How to Protect an IRA From Heirs’ Creditors

family

When a person declares bankruptcy, an individual retirement account (IRA) is one of the assets that is beyond the reach of creditors, but what about an IRA that has been inherited? Resolving a conflict between lower courts, the U.S. Supreme Court recently (and unanimously) ruled that funds held in an inherited IRA are not exempt from creditors in a bankruptcy proceeding because they are not really retirement funds. Clark v. Rameker (U.S., No. 13- 299, June 13, 2014).

This ruling has significant estate planning implications for those who intend to leave their IRAs to their children. If the child inherits the IRA and then declares bankruptcy sometime in the future, as a result of the Supreme Court ruling the child’s creditors could take the IRA funds. Fortunately, there is a way to still protect the IRA funds from a child’s potential creditors. The way to do this is to leave the IRA not to the child but to a “spendthrift” trust for the child, under which an independent trustee makes decisions as to how the trust funds may be spent for the benefit of the beneficiary. However, the trust cannot be a traditional revocable living trust; it must be a properly drafted IRA trust set up by an attorney who is familiar with the issues specific to inherited IRAs.

The impact of the Supreme Court’s ruling may be different in some states, such as Florida, that specifically exempt inherited IRAs from creditor claims. As Florida attorney Joseph S. Karp explains in a recent blog post, Florida’s rule protecting inherited IRAs will bump up against federal bankruptcy law, and no one knows yet which set of rules will prevail. While a debtor who lives in Florida could keep a creditor from attaching her inherited IRA, it is unknown whether that debtor would succeed in having her debts discharged in bankruptcy while still retaining an inherited IRA. We will have to wait for the courts to rule on this issue. In the meantime, no matter what state you are in, the safest course if you want to protect a child’s IRA from creditors is to leave it to a properly drafted trust.

Proving That a Transfer Was Not Made in Order to Qualify for Medicaid

Medicaid law imposes a penalty period if you transferred assets within five years of applying, but what if the transfers had nothing to do with Medicaid? It is difficult to do, but if you can prove you made the transfers for a purpose other than to qualify for Medicaid, you can avoid a penalty.

You are not supposed to move into a nursing home on Monday, give all your money away on Tuesday, and qualify for Medicaid on Wednesday. So the government looks back five years for any asset transfers, and levies a penalty on people who transferred assets without receiving fair value in return. This penalty is a period of time during which the person transferring the assets will be ineligible for Medicaid. The penalty period is determined by dividing the amount transferred by what Medicaid determines to be the average private pay cost of a nursing home in your state.

Screen Shot 2018-04-10 at 4.16.25 PM

The penalty period can seem very unfair to someone who made gifts without thinking about the potential for needing Medicaid. For example, what if you made a gift to your daughter to help her through a hard time? If you unexpectedly fall ill and need Medicaid to pay for long-term care, the state will likely impose a penalty period based on the transfer to your daughter.

To avoid a penalty period, you will need to prove that you made the transfer for a reason other than qualifying for Medicaid. The burden of proof is on the Medicaid applicant and it can be difficult to prove. The following evidence can be used to prove the transfer was not for Medicaid planning purposes:

  • The Medicaid applicant was in good health at the time of the transfer. It is important to show that the applicant did not anticipate needing long-term care at the time of the gift.
  • The applicant has a pattern of giving. For example, the applicant has a history of helping his or her children when they are in need or giving annual gifts to family or charity.
  • The applicant had plenty of other assets at the time of the gift. An applicant giving away all of his or her money would be evidence that the applicant was anticipating the need for Medicaid.
  • The transfer was made for estate planning purposes or on the advice of an accountant.

Proving that a transfer was made for a purpose other than to qualify for Medicaid is difficult. If you innocently made transfers in the past and are now applying for Medicaid, consult with your elder law attorney. Medicaid Planning without a qualified attorney can lead to costly mistakes. To read more about common Medicaid Planning mistakes people make visit my website by clicking here.

