Nursing Home Benefits & Planning
9. What type of trusts can protect family assets?
The creator of a trust can retain the income and life use of assets contributed to an irrevocable living trust (ILT). Assets transferred to an ILT are subject to a 60-month look-back rule under Medicaid. Because of the retained life interest under IRC section 2036, the trust property will receive a stepped-up income tax basis upon the death of the creator.
The 60-month look-back period applies to assets transferred to and from any type of trust. An individual with a revocable grantor trust should first transfer assets from this entity to her name before making gifts in order to have the shorter 36-month rule apply. With respect to trust disbursements of income or principal, any creditor ?steps in the shoes? of a beneficiary (i.e., to the extent that this individual is entitled to receive any benefits, so would the creditor). The Exhibit summarizes when income and principal from a trust can be considered as an available resource for Medicaid. This chart reflects that the look-back rules are not applicable to testamentary trusts, although a provision should be included that no benefits are payable to any beneficiary who otherwise would qualify for governmental benefits nysscpa.org/
gift in contemplation of death
n. (called a gift causa mortis by lawyers showing off their Latin), a gift of personal property (not real estate) by a person expecting to die soon due to ill health or age. Federal tax law will recognize this reason for a gift if the giver dies within three years of the gift. Treating the gift as made in contemplation of death has the benefit of including the gift in the value of the estate, rather than making the gift subject to a separate federal gift tax charged the giver. If the giver gets over an apparently mortal illness, the gift is treated like any other gift for tax purposes.
Attorney’s that might be able to help you and more information
Susan Geffen Esq Torrance, CA