Unfortunately, many trusts will trap assets and force them to be spent for the medical costs of an ill spouse, when the assets could otherwise have been saved from Medicaid spend down, and could have been used for the well spouse.
Generally once one spouse has qualified for Medicaid, there will be a need for the other spouse to re-do their estate and incapacity planning.
A Medicaid application is generally begun by a call to the local Medicaid Office.
Generally, information about the Medicaid applicant is taken, and a case is opened by the Medicaid staff.
A well spouse can only keep certain assets if their ill spouse needs Medicaid.
The Medicaid application process can seem long and complex. That is because it is.
It can take anywhere from several days to several weeks to gather all the information you need to make a Medicaid application.
When someone purchases real estate, except in very limited circumstances, a 1099-S form has to be issued and filed with the IRS.
This is usually handled by a title company.
If the purchaser does not get title insurance, this is often missed.
Sometimes there is a concern that someone should NOT be notified that a guardianship or a conservatorship is being sought for a person.
For example, there may be a sibling or an adult child with whom the person has fallen out, or from whom the person is estranged.
As part of a good estate plan, most people also do an incapacity plan, so that someone else can manage their affairs if they ever become incompetent
A major component of some incapacity plans is a trust, which many people think of as simply an estate plan.
In addition to the savings in state estate taxes in estates (See Part I) where a couple has assets that total more than a million dollars, including their home, their life insurance, and their retirement assets, if a couple either has no estate plan at all, or has a simple will based estate p
One of the most profitable areas for lawyers involves trying to fix problems that arise after someone has died or become incompetent, when the person has “saved” money by using an inadequate estate or incapacity plan, or has no estate or incapacity plan in place at all.
It can be important to complete a Medicaid application, and to provide all supporting paperwork, have any needed Income Cap Trust in place, and the like before the end of a month.
In Oregon, there are certain statutes and conventions which funeral directors, hospitals, and others look to in determining who can make decisions concerning funerals and the disposition of a body after a person dies.
It is not uncommon for people to buy a house together with an elderly relative.
Powers of Attorney allow someone else to handle business affairs for you when you can not or do not want to handle your own affairs.
One of the most important things to remember, following a divorce, is that there are things that must still be done following the divorce.
Don’t wait to do these things, thinking that you can do them when you get around to them.
Often a person wants to leave property in his or her Will to a child.
Sometimes Judgments of Dissolution were not done as well as they could have been.
A prime example may relate to a car or a piece of real estate, such as a house.
If a person is no longer able to handle his or her own personal affairs, and thereby puts themselves or others in danger, a guardian can be appointed for the person in Oregon.
Although a Judgment of Dissolution may assign certain debts to one former spouse, the other former spouse may also still be liable on these debts.
If you were liable prior to a divorce, you are likely still liable after a divorce.
Generally, it is very difficult to move forward with health care if a person is no longer able to direct their own health care if there is not a valid Advance Directive for Health Care in place.
In some circumstances, a Medicaid recipient, or even a person who is planning to make a Medicaid application, may be able to transfer their home to children who lived in the home with them for a certain period, and who provided a certain level of care during that period.
Until recently, it was quite clear in Oregon that a person could file for a divorce, even after a judicial settlement, and that the court could order something completely different in the divorce than was ordered or agreed on in the separation.
Some people wonder if they need a Will or other estate plan if they are ordinary middle class folks, or even people of moderate wealth, but who fall below the estate tax threshold.
Sometimes there is a situation where one side has filed a case in court first, and where the other side filed somewhat later, in another county, but achieved service on the first person first.
Some people decide not to have a Will because they expect to spend everything before they die.
While one can plan for this, sometimes death comes unexpectedly.
There might be a pandemic. Or, more prosaically, one might have a car accident.
In some circumstances, contacting Medicaid can start time clocks running.
In other cases, contacting Medicaid can stop a time clock.
A person can only file for a divorce in Oregon if the person or the person’s spouse has lived in Oregon for at least six months.
However, a person can file for legal separation immediately upon moving to Oregon.
If you and/or your spouse have non-joint children, that is to say, children who are not children of both of you, you need to know that if you die without a Will, the laws of intestacy in Oregon will result in half of your probate assets being divided equally among ALL of your children (includ
In some situations there is a question whether one is allowed to file a divorce case in Oregon. This can be an issue if you have recently moved to Oregon, or if your spouse lives out of state.
