Elder Law Report
Elder Law Report
Planning Ahead: Understanding Medicaid Asset Recovery and Estate Planning in North Carolina
Can Medicaid really take back the assets you thought were protected after a loved one passes away? Discover the crucial answers in our latest episode featuring Attorney Brenton Begley and associate Samantha Gordon of McIntyre Elder Law. We explore the intricacies of Medicaid asset recovery, focusing on how Medicaid can place a lien on a probate estate to recover costs. Learn about the Community Spouse Resource Allowance and how it plays a role in asset protection, and understand the steps you need to take to safeguard your inheritance from Medicaid claws.
Our discussion delves into the probate process in North Carolina, highlighting how creditors, including Medicaid, can seize assets from an estate. Samantha explains the legal mechanisms behind this, shedding light on how real estate and other probate assets can be affected. But it’s not all bad news; Brenton and Samantha share proactive estate planning strategies that can help your family protect its financial future. Tune in for indispensable advice that could save your loved ones' inheritance and ensure that your hard-earned assets go where you intend.
Good morning. My name is Attorney Brenton Begley. I'm an attorney and partner with McIntyre Elder Law. I'm joined today by Samantha Gordon, an associate in our office. Say hello to everyone, Samantha.
Samantha Gordon:Good morning.
Brenton Begley:Good morning. So today we're talking about something very important, which is asset recovery, specifically Medicaid asset recovery. So the question is if you receive a benefit to help pay for long-term care, if a loved one receives the benefit to pay for long-term care through Medicaid, can they come back and take the property that they let you or your spouse keep, okay? So the answer is yes, okay If you don't pre-plan, but you need to know a little bit of background before we really jump into this. So when it comes to Medicaid asset protection, you first have to understand that you can keep assets and qualify for a benefit to help you pay for long-term care. So, especially if you have a spouse, you're allowed to have, you know, real property home. Depending on the level of care that you need, you could have multiple pieces of real property. You can own life insurance up to a certain amount of money in the applicant's name and the spouse can own a bunch of stuff.
Brenton Begley:There's something called the Community Spouse Resource Allowance. Basically in English, what that means is that if a spouse is not going into care and one of the spouses is the spouse that is not going into care what we'll call the healthy spouse can own quite a bit of money and property in their name that won't count against the applicant. So this is all well and good. These are useful things to know for qualification purposes, but it's also useful to know that if you ever do receive care, you can keep assets and those assets may be subject to Medicaid estate recovery in the future. So what we're talking about today is how to protect the assets that you can keep and qualify for Medicaid from Medicaid's ability to claw that back at a certain point. So, sam, when can Medicaid or any other creditor for that matter go after an estate in North Carolina?
Samantha Gordon:So when someone passes away, they have the right under North Carolina law to attach a lien to someone's probate estate which probates the ugly court proceeding that you have to go through the courts to have your assets distributed. And you know they can do that at any point when you have your state open. And they could even open up your state for the purposes of placing a lien against your probate estate, which we unfortunately see very often.
Brenton Begley:OK, so if I heard you correctly, what you're saying is if, let's say, someone receives Medicaid okay, let's call her Sally Sally receives Medicaid and she gets Medicaid to pay $400,000 for her stay between the time that she goes in and four years later when she passes away. So Medicaid can recover from any of the assets going through her probate estate after she dies. So she first has to die for Medicaid to be able to recover anything. Right After that they can only go after assets that are subject to the probate process. So either going through probate or within the probate court's jurisdiction.
Samantha Gordon:Correct. So, for example, real estate isn't necessarily a part of the probate estate unless it needs to be brought into the estate. So if there's a lien from Medicaid that's attached to a probate estate and the only asset is real property, which would be, say, your primary residence, your home that you've worked so hard for, they can actually bring that property into your estate for sale of it to pay their lien.
Brenton Begley:Right. So if Medicaid wants their money back, which I'm sure they do, what they're going to do is just put a lien against the estate and whatever flows through the estate or whatever the estate has jurisdiction over it falls within that ability for them to recover from that lead.
Samantha Gordon:Yep, Unfortunately it's terrible.
Brenton Begley:Right, so the probate court's not going to close the estate with that hanging over that probate estate. And if there's assets flowing through, correct, what about the heirs? I mean, do the heirs not get the asset before the creditor does? Does the creditor have priority over the heirs?
Samantha Gordon:Well, I mean, there's plenty of ways that you can pre-plan to ensure that your heirs do get the property prior to that ever happening, prior to a lien being attached, which would be through doing estate planning.
Brenton Begley:Gotcha, gotcha. So there's ways to avoid it. But essentially, if we're looking at you know, because the thought may come up hey, you know, you have heirs of an estate, do the heirs not get paid their share first? And the answer is no If there's a creditor who's made a claim against the estate, a legitimate claim against the estate. Now there's classifications of creditors, but and Medicaid is low on the list but they come before the heirs do. But luckily, as you're getting to, north Carolina is what's called a limited recovery state, which means that if we keep assets out of probate or the jurisdiction of the probate court, those assets pass free of any liens by a creditor, including Medicaid.
Samantha Gordon:Yes, One great way to do that is something called a Lady Bird deed, which is also known as an enhanced life estate deed. So what that does is is you get on this government benefit long-term care, Medicaid that pays for your skilled nursing care and you're eligible. You're on that benefit, you pass away. As we've stated, they can attach a lien to your probate estate and if you have a house that's hanging out over here, they can actually force that house into the probate estate to sell it. So what the Lady Bird deed is, it puts a shield over that house and it says that I own my house while I'm alive, but the second that I pass away, by virtue of the language of that deed, that property is gifted to who I have listed on that deed, which means that at the time of your death it's no longer in your name, which means it would not be brought into the probate estate and not subject to that lien. So that deed, the ladybird deed, is a very cost effective way to protect the home, the primary residence.
