FREQUENTLY ASKED QUESTIONS

What is probate?

Probate is the public legal process of proving the validity of an individual’s Last Will & Testament and appointing a personal representative to manage the estate, including distributing the assets per terms of the will, settling any debts of the estate and filing state and federal estate tax returns, if necessary. If there is no will, a court-appointed administrator will distribute the estate according to the laws of intestacy, possibly resulting in undesired distributions.

 

 

What happens if you die without a Will?

Without a Will, your property passes in accordance with rules established with the new Massachusetts Uniform Probate Code adopted by the Commonwealth. If a person is survived by a spouse and children (all born by marriage of spouse & decedent), it passes all to the spouse. If the surviving spouse has no children but the decedent had children from another relationship then, the first $100,000.00 plus half of the remaining estate goes to the spouse with the remaining half to be divided among the decedent’s children.  If there is no surviving spouse, it passes equally to the children. If the surviving spouse has no children but the decedent has parents living, then, the first $200,000.00 plus three quarters of the remaining estate goes to the spouse with the remaining on quarter to the parent. It’s not most people’s intent for their spouse to have to split their estate with relatives. Moreover, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.  Most importantly, the court appointed guardians may not be consistent with the individuals you would have appointed if you had left a will. These are just some of the reasons it is so important to have a will.

 

If you die without any surviving heirs, then your property passes to the Commonwealth.

Does all property have to go through probate when a person dies?

No. Property jointly owned with another person passes to the survivor automatically upon the death of the first. Also, bank accounts and other accounts with a named beneficiary or “POD” don’t pass through probate. Finally, any asset owned by a trust doesn’t pass through probate.

What is my taxable estate?

Your taxable estate comprises of the total value of your assets including your home, other real estate, business interests, your share of joint accounts, retirement accounts, and life insurance policies minus liabilities and deductions such as funeral expenses paid out of the estate, debts owed by you at the time of death, bequests to charities and value of the assets passed on to your U.S. citizen spouse. The taxes imposed on the taxable portion of the estate are then paid out of the estate itself before distribution to your beneficiaries.

 

How Will my Estate Be Taxed?

Your estate may be subject to the federal estate tax and the Massachusetts estate tax. In addition, if you own property in another state or country there may be an additional estate tax there. The federal estate tax currently does not apply unless you have $11.4 million or more in your estate, but Massachusetts applies a tax if you have $1 million in your estate. It is important to know that everything counts toward this number, even if it doesn’t pass through the probate process, such as life insurance proceeds, retirement accounts, and real estate you own jointly with a spouse.

 

How do I know What Estate Planning Documents I Really Need?

The essential estate planning documents you need will depend on your life situation. If you are young, single and have no children, you probably don’t need an elaborate plan. Your basic needs at this point are probably a simple will, a health care proxy and a durable power of attorney. As you accumulate assets and responsibilities, you may want to consider adding trusts to your plan. And as you age further, you may need to consider planning for long term care and minimizing or avoiding estate taxes. You can read or inquire with our office about the essential estate planning documents at each major stage of life. There may also be other special circumstances that require different planning tools.

How Do I Protect Assets from the Costs of Long Term Care?

With some exceptions, you will be required to “spend down” your assets before receiving any government assistance with nursing home costs. This can be financially devastating, and eat away entire legacies that people have spent their lifetimes building.

 

There are steps you can take to preserve assets, but you have to do it long before you or your spouse needs nursing home care. Currently, Medicaid will consider anything transferred within the prior five years to be assets still available to you which will render you ineligible for Medicaid benefits for a certain period of time which is dependent upon the amount transferred. You also need to know that in order to shelter assets, they need to be in an irrevocable trust or other similar investment/shelter vehicle, meaning you can’t change your mind and take the assets back.

 

This means that long term care planning is not for everyone, or for all stages of life, because you will be putting assets out of your own reach. We can help you figure out the right balance between protecting assets and maintaining your financial security.

What is the cost of long-term care?

The average cost of long-term care in a nursing home Massachusetts is approximately $132,000.00 per year (2019). Home health aides can cost $1,000-$5,000 per month. Assisted living facilities can cost #3,000-$5,000 per month. With proper planning, government benefits can assist with these costs and reduce the burden on your family significantly while protecting hard-earned assets.

 

What is the difference between Medicare and Medicaid (known as MassHealth in Massachusetts)?

