Life Estate Deeds – An Antique Technique Providing Modern Convenience
October 16, 2014
When we pass away, our assets are divided into two groups – probate and non-probate. Non-probate assets are things like bank accounts and life insurance policies that you have named joint owners or TODs on – they transfer to the named beneficiaries upon your death without any court involvement. Probate assets are held only in your name. The court looks to your will, or the intestacy statute, if there isn’t a will, to determine who receives these assets. This can be a lengthy, and potentially costly, process.
One way to make your home a non-probate asset is to create a life estate. This concept was borrowed from old English property law. You, as the owner of the home, deed the home to yourself for life (making you the “life tenant”) and then to another person(s) known as the “remainderman” (most often your children). Upon your passing, the remaindermen immediately become the owners of the home (they just need to file a copy of your death certificate with the Registry of Deeds).
Creating a life estate has many benefits. First, upon your passing, your home transfers seamlessly to the remaindermen without any court involvement. Second, you are guaranteed the right to remain in your home for the rest of your lifetime – you cannot be compelled to sell or move out. Next, after your passing, the remaindermen receive a step-up basis for capital gains purposes, minimizing the capital gains tax due should they decide to sell the property after your death. Fourth, because the remaindermen have no ownership interest in the home until after your death, their creditors (in the event of a bankruptcy or divorce, for example) cannot access the equity in the home during your lifetime. Lastly, the entire value of the home can be protected from your nursing home costs so long as the life estate is created at least five years before you ask MassHealth for assistance in paying for nursing home care (more on this below).
Creating a life estate, however, has its potential pitfalls. First, the remaindermen must all sign off if you decide you want to mortgage, reverse mortgage or sell the property. The thought of giving up so much control can be frightening for many homeowners. (It’s worthwhile to note that your remaindermen should have their own powers of attorney in place, in the event you need their approval and they are out of the country, in the hospital, or otherwise incapacitated.)
Also, if you need to ask the state for assistance in paying for nursing home care in the five years following the creation of a life estate, you could be disqualified for a period of time. MassHealth uses a formula to calculate the “value” of your life estate based on your life expectancy and the value of the home. The disqualification can also be cured if the remaindermen agree to deed the property back to the life tenant outright, destroying the life estate. If it’s likely that you’ll be asking MassHealth to help pay for your nursing home care in the next five years, then you should meet with an elder law attorney to explore other options to protect the value of your home to the greatest extent possible.
A life estate deed can be a valuable addition to your estate plan. If you’re interested in learning more about life estates and whether this might be the right solution for you, call our office to schedule a planning session.
The Importance of Caregiver Contracts
October 2, 2014
A goal that my clients bring up in meetings time after time is that they wish to stay in their own homes for as long as possible. Many people, however, find the cost of bringing help into their homes to be daunting. Elders are increasingly turning to their adult children for in-home care. As thanks, to reimburse the child for their time and expenses, or a combination of both, elders often wish to “pay” the child. But should the elder need nursing home care in the future, MassHealth will view informal payments as gifts, which could prevent the elder from receiving public assistance. So the question is, what is a family to do?
One solution is a “caregiver contract.” This is a written agreement between the elder(s) and their adult children, laying out tasks the child will perform and a rate of pay. Set up along with worker’s compensation and the usual payroll deductions, this provides an income stream to the caregiver while giving the parent what most elders want – being cared for by his or her own family.
Caregiver contracts benefit both parties. The caretaker child gets the benefit of worker’s compensation, in addition to reportable, reliable income for state and federal income tax purposes. (You may not think that’s a benefit – but paying taxes can be much better than the consequences of being discovered as delinquent!) The elder gets to remain in his or her home with a familiar caretaker, often at a rate much less expensive than those charged by home health agencies. Should the elder require MassHealth to pay for nursing home care, he or she can prove that the payments were just that – payments – and not gifts.
Only an elder law attorney familiar with the ever-changing MassHealth rules should draft a caregiver contract, so that it will protect the elder in the event he or she needs nursing home care in the future. If you believe a caregiver contract would be helpful to you, please do not hesitate to contact my office.
