For most seniors, the family home is their most important asset and selecting the best ownership option is of critical importance. A senior may ask these questions. “Should I give my home to my children now?” “If I add my children to the title, what happens if they divorce, have creditor problems or become estranged from me?” “How can I make sure my home will escape probate?” “How can I keep my home in the family in the future?” “How can I prevent the loss of my home if I enter a nursing home?” “Will my children have to pay tax if they sell my home after I have passed on?” These are only some of the questions we, as Elder Law Attorneys, are asked by our concerned clients.
The National Academy of Elder Law Attorneys (NAELA) through its Tax Special Interest Group has prepared this publication as a guide to help Elder Law Attorneys in guiding clients to select the best long-term planning option to own the home in their specific circumstances.
Doing nothing by leaving the senior’s home in his/her name may not be the best solution. Transferring the home outright to loved ones without retaining any control may also be unwise. There are many long-term options used in America to hold the family home which fall between the do-nothing and outright transfer extremes. Five of the most commonly-used options, which are compared in this publication, include (1) joint ownership, (2) the revocable living trust, (3) the irrevocable living trust with grantor retained powers, (4) a transfer to beneficiaries with a life estate coupled with a special power of appointment retained by the senior, and (5) a transfer to beneficiaries with a life estate coupled with a power of sale retained by the senior. This publication will also discuss the less known strategy of an outright transfer to beneficiaries with a lifetime occupancy agreement retained by the senior coupled with a special power of appointment.
The use of the special power of appointment (SPA) will be mentioned throughout the publication. SPAs have long been recognized by state property and federal tax law. The benefit of a SPA is that it allows the senior to remove a beneficiary if an estrangement, divorce or creditor problem occurs with the beneficiary. A SPA can be inserted into a deed or an irrevocable trust.
Other useful home ownership strategies are beyond the scope of this publication.
Married couples commonly purchase a home as joint tenants with rights of survivorship. In the Common Law states, this arrangement is typically called a “tenancy by the entireties”, and in the Community Property states, it is typically called “survivorship marital property”. These ownership forms do not avoid probate upon death of the surviving spouse, and they offer limited protection against a Medicaid Estate Recovery claim against the home if a spouse enters a skilled nursing facility. As such, they are not recommended as a viable long-term planning strategy.
1. Joint Ownership
In joint ownership, the senior signs a deed adding his/her beneficiaries to the title as “joint tenants with rights of survivorship”. All owners including his/her named beneficiaries have a present interest and must sign off if the senior wants to sell his/her home or take out a mortgage loan. The beneficiaries’ interest is subject to possible gift tax. Upon the senior’s death, title transfers automatically by operation of law to the other owners without the need for court supervision.
2. Revocable Living Trust
When a senior sets up a revocable living trust, he or she will have the right to be named as sole beneficiary and trustee. When the senior deeds the home into the trust, the senior retains all rights to the use and control of the home. The ultimate trust beneficiaries, which the senior can change, have no say while the senior is living. A completed gift has not occurred. Upon the senior’s death, the trust beneficiaries acquire the right to receive the home free from court supervision.
3. Irrevocable Living Trust with Retained Rights
When a senior sets up an irrevocable living trust, he/she gives up the right to amend the trust and the senior will usually appoint a trusted person (not himself/herself) as trustee. When the senior deeds the home into this kind of trust, his/her right to control the home will be limited. However, the senior may retain during his or her lifetime the right to use the home, receive rent and a SPA to alter the ultimate beneficiaries who will receive the home after the senior’s death (collectively called Grantor retained rights). As a result of these retained powers, a completed gift has not occurred. If the senior wants to sell his/her home or take out a mortgage loan, the Trustee’s consent will be needed. Upon the senior’s death, the trust beneficiaries will receive the home free from court supervision.
4. Transfer to Beneficiaries but Senior Retains Life Estate
and Special Power of Appointment
In this option, the senior will transfer the home to his/her beneficiaries, but retain the lifetime right of exclusive use of his/her home. This is called a “life estate”. The senior’s beneficiaries cannot interfere with his/her right of exclusive lifetime use. Their only right during the senior’s lifetime is to prevent the senior from selling or transferring his/her home. This arrangement is considered a completed transfer for gift tax purposes since the senior is giving up his/her right to get the home back. In addition to the life estate, the senior can also retain a SPA which allows him/her to the right to change beneficiaries. Upon the senior’s death, his/her life estate ends and the named remainder beneficiaries own full title to the home free from court supervision.