The major distinction between the programs is the Medicare is a federal health insurance program for individuals age 65 and older, as well as, many with disabilities. Medicaid is a combined state and federal needs based social welfare program. In Massachusetts, Medicaid is known as MassHealth.

 

Eligibility for Medicaid/MassHealth is determined by meeting certain financial requirements, including income and /or asset limits. If eligible, Medicaid covers a wider array of health services than Medicare to a broader spectrum of the population.

 

Many qualify for both Medicaid and Medicare. So, in addition to seniors and those disabled, Medicaid is available to eligible children, pregnant women, parents of eligible children and to those who cannot afford insurance. Note that while Medicare may pay for up to 100 days in a skilled nursing facility, an extended stay in a long-term care facility is not covered by Medicare. Medicaid is the largest payer of long term nursing home costs in the United States.

 

Will Medicare pay for long-term care?

Medicare pays for a limited amount of the costs when in short-term rehab or the cost of home health aide for a limited period of time. When these benefits expire, you’ll need to pay privately or seek other alternatives, such as Medicaid.

 

Will Medicaid pay for my long-term care?

Medicaid, called MassHealth in Massachusetts, is joint federal and state program that pays for a home health aide or nursing home for qualifying individuals. Becoming qualified often requires careful planning to meet the program’s strict asset and income limits. 

 

What is the penalty or disqualification period?

Most transfers made within the 5 year look back subject an applicant to a penalty or disqualification period of benefits. Two factors impact the length of the penalty period: (1) the value of the asset transferred; and (2) the penalty divisor set by MassHealth, which is currently $366.73 per day (2019) or $11,001.90 per month. For example, transferring $350,000 of property will result in a penalty period of almost 32 months (350,000➗$11,009.90 = 31.79).

 

How do I Plan for My Own Disability?

Some of the most important estate planning documents protect your interests while you are still alive. Two in particular ensure that you have someone to make medical and financial decisions on your behalf if you are incapacitated or otherwise unable to make your own decisions.

 

You can prepare a health care proxy to designate the person authorized to make medical decisions on your behalf if you are incapacitated. You can also include in this document guidance for decisions about life sustaining treatment.

 

You can create a durable power of attorney to designate the person authorized to make financial decisions if you are incapacitated.

 

How Do I Plan for a Child with Special Needs?

There are many unique challenges to parenting a child with special needs, and estate planning is no exception. You can work with your estate planning lawyer to create a combination of wills and trusts, including a special needs trust for your child to ensure that he or she has financial support but also remains eligible for important government benefits.

 

How Often Should I Review My Estate Plan?

As a general rule, we suggest that you review your estate plan every five years, or any time there has been a substantial change in your family or financial situation. For example, you should seek legal advice about your estate plan in the event of major life changes such as the birth of a child, divorce or remarriage, death of a spouse, or receipt of a substantial inheritance. Also, even after a trust is created, you may need to make decisions about adding assets to the trust from time to time.

How is a Living Will different from a Will?

A Living Will (now referred to as an Advance Directive) concerns your health care. It is a statement that you do not want your death artificially prolonged if you have a terminal illness or injury, your death is imminent and the medical treatment you are receiving is prolonging the dying process. In that event you wish to be removed from life support except for medication to alleviate pain and suffering. In Massachusetts, a Living Will works in conjunction with a Health Care Proxy. The Living Will provides guidance to your Health Care Agent if your Health Care Agent is ever called upon to make a life or death decision. 

 

A Will or Last Will & Testament is a person’s written declaration of how he wants his assets distributed after his death. The laws surrounding the validity of Wills are unique to each state. Therefore, a Will must be executed in accordance with the laws of the state in which it was executed.

 

Can my power of attorney act even after my death?

No, once you have died and the person you have named as your attorney has notice of your death, the power of attorney is no longer valid. It dies with you. Upon your death, your assets then become part of your estate and are distributed in accordance with your will.

 

What is the purpose of a Trust?

What is written in the trust – the terms of the trust – will dictate the purpose of the trust and how the trust is to be administered. Some trusts are drafted to minimize taxes and/or to preserve and shelter assets as part of long term care planning. Other trusts are written to provide administration of trust assets for minor beneficiaries until they reach certain ages, such as age 25 and 30. If you have an existing trust and you are uncertain of the purpose of the trust, you should have it reviewed by an estate planning attorney.

 

Can I make changes to my estate planning documents?