Shred Day at South Shore Bank
May 29, 2014
I just received notice that South Shore Bank will be holding a shred day at its East Bridgewater branch on Saturday, June 7th from 9:00 a.m. to noon. This event is free, open to the public, and a great eco-friendly way to safely dispose of any personal documents you no longer need. Here are the details:
“For those who feel like they are buried in personal documents that they don’t want to throw out for fear of theft, South Shore Bank has the answer. The Bank will hold a “Shred Day” at their branch office at 225 Bedford Street in East Bridgewater on Saturday, June 7th from 9:00 a.m. to 12:00 p.m., during which people can bring their confidential documents to the Bank and watch as they are turned into confetti in a mobile shredding unit.
Shredding services at South Shore Bank’s “Shred Day” will be provided by Shred King Corp., which is AAA-Certified by the National Association for Information Destruction (NAID). All shredded material will be delivered by Shred King to a recycling center.
The South Shore Bank “Shred Day” is free and open to the public. For more information, call 781-682-3715.”
National Grid Billing Scam
May 22, 2014
I recently received an email from Norwell Police Chief Ted Ross warning South Shore residents about a utility billing scam. Fraudulent callers are targeting National Grid customers throughout New England. The scammers are demanding payment of alleged electric bill balances (that customers may not even owe) and are threatening to shut off their electricity immediately unless given checking account or credit card information.
What should you do if this happens to you? Ask the caller for the last five digits of your National Grid account number. Inevitably, they won’t have it and you can hang up and rest assured the caller is a scammer. DO NOT give out your banking or credit card information. If you want to verify your account billing status, the telephone number for the National Grid Customer Contact Center is 1-800-322-3223.
Criminals can easily obtain false names for caller identification purposes and attempt to pose as legitimate businesses over the phone. So remember, the best practice is to NEVER give out your banking, credit card, or personal information (such as your date of birth or Social Security number) over the telephone unless YOU initiated the call and are certain of the merchant’s identity. Additional resources on scams and identity theft from the Attorney General’s office can be found here.
Michelle Singletary – She’s Done It Again
May 7, 2014
I love her columns, I really do. A few weekends ago, she nailed it once again. Read her column here where she tells older parents why they need to talk to their adult children about the care they would like as they age. Keep in mind that the cost figures she cites are national averages – and so, you guessed it, Massachusetts $$ numbers are higher.
I haven’t read the book she is suggesting, but if Michelle Singletary likes it, I’m sure it’s good.
My Dad Died Owning Stocks – What a Pain That Was!
April 1, 2014
If you have ever had to deal with stocks that you inherited, then you know what a pain it can be to change ownership over to your name.
You probably had to:
- Figure out which stock transfer agent was managing those shares (ex. Computershare),
- Figure out which forms that transfer agent needed you to fill out,
- Go to your local bank to obtain a “medallion stamp signature guarantee” (and there is usually one person per region authorized to make that stamp, so you had to wait until the day that person was in your local branch),
- Mail those forms to the transfer agent,
- Wait for proof of your new ownership to arrive,
- Find the value of the stocks on the date of death,
- Find the value of the stocks on the date they were transferred to you, and
- Report those last two items to the probate court.
What a pain!
Consider sparing your family such a headache. If you own individual stocks, take action now to help your family out later. For most people, listing family members as “beneficiaries” or “payable on death to” will do the trick. You do this by: (1) figuring out which stock transfer agent manages your stocks, and (2) downloading appropriate forms from their website, completing them, and mailing them in.
For example, if you have a spouse and three children, then in most cases, you would name your spouse as the first beneficiary, and in case she predeceases you, name your three children as equal beneficiaries in the second position. When you die, your spouse, or your children, if your spouse doesn’t survive you, will download the appropriate forms from the stock transfer agent’s website, mail those in along with a death certificate, and the transfer agent will send out proof that the beneficiaries are the new owners of the stocks (or a check, if the beneficiaries prefer).
That’s it. No chasing down the manager at your local bank for a signature, no reporting to the probate court. Just a few forms in the mail.
A caveat: If you have a taxable estate, a special needs child, predeceased children, children who don’t speak to you, or anything else that makes your situation unique, then adding beneficiaries to stocks without professional guidance may not be a good idea. If you have any unique situation, then speak with an elder law or estate planning attorney before changing your stocks. In addition, if you have met with an attorney who has crafted an estate plan for you, then check with her on whether to name beneficiaries. But for most people, adding family as beneficiaries is the right thing to do.
