Medicaid Estate Planning: Maximize Your Results

By Rocco Beatrice, CPA, MST, MBA

For those of you not familiar with the 2005 Tax Reduction Act, some of the provisions address specific transfers by seniors under the new Medicaid nursing home provisions. Under the new provisions, before seniors qualify for Medicare assistance into a nursing home, they must spend-down their assets. These new restriction have a 5-year look-back. The look-back used to be 3 years.

By a vote of 216-214, the U.S. House of Representatives passed budget legislation that will impose punitive new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care.

WHAT'S MEDICAID?

What’s Medicaid? Medicaid is a government assistance program for people over the age of 65 or who are disabled. Medicaid assistance was designed for those who could not afford medical expenses (for the poor) but Medicaid has become the default for the middle class. The middle class has become the new poor.

Medicaid planning and Medicaid rules are complicated. The government is mandating a 5-year look-back on any transfers you may have made to disqualify you from entering the nursing home. Before the 2005 Tax Reduction Act it was 3 years. The transfer of any assets by the elderly has taken a notation of a “fraudulent conveyance” or in government parlance “deprivation of resources.”

These new rules are spousal impoverishment programs designed to punish the healthy spouse. If one of the spouses gets sick, all resources have to be spent before you can qualify for government assistance. These new restrictive rules punish the healthy spouse leaving the healthy spouse at the mercy of welfare or her children. It’s very humiliating when seniors have planned their retirement based on their ability to keep their home.

ASSETS YOU MUST SPEND DOWN

Assets that you must spend down before you can qualify for nursing home assistance. Anything you own in your name or together with your spouse. Cash, savings, checking, certificate of deposits, U.S. Savings bonds, credit union shares, Individual Retirement Accounts (IRA), nursing home trust funds, annuities, living revocable trust assets, any revocable Medicaid estate planning trust, real property occupied as a home, other real estate you hold as investment property or income producing property, cash surrender value of your life insurance policy, face value of your life insurance policy, household goods and effects, artwork, burial spaces, burial funds, prepaid burial if they can be canceled, motor vehicles, land contracts, life estate in real property, trailer, mobile home, business and business property, and anything else in your name or your possession.

WHAT DO YOU MEAN "FRAUDULENT CONVEYANCE"?

What do you mean by “fraudulent conveyance” or “deprivation of resources.” If you give away your assets and you do not receive an equal amount (value) in return, the transfer is a deprivation of resources and you have committed a fraudulent transfer, (you give your house to your children for $100.00 when the fair cash value of your home is i.e. $150,000). If you gave your house to your children for $100 sixty months (5 years) before you entered the nursing home, you "deprived your resources" from the nursing home expenses. Unwittingly, you also incurred a gift tax on the difference between the $100.00 and the $150,000 and in addition you may have cheated the government out of Estate Taxes.

HOW FEDERAL GIFT TAX APPLIES?

The gift tax rules apply to the transfer by gift of any property. You make a gift if you give property (including money), or give the use of property, or give the income from property without expecting to receive something of at least equal value in return. If you sell something at less than its full value or if you make an interest-free or reduced-interest loan, you may be making a gift.

The general gift tax rules are that any gift is a taxable gift. However, there are many exceptions to this rule. Generally, the following gifts are not taxable gifts:

Gifts that are not more than the annual $12,000 exclusion for the calendar year beginning in 2006 (This is called the Annual exclusion for any 12 month period, see below).
Tuition or medical expenses you pay directly to a medical or educational institution for someone,
Gifts to your spouse,
Gifts to a political organization for its use, and
Gifts to charities.
Annual gift tax exclusion. A separate annual gift tax exclusion applies to each person to whom you make a gift. For 2007, the annual gift tax exclusion is $12,000. Therefore, you generally can give up to $12,000 each to any number of people in 2007 and none of the gifts will be taxable. However, gifts of future interests cannot be excluded under the annual exclusion provisions. A gift of a future interest is a gift that is limited so that its use, possession, or enjoyment will begin at some point in the future. A federal Gift Tax return is filed on form 709 for taxable gifts in excess of the annual exclusion.