Regards, Brian

 

Did You Know Choosing Retirement Account Beneficiaries Can Have Tax Implications?

While the execution of Wills requires formalities like witnesses and a notary, the reality is that most property passes to heirs through other, less formal means.

Many bank and investments accounts, as well as real estate, have joint owners who take ownership automatically at the death of the primary owner. Other banks and investment companies offer payable on death accounts that permit owners to name the person or people who will receive them when the owners die. Life insurance, of course, permits the owner to name beneficiaries.

All of these types of ownership and beneficiary designations permit these accounts and types of property to avoid probate, meaning that they will not be governed by the terms of a Will. When taking advantage of these simplified procedures, owners need to be sure that the decisions they make are consistent with their overall estate planning. It’s not unusual for a Will to direct that an estate be equally divided among the decedent’s children, but to find that because of joint accounts or beneficiary designations the estate is distributed totally unequally, or even to non-family members, such as new boyfriends and girlfriends.

It’s also important to review beneficiary designations every few years to make sure that they are still correct. An out-of-date designation may leave property to an ex-spouse, to ex-girlfriends or -boyfriends, and to people who died before the owner. All of these can thoroughly undermine an estate plan and leave a legacy of resentment that most people would prefer to avoid.

These concerns are heightened when dealing with retirement plans, whether IRAs, SEPs or 401(k) plans, because the choice of beneficiary can have significant tax implications. These types of retirement plans benefit from deferred taxation in that the income deposited into them as well as the earnings on the investments are not taxed until the funds are withdrawn. In addition, owners may withdraw funds based more or less on their life expectancy, so the younger the owner the smaller the annual required distribution.  Further, in most cases, withdrawals do not have to begin until after the owner reaches age 70 1/2. However, this is not always the case for inherited IRAs.

Following are some of the rules and concerns when designating retirement account beneficiaries:

  • Name your spouse, usually. Surviving husbands and wives may roll over retirement plans inherited from their spouses into their own plans. This means that they can defer withdrawals until after they reach age 70 1/2 and take minimum distributions based on their age. Non-spouses of retirement plans must begin taking distributions immediately, but they can base them on their own presumably younger ages.
  • But not always. There are a few reasons you might not want to name your spouse, including the following:
    • He or she is incapacitated and can’t manage the account
    • Doing so would add to his or her taxable estate
    • You are in a second marriage and want the investments to benefit your first family
    • Your children need the money more than your spouse
  • Consider a trust. In a number of the above circumstances, a trust can solve the problem, providing for management in the case of an incapacitated spouse, permitting assets to benefit a surviving spouse while being preserved for the next generation, and providing estate tax planning opportunities. Those in first marriages may want to name their spouse as the primary beneficiary and a trust as the secondary, or contingent, beneficiary. This permits the surviving spouse, or spouse’s agent if the spouse is incapacitated, to refuse some or all of the inheritance through a “disclaimer” so it will pass to the trust. Known as “post mortem” estate planning, this approach permits flexibility to respond to “facts on the ground” after the death of the first spouse.
  • But check the trust. Most trusts are not designed to accept retirement fund assets. If they are missing key provisions, they might not be treated as “designated beneficiaries” for retirement plan purposes. In such cases, rather than being able to stretch out distributions during the beneficiary’s lifetime, the IRA or 401(k) will have to be liquidated within five years of the decedent’s death, resulting in accelerated taxation.
  • Be careful with charities. While there are some tax benefits to naming charities as beneficiaries of retirement plans, if a charity is a partial beneficiary of an account or of a trust, the other beneficiaries may not be able to stretch the distributions during their life expectancies and will have to withdraw the funds and pay the taxes within five years of the owner’s death. One solution is to dedicate some retirement plans exclusively to charities and others to family members.
  • Consider special needs planning. It can be unfortunate if retirement plans pass to individuals with special needs who cannot manage the accounts or who may lose vital public benefits as a result of receiving the funds. This can be resolved by naming a special needs trust as the beneficiary of the funds, although this gets a bit more complicated than most trusts designed to receive retirement funds. Another alternative is not to name the individual with special needs or his trust as beneficiary, but to make up the difference with other assets of the estate or through life insurance.
  • Keep copies of your beneficiary designation forms. Don’t count on your retirement plan administrator to maintain records of your beneficiary designations, especially if the plan is connected with a company you worked for in the past, which may or may not still exist upon your death. Keep copies of all of your forms and provide your estate planning attorney with a copy to keep with your estate plan.
  • But name beneficiaries! The biggest mistake many people make is not to name beneficiaries at all, or they end up in this position by not updating their plan after the originally-named beneficiary passes away. This means that the plan will have to go through probate at some expense and delay and that the funds will have to be withdrawn and taxes paid within five years of the owner’s death.