Whatever you do, don’t add other people as joint owners on your stocks! See this post for why that approach can cause a lot of problems. It’s rarely a good idea.
A little work by you now will save your family a lot of work later. And if you need help determining whether and what to do with your stocks, please let us know.
Beware of the Binding Arbitration Agreement in the Nursing Home Admission Packet
February 18, 2014
Imagine that you’re being admitted into a nursing home. You are having trouble making decisions and managing your affairs at this point. Luckily, you planned ahead and have a Health Care Proxy in place. Your agent fills out the reams of paper that seem necessary for your admission, including a binding Agreement to Arbitrate. That means that if you ever have a dispute with the nursing home, you are agreeing in advance to use binding arbitration, and not a jury trial, to settle that dispute. Your agent signs it, figuring you can’t be admitted without it. All is well until a dispute arises and – boom – you’re stuck heading to arbitration.
While it may sound attractive, arbitration tends to favor the “big guys” – in this case, the nursing home and health care providers. For you as the patient, or “little guy,” jury trials are far more consumer-friendly.
Good news, though – in January, the Massachusetts Supreme Judicial Court (our highest court) decided the Johnson case, which says that the decision to sign an arbitration agreement isn’t a health care decision. And because the agent named in your Health Care Proxy can only make health care decisions on your behalf, if he or she signs an arbitration agreement, a court will find that agreement void.
But what if you have both a Health Care Proxy and Power of Attorney in place? This difference is key because the agent named in your Power of Attorney CAN agree to binding arbitration on your behalf. A Power of Attorney gives more business-related decision-making powers than a Health Care Proxy, so the agent named in your Power of Attorney can make financial and legal decisions on your behalf. Agreeing to arbitration is not a medical decision but it is a legal one, so it’s one the agent named in your Power of Attorney CAN make.
As I mentioned, arbitration tends to favor the nursing home if a dispute arises. But how can you protect yourself? First, most nursing homes do NOT condition admittance on whether or not you (or your agent) agree in advance to arbitration. Simply refuse to sign the arbitration agreement within the admission packet, or if it is part of a larger document, cross out those paragraphs.
Also, your Power of Attorney document should make it clear that your agent cannot agree to binding arbitration before a dispute arises. When a dispute happens, arbitration may be your best option – but you don’t want to make that decision before you know the facts.
And if you don’t have a Health Care Proxy or Power of Attorney yet? Put them in place now. It won’t take much time at all.
Heard at the Office: “I Don’t Need a Power of Attorney, My Spouse Can Manage My Finances for Me.”
February 6, 2014
That would be the simplest approach, but unfortunately, this is not the case. For any accounts that are joint with your spouse (usually bank accounts, like savings, checking, and CD’s), then yes, even if you are in the hospital or develop dementia, your spouse can manage those accounts.
But what about accounts that are in your name alone? Like your IRA and 401(k), for starters? And that Christmas account that you opened a few years ago, the one your spouse doesn’t even know about? If you are the only owner of an account, then you are the only one who can access those funds. Your spouse cannot help you with your accounts – unless you name him as an Agent under your Durable Power of Attorney (POA).
Only after you (1) name your spouse as an Agent in your Durable Power of Attorney and (2) contact your bank or financial institution to have him listed as a POA on the account, can your spouse then help you manage your accounts in the event you become hospitalized or otherwise unable to manage your finances.
If you develop dementia and have accounts in your name alone, and if your family needs to access those accounts for your care, then your family will be forced to go to court to establish a “Conservatorship” over you. That costs a lot of money (your money, by the way), and takes a lot of time and emotional energy.
Moral of the story? Put a Power of Attorney in place now. It doesn’t take much time at all.
Questions Answered on Reverse Mortgages
August 26, 2013
The National Council on Aging, a leading nonprofit, has a good page on their website with important questions about reverse mortgages. These questions include “What’s the difference between a reverse mortgage and a regular home equity loan?” and “Aren’t reverse mortgages just scams that give money to big banks?” (no).
They also have written the official reverse mortgage guide for the US Department of Housing & Urban Development, called “Use Your Home to Stay at Home.”
Check out both if you are thinking about a reverse mortgage.