Legacy Preservation Alert: Your Estate May Be at Risk

legacy preservation

People typically think that estate planning is an exercise in splitting up a pie into slices for future distribution. Without question, you have to arrange postmortem asset transfers, but legacy preservation should be an important consideration.

Simply put, if there is nothing left to pass along, your estate plan is not going to do much good.

Living Assistance

When you have been healthy for the most part all of your life, you will naturally find it hard to envision a time when you will not be able to take care of your own day-to-day needs. This is understandable, but you have never been in your mid-to-late 70s or 80s.

The life expectancy for someone turning 67 today is 87 years for a woman, and 85 years for a man. You can probably picture someone you know that is 85 years old needing help with their daily activities. You should apply this to the person in the mirror.

Statistically, the United States Department of Health and Human Services tells us that 52 percent of seniors will accumulate long-term care expenses. Over one third of them will reside in nursing homes.

Long-Term Care Costs

You may not be concerned about potential assisted living costs. You believe you will qualify for Medicare when you are 65. It makes sense to assume that the country’s health insurance program for seniors will pay for a type of care the most elders will need.

The reality is that Medicare does not pay for the custodial care that nursing homes and in-home caregivers provide.

According to the state of Oklahoma, the average daily charge for nursing home care statewide is $179.57 or $65,543 a year. The average length of stay is a year. However, more than half of people that need paid care receive the help for more than a year, and 13 percent incur the costs for more than five years.

Nursing home expenses can be a very big deal for a single person. The situation is compounded for a married couple. Depending on your resources, these costs could consume a significant portion of the assets that you would like to leave to your loved ones.

Medicaid Eligibility

Everyone does not go broke paying for long-term care. The key is to proactively implement a nursing home asset protection strategy. This will typically revolve around Medicaid eligibility and the utilization of an irrevocable, income only trust.

Since Medicaid is only available to people with very sparse resources, you have to divest yourself of assets to qualify. It would be easy if you could give gifts to your loved ones today and qualify for Medicaid tomorrow.

However, this is not possible. There is a 60-month look back period in Oklahoma. This means that you are ineligible for 60 months after you transfer assets out of your name.

The good news is your home is not a countable asset. The bad news is that Medicaid has an estate recovery phase. If you are the owner of your home at the time of your death, the program would put a lien on the property (though there are some exceptions).

You can fund an irrevocable trust with your home and income-producing assets long before you need long-term care. Although you would no longer have access to the principal, you would continue to reside in your home as usual, and you would be able to accept distributions of the trust’s earnings.

Your life would not change in any way. The benefit is that when you apply for Medicaid, the principal will not count as long as the application is submitted 60 months after you fund the trust. The home would also be protected from Medicaid estate recovery because it would not part of your probate estate.

Attend an Educational Event!

We conduct educational events periodically in an effort to share important information with members of our community. There is no charge to attend these events. This is a great opportunity to walk away with a lot of important knowledge for free.

You can see the dates if you visit our Oklahoma City estate planning events page, and if you decide to attend, follow the instructions to register so we can reserve your seat.

Larry Parman, Attorney at Law
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