Just happened to think about this and wanted to let everyone know. Most of you already know this but some may not. When having to place a loved one the Will will not guarantee that the children or others still inherit your estate.
Whatever property was transferred to a spouse belongs to that spouse's estate and will pass to heirs unless the at-home spouse survives the recipient. The recipient spouse, as one of the heirs, should receive at least half of the estate based on state inheritance laws. If this does not occur there may be transfer of asset issues which could affect the recipient's eligibility. If the at-home spouse survives the recipient, the estate of the at-home spouse will be subject to a claim by the State Medicaid Agency under Estate Recovery upon his or her death.
Jane, Ive read you note several times and I'm still al little confused. My DH signed the house over to me before he went in the nursing home. He had AD at that time. My will leaves everything to him if I die. It is in a trust for him with each of our sons as trustees. My question is - DH is on Medicaid now. I have thought about putting my son's name on the house with mine. If I die first, will the nursing home take everything or will the house go to my son?
Carolyn, Anything in your estate is subject to Medicaid estate recovery upon your death. I would consult an Elder Law attorney and see if the trust will take care of this. I would think that the house being in a trust means that it is in the name of the Trust and not in your name, thus not going into your estate. I would just clarify that with an Attorney to be sure.
How long ago did you do the will and add the trust. Is the trust part of the will.
An Elder Law attorney is the one that did our wills. They were done about six months before he went into the nursing home - last year. At that time, the attorney told me to put everything in my name. The trust was because DH wouldn't be able to handle anything due to AD. The house is now in my name.
Carolyn, If the house is still in your name at your death then the Medicaid laws do allow Estate recovery up to the amount they paid on your husband's NH bill. However, this does not mean that your State will actually do this. Some states even if the law allows it do not go after it. You might ask the elder law attorney who drew up your will if your State is one that will.
Thanks, Jane, for all the information. It's just a mobile home so it's not like it's a fortune. I'm not going to worry about it. Since i've been fortunate and not had to pay the NH a cent, if they want it when I'm gone, I guess they deserve it more than the kids. And, actually, I wouldn't recommend the attny to my friends. He wanted $6,000 to file the Medicaid. The nursing home did it for nothing. He's also moved several miles away now.
Jane, at the time my mother died, we thought the state could take her house and the little she had in addition as payment towards what Medicaid had paid for my dad. He died 7 years before Mom did. It turned out that a court case contesting that had been filed in Illinois. The Illinois Supreme Court ruled on the case in such a way that the house and other joint property was part of Mom's estate when she died. They said that Medicaid could not collect for his bills from her estate. We were very surprised to find that they wouldn't come after what she had when she died. Actually, I think they should have been able to. The money was owed to the state, not to my brother, sister, and me.