FREQUENTLY ASKED QUESTIONS


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I offer a FREE legal consultation to help you understand the legal implications of your situation. Contact me at 978.270.2189 to get started. Below are answers to some commonly asked questions.

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Elder Law and Medicaid Planning

Do I have to give away everything I own to get Medicaid?
Can I give anything away and get Medicaid?
Do I have to wait 5 years after giving anything away to get Medicaid?
Will Medicare cover my nursing home bill?
If I enter a nursing home as a private pay resident, do I have to use my assets before I can get Medicaid?
Will all property transfers cause me to be disqualified from Medicaid?
Does all of my spouse’s income have to be used to pay the bill if my spouse is on Medicaid in a nursing home?

Probate

What is the Probate Process?
What property is subject to the Probate process?
How is the Probate process started?
What does the executor do?

Real Estate

Should I get an inspection?
Why do I need a title examination?
What is title insurance?
How does title insurance protect my home?
What is a Purchase and Sale Agreement?
What occurs at the closing?

Q: Do I have to give away everything I own to get Medicaid?

A: Basically, a person is permitted to own some property, and still be eligible for Medicaid. What are you still waiting for, go immediately to free pokies lightning now is the time to start playing and winning! The trick comes in knowing what is “countable” and what is “non-countable” under the Medicaid rules. For a married couple “non-countable” includes, for example, the marital home that is occupied by the healthy spouse. Whether you are married or not, certain types of prepaid burial contracts are non-countable. There are many other types of “non-countable property.” The bottom line is, you don’t need to be completely without assets to be Medicaid eligible. Back to Top

Q: Can I give anything away and get Medicaid?

A: The Medicaid rules provide that a person can be disqualified for giving away property, in some cases. Disqualification depends on what is given away, to whom, and when. Again, it’s complicated. Some asset transfers are not penalized under the Medicaid rules. Consult a lawyer who knows the law. Back to Top

Q: Do I have to wait 5 years after giving anything away to get Medicaid?

A: The disqualification isn’t always 5 years long and, under some circumstances, there is no disqualification at all. True, there is a 5 year “look back” for some asset transfers under the Medicaid rules. This means that the Medicaid agency will “look back” at all transfers of property, including sales for less than market value, made in the previous 5 years. Back to Top

Q: Will Medicare cover my nursing home bill?

A: Medicare only covers a small amount of the nursing home care provided in this country. Many older people are surprised to learn this. In general, there are 20 days of full coverage if you go into the nursing home after at least three days in the hospital, and are getting skilled care (not intermediate level care). Then, if you still need skilled care, you can get up to 80 days of partial coverage from Medicare. After that, you will either pay out-of-pocket, or get Medicaid, unless you have private long-term care insurance. Back to Top

Q: If I enter a nursing home as a private pay resident, do I have to use my assets before I can get Medicaid? A: You are not required to spend your assets to pay for nursing home care. However, some nursing homes might try to make you believe that you do have to do this. They are paid less under the Medicaid program than they collect from private pay patients. Families should seek advice from an elder law attorney to find out how to become Medicaid eligible without having to spend a significant part of their assets on the private pay rate. Back to Top

Q: Will all property transfers cause me to be disqualified from Medicaid?

A: Not all transfers of property will cause a person to become ineligible for Medicaid. See #2. Back to Top

Q: Does all of my spouse’s income have to be used to pay the bill if my spouse is on Medicaid in a nursing home?

A: The law allows you to keep a portion of your spouse’s income if your income is below certain limits. In addition to this allowance, you may be entitled to a greater allowance if the cost of maintaining your home exceeds a certain amount of if a state hearing officer orders a greater allowance. Back to Top

Q: What is the Probate process?

A: Probate is the process supervised by the probate court by which a deceased person’s property, known as the “estate,” is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about a year. However, substantial distributions from the estate can be made in the interim. Back to Top

Q: What property is subject to the Probate process?