In short, while Wills are important, in large part because they name a personal representative to take charge of your estate and they name guardians for minor children, they are only a small part of the picture. A comprehensive plan needs to include consideration of beneficiary designations, especially those for retirement plans.

If you have any question or planning needs, feel free to contact me.

Regards,

Brian

Batter up! In the Bronx, Stadium Scents Take Fans Out to the Ballgame

29stadiumsmells-master768-v2
Gilbert Marcus, 80, smelled the scent of a hot dog, one of six familiar smells from baseball stadiums that are part of an olfactory exhibition at the Hebrew Home at Riverdale, a nursing home in the Bronx. Credit Jeenah Moon for The New York Times

Rochelle Youner, who lives at the Hebrew Home at Riverdale, a nursing home in the Bronx, walked up to a kiosk in a common area of the home’s first floor and pressed a button below a small icon depicting a baseball glove.

“That’s the real stuff — that’s a mitt, all right,” Ms. Youner, 80, said, smelling the leathery fragrance emitted from the kiosk, which attempts to bring the ballpark, or at least the smell of it, to the residents.

Many of the Hebrew Home’s residents were born and raised in the Bronx and are lifelong fans of the Yankees, with memories of visiting Yankee Stadium stretching back to the eras of Mantle and DiMaggio, and even earlier to Gehrig and Ruth.

But many of these older fans also suffer age-related memory loss. So the home, which often finds seasonal pegs for its reminiscence therapy programs, has timed its latest program to opening day at Yankee Stadium on Monday by erecting the kiosk with the therapeutic goal of recreating the distinctive smell of the ballpark.

“Too bad we can’t be there in person,” Ms. Youner said.

This is the point of the kiosk: to once again take these fans out to the ballgame.

For residents who followed the Dodgers, the scents recalled childhood days at Ebbets Field in Brooklyn, and for Giants baseball fans, they brought back afternoons at the Polo Grounds in Manhattan, in the days before both teams decamped for the West Coast.

The kiosk features six ballpark scents — hot dogs, popcorn, beer, grass, cola and the mitt — in separate push-button dispensers installed at a height accessible to residents in wheelchairs.

It was recently installed in the permanent “Yankees Dugout” exhibition of team memorabilia at the nursing home, which includes seats, a turnstile and a locker from the old Yankee Stadium.

The olfactory exhibit, called “Scents of the Game,” is meant to evoke long-forgotten memories from the home’s 785 residents, many of whom have Alzheimer’s disease or dementia.

Many have difficulty with short-term memories but with some prompting can summon long-term ones, such as detailed recollections of childhood visits to ballparks decades ago, said Mary Farkas, director of therapeutic arts and enrichment programs at the Hebrew Home, where baseball has also been used in art therapy and poetry workshops.

Prompting these ballpark memories helps connect many residents with the joy they felt at the time and also helps stimulate their cognition, Mrs. Farkas said.

Dr. Mark W. Albers, a neurologist at Massachusetts General Hospital in Boston, who studies the effect of scent on patients with neurodegenerative disease, said the Hebrew Home’s memory exhibit touches on fairly new territory in sensory therapy in trying to resurrect positive recollections in a small population of patients who share certain common memories.