Yes, you can make changes to your Will either by executing a new Will or by executing a Codicil to your Last Will & Testament. Do not simply handwrite changes to an existing Will. In most instances the handwritten changes will not be recognized as valid and may result in extra legal costs to probate the Will. They may also lead to disputes between heirs.

 

What is guardianship and conservatorship?

We often see clients who are no longer able to make medical or financial decisions for themselves. Guardianship is the formal court process of appointing a decision maker for an individual’s health care decisions. Conservatorship is the formal court process of appointing a decision maker for an individual’s financial decisions. It is important to note that the potential for guardianship and conservatorship can usually be avoided through the executions of proper estate planning instruments. Such as durable powers of attorney and Heal Care Proxies.

 

What is Special Needs Planning?

If you currently provide care for a child or loved one with special needs (such as mental or physical disabilities), you must have contemplated about what may happen to them when you are no longer able to provide for them.

 

While you can certainly provide that they receive money and assets, such a bequest may prevent them for qualifying for essential benefits under the Supplemental Security Income (SSI) and Medicaid programs. However, public monetary benefits provide only for the bare necessities such as food, housing and clothing. As you can imagine, these limited benefits will not provide those loved ones with the resources that allow them to enjoy a richer quality of life. But if parents leave any assets to the child who is receiving public benefits, they run the risk of disqualifying the child from receiving them. Fortunately, the government has established rules allowing assets to be held in trust, called a “Special Needs” or “Supplemental Needs” Trust for a recipient of SSI and Medicaid, as long as certain requirements are met.

 

Our law firm can help you set up a Special Needs Trust so that the government benefit eligibility is preserved while at the same time providing assets that will meet the supplemental needs of the person with a disability (those that go beyond food, shelter, and clothing and the medical and long term supports and services of Medicaid). The Special Needs Trust can fund those additional needs. In fact, the Special Needs Trust must be designed specifically to supplement, not replace public benefits. Parents should be aware that funds from the trust cannot be distributed directly to the disabled beneficiary. Instead, it must be disbursed to third parties who provide goods and services for use and enjoyment by the disabled beneficiary.

 

What happens to my income and the income of my spouse when applying for MassHealth for long-term care?

It is not an uncommon event that the primary earner (recipient of a pension and Social Security) of the household is also the spouse in need of long-term care benefits from MassHealth. Typically, this person’s income is used to offset the costs of nursing home care. However, this would often leave the spouse remaining in the community with little income to get by. MassHealth allows income of a recipient to be applied to the community spouse, instead of toward the costs of care, so that the community spouse has a minimum of $2,113.75 and a maximum of $3,160.50 depending on the circumstances.

What are the consequences of transferring my home to my children to protect it from the costs of long-term care?

New laws make it more difficult to give away assets when it is determined that nursing home or long-term care is necessary. Penalties may be imposed on all transfers made within five years of applying for Medicaid (in Massachusetts Medicaid is MassHealth) and therefore adversely impact eligibility for MassHealth. In short, transferring your home to your children or another person other than your spouse will likely trigger a penalty or disqualification period, causing a person to be ineligible for MassHealth benefits.

 

Additionally, giving away your home may result in some unintended consequences, largely loss of control and exposure to creditors of the person to whom the gift was made. Consider the situation where a parent at the age of 65, in good physical and mental health deeds their home to a child who is married. Later, the child and his spouse file for divorce. The home may become part of a divorce settlement and go to the child’s former spouse- likely not consistent with the parent’s wishes. What happens if the recipient of your generosity dies? In addition, there may be adverse tax consequences to giving assets away even if you do not have a taxable estate.

 

What are the asset and income limitation for Medicaid Eligibility?

 

Medicaid Countable Asset and Income Limits – 2019

 

Community Spouse Resource Allowance:                  $126,420.00

 

Institutionalized Individual Resource Allowance:      $2,000.00

 

Community Spouse

Monthly Maintenance Needs Income Allowance:     $2,113.75- $3,160.00

Institutionalized Individual Allowance for

Personal Needs:                                                              $72.80

Average Daily Costs of Nursing Facility

Used to Calculate a Mass Heal Ineligibility

Period due to Disqualifying Resource Transfers

effective November 1, 2019:                                          $367.21

Average Annual cost of Nursing Home

Care in Massachusetts:                                                    $132,000.00

*If the marital home is retained as allowed under certain circumstances a lien for the cost of the long-term care will be filed by Medicaid which must be paid from the estate  or upon sale.

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