Assets placed in a Medicaid Asset Protection Trust are not considered countable for Medicaid. However, if Medicaid is needed before the expiration of the five-year look-back period, a disqualification penalty period can be applied before you will receive Medicaid benefits.
The IRS and Irrevocable Trusts
This means that generally, the IRS cannot touch your assets in an irrevocable trust. It's always a good idea to consult with an estate planning attorney to ensure you're making the right decision when setting up your trust, though.
By setting up an irrevocable trust and transferring into it any assets in excess of the Medicaid financial limits, you can effectively shield those assets from the program's fines and other penalties. One issue here is that assets cannot be transferred back out of the trust, so you have lost control of them forever.
Since the definition of “estate” is now limited to a decedent's probate estate only, the Department may not seek reimbursement from any non-probate assets. For example, it would not be permitted for the Department to seek Medi-Cal estate recovery from the living trust assets of a decedent.
The day your assets are transferred into an irrevocable trust, they become non-countable for Medicaid purposes. Unfortunately, those assets are seen as a gift and are subject to the Medicaid look-back period.
Learn more about MERP. California eliminated their asset limit effective 1/1/24. While this means one's home is automatically safe from Medicaid while they are living, the home is not necessarily safe from Medicaid's Estate Recovery Program.
Once assets are placed in an irrevocable trust, you no longer have control over them, and they won't be included in your Medicaid eligibility determination after five years. It's important to plan well in advance, as the 5-year look-back rule still applies.
Some states, like New York and Illinois, allow you to keep significantly more assets, and other states, like Connecticut, less. California is the only state that doesn't have an asset limit for Medicaid, starting in 2024.
Once your home is in the trust, it's no longer considered part of your personal assets, thereby protecting it from being used to pay for nursing home care. However, this must be done in compliance with Medicaid's look-back period, typically 5 years before applying for Medicaid benefits.
Establishing and maintaining a trust can be complex and expensive. Trusts require legal expertise to draft, and ongoing management by a trustee may involve administrative fees. Additionally, some trusts require regular tax filings, adding to the overall cost.
The beneficiary receives the assets or other benefits from the fund. Trust funds can be revocable or irrevocable and several variations can exist within these categories for specific purposes.
Selecting the wrong trustee is easily the biggest blunder parents can make when setting up a trust fund. As estate planning attorneys, we've seen first-hand how this critical error undermines so many parents' good intentions.
If a home owned by a Medicaid Asset Protection Trust is sold, the Grantor is not entitled to the proceeds from the sale. But, if the Trustee invests the proceeds from the sale, the Grantor could collect any interest or dividends generated.
There are also two state exceptions when it comes to the Look-Back Period – California and New York. There is no Look-Back Period for HCBS Waivers in California, and it's 30 months (2.5 years) for Nursing Home Medicaid, although that will be phased out by July 2026, leaving California with no Look-Back Period.
The person you care for can transfer assets into an irrevocable trust to protect them from Medicaid spend-down or penalties, as long as they set up the trust more than five years prior to applying for Medicaid. Any assets in the trust must stay in the trust until after your loved one passes away.
In general, a single person must have no more than $2,000 in cash assets to qualify. If you're over 65, the requirements are more complex. Whatever your age, there are strict rules about asset transfers. Medicaid may take into consideration any gifts or transfers of cash you've made recently.
In other words, while irrevocable trusts can protect assets from being counted by Medicaid (depending on whether the trustee has discretion to spend the assets), Medicaid will still count the transfer of the assets to the trust as a disqualifying transfer if the transfer was made during the transfer penalty period.
At the end of the payment term, the remainder of the trust passes to 1 or more qualified U.S. charitable organizations. The remainder donated to charity must be at least 10% of the initial net fair market value of all property placed in the trust.
A: Property that cannot be held in a trust includes Social Security benefits, health savings and medical savings accounts, and cash. Other types of property that should not go into a trust are individual retirement accounts or 401(k)s, life insurance policies, certain types of bank accounts, and motor vehicles.
If you inherit money and do not report it, you will be required to pay Medicaid back for the services and benefits that were provided during any period you would have otherwise been ineligible. When a Medicaid recipient receives an inheritance, it is counted as income in the month that it is received.
It's possible that Medicaid can take your house through estate recovery if you were 55+ years of age and received Medicaid-covered long-term care services. There are exceptions to the estate recovery rule, which also may vary by state.