Some people wonder whether a Will is worthwhile, and worry about the cost.
Others wonder why they need a Will at all.
In general terms, Medicaid expects that a person who provides care for a relative does so for love and affection, and without the expectation of pay, either at the time of service or in the future.
Sometimes it does not matter who files first in a divorce situation.
Many people chose to have trust based estate plans, instead of relying only on Wills.
There are many good reasons to do a trust.
One reason is that a trust will often allow you to avoid probate after your death.
In Oregon, one can only file for divorce in a county where one party or the other lives.
The form of Advance Directives for Health Care in Oregon is set forth in statute.
In other states, Advance Directives for Health Care are sometimes called Living Wills, or Health Care Powers of Attorney.
Sometimes people put off applying for Medicaid far longer than they should.
This can result in far more money being spent paying for long term care privately than was necessary, if Medicaid could have stepped in earlier.
People sometimes wonder whether they gain an advantage by filing first in a divorce situation.
In some cases, the answer is yes.
Something that some people don’t think of relates to money passing to their children.
If you do not have a Will and are not married at the time you die, your children WILL get your assets (if you have children).
Many General Judgments of Dissolution (sometimes called Divorce Decrees) require retirement assets be split, or require some retirement assets to be transferred or assigned to the owner’s former spouse.
Some people believe that if they only have a small amount of assets they do not need a Will. While it is true that some assets can (with proper planning) pass outside of probate, and that other assets can pass with a small estate proceeding or affidavits of heirship, it is often difficult to
While it can be very unfortunate to wait too long to apply for Medicaid, possibly losing benefits that might have been available, and possibly losing money that did not need to be spent on care costs that could have been paid by Medicaid if an application had been made at the correct time, it
After a divorce is completed, there is usually still a lot of work to be done.
With blended families, the standard provisions for intestate succession (the distribution of money if you do not have a Will) can produce results that are very different than a person might prefer, or even expect.
Under Oregon law, a divorced spouse will be treated as pre-deceased for purposes of inheritance from their former spouse under a Will that existed before the divorce, in most cases.
Many people do not think they have enough money to need a Will.
Others think they will spend everything before they die.
Sometimes people die unexpectedly, of course, and do not get around to spending their money.
Some people (and even some lawyers) question whether a person can make a Will or an Estate and Incapacity Plan providing for their children before they have any children.
It is perfectly possible, and perfectly simple to do this.
In this new environment of the Coronavirus/COVID-19 pandemic, some adjustments may need to be made to a whole range of our lives.
One of the areas where changes may be wise may be parenting.
There may be good reasons for some families to depart temporarily from the existing parenting plan for their children during the Coronavirus/COVID 19 pandemic.
Generally, a parent can structure his or her time during visitation with a child (or during primary parenting time, if the parent is the primary residential parent), without much input from the other parent.
There is some confusion as to how the school closures caused by the Coronavirus/COVID 19 pandemic will affect parenting time.
Many people are worried by the Coronavirus/COVID 19 pandemic, and are limiting their social contacts, and abiding by guidelines for social distancing.
The current health crisis is causing some people to think seriously about creating a Will or a Trust. It is causing others who have been thinking of this to stop putting it off, and to start actually working toward finding a lawyer to work with them on estate and incapacity planning.
It is not uncommon for people who have married late in life, or who are living with a significant other to whom they are not married, to want to protect that other person, and make sure that the other person has a place to live as long as they need it, while also ensuring that their own child
It is not uncommon in a divorce for a couple to agree to a settlement where one former spouse gets the lifetime use of a certain home or investment property, with the understanding that the other former spouse’s children will ultimately receive the real estate.
A question sometimes comes up in estate planning situations where a parent wants to be sure that a child gets a home or some other certain piece of real estate, but does not want to transfer the property immediately.
A life estate is created when someone gives the current rights to real estate to a third party (or retains these rights themselves), while giving the rights to that same piece of property to someone else after the holder of the current rights passes on.
Sometimes a Will is not well thought out.
Sometimes things simply have changed since the Will was written.
It is important to transfer assets into your trust, if you have a trust at least in part because you want to avoid probate.
If you become incompetent (technically, in Oregon, this is called financially incapable) and are unable to handle your finances, someone will have to do this for you.
If a child lives in their parent’s house, and provides a certain level of care for the parent, for at least two years, the parent can give the house to the child without creating a period of Medicaid ineligibility.