Photo

Joe Pepitone, a former player for the Yankees, spoke during the unveiling of the “Scents of the Game” exhibit at the Hebrew Home. CreditJeenah Moon for The New York Times

Memory loss in older patients can often cause “an erosion of familiarity” and be accompanied by feelings of disorientation, he said. Unearthing pleasant memories from earlier years through sensory stimulation may help patients feel more stable, Dr. Albers said.

Of course, he added, memories of Yankee Stadium might bring back very different emotions for fans like him, who root for the Boston Red Sox.

Continue reading the main story on NYT

For Renee Babenzien, 89, the hot dog aroma triggered recollections of vendors selling franks with mustard and sauerkraut.

“The way they smelled at the game,” she said, “you couldn’t help but stop the guy walking up the aisle selling hot dogs.”

Al Cappiello, 68, smelled the fragrances and recalled the sensory explosion he experienced the first time he walked into Yankee Stadium as a boy.

“I couldn’t believe the colors,” he recalled. “The green grass, the brown dirt of the infield — man, I was in heaven.”

Up until then, he said, watching the Yankees meant watching games on a black-and-white television set, with the action being called by Mel Allen, the Yankees broadcaster.

And so, during his first time at the stadium, Mr. Cappiello recalled, “I told my brother, ‘I don’t hear Mel Allen,’ and he said, ‘No, that’s only on TV.’

He did see Yogi Berra, tossing a ball with teammate Johnny Blanchard, and he managed to get Berra’s autograph.

Ms. Youner also recalled being surprised by how different the ballpark seemed in person.

“The first time I walked into the ballpark, I noticed that everything was bigger — even the basepaths were so much wider,” she said.

For Terry Gioffere, 90, who grew up in the Bronx, the smells evoked memories of watching her hero, Roger Maris — although in more recent decades she became a Derek Jeter disciple.

For Joan Jackson, 84, the smells took her back to her first trip to Yankee Stadium, at age 6, but also reminded her of the role that the stadium played in helping her raise five children in the Bronx after her husband died in 1973.

“I had to do something to lift the kids up, so I said, ‘Let’s do something fun and go to Yankee Stadium,’” she recalled. “The kids fell in love with baseball,” she said, and going to games helped hold the family together.

Even Joe Pepitone, a star for the Yankees in the 1960s who spoke at the kiosk’s recent unveiling, said the smells reminded him of playing in Yankee Stadium as a rookie first baseman in 1962.

He had anticipated that the stadium would smell like hot dogs and sauerkraut, he said, “and sure enough, there was that smell of the ballpark, and you could smell it all over.”

For Frances Freeman, who grew up in Brooklyn rooting for the Dodgers, the kiosk’s beer smell did provoke a reaction. The 103-year-old woman steered her wheelchair to the beverage table and grabbed a beer.

Since scent and memory are intimately linked, using the smells of the ballpark presented “a chance to reach the residents in a special way, as a tool to unlock doors in their memories,” said David V. Pomeranz, the Hebrew Home’s chief operating officer.

Mr. Pomeranz said the kiosk idea grew out of a discussion he had with Andreas Fibig, chief executive of International Flavors and Fragrances, a Manhattan-based company that creates scents for perfumes and other products, as well as flavors for food and beverages.

The company did not have to venture to any ballpark to capture the smells — its perfumers created them from the firm’s vast catalog of fragrances, said Matthias Tabert, the company’s senior manager for strategic insights.

Scents are especially powerful in stirring memories because they register with the brain in a more direct and primal way than other senses, Mr. Tabert said. “So when you smell something, it triggers memories almost instantaneously and serves almost like time travel, to bring you back to a seminal moment.”

Some ballpark staples did not make it into the array of scents, such as peanuts and Cracker Jack. Though both could be developed as fragrances with no traces of real peanuts, the home decided against it to avoid alarming people with peanut allergies, Mr. Pomeranz said.