- Transfer to Beneficiaries but Senior Retains
Life Estate and Power of Sale
In this option, the senior will transfer the home to his/ her beneficiaries, but will retain a life estate coupled with (1) the power to sell and give away the home without the consent of the beneficiaries and (2) the right to receive the sale proceeds if the home is sold. Essentially, the senior has the unilateral right to cancel the remainder beneficiaries’ interest. This amounts to complete retained control by the senior. As such, this is not a completed transfer for gift tax purposes. However, after the senior’s death, his/her life estate ends and the named remainder beneficiaries own full title to the home free from court supervision. This arrangement is sometimes called a “Lady Bird” deed (according to unsubstantiated legal lore) because President Lyndon Johnson once used this type of deed to convey some land to his wife, Lady Bird. Some states, such as Tennessee, do not recognize Lady Bird deeds. Tennessee courts view them as conveying no real present interest at all, and as such they are not deeds, but rather, are in effect wills which do not comply with the formalities of the Statute of Wills. By contrast, the States of Wisconsin and New Mexico give statutory recognition to a “payable upon death” deed which is, in concept, a Lady Bird deed. Before using a Lady Bird deed in your state, make sure that this deed is recognized by title standards, statute or case law and state Medicaid policy.
The Key Issues to Consider
The three types of issues to consider in selecting an ownership option include estate planning, taxation and Medicaid qualification in the event of a long-term care admission.
The key estate planning issues are the ability to (1) maintain control of the senior’s home during his/her lifetime, (2) prevent problems when a designated beneficiary is uncooperative, has a creditor problem or divorces, (3) avoid court involvement in the event of the senior’s incapacity, (4) avoid probate after the senior’s death, (5) alter ultimate beneficiaries after the ownership arrangement is set up, (6) prevent upsetting the senior’s testamentary wishes upon the unexpected death of a named beneficiary, and (7) secure effective long-term family succession after the senior’s death.
Two key income tax issues occurring during the senior’s lifetime are the ability to (1) preserve the exclusion from capital gains tax under Internal Revenue Code (IRC) Section 121 when the senior sells the home and (2) secure income deductions for mortgage interest and property taxes. A key income tax issue after the senior’s death is whether his/her named beneficiaries will be able to exclude tax on pre-death capital gains upon sale of the home. This is called the step-up in tax basis to fair market value rule.
In some states, the transfer of a home can result in negative property tax issues, such as the loss of lower homestead millage rates, the loss of state income tax credits, and/or an increase in the taxable assessment of the home. If these potential problems apply in your state, they should also be addressed with your client.
For some clients, the application of federal and state estate and gift taxes to a home transfer should also be addressed.
The key Medicaid qualification issues applicable when a long-term care admission is needed include: (1) whether an option may result in the loss of the home’s normal exempt status, (2) whether an option can avoid the home equity cap imposed by the Medicaid law called the Deficit Reduction Act (DRA), (3) whether an option will trigger the DRA’s 60-month look-back and delayed start-date divestment penalty, (4) how corrective action can be taken if the senior is admitted to a nursing home before the 60-month look-back expires, (5) whether an option can shorten the divestment penalty period, (6) whether an option can avoid a Medicaid Estate Recovery lien after the senior’s death in those states which impose a lien, (7) whether an option can avoid Medicaid recovery against a home which passes through probate or is subject to an expanded definition of an estate in certain states, and (8) whether an option can prevent countability of the sale proceeds if the senior sells his/her home and (9) whether home repairs/improve-ments will be treated as exempt purchases.
Comparing the Options
Each of the five ownership options has its own advantages and disadvantages when evaluated according to the key issues listed above. No one option satisfactorily addresses all the listed issues. Let’s compare the options.
Estate Planning Issues
- All five ownership options can successfully avoid court supervision upon the senior’s death.
- Only the revocable living trust and the Lady Bird deed permit complete lifetime control of the senior’s home. In the three other options, the senior must be willing to give up some control over the home.
