Putting a home in an irrevocable trust can protect it from Medicaid estate recovery, but a revocable trust will not. For the home to be protected, it must be transferred into an irrevocable trust at least 5 years (the look-back period) before applying for Medicaid. This removes the home from the individual's countable assets.
The trust segregates funds so they don't count as “available resources” under Medicaid's strict financial eligibility rules. While this might sound similar to a Medicare Set-Aside (MSA)—which is used to preserve Medicare's future interest in a personal injury settlement—MSATs are different in purpose and scope.
Timing is everything in Medicaid planning. Establishing an irrevocable trust well before you need to apply for Medicaid is crucial due to the 5-year lookback period. Assets transferred into the trust within this period could still be subject to penalties.
Placing your home in a trust may offer several benefits, providing financial protection and a sense of certainty for the future. Here are some reasons homeowners take this step: Avoid probate. Putting your house in a trust helps to avoid probate, the legal process that occurs after someone passes away.
Your assets are not protected from Medicaid in a revocable trust because you retain control of them. The primary benefit of a revocable trust is that you can name a beneficiary who will receive payouts from the trust after your death.
Disadvantages of putting your house in a trust include upfront legal costs and complexity, potential difficulty refinancing mortgages, the risk of losing control (especially with irrevocable trusts), the need for meticulous paperwork and ongoing management, and the fact that some tax benefits aren't guaranteed, with potential issues like losing capital gains tax relief or triggering other taxes. It also doesn't protect other assets from probate unless they are also in the trust.
No, Medicare won't take your house, but if you need long-term nursing home care and qualify for Medicaid, the state can place a lien on your home and seek reimbursement from your estate after you pass away through the Medicaid Estate Recovery Program (MERP). Nursing homes can't seize your home, but to get Medicaid, you'll likely need to "spend down" assets, and a modest home might be protected, though states can recover costs from the home's value later.
The main benefit of putting your house in a trust is to bypass probate when you pass away. All your other assets, regardless of whether you have a will, will go through the probate process. Probate in real estate is the judicial process that your property goes through when you die.
Suze Orman, the popular financial guru, goes so far as to say that “everyone” needs a revocable living trust. But what everyone really needs is some good advice. Living trusts can be useful in limited circumstances, but most of us should sit down with an independent planner to decide whether a living trust is suitable.
Establish an Irrevocable Trust
Cash, property, and investments can be transferred into an irrevocable trust. By doing so, these assets would be removed from Medicaid's calculation. However, this trust would need to be established at least five years before applying for Medicaid to avoid lookback scrutiny.
One of the most common mistakes people make when creating a trust is forgetting to transfer their assets into the trust. A trust is only effective if it is funded properly, meaning that you must title your assets in the name of the trust.
5 Ways to Protect Your Home from Nursing Home Costs
Here are some of the biggest Medicare mistakes to avoid:
The recent Supreme Court's decision to uphold the Affordable Care Act confirmed that trust and estates will be subject to the 3.8% Medicare surtax starting in 2013. This surtax will apply if net investment income, inside of the trust or estate, exceeds approximately $12,000.
Trust is preferable over a Will because the assets that are in the Trust are non-public assets. Example: If you take your house and you transfer it into the Trust and your parents passed away, then you don't have to open an estate to transfer the asset, and it remains confidential.
The "5 by 5 rule" (or "5 and 5 power") in trusts allows a beneficiary to withdraw the greater of $5,000 or 5% of the trust's annual fair market value, whichever is higher, without triggering significant tax consequences, offering flexibility while preserving the trust's long-term integrity for the grantor's original purpose. If unused, the right lapses, but repeated lapses can have tax implications, so it's a strategic clause for asset management and tax planning.
For most people with a net worth under $1 million, a simple will is enough. Wills pretty much always go through probate, but a trust, if you set it up right, can help you avoid probate.
Disadvantages of putting a house in trust
Expense. Creating and maintaining a trust is typically more expensive than creating a will. Loss of control. If you create an irrevocable trust, you typically cannot change the terms of the trust or change the beneficiaries.
The "7-year inheritance rule" (primarily a UK concept) means gifts you give away become exempt from Inheritance Tax (IHT) if you live for seven years or more after making the gift; if you die within that time, the gift may be taxed, often with a reduced rate (taper relief) applied if you die between years 3 and 7, but at the full 40% if you die within 3 years, helping people reduce their estate's taxable value by giving assets away earlier.
The "nursing home 5-year rule," or Medicaid's 5-Year Look-Back Period, is a federal Medicaid law requiring states to check for asset transfers (like gifts or selling for less than fair value) made within five years before applying for nursing home care, triggering a penalty period of ineligibility for benefits if violations are found, ensuring individuals spend their own money first before relying on Medicaid. This penalty is calculated by dividing the value of the transferred assets by the average monthly cost of nursing home care, resulting in a delay in receiving benefits.
This insurance can pay for your care without having to use your home's equity. Irrevocable Trust: Place your home in an irrevocable trust. 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.