For Al Schwartz, 91, the scent kiosk reminded him of first visiting Yankee Stadium in the late 1930s, when 60 cents could buy a seat in the bleachers and $1.10 a seat in the grandstand.

Mr. Schwartz said the smells reminded him of the joy of watching Joe DiMaggio snare a fly ball and the sadness of learning in 1979 that Yankees catcher Thurman Munson had died in an airplane crash.

Mr. Schwartz said he attended at least two monumental events at Yankee Stadium. His aunt took him on July 4, 1939, when Lou Gehrig announced his retirement because of a terminal disease and called himself “the luckiest man on the face of the earth.”

Mr. Schwartz also recalled a 1942 charity exhibition in which Babe Ruth made a post-retirement appearance and struggled to hit a home run against the great pitcher Walter Johnson in front of 70,000 fans.

“The crowd kept on him, and he finally hit it out of the park, to right field,” he recalled. “The best part was seeing him run around the bases, that way he used to.”

Should My Parents Give Me Their Home?

Many people wonder if it is a good idea to give their home to their children. While it is possible to do this, giving away a house can have major tax consequences, among other results.

When you give anyone property valued at more than $14,000 (in 2016) in any one year, you have to file a gift tax form.  Also, under current law you can gift a total of $5.45 million (in 2016) over your lifetime without incurring a gift tax. If your parents’ residence is worth less than this amount, they likely won’t have to pay any gift taxes, but they will still have to file a gift tax form

While your parents may not have to pay taxes on the gift, if you sell the house right away, you may be facing steep taxes. The reason is that when property is given away, the tax basis (or the original cost) of the property for the giver becomes the tax basis for the recipient. For example, suppose your parents bought the house years ago for $150,000 and it is now worth $350,000. If they give their house to you, the tax basis will be $150,000. If you sell the house, you will have to pay capital gains taxes on $200,000 — the difference between $150,000 and the selling price. The only way for you to avoid the taxes is for you to live in the house for at least two years before selling it. In that case, you can exclude up to $250,000 ($500,000 for a couple) of their capital gains from taxes.

Inherited property does not face the same taxes as gifted property. If you were to inherit the property, the property’s tax basis would be “stepped up,” which means the basis would be the current value of the property. However, the home will remain in your parents’ estate, which may have estate tax consequences.

Beyond the tax consequences, gifting a house to you can affect your parents’ eligibility for Medicaid coverage of long-term care.  There are other options for giving a house to children, including putting it in a trust or selling it to them. Before your parents give away their home, they should consult with your elder law attorney, who can advise them on the best method for passing on their home.

To read more articles about gifting from Brian A. Raphan, P.C. click here.

 

Careful…Gifting To Family Can Affect Medicaid Eligibility

By Matthew S. Raphan, Esq.  Attorney at The Law Offices of Brian A. Raphan, PC

View image | gettyimages.com
View image | gettyimages.com

Every so often a client says to me, “I’ve been gifting money to my children and grandchildren so I can apply for Medicaid.” While gifting may offer benefits to you and your family, if you think you may someday apply for Medicaid benefits, you should be aware that giving away money or property can interfere with your eligibility.

Under federal law, if you transfer certain assets within five years prior to applying, you may be ineligible for Medicaid benefits for a period of time. This is called a transfer penalty, and the length of the penalty depends on the amount of money transferred. (This waiting period can also be costly as you may pay for your care out of your own pocket.) Even small transfers can affect eligibility. Although federal law currently allows individuals to gift up to $14,000 a year without having to pay a gift tax, Medicaid still treats that gift as a transfer.

Any transfer that you make, however nominal, may be scrutinized. For example, Medicaid does not have an exception for gifts to charities. If you make a charitable donation, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all trigger a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Some people have the notion that they can also go on a spending spree for themselves or family. Not so fast. Spending a large sum of cash at once or over time may prompt the state to request documentation showing how the money was spent. If you don’t have receipts showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. For example, even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

  • your spouse;
  • your child who is blind or permanently disabled;
  • a trust for the sole benefit of anyone under age 65 who is permanently disabled.

