity or charities of your choosing so as to reduce the estate to no more than the exemption.

For Medicaid, the house is an exempt asset so long as a spouse is residing there, up to $1,071,000 of equity for 2024. Seeing as over 80% of nursing home residents do not have a spouse, it is better to plan ahead with a Medicaid Asset Protection Trust (MAPT) to get the five year look-back for nursing facility care. In that case, the house would be protected by the trust rather than the unreliable spousal exemption. Unless your other assets have been protected by the MAPT, an individual may keep only $30,182 and a spouse can keep up to $154,140.

The major change to Medicaid is the often-delayed imposition of the new two and a half year look-back for home care, commencing April 1, 2024. Previously, there was no look-back for home care. This resulted in people not having to worry about getting home care until they actually needed it. With the law change, the MAPT now becomes far more important as a tool to qualify you for home care than to simply protect your assets from a nursing home. Assets will have to be moved into the MAPT years ahead of time if you want to be able to afford to stay in your own home and get home health aides for assistance with the activities of daily living, should the need arise.

Taxation of Trusts

Published on: July 13, 2023 | by Ettinger Law Firm

Revocable living trusts, where the grantor (creator) and the trustee (manager) are the same person, use the grantor’s social security number and are not required to file an income tax return. All income and capital gains taxes are reported on the individual’s Form 1040.

Irrevocable living trusts come in two main varieties, “grantor” and “non-grantor” trusts. Non-grantor trusts are often used by the wealthy to give assets away during their lifetime and for all income and capital gains taxes to be paid either by the trust or the trust beneficiary but not by them. Gifts to non-grantor trusts are reported to the IRS but are rarely taxable. Currently, the annual exclusion is $17,000 per person per year to as many people as you wish. However, if you go over the $17,000 to any one person you must report the gift to Uncle Sam, but they merely subtract the excess gift from the $12,920,000 each person is allowed to give at death. Most of our clients are “comfortably under” as we like to say. These gifts then grow estate tax-free to the recipient.

Grantor trusts, such as the Medicaid Asset Protection Trust (MAPT), are designed to get the assets out of your name for Medicaid purposes but keep them in your name for tax purposes. You continue to receive income from the MAPT and pay income tax the same as before. The MAPT files an “informational return” (Form 1041) telling the IRS that all the income is passing through to you. Gifts to non-grantor trusts take the grantor’s “basis” for calculating capital gains taxes on sale, i.e. what the grantor originally paid and, if real estate, plus any capital improvements.

Trusts Create Order Out of Chaos

Published on: March 17, 2023 | by Ettinger Law Firm

At Ettinger Law Firm, we are fond of saying “trusts create order out of chaos” — for three major reasons:

First, as noted in previous columns, an ever-increasing number of Americans suffer a period of legal disability later in life. Without your own private plan for disability, consisting of a trust and a “prescription strength” elder law power of attorney, you run the risk of a state appointed legal guardian. Do you want the people you choose to be in charge in the event of your disability, with the freedom to act immediately in your best interests, or do you want the state to appoint someone who will require court permission to protect your assets and your family — which permission is sometimes denied. A guardianship proceeding is expensive, time-consuming and stressful — in other words, chaotic. Trusts create an orderly process whereby your appointed trustees consult with your elder law attorney and are free to act immediately without court interference.

Secondly, trusts avoid probate court proceedings on death whereby wills, even though supervised by an attorney, with two witnesses and a notary, must first be proven to be valid in court proceedings. The client has no control over probate court proceedings – the time they will take or the amount they will cost. Typically, it takes months and, not unusually, one to two years or more. Meantime, property cannot be sold and assets cannot be reached to pay bills. In other words, chaos. With a trust, the trustee may act immediately upon death, list property for sale and access investments and bank accounts.

BANKRUPTCY AND MEDICARE – A FRAUDULENT TRANSFER IS A FRAUDULENT TRANSFER

Published on: January 16, 2016 | by Ettinger Law Firm

The Eastern District of Virginia Bankruptcy Court issued an opinion on a case with a unique factual scenario almost three years ago, on February 6, 2013 in the case of In Re Woodworth, (Bankr. E.D. Va., No. 11-11051-BFK, Feb. 6, 2013). The case is important because it speaks to the larger issue of fraudulent intent and how even when a trust settlor relies on a seemingly befitting and authoritative disclaimer against fraudulent conveyances, a Court can still find fraud. It also speaks to the vital need to consult with competent counsel for all major financial decisions, to insure that those decisions do not impact eligibility for medicaid or other government programs.

The case centered on a woman’s attempt, and seeming initial success, at what the Court characterized as medicaid fraud. The case involved the debtor, Holly Woodworth and her mother, Dorothy Lee Stutesman. Assuming that the facts of the opinion are accurate, it seems that Ms. Stutesman was rather poor in her money management skills. Ms. Stutesman first entrusted her husband to manage her finances and then her daughter, Ms. Woodworth, after her husband passed away. Most specifically, she first invested a very large sum of money, at least $143,000, with Merrill Lynch, although she used Ms. Woodworth’s social security number to open and listed her as the account owner. Both Ms. Woodworth and Ms. Stutesman both testified under oath that this arrangement was to protect the money from those who would prey on Ms. Stutesman’s lack of financial ability. Most importantly, Ms. Stutesman added that in addition to her desire to protect the money from potential scammers, she did not want assets in her name, in order to be eligible for Medicaid and other public benefits, if and when she should need them. In 2010, after the hit to the stock market, the parties created a trust.

