I have had situations in my Massachusetts law practice was have been, in a word, impossible. A client comes to me and says that her 93 year old mother is just about to enter a nursing home, for a stay which may be extended. She has some savings and a home that is totally paid for. Her legal competence to sign documents is certainly at issue. What can I do to save the assets she desperately wants to pass on to her children?
The short answer is that not a lot can be done at this stage. Nursing homes are very expensive, and she will eat up her savings at some point and then apply for Medicaid, which will be granted. At some point, however, after the woman passes on, the Commonwealth of Massachusetts will come calling and enforce a lien the state has have accrued on this woman's home. There may be little, or no, sales proceeds available to distribute to her heirs when the home is sold.
If you are in your seventies, or even your sixties, there are steps you can take right now to prevent this from happening to you. You can put your home into a Grantor Trust, with your children as Trustees. The provisions of this Trust will permit you and your spouse to occupy your home, until the death of the survivor of the two of you, and then pass the home on to your children without Probate, You will need to consult your local attorney with regard to the specifics of the transaction. Rules vary from state to state. I do many of these transactions for clients, but only in Massachusetts where i am licensed to practice law,
The key to doing this is getting a "yes" answer to the following question. Do you trust your children?
If the answer to that important question is "yes", I encourage you to get started on this undertaking AS SOON AS POSSIBLE. The Grantor Trust provisions of the Tax code should be consulted, in each case,but, generally you can go on living just the way you are now, and you will know that that beautiful home which you and your spouse have created can pass on to your children, or they can sell the home, and benefit financially from all you have worked so hard to attain. A comforting thought on a day you are thinking about the ones you love!!!!
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