A: The probate estate includes all property held in the decedent’s name. Certain kinds of property, such as property owned jointly by the deceased and another person, life insurance, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example jointly owned bank accounts pass automatically to the surviving joint owners upon the death of one of the owners without going through probate. The non-probate property, however, is part of the decedent’s taxable estate (see below). Back to Top

Q: How is the Probate process started?

A: First, a petition for probate of the will must be filed with the probate court, along with the original will and a certified copy of the death certificate. Notice must be mailed to all of the decedent’s heirs at law (usually the surviving spouse, children and children of any deceased children), to those named as beneficiaries in the will, and, if a charity is involved or there are no heirs at law, to the Attorney General. Notice must be also published in a local newspaper. If no one objects by a deadline set by the court, the executor named in the will is appointed by the court. Back to Top

Q: What does the executor do?

A: The executor is responsible for collecting the probate property and for paying any debts of the estate. The executor must file with the probate court an itemized list, known as an “inventory,” of the probate property, including the value of each item. The executor must file an estate tax return within nine months of the date of death. This is true even if no estate tax is owed, if the decedent owned real estate or the executor wants his or her final accounting (see below) allowed by the probate court. Creditors of the estate have one year to bring claims against the estate. Executors generally wait until this claim period has expired to complete distribution of the estate according to the terms of the will. As his or her final responsibility, the executor must file an accounting with the probate court showing the income and expenditures of the estate administration . Back to Top

 

Q: Should I get an inspection?

A: Buyers have the option of having various inspections performed within 10 days after signing a Purchase and Sale Agreement. These inspections include pest inspections, home inspections, flood inspections and radon tests. Major repairs on homes can amount to thousands of dollars. Plumbing, electrical and roof problems represent significant and complex systems that are expensive to fix. It is strongly recommended that you perform all inspections available to you in order to understand any improvements that are needed on the home you are about to purchase. Back to Top

Q: Why do I need a title examination?

A: A title examination is a detailed examination of the historical records concerning a property. These records include deeds, mortgages, court records, property and name indexes, taxes and many other documents. The purpose of the search is to verify the property owner’s right to sell or finance the property and to discover any claims or defects to the property. A clear title report ensures there are no liens placed against the prior owners or any documents that will restrict your use of the property.
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Q: What is title insurance?

A: Title insurance is an insurance that is issued by the attorney to their clients in order to protect the client’s interests from any title defects that may have arisen prior to the client’s ownership in the property. There are two types of Title Insurance.

Lender’s coverage is required to be issued based on the loan amount and this insurance protects the bank’s interest in the title.

Owners’ coverage is an optional insurance, which if elected, is issued to the owners. This coverage is based on the purchase price of the property. Owners’ Title Insurance is a one-time coverage and it will protect the owners for as long as they own the property. The owners’ coverage ensures that in the event of a title defect the title insurance company affords the owner with an attorney to resolve the issue. Back to Top

Q: How does title insurance protect my home?

A: If a claim is made against your property, title insurance, in accordance with the policy, will assure your legal defense, including paying court costs and related fees. If the claim proves valid, you will be reimbursed for your actual loss up to the face amount of the policy. Back to Top

Q: What is a Purchase and Sale Agreement?

A: A purchase and sale agreement is a standard document between the buyer and seller that states the terms and conditions under which the property is sold. In addition to the price, there are various issues that may need to be addressed in the purchase and sale agreement, including, what happens if termites, asbestos, radon or lead-based paint is found on the property, what are the legal consequences if the closing does not take place and what happens to the down payment, is the closing appropriately conditioned upon the buyer obtaining financing, and the responsibility for loss in the event of catastrophic damage to the property. Back to Top

Q: What occurs at the closing?

A: The property is transfered from the buyer to the seller at the closing. At the direction of the closing attorney, the sellers will sign the Deed transferring ownership to the new Buyers and hand over the keys to the property. The Buyers are responsible for signing all of their loan documents and for bringing the balance of their down payment to the closing in certified funds. All monies due from the Buyers are paid to the closing attorney and the closing attorney then makes all disbursements to the Sellers for the sale of the transaction. Back to Top

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