- The ability to alter the beneficiaries after the senior sets up the ownership option may be important to him/her. In joint ownership, the senior will need to obtain the consent of the other joint owners if he/she wants to alter the beneficiaries. The other four options will permit beneficiary changes by the senior without the consent of the beneficiaries.
- Although unlikely, a younger designated beneficiary may unexpectedly predecease the senior after the senior has set up an ownership option. In such a case, the deceased beneficiary’s interest may pass to other beneficiaries not desired by the senior. Both revocable and irrevocable trusts can be written to automatically achieve the senior’s desired intent. In both life estate arrangements, the senior can make desired beneficiary changes after the younger beneficiary’s death. Joint ownership, on the other hand, may result in frustrating the client’s testamentary intent if a beneficiary predeceases, unless the other owners consent.
- Both trust options offer more effective long-term family succession planning after the senior’s death than joint ownership or a life estate arrangement. In a joint ownership or a life estate arrangement, the surviving owner or owners will own the home in their own name(s) after the senior’s death. This arrangement can expose the surviving owner(s) to divorce, creditor and disharmony problems. Another problem is that the senior’s testamentary wishes may be frustrated when one of the survivors dies. For example, if the senior names three ultimate beneficiaries as joint owners with survivorship rights and after the senior’s death one of them dies, the other joint owners (rather than the deceased beneficiary’s children) will inherit the deceased beneficiary’s share. This result may not be what the senior intended. The two trust options are better because the home’s title will continue in the trust’s name and the terms of the trust will enforce the senior’s intent.
- All five options allow the senior to preserve the tax deductions of mortgage interest and property taxes on Schedule A of Form 1040.
- The revocable living trust, irrevocable living trust and both life estate arrangements can be set up to preserve the full IRC Section 121 exclusion from capital gains tax if the senior wishes to sell his/her home. In joint ownership, however, only the senior’s share of sale proceeds will be excluded from income tax, the share of the other joint owners will not.
- After the senior’s passing, all five options will allow the designated loved ones who receive the senior’s home to exclude pre-death capital gain from tax when they sell the home under IRC Section 1014 before 2010. Also, it has been held by federal case law that the stepped-up tax basis can also be achieved when a senior transfers his/her home outright to loved ones but continues to reside in the home with an oral or written understanding that the senior can remain in the home for the rest of his/her life. The use of a retained lifetime occupancy agreement coupled with a SPA should be used to confirm the arrangement. In 2010, a new tax basis rule in IRC Section 1022 is scheduled to go into effect, and the senior will need to consult with an experienced Elder Law Attorney to reexamine his/her plan with regard to post-2009 ramifications.
- The gift tax issue is largely a nonissue in selecting a home ownership option. In addition to the $12,000 annual gift tax exclusion (in 2007) per gift recipient, each senior has a lifetime exemption of $1.0 million to shelter the value of gifts which exceed the annual $12,000 limit. Even though there is a technical requirement of reporting excess gifts above the $12,000 annual limit on IRS Form 709, no gift tax will be due if total combined excess gifts do not exceed the $1.0 million lifetime exemption. Keep in mind that the recipient of the gift pays no income tax on the gift. Also, gift tax reporting is only required when a completed gift has occurred for tax purposes. Of the five key ownership options discussed herein, only joint ownership and the life estate without a power of sale trigger gift tax reporting. In using the other three options, the senior retains enough control to prevent the arrangement from being considered completed for gift tax purposes.
Medicaid Qualification Issues
1. General Discussion
When selecting an ownership option to protect against the loss of the senior’s home if he/she is admitted into long-term care, no option offers a perfect solution. The analysis is difficult because there is federal statutory law combined with varying state statutes, case law, formal policy and unwritten policy which apply, and these rules frequently change. In the final analysis, Medicaid considerations may outweigh estate planning and tax considerations. This is because losing the senior’s home or part of it due to a long-term care admission may dwarf the problems resulting from incorrect estate and tax planning strategies.
2. Medicaid Homestead Exemption at Risk
According to federal Medicaid law, the home is considered an exempt asset unless the Medicaid applicant moves out of his or her home without the intent to return. The DRA limits the home’s exemption to $500,000/$750,000 in equity value. However, states may deny exempt status for the home if it is transferred. Some states even deny exempt status for a home when it is placed into a revocable living trust or a Lady Bird deed.