In addition, you may transfer your home to the following individuals (as well as to those listed above):

  • your child who is under age 21;
  • your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
  • your sibling who already has an equity interest in the home and who lived there for at least one year before you moved to a nursing home.

Before transferring assets or property, check with us or your elder law attorney to ensure that it won’t affect your Medicaid eligibility.

For more information on Medicaid’s transfer rules, click here.

Related Articles:

Medicaid planning mistakes
TOP 8 MEDICAID PLANNING MISTAKES

If you have a question you can send us a message here.

State Not Required to Treat Medicaid Applicant’s Multiple Transfers as One Transaction

A Kentucky appeals court rules that a Medicaid applicant’s penalty period is appropriate because the state is not required to treat multiple transfers as a single transaction when the transfers are not related. Marcum v. Commonwealth (Ky. Ct. App., No. 2014-CA-000487-MR, April 10, 2015).

In July 2011, Betty Marcum applied for Medicaid and the state imposed a penalty period based on a transfer of assets. During the penalty period, Ms. Marcum sold her home and transferred the proceeds into an irrevocable trust, with her family gifting a portion of the money back to her. She also made other transfers from her bank account. In June 2012, Ms. Marcum applied for Medicaid benefits again. The state imposed a second penalty period, running from the date of the second application.

Ms. Marcum appealed, contending that the state incorrectly calculated the penalty period. The state’s Medicaid operations manual requires that multiple related transfers be counted as a single transaction that occurred on the date of the first transfer and that once a penalty period has been established, it runs until expiration. Ms. Marcum argued that these provisions required the state to treat all of the disqualifying transfers together in a single penalty period. A state appeal board upheld the imposition of the second penalty period, and a trial court affirmed.

The Kentucky Court of Appeals affirms, holding that because Ms. Marcum’s second application involved transfers that were not related to the first penalty period, the state was not required to treat the transfers as a single transaction. The court rules that the state cannot “simply recalculate the first disqualification period to include transactions occurring after that period was imposed.” Similarly, the state cannot allow “the first disqualification period to be modified after it had expired.”

Remember, although federal funded, Medicaid rules do vary by state. For a free initial consultation or more information on how to protect and preserve your assets with Medicaid Planning, click here.

Can I Give My Kids $14,000 a Year?

If you have it to give, you certainly can, but there may be consequences should you apply for Medicaid long-term care coverage within five years after each gift.

medicaid planning

The $14,000 figure is the amount of the current gift tax exclusion (for 2014 and 2015), meaning that any person who gives away $14,000 or less to any one individual does not have to report the gift to the IRS, and you can give this amount to as many people as you like.  If you give away more than $14,000 to any one person (other than your spouse), you will have to file a gift tax return.  However, this does not necessarily mean you’ll pay a gift tax.  You’ll have to pay a tax only if your reportable gifts total more than $5.43 million (2015 figure) during your lifetime.

Many people believe that if they give away an amount equal to the current $14,000 annual gift tax exclusion, this gift will be exempted from Medicaid’s five-year look-back at transfers that could trigger a waiting period for benefits.  Nothing could be further from the truth.

The gift tax exclusion is an IRS rule, and this IRS rule has nothing to do with Medicaid’s asset transfer rules. While the $14,000 that you gave to your grandchild this year will be exempt from any gift tax, Medicaid will still count it as a transfer that could make you ineligible for nursing home benefits for a certain amount of time should you apply for them within the next five years.  You may be able to argue that the gift was not made to qualify you for Medicaid, but proving that is an uphill battle.

If you think there is a chance you will need Medicaid coverage of long-term care in the foreseeable future, see your elder law attorney before starting a gifting plan.

For more on Medicaid’s asset transfer rules, click here.