The Bankruptcy Court found the language of the engagement letter that came along with the creation of the trust noteworthy and for good reason. Most specifically, the engagement letter stated that the trust “avoids creditors claims of fraudulent conveyance and civil conspiracy to divest yourself of valuable assets, and avoids IRS trigger for a taxable transaction.” Id. At 3. Both parties recognized that the money in the Merrill Lynch account and then trust was Ms. Stutesman’s. Ms. Woodworth filed bankruptcy due to events and factors unrelated to the trust, although she claimed that she only held title to the funds in the trust but no equitable interest.

Genes & Life Insurance – Brewing Controversy

Published on: September 9, 2013 | by Ettinger Law Firm

Life insurance is a common tool used by New Yorkers to protect loved ones in the event of an uncertain future. At other times it is a useful way to transfer assets to a new generation, often with significant tax benefits. While there are different types of life insurances (term, universal, whole), the basic idea is the same. An individual enters into a contract with the insurance company to send monthly payments (premiums) in exchange for a lump payment to the insured’s beneficiaries in the event of death.

Naturally, the amount that you have to pay in a monthly premium to receive a certain size of lump sum depends on different factors. The life insurance underwriting process is complex, but it usually seeks to evaluate one’s general risk of dying in a certain period. Age is huge factor. It will cost far less for a 20 year to purchase the same value insurance as a 75 year old.

Factors That Can Be Considered

Editorial Calls for Preserving Medicaid Spousal Refusal in New York

Published on: March 12, 2013 | by Ettinger Law Firm

It is not easy for many local residents to understand all of the ins and out of the Medicaid program. While Medicaid is a critical tool that provides support for local seniors who need long-term care, it can be a whirlwind of stress, anxiety, and frustration when families attempt to navigate the administrative waters and understand what they need to do to join. Making matters worse is that fact that Medicaid qualification is based on income, and so most families are forced to “spend down” assets before receiving aid. Without proper planning, this means that many families are forced to shed most of their assets just to receive the extra care they need–loosing property and savings built up over a lifetime.

This situation seems particularly damaging for certain families, including those with one healthy spouse and the other in need of care. Fortunately, in those situations the option of “spousal refusal” exists. This essentially allows a healthy spouse to divest property from the other, such that the sick spouse qualifies for care without the healthier spouse losing most everything as well.

Eliminating the Refusal?

Challenging the New York Nursing Home Surcharge Tax for Private Payers

Published on: February 7, 2013 | by Ettinger Law Firm

Many seniors and their families only learn about the significant cost of nursing home care when they begin planning for it later in life. New York is one of the most expensive in the country, with annually costs reaching $100,000 or more to live in a skilled nursing facility. NY elder law attorneys and other senior advocates always recommend as early preparation as possible, because getting a jump on the issue keeps more options open. For the majority of residents, Medicaid support is usually needed. The earlier this is planned for, the more property can be spared for being “spent down” to qualify for Medicaid.

Conversely, some seniors of more means (or more early planning), may have saved enough personal assets to pay for nursing home care on their own. Some pay for care for a few years and then switch over to Medicaid when their resources are exhausted.

Unfair “Granny Tax?”

Legislators Issue Call to Protect Medicare & Medicaid From Fiscal Cliff Talks

Published on: December 13, 2012 | by Ettinger Law Firm

Talks between President Obama and Speaker of the House John Boehner to avert the “fiscal cliff” continue this weeks. While not the only leaders involved in the effort, most disagreement on the issues exist between the President and House Republicans. Some observers are confident that the parties will reach an agreement before the January first cliff. However, members of the public remain skeptical, and many are rightly worried about how the automatic cuts and tax increases will affect them.

New York seniors are likely wondering whether their Medicare or Medicaid support will be changed in any way as a result of going over the cliff or in a compromise to avoid it. While we will not know for sure until things are more settled, some members of Congress recently came forward to issue their support for protecting the full value of the programs.

As reported by Now NY, the group of Democratic Senators and House members held a conference this week arguing that no deal to avoid the cliff should include cuts to Medicare or Medicaid. This is stark contrast to some other policymakers who argue that there is no way to get a deal without actually conceding some budget cuts for those programs.

Man Tries to Kill Senior Girlfriend in Nursing Home for Financial Reasons

Published on: September 25, 2012 | by Ettinger Law Firm

It is perhaps every senior’s worst nightmare: a dispute over their finances influences the care they receive in their later years. It seems self-evident that nothing should get in the way of making medical and caregiving decisions based on maximizing a senior’s quality of life–not maximizing an inheritance for others once a senior passes on. Unfortunately, case after case demonstrates that some elderly community members suffer in their later years unnecessarily for financial reasons–not because they cannot afford proper care but because other want their money.

This confluence of elder law and estate planning was perhaps most vividly illustrated by a case discussed this week in SF Gate.

According to the story, a 63-year old woman was staying at a local care center because she was not able to care for herself at home. The details of her family situation are not known, however, she had been dating a 67-year old man for the past three years. Unfortunately, the boyfriend appears to have been motivated in the relationship mostly by the way that it could benefit him financially.

Proposed New York Medicaid “Personal Care” Cuts Halted By Court

Published on: September 13, 2012 | by Ettinger Law Firm

Not long ago a few residents received some disturbing news–the New York Medicaid support that they counted on to survive was being cut back. Many of these community members had severe disabilities, needing help with every aspect of their life, from dressing and bathing to eating and traveling. Many seniors and those with disabilities receive help from at-home care workers around the clock so that they are able function in the least invasive setting possible despite their challenges.

Yet, in an apparent effort to recoup funds given back to federal officials following an overbilling case that settled in November, the New York City Human Resources Administration decided to alter the way some personal care was provided to residents. In particular “split-shift” at home care was curtailed. This care is provided to those who need help 24 hours a day, with two different care workers each taking a 12 hours shift. In it’s place, the city wanted to provide just a single care worker who lived with the Medicaid recipient.

New York City Medicaid Lawsuit