- DRA’s 60-Month Look-Back Period
Under the DRA, an ownership option will result in a divestment penalty of Medicaid disqualification if a state views the arrangement as a completed transfer and was set up within 60 months before applying for Medicaid. On the other hand, if a completed transfer of the home is set up for 60 months or more before applying for Medicaid, the home should not be countable.
A completed transfer is one in which the senior cannot obtain the return of his/her home without the consent of others. Joint ownership, the irrevocable trust, the life estate without a power of sale, and an outright transfer with an occupancy agreement and SPA are examples of completed transfers. As such, they should trigger the running of the 60-month look-back period (even though the start date of the divestment penalty period may be delayed to a later date). These four completed transfer ownership options amount to a double-edged sword. If they are in place for 60 months or more before Medicaid is applied for, the home will be protected. If they are not, they will trigger a divestment penalty of Medicaid disqualification.
When a home is held in a revocable living trust or Lady Bird deed, the senior can get the home back without the consent of others. As incomplete transfers, they should not usually start the running of the look-back period, nor should they trigger a divestment penalty. However, some state Medicaid agencies have ruled that a Lady Bird deed is a divestment.
- DRA’s Divestment Penalty Period
Keep in mind that the 60-month look-back period is merely a reporting period. It is Medicaid’s divestment penalty which triggers Medicaid disqualification. As stated above, a divestment penalty occurs when the senior transfers his/her home using one of the completed transfers of joint ownership, the irrevocable trust, the life estate without a power of sale, or an outright transfer with an occupancy agreement and retained SPA. In a few states, the transfer of the home into a Lady Bird deed is also a divestment.
Under the DRA, the start-date of a divestment penalty begins not when the senior sets up an ownership option, but rather, on the later of the date (1) the senior is admitted to a nursing home or is receiving an institutional level of care and (2) when the senior’s countable assets are less than the applicable exemption. Therefore, the need to shorten this period may become an important issue.
In addition to imposing a divestment penalty against certain home transfers, the equity in the home may be at risk after the senior dies. All but a few states operate an Estate Recovery program in which the equity in the home may be required to repay the state for its Medicaid assistance.
5. Estate Recovery Programs in General
OBRA ’93 requires all states to operate some form of Medicaid Estate Recovery. Michigan became the final state to do so in September of 2007. States must at least operate a probate-only Estate Recovery program, but are free to also operate an expanded estate program and enforce recovery with TEFRA liens.
Estate Recovery programs vary widely among the states, and generally fall into four categories:
- Probate-only enforced with liens (about 8 states)
- Probate-only without liens (about 21 states)
- Expanded estate enforced with liens (about 6 states)
- Expanded estate without liens (about 8 states)
A few states, such as Texas and Florida, which have probate-only programs, generally exempt the home from recovery.
In a probate-only program, the state files a claim against the senior’s home if it is subject to a probate court proceeding. This would only happen if the senior owned the home in his/her own name at the time of his/her death.
In an expanded estate program, the state can recover against the deceased Medicaid recipient’s pre-death interest in the home which passes to heirs not only though a probate estate, but also via joint ownership, a life estate deed or a trust. State courts have upheld state expanded estate programs.
It would seem that a state’s program could only recover against the home in the probate estate of the Medicaid recipient. However, there has been substantial litigation whether the state can also recover its Medicaid assistance provided to a deceased institutionalized spouse from the home in the probate estate of the community spouse who survived the institutionalized spouse and later died. Minnesota has approved such recovery, but New York and Wisconsin have not.
In state lien programs, a lien is usually imposed against the senior’s home at the time the senior applies for Medicaid. If a community spouse, certain children, or a sibling still reside in the home a lien cannot be imposed, as long as the Medicaid recipient is still alive. However, after the Medicaid recipient has died, it has been held that OBRA ’93 permits a state to impose a lien against the home, even if a community spouse continues to reside in the home.
6. Planning to Avoid Estate Recovery Liens
Selecting an effective lien-avoidance strategy depends on whether the state has selected probate-only Estate Recovery or an expanded form of Estate Recovery. In states which impose probate-only Estate Recovery and impose a lien, the use of joint ownership, the irrevocable trust, a life estate without a power of sale and an outright transfer with a retained occupancy agreement coupled with a SPA should avoid a Medicaid lien if the strategy is in place for 60 months or more before Medicaid is needed. The use of a revocable living trust and Lady Bird deed will not usually avoid a Medicaid lien in a probate-only Estate Recovery state.