Regards,

Brian A. Raphan

The Law Offices of Brian A. Raphan, P.C.  7 Penn Plaza, New York, NY 10001  212-268-8200 

http://www.RaphanLaw.com

Lack of Personal Care Agreement Makes Reimbursements to Relatives an Improper Transfer

Reversing a trial court, a Louisiana appeals court determines that a nursing home resident improperly transferred close to $50,000 to his caregiver nephew and the nephew’s wife because the payments were not made pursuant to a valid personal care agreement.  David v. State of Louisiana Department of Health and Hospitals (La. Ct. App., 1st, No. 2014 CA 0791, Dec. 23, 2014).

Brian Raphan, P.C.

Widley David entered a Louisiana nursing home in 2008.  Between 2008 and 2010, Mr. David wrote six checks to his nephew and his nephew’s wife totaling $49,195.  According to Mr. David, the checks were intended to repay his closest living relatives for the daily care that they provided him in the nursing home.  When Mr. David applied for Medicaid in December 2010, the Louisiana Department of Health and Hospitals (DHH) assessed a nearly 15-month penalty period due to the transfers.

Mr. David did not appeal the initial imposition of a penalty period, but in July 2011 he requested a change in status from private pay to full Medicaid pay.  DHH denied this request, stating that pursuant to the initial denial, Mr. David was ineligible for Medicaid until January 2012.  Mr. David appealed the denial of his change in status, arguing that the payments to his relatives were reimbursement for care provided and not to qualify for Medicaid.  DHH claimed that the payments would be valid only if made pursuant to a written personal care agreement, which Mr. David had never executed.  After a trial court found in favor of Mr. David, the state appealed.

The Louisiana First Circuit Court of Appeal reverses the trial court, finding that the lack of a personal care agreement made the transfers to the relatives improper.  The court states that a “payback arrangement or personal care agreement was necessary to validate this alleged arrangement; however, Mr. David did not offer any type of tangible or documentary evidence of an agreement, contract, or Personal Care Agreement to substantiate and validate his argument. The record is void of any evidence that complied with Medicaid eligibility requirements to validate the resource transfers.”

To read the full text of this decision, click here.

To learn more about Medicaid Planning click here.

Regards, Brian

WHY IRREVOCABLE TRUSTS VS OUTRIGHT GIFTING

People often wonder about the value of using irrevocable trusts in Medicaid planning. Certainly gifting of assets can be done outright, not involving an irrevocable trust. Outright gifts have the advantages of being simple to do with minimal costs involved.

Brian Raphan, P.C.

So, why complicate things with a trust? Why not just keep the planning as simple and inexpensive as possible?

The short answer is that gift transaction costs are only part of what needs to be considered. Many important benefits that can result from gifting in trust are forfeited by outright gifting. These benefits are what give value to using irrevocable trusts in Medicaid planning.

Key benefits of gifting in trust are:

  1. -Asset protection from future creditors of beneficiaries. Preservation of the exclusion of capital gain upon sale of the Settlors’ principal residence (the Settlor is the person making the trust).
  2. -Preservation of step-up of basis upon death of the trust Settlors o Ability to select whether the Settlors or the beneficiaries of the trust will be taxable as to trust income.
  3. -Ability to design who will receive the net distributable income generated in the trust.
  4. -Ability to make assets in the trust non-countable in regard to the beneficiaries’ eligibility for means-based governmental benefits, such as Medicaid and Supplemental Security Income (SSI).
  5. -Ability to specify certain terms and incentives for beneficiaries’ use of trust assets.
  6. -Ability to decide (through the settlors’ other estate planning documents) which beneficiaries will receive what share, if any, of remaining trust assets after the settlers die.
  7. -Ability to determine who will receive any trust assets after the deaths of the initial beneficiaries.
  8. -Possible avoidance of need to file a federal gift tax return due to asset transfer to the trust.

If you have questions about any of the above items, please call me, Brian A. Raphan, Esq at 212-268-8200 or 800-278-2960. There are additional measures available and your individual situation should be assessed before making any financial decision.

%d bloggers like this: