My mom's property is in a family living trust. She was put in a skilled nursing home and they want to put her in long term care. The problem is my dad years ago had sold half of the acre and then he bought it back. But as near as I can see he did not put it back together as one piece or one acre. So now Medi-Cal is saying that mom needs to sell the one piece that does not have her house on it and then she will qualify for Medi-Cal. But the other piece has the well on it and that is the only water we have. So how can they force you to sell the property? Also he has a deed of recovenance and the grant deed. What happens now? Our father passed away in 2016 and the property is in the family living trust.
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I'm not sure what "appertaining to" means legally, but in this situation I'd want to know if the well makes it qualify.
I found this page:
http://www.canhr.org/factsheets/medi-cal_fs/html/fs_medcal_overview.htm
which includes:
"The following property is generally exempt and, therefore, not counted in determining eligibility:
The Home: totally excluded, if it is the principal residence. Includes mobile home, houseboat, or an entire multi-unit dwelling as long as any portion serves as the principal residence of the applicant, and buildings surrounding, contiguous to, or appertaining to the residence. The property remains exempt if a person in a nursing home or the person's representative expresses an intent to return home on the Medi-Cal Application and Statement of Facts, or if an "exempt" individual resides in the home, such as a spouse, a minor, blind or disabled child (of any age) or a sibling or son or daughter who has lived in the home continuously for at least one year before the applicant entered a nursing home. Note that when the home is exempt, it can be transferred without penalty and without affecting the Medi-Cal eligibility."
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When you say 2016, which month? The California lookback period is 30 months as opposed to 60 months in the rest of the country. Was the property put into the trust over 30 months ago. If not, then that's probably why. It's within the lookback period. You mom's residence is exempt but as you've said, that property wasn't put back together when your dad rebought it. Thus it's not your mom's residence and thus not exempt.
On another note, is the trust revocable or irrevocable? If it's revocable then medicaid may still consider it the property of the grantor regardless of how long it's been in there and thus those assets aren't exempt. That's the thing about a revocable trust. It can be revoked and all the assets go back to the grantor. In California a revocable trust will prevent recovery solely because it avoids probate. No probate means no recovery. But recovery after medicaid is different than eligibility for medicaid to begin with.
You should probably consult a competent medicaid attorney.
As always, I have no idea what I am talking about. None of this should be construed for advice. It's just afternoon sugar rush rambling. You should contact a competent lawyer.
My ? would be why Medicaid thinks it’s hers?
You need to look at the grant deed to see if it was conveyed properly.
For the part with the house land, is it viewed as a nonRecoverable asset by Medicaid as its in a Trust? So when mom dies it’s not subject to MERP aka Estate Recovery by CA? I’d try to find that out ASAP and it’s both an elder law and real estate atty ? to answer.
Property laws really vary by state. So what works for GA may not work for CA. Some states do not do grant deeds.
TX & LA is what I’m familiar with and this is what I would do..... it’s not a DIY, mom/ you will need a real estate atty & elder law atty. But there is stuff you can do now to take to the attorneys which will make it less costly and give attys the info they need.
- First go online to the courthouse land records and pull a download of all the records for both properties. It may not be by address but by PPIN Look at the last tax assessor bill for each and the PPIN will be there. Downloads will be cheap, like $5.00 for a Release of Deed of Trust.
Whatever document you have that are the original and have clear notary &/or recording stamp on it, you do not need to get a new download of.
- you want a plat of both properties from when they were filed to be subdivided originally. These in my experience you gotta go to the courthouse to get. If plats old, it will be in a giant book and an employee has to handle acesssing it and coping it. I’m in New Orleans and some plats are from the 1700 -1800’s and basically have to be handled as archival. Take cash to pay for the plat. Could be cheap or could be expensive. Call ahead to find out.
- download the current tax assessor taxation measurements for the land that show egress (existing road access) to each PPIN.
If well land has no egress to it except through the piece that the house is on, the value of well land should be super low. Nobody off the street will ever buy it as they cannot get access to it. It’s landlocked. The landowners on the other sides do NOT have to allow egress to it. Although they may want to buy it.
If someone not already owing adjacent land to well land was going to buy it, they would have to get a “vacation” by one of the bordering property owners recorded by the court to allow for a passageway to the land. Fat chance that’s gonna happen....
That well land could be realistically way way lower than what the tax assessor has affix for its value. I’d bet the assessor just divided the value in half when your dad “transferred / sold” it and it has remained that way now since forever. You might be able to get it appraised to be very low in value. If that was the case could you or other family buy it?
If so AND the property with the house on it is excluded from being able to be placed with a Medicaid lien on to, and Medicaid won’t budge, this might be the simplest way to just get your mom’s Medicaid application approved.
If say it’s appraised at 20k, it sells to you like 3rd of the month. Then you have a pre need funeral & burial polices at the ready to buy for mom at whatever is the max allowed by CA Medicaid. She buys new hearing aid and couple of pairs of eyeglasses. Get dental work done. Super nice wheelchair. The 20k from the Act of. sale of well land is spent entirely within the month. She starts the month impoverished and ends it impoverished.
Mom may be able to try to get it viewed as inaccessible asset.
Thats a real estate atty. question. It an asset with a theoretical value but cannot ever realistically be sold so Medicaid waives counting it. It’s unusual but can happen. Mineral rights often get viewed as this as a field is over couple of counties with 5 lines to wellhead. Each line has like 60 owners who don’t own the land but only mineral rights. You can’t sell your 1/60th of 1/5th and the royalty is like $30 annually.
Good luck and let us know what happens