FILING A GIFT TAX RETURN

Generally, you must file a gift tax return on Form 709 if any of the following apply:

You gave gifts to at least one person (other than your spouse) that have a fair “cash” value of more than the annual exclusion of $12,000 for the tax year 2007.
You and your spouse are splitting a gift.
You gave someone (other than your spouse) a gift of a future interest that he or she cannot actually possess, enjoy, or receive income from until some time in the future.
You gave your spouse an interest in property that will be ended by some future event.
Your entire interest in property, if no other interest has been transferred for less than adequate consideration (less than its fair “cash” value) or for other than a charitable use; or
A qualified conservation contribution that is a restriction (granted forever) on the use of real property

HOW ESTATE TAX APPLIES?

Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate less allowable deductions. On the date of your death, everything in your name is taxable. Take inventory of what you own: Cash, Savings and checking accounts, CDs, Stocks, Mutual Funds, Bonds, Treasuries, Exempts, Jewelry, Cars, Stamps, Boats, Paintings, and other collectibles, Real Estate ... main home, vacation spot, investment realty, your Business, Interests in other businesses, Limited Partnerships, Partnerships, Mortgages and notes receivable you hold, Retirement plan benefits, IRAs, or any amounts that you expect to inherit from others.

Many people prefer not to think about what will happen on their death, but none of us are immortal and failure to make proper plans can mean that we leave behind is a mess which has to be sorted out by our nearest and dearest, at great expense and inconvenience, at a time when they are emotionally bankrupt.

Your federal death (estate) tax, up to 55%, is based on the "fair cash value" of your property on the date of your death, not what you originally paid. State probate and death taxes are based on the "location" of your property. Thus, if you own property in different states, each state has to be probated and each will want their fair share. The only real alternative to a will arrangement is to set up a trust structure during lifetime which, with careful planning, can operate to eradicate probate delays, administration costs, and taxes as well as giving a large number of additional benefits. For these reasons the use of trusts has increased dramatically.

WHAT IS YOUR GROSS ESTATE?

Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following:

Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs;
The value of certain annuities payable to your estate or your heirs; and
The value of certain property you transferred within 3 years before your death.

WHAT IS YOUR TAXABLE ESTATE?

The allowable deductions used in determining your taxable estate include:

Funeral expenses paid out of your estate,
Debts you owed at the time of death,
The marital deduction (generally, the value of the property that passes from your estate to your surviving spouse), and
The charitable deduction (generally, the value of the property that passes from your estate to the United States, any state, a political subdivision of a state, or to a qualifying charity for exclusively charitable purposes).

HOW GIFT TAXES & ESTATE TAXES APPLY TO MY ESTATE:

If you die in the tax year of 2007, your "taxable estate exemption" is $2,000,000, your "gift tax exemption" is $1,000,000 and you have a maximum estate tax of 45%.

If you die in the tax year of 2008, your "taxable estate exemption" is $2,000,000, your "gift tax exemption" is $1,000,000 and you have a maximum estate tax of 45%.

If you die in the tax year of 2009, your "taxable estate exemption" is $3,500,000, your "gift tax exemption" is $1,000,000 and you have a maximum estate tax of 45%.

If you die in the tax year of 2010, your "taxable estate exemption" is $0.00 (i.e. it's repealed), your "gift tax exemption" is $0.00 (i.e. it's repealed as well) and you have a maximum estate tax of 55%.

13 times in 32 years, congress has changed the rules. Congress is always tinkering with the “Death Transfer Tax.” For more information on what is included in your gross estate and the allowable deductions, see Form 706.

HOW TO AVOID THESE UNPLEASANT RESULTS?

You can avoid all of the above unpleasant results and filing requirements with an irrevocable trust implemented 60 months before you plan to qualify for the nursing home.

By repositioning your assets (transferring your assets) from you to an irrevocable trust, you will NO longer own the assets:

you don’t qualify for the probate process, and
you do not have to file an estate tax return,
because on the date you qualify for the nursing home you do NOT own any assets,
at the time of your death you do NOT own any assets for the probate process,
and at the date of your death you do NOT own any assets to report on your estate tax return.