In states which impose expanded Estate Recovery against joint ownership, a life estate and living trusts and impose a lien, the lien will attach to the extent of the Medicaid recipient’s home ownership interest. It would appear that only the irrevocable trust and an outright transfer with a retained occupancy agreement coupled with a SPA could avoid the lien in an expanded Estate Recovery state, if the strategy is in place for 60 months or more.
A lien-avoidance strategy which is not in place for at least 60 months before Medicaid is needed will unravel under the DRA as can be seen in the following example:.
On November 1, 2007, Mary, an unmarried person, adds her three children to her home as joint tenants in an effort to avoid her state’s Medicaid lien and avoid probate. Four years later, on November 1, 2011, Mary is forced to enter a nursing facility when she has no assets. Mary would be able to qualify for Medicaid, but the joint-ownership deed disqualifies her because it was done within 60 months of the time she needs Medicaid (assume DRA applies). The penalty period can be cured in two ways. First, her three children can deed their interest in the home back to Mary. Although this would cure the penalty, the state would then impose a Medicaid lien, thereby unraveling the strategy and exposing her home to loss. Alternatively, her children could pay for Mary’s cost of care during the penalty period which, under the DRA, starts when she enters the nursing facility.
7. Planning to Avoid Estate Recovery in the Probate Estate
In most of the states which only authorize a state to file a probate claim against the home, avoiding death-time probate by using any of the five ownership options would apparently protect the home. However, the effectiveness of joint ownership, the irrevocable trust, the life estate without a power of sale and an outright transfer with a retained occupancy agreement coupled with a SPA may unravel as discussed above, if they are not in place for 60 months or more before Medicaid is needed. Some form of corrective action would be needed in such a case.
If the client’s good health may not last for 60 months, the use of a Lady Bird deed, if approved in a state, can avoid probate as well as a divestment, and therefore may be recommended in certain states. Another option effective in some states is an unequal joint ownership arrangement with survivorship in which the senior owns the lion’s share, such as a 99% interest and his/her beneficiaries own the cub’s share, such as 1%. In such a case, the divestment would be insignificant and probate would be avoided. This type of deed can be referred to as a “lion’s share/cub’s share” deed.
The use of the revocable living trust would appear to be a good option since it avoids death-time probate and should not trigger a divestment. However, many states which operate a probate-only program rule that the home, when owned by a revocable living trust, loses its exempt status unless it is transferred back into the Medicaid applicant’s name. If this happens, the home may then be subject to the state’s probate-based Estate Recovery. Again, some form of corrective action would be needed.
8. Planning to Avoid Expanded Estate Recovery
In those states which allow recovery against retained life estates, joint ownership and/or revocable living trusts, planning will be more difficult and should only be undertaken with an experienced Elder Law Attorney.
9. Home Equity Cap of $500,000/$750,000
The DRA introduced an equity cap of $500,000 for homes owned by unmarried Medicaid applicants (a state may elect to increase this to $750,000). If the senior’s equity in his/her home exceeds the equity cap, the senior is not eligible for Medicaid. Joint ownership, the irrevocable trust, the life estate deed without a power of sale and the outright transfer with an occupancy agreement and retained SPA can reduce a senior’s equity below the equity cap. These strategies, however, will trigger divestment. The revocable living trust and Lady Bird deed will not reduce a home’s equity value.
10. Corrective Action to Cure or Pay for the Divestment Penalty
If the client’s good health does not last and Medicaid will be needed before the expiration of the 60-month look-back period, the five options require varying degrees of cooperation from other parties in returning the home to cure the penalty. The revocable living trust and Lady Bird deed do not require the cooperation of others to effect a return. Joint ownership will require the consent of all named parties. As for the irrevocable trust, the trustee’s cooperation will be required.
A better alternative to returning the home may be for the named beneficiaries to pay for cost of care during the penalty period. If the penalty period can be shortened, the cost to the beneficiaries can be reduced.
