An estate plan is essentially a “legal tool box.” But instead of hammers and screwdrivers, the estate plan contains wills, trusts, powers of attorney, and various other documents. As with any tools, some estate plans work better than others when put to the test. Such tests would include Medi-Cal asset protection, incapacity planning, probate avoidance, and minimizing tax exposure.
The process of estate planning involves learning about the various medical, financial, and tax issues that are unique to each family. But perhaps most importantly, the process involves incorporating one’s hopes and desires into the legal tools that will help guide future generations through major life transitions.
Ultimately, the estate plan should give a sense of comfort and stability to the generation that is planning, one day, to transfer their assets to the next generation.
Medi-Cal Eligibility Planning
Current law provides many options to accelerate Medi-Cal eligibility for people who require long-term skilled nursing care. These options are available even though Medi-Cal has a “Look Back Period” for which gifted assets can trigger ineligibility.
In order to most easily utilize the options available, special provisions must be written into a trust and power of attorney, and the assets transfers must be made in such a way so that penalties are not triggered. Ensuring that your trust and power of attorney are properly updated to handle a Long-Term Care scenario is essential.
When performed in a legal manner, strategies to reduce "countable assets" can help people to quickly become eligible for Medi-Cal assistance and preserve financial stability.
Once the necessary steps have been completed to qualify for Medi-Cal assistance, a Medi-Cal application, along with the various supplemental documents to support eligibility, is prepared and submitted to the county Medi-Cal office.
Medi-Cal may recover against assets that are held in the personal name of the person who received Medi-Cal benefits. The recovery action begins after someone has passed away or when the surviving spouse passes away, whichever is later.
As such, it is important to not just plan for eligibility, but to plan against recovery of assets.
As of January 1, 2017, Medi-Cal does not pursue recovery against assets that are held in trust. As such, it is important to ensure that assets are property titled in order to avoid or minimize estate recovery actions.
SPECIAL NEEDS TRUSTS AND PLANNING
Special needs trusts are specially structured trusts designed to preserve SSI, Medi-Cal, and other public benefits for an intended beneficiary. At the same time, these trusts can supplement that beneficiary's lifestyle and living standards.
The loss of a loved one is a period of grief and bereavement. Often, it can be an overwhelming emotional experience to suddenly have to assume the role of managing another’s finances, as is required of a successor trustee. My role is to provide assistance and guidance to the successor trustee in following the wishes of the deceased as described in his/her trust. Additionally, I help the successor trustee to navigate the various notice, tax, and trust accounting requirements that are necessary to properly and effectively administer a trust.
Ultimately, the trust administration process is as much about providing a source of closure to the family as it is about preparing legal documentation.
When assets totaling more than $150,000.00 are held in the deceased’s name, a court administered probate is often required to transfer those assets to beneficiaries. My role is assist in closing out the decedent’s affairs; to supervise the identification, collection, and distribution of the decedent’s estate; and to see that all legal obligations of the estate are met. This process includes interacting with the probate court judge to ensure that the probate process moves forward in an efficient manner.
brian o'toole law office | copyright 2017