Why a Will is so Important in a Second Marriage – Part 2
In my post last week I began telling you about Mary’s call. Her husband, John passed away without a will so for the probate assets - those held by John individually with no co-owner and no beneficiary upon death - New Jersey’s intestacy laws would control. As I explained last week, these laws determine who receives the assets. Most people would assume that a surviving spouse would be first in line. While that is true in many instances, unfortunately for Mary not in her case. That’s because Mary and John’s marriage was the second for both. Because they each had children from a first marriage, New Jersey’s intestacy laws say that John’s children are entitled to a share. Intestacy laws are state statutes so there isn’t a uniform answer to the question of who inherits. New Jersey has a formula in the case where there are children not born of the marriage between the decedent (the person who died) and the surviving spouse. The surviving spouse inherits a majority of the assets but there is a significant portion which will pass to the decedent’s children from other relationships. Mary was not happy when I explained this. She told me that she and John owned two homes, their primary residence and a
Why a Will is So Important for Spouses in a 2nd Marriage (Part 1)
I have often heard people say that they don’t need a will. “My wishes are known by my family”, they’ll say. But a recent call to our office shows how wrong that can be. Mary’s husband John had passed away from a long illness. Although he had time to prepare a will he never got around to it. John’s marriage to Mary was the second for both of them. They each had children from their first marriage. In John’s case he had 3. They had no children from their marriage to each other. Because John had no will, the determination of some of his assets would have to be made by the State of New Jersey according to what are called intestacy laws. The State has predetermined to whom assets are transferred at death when there is no will to give us any instruction. Except that not all assets pass in this manner. Only probate assets are distributed according to the guidance of a will and so only these types of assets are distributed by way of intestacy laws. What exactly are probate assets? It is easier to explain what non probate assets are. Any asset that has a designated beneficiary upon death such as an IRA or life insurance or a non retirement account
How Scrutinizing is Medicaid Really? Part 2
Last week I wrote about a question I hear often about Medicaid. Isn’t there a certain amount of gifting that is allowed under Medicaid regulations? The answer as I stated last week is that there really isn’t. Any gift or transfer for less than fair value is subject to a penalty. In practice, however, the answer may vary. Some states ignore nominal transfers, however the definition of what is nominal can be difficult to pin down. In the 25 years I have been filing Medicaid applications for clients here in New Jersey, that dollar limit has changed, although it has always trended downward. Back in the mid 1990’s Medicaid routinely ignored transfers less than $5000. Gradually that number was reduced to $500 in many counties. Now, however, in just about every county where I file applications, we are required to produce copies of every single check written by the applicant and spouse if applicable. This makes every transfer no matter the amount, subject to discovery by Medicaid caseworkers. In practice, there have been times when transfers have been overlooked. A penalty is calculated on transfers for less than fair value but only if the State finds and calculates the penalty. While I can never say with certainty whether a transfer was simply “missed”
How Scrutinizing is Medicaid Really? Part 1
I had a conversation with a client recently about avoiding potential Medicaid penalties if and when she is ready to file a Medicaid application. She asked me a question I get often. “Is there an amount I can gift that is small enough that would not trigger a Medicaid penalty, say for birthdays or holidays like Christmas?” In order to answer that question, we must first understand the rules that apply to what Medicaid calls “transfers for less than fair value”. These are transfers of assets from the applicant (or the applicant’s spouse) for which the applicant (or the applicant’s spouse) did not receive something of equal fair market value in product or service in return. A gift is a transfer for less than fair value because clearly, there is no product or service received by the maker of the gift. If there was, then it wouldn’t be called a gift. Under the Medicaid rules as written, any transfer is counted no matter the value. There is no stated amount which is exempt from the penalty rules. “But, isn’t there a small amount that is acceptable? Won’t Medicaid ignore the gift if it’s a nominal one,” my client asked. The answer to that may be different depending on the state
Alternatives to 1st Party SNTs – Part 2
In my blog post last week I wrote about 1st party special needs trusts, which are helpful in maintaining Medicaid benefits for someone who may receive an unexpected inheritance or the proceeds of a personal injury settlement. 1st party SNTs, however, can only be funded when the beneficiary is under age 65. So what options are available if the beneficiary is over the age of 65? As I mentioned last week, some Medicaid recipients are not receiving much in the way of benefits. It may be better for them to terminate those benefits. They can then preserve some of the assets thru the use of a Medicaid qualifying trust. This would trigger a 5 year look back but, again, if little to no Medicaid benefits are being received this could work fine. The funds are available to use as needed for 5 years after which reapplying for Medicaid would be possible. For someone in a nursing home on Medicaid that obviously won’t work but there are other alternatives. Depending on the size of the inheritance or settlement to be received, purchases of exempt assets, such as a wheelchair accessible van or a home which could allow the individual to be cared for in a non institutional setting, may be
Alternatives to 1st Party Special Needs Trusts – Part 1
I have written previously in this blog about situations that call for a 1st party special needs trust. For example, we receive calls from personal injury attorneys who have achieved settlements for their clients who are on Medicaid. In other cases clients on Medicaid receive an inheritance from a family member which is to be paid out directly to them instead of being paid to a 3rd party special needs trust. While a 3rd party trust can be funded no matter the age of the beneficiary, a 1st party special needs trust has an age restriction. It cannot be funded after the beneficiary reaches age 65. This obviously presents a problem for individuals in the above situation who have “aged out” of a 1st party SNT. What then can be done with a lump sum of assets that will push the beneficiary over the asset limit of $2000 and cause the loss of government benefits? For some clients who are Medicaid eligible, they are not receiving much - or sometimes nothing at all - in the way of benefits. Losing those benefits wouldn’t cause them a hardship. For others, however, who are in nursing homes for example, losing these benefits would require them to use these assets towards the