Estate Planning to Protect Your Loved One’s Assets

Garden City estate planning lawyerIf a family member or loved one is currently receiving Community Medicaid and has a home in his or her name, Medicaid is entitled to issue a claim against the property upon his or her death. In accordance with federal law, a person receiving benefits from the New York State Medicaid program is subject to estate recovery for assets passed through probate. This means that once a probate proceeding occurs, the Department of Social Services is entitled to recover for the services provided to the deceased through the Medicaid program because the assets were in their name alone.

Probate is the process of administering an estate. It takes place in the Surrogate’s Court where a judge determines how a person’s assets will be distributed based on a person’s will. The process involves gathering all the assets, paying outstanding debts, estate taxes and other administrative expenses as well as distributing assets to beneficiaries. If a person dies without a Will, known as “intestate”, then a Surrogate’s Court Judge will distribute assets based on the state’s intestacy laws. When assets are held in a trust, they are not generally subject to probate and will immediately pass to a named beneficiary. More importantly, the assets may not be subject to recovery by the Department of Social Services.

For instance, if assets are not placed in a trust, but a person is receiving live-in care services through the Community Medicaid Program, and his or her care is being paid for by the Department of Social Services, upon the individual’s death, Medicaid will calculate the cost of care that he or she received and then will seek to recover against the person’s estate. If there are assets passing through probate, Medicaid reserves the right to put a lien on the assets. This is why it is important to take the proper estate planning measures to ensure that Medicaid cannot recover against a person’s estate. In this instance, if assets did not pass through probate, Medicaid would be unable to place a lien on assets.

By transferring an individual’s assets, specifically a home, into a trust, a probate proceeding would not be needed. Therefore, Medicaid could be unable to recover against the estate and his or her assets may be safe. Proper estate planning early on is essential to preserving assets, because the length of time between placing assets into a trust and receiving Medicaid benefits matters.

If you are in the process of planning for the future needs of a loved one, an experienced New York estate planning attorney can give you the legal guidance necessary to help plan for their future. From the simple to complex, the attorneys at Blodnick, Fazio & Associates are skilled in all aspects of elder law and estate planning and dedicated to representing their clients with diligence and compassion. For more information or to schedule a consultation, contact our Garden City estate planning lawyers at (516) 280-7105.


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