11. Can an Option Shorten the Divestment Penalty Period
If a divestment penalty is triggered, joint ownership and the life estate without a power of sale may shorten the penalty period. The penalty period cannot be shortened with an irrevocable trust, nor with an outright transfer with a retained occupancy agreement coupled with a SPA. Shortening the penalty for a home in a revocable living trust or in a Lady Bird deed is usually not an issue because neither option triggers a divestment penalty.
12. Can an Option Reduce Countability of Sale Proceeds
Assume that the 60-month waiting period has passed, but the home must be sold. The portion of sale proceeds belonging to the senior will increase countable assets and result in potential disqualification.
All home sale proceeds received by an irrevocable trust belong to the trust not the senior. Therefore, they will be exempt.
In joint ownership, part of the proceeds belongs to the senior, and that part will be countable, the other part belonging to the other owners will not.
In a life estate without a power of sale, the part of the proceeds belonging to the senior will be countable based on the senior’s life expectancy, the other part belongs to the beneficiaries and will not.
In a Lady Bird deed and a revocable living trust, all sale proceeds belong to the senior and will be countable.
13. Will Home Repairs/Improvements be Treated as Exempt Purchases
The use of countable cash to repair and/or improve the senior’s home are generally permitted as exempt purchases under the Medicaid rules. Some states, however, depending on the ownership option, may rule that either repairs and/or improvements are divestments since they do not solely benefit the Medicaid applicant. Most states permit such expenditures for the incomplete transfers of the revocable living trust and Lady Bird deed. Many states may reject either repairs and/or improvements for the completed transfers of joint ownership, irrevocable trusts and life estates without a power of sale.
14. Summary of Medicaid Considerations
In summary, there are four ways in which the home may be lost when Medicaid is needed. First, the home may lose its exempt status in certain states when a transfer occurs, resulting in Medicaid denial. Second, the divestment penalty resulting from a completed transfer may also deny Medicaid. Third, the home or a portion of it may be lost if it is sold as a result of long-term care and the inability to pay for continued maintenance. Fourth, the home or a portion of it can be lost in an Estate Recovery action after the senior’s death.
The Medicaid rules create a complicated minefield which requires experienced professional guidance. Medicaid considerations may outweigh estate and tax planning consideration. This is because ineffective Medicaid planning may result in the loss of the home whereas the results from estate or tax planning mistakes will usually be less disastrous. Proper Medicaid planning for the home will depend on the kind of Estate Recovery program the state has, whether a senior’s good health is likely to last for the next 60 months, whether a spouse will be at home, and whether there will be trusted loved ones who can take corrective action if necessary.
Another caution is that a state may in the future adopt a more restrictive form of Estate Recovery or more restrictive policy rules, such as ruling that a Lady Bird deed or a revocable living trust is a divestment or causes the home to lose its exempt status. Clients need to be informed of these possibilities and the need to periodically reexamine the strategies put in place.
In conclusion, deliberate consideration of these issues, tailored to each client’s specific needs, is critical. Also keep in mind that laws will change and so will the client’s personal circumstances. The attorney will need to explain to the client the need to update the client’s plan in the future. Sample SPA and occupancy agreement forms will be available on the NAELA Tax SIG website at www.naela.org. For additional information about NAELA and how to locate a NAELA attorney, please call 520-881-4005.
The above comparative analysis and any sample forms are only general in nature and should not be relied upon in a specific application. An experienced Elder Law Attorney should be consulted for specific advice. Also, this analysis, prepared in December, 2007, will not be updated to incorporate future developments.
The primary author of this publication is Robert C. Anderson CELA*, Chair of the Tax Special Interest Group of NAELA. Other contributing NAELA members include Timothy Crawford CELA, Sharon Gruer CELA, Steve Silverberg CELA, Steve Perlis, Hy Darling, Harley Manela, Doug Chalgian CELA, Ben Neiburger, Dennis Sandoval CELA, Andrew Hook CELA, H. Clyde Farrell, Ed Daniel CELA, Nell Graham Sale, Erin Wideman, Robert Gallagher, Timothy Takacs, CELA, Ryan Earl, Jerry Townsend, Lynn St. Louis, and Lee Holmes, CELA.
*Certified Elder Law Attorney, a designation of the National Elder Law Foundation which is accredited by the ABA.