Brenton Begley:Gotcha. So what you want to do with that home? I mean you probably put a lot of money into that home over the years, especially if you pay down the 30 year mortgage. That's, like you know, 80 times more than the property. You know what it costs for the interest rate and everything you're paying. No, but you know you buy a house for $300,000, you probably end up paying $500,000 over time, plus interest, on that house. So put a lot of money into it.
Brenton Begley:It's probably one of your main assets that you either want to leave behind for a loved one, including a spouse or other family members, to give them some type of inheritance. Preserve that. And so a lot of people are looking to preserve the home. So what you're saying is that you have this tool that can keep this property out of probate without giving up either your control over the property or your ownership interest in the property. And I think that's very important, because what a lot of people end up doing is they know that they need to avoid probate, they know they need to protect the home, but they go about it in a different way, right Like they just give their home to their child right now. So you know, would you recommend someone just give their home to their child right now? So you know, would you recommend someone just transferring ownership interest in their home to their children in lieu of doing something else?
Samantha Gordon:No, I mean.
Samantha Gordon:There's multiple reasons why you don't want to do that.
Samantha Gordon:Number one if your child owns your property, they can kick you out if they want to, because they own the property. Number two if they have any type of creditors, if they have any type of liability situations, like if they're getting sued or if they're going through a divorce that asset is now there, so it could be subject to anything that's going on in their life. In addition to that, your children would be the ones that are responsible for the taxes on the house, and if they can't pay that and they're not paying it, then that house can go into foreclosure if you're not aware of what's going on. So there's multiple reasons why you would not want to do that. And there's other avenues in which you can really make sure that your house is protected, such as a labor deed or maybe a trust, but with a trust in this specific situation, you want to make sure that you're doing that. You're pre-planning, because there's a certain time frame in which you'd want to set up a trust for purposes of preserving your assets, for a long-term care Medicaid.
Brenton Begley:Gotcha. So that time frame you're talking about is, you know, look back period for Medicaid, which is, you know, a scary thing that a lot of people are freaked out about trying to avoid triggering that look back period. But can really, you know, turn that around, do a little bit of legal jiu-jitsu and use that to our benefit in our pre planning to go ahead and get that look back period started to get past it quicker, because that sooner you trigger that look back period, the sooner you get the clock ticking, the sooner you're past that period. So that's a good planning tool. Planning with trust can be very useful. Certainly, a ladybird deed is a good tool. Let's, you know answer. Probably a question that you know folks could be screaming at the screen or at their speakers right now is does the ladybird deed trigger that look back period?
Samantha Gordon:No, it is not affected by the look back period.
Brenton Begley:Gotcha, and one of the reasons why a trust helps you, you know, protect those assets in the same way that a ladybird deed does is the trust helps you avoid probate with all the assets that you put into it, right?
Samantha Gordon:Correct.
Brenton Begley:Yeah.
Samantha Gordon:A will.
Brenton Begley:Yeah.
Samantha Gordon:No, a will. It's not going to be as effective, because what a trust is? It's a legal vehicle in which you can put your assets into a pot and you have a trustee, someone that's going to manage that pot for you, and it's all done in private, it's all done outside of probate, whereas a will, if you have an executor name that's managing your assets, and your assets are being distributed outright to your heirs, and there are bank accounts, there are properties that possibly need to go through your will to transfer to your heirs that's all possibly subject to your probate estate. So you're not avoiding protecting your assets at that point, whereas a trust would be a great way to do that.
Brenton Begley:Right, so will is the guide through the probate process. You're not avoiding probate by having will in place. While it's a good thing to have just in case you do go through probate, we should endeavor to avoid the probate process entirely, and we can do so with some type of pre-planning and utilizing tools like Trust and Lady Bird Deed.
Samantha Gordon:Yeah, and if you're thinking about long-term care, what I always ask our clients is what does long-term care actually look like to you? Because that's really going to determine what type of estate plan we do as well. Are you concerned about having to go on a long-term care benefit to pay for skilled nursing? Are you planning on using your own assets? Are you planning on not going to one at all? What actually does long-term care mean? Because that's really going to help guide us, as your attorneys, to really understand what kind of estate plan we need to craft for you to fulfill your goals, but also make sure that things are done in such a way that your family isn't burdened by what they need to do for you after you pass away.
Brenton Begley:Yeah, and that brings up a good point of why folks should be worried about this. I mean, over 70% of individuals will need some type of long-term care at some point in their lives, and, given that statistic and that likelihood, it's important to understand that long-term care costs hundreds of thousands of dollars a year, you know, tens of thousands of dollars a month potentially. And so that's where a lot of people end up losing a lot of money and property that they've worked hard for their whole lives and want to pass along to the next generation, to a loved one or to a spouse. And so what we help people do is navigate that situation, help pay for the care and, at the same time, do so in a way that prevents them from sacrificing their assets through this probate process to the government to recover what was paid out. So this has been a good discussion, sam. It's my understanding. There's a lot of tools to help protect and preserve assets. The sooner you plan, the better right.
Samantha Gordon:Definitely Pre-planning is key.
Brenton Begley:And that helps us decide what tools we can put in place to make sure that you can just kind of sit back and forget about the worry as far as whether your assets will end up, you know, being recovered in a state recovery situation or subject to being counted against you and trying to qualify for care. So thanks again, sam. This has been the Elder Law Report. I would offer a free consult to anyone who has any interest in helping protect their assets, preserve those assets or qualify for a benefit to pay for long-term care. You can visit our website, wwwmcelderlawcom, for a free consultation. Thanks again, see you guys.
Samantha Gordon:Bye.