Is this adequate language to ensure Mom's bequest doesn't go to a nursing home?
"... if she survives me by at least 90 days and is both living independently and not receiving assistance of any kind. Should she predecease me or not qualify by reason of receiving assistance, her share shall be divided equally among my sister..."
One misplaced or missing word can cause difficulty.
You mentioned "Medicare", was wondering if your meant "Medicaid" which is different. Medicaid is used when a person cannot budget for Assisted Living and needs Nursing Home care. Medicaid will pay for room/board and care. Medicaid will want to be reimbursed for funds used for your Mom's care by attaching a lien onto a home she may own, etc. Medicaid is funded by us taxpayers.
You need to talk to a lawyer versed in Medicare. Any trusts or changes in ownership of property have be done before the five year look back. If not, they are void.
Is that what you are trying to figure out how to do?
If so, what kind of assets? Like just $ or property or to be beneficiary of life Insurance policy? If it’s $ is it a good amount of $, like 100k++ or are you talking like 15k - 50k range?
My main question is, can Medicaid force the estate to pay the bequest?
This person only wants to leave her money if she doesn't need it for medical care?
If thats it, imo $ goes into something that falls outside of probate. & paperwork happens 5 years before a medicaid LTC application filed.
Bank accounts can be set to be POD (pay on death) to someone. These fall outside of probate. Banks do these easily if the account holder is competent to do them & has the PODs info. Some banks require POD to appear in person to do signature cards & present valid ID.
If there’s significant cash assets those might get placed into irrevocable Trust years & years ahead of ever applying for any type of Medicaid- both community based and LTC NH. And imo needs to be real $, like mid six figures to do the Trust so there’s $ to have investments to “feed” the Trust costs & increase its value. Estate atty do Trusts all the time & deal with the tax filings needed. Not a DIY.
If this is a much smaller amount of cash, imo your wasting your time trying to find a way to place it & hope get around Medicaid.
Do a “spend down”, spend on items that helps their health & living needs now or costs that will happen after death, like buy a burial fully paid preneed policy, get dental work done, take them to speciality MD appointments & whatever follow up needed, buy new & multiple pairs of eyeglasses & hearing aids, buy a Better quality wheelchair or walker. Dental is rarely if ever covered by LTC Medicaid & could easily run six figures. They get their legal updated. These are all legit spend downs.
If they apply for medicaid, they have to submit all their financials & up to 5 years worth to any acct their name & SS# is attached to. There will be no special set aside that Medicaid will overlook & not count unless there’s a community spouse or other legal dependent. For LTC Medicaid they have to be “at need” both financially and medically. As others have said by & large for financial it’s under 2k in nonexempt assets. That’s it $2,000.00. For medical its being “at need” for skilled nursing care in a NH with documentation unless your state does AL waivers.
Drawing up documents really best left to legal. She has $, see atty.
Please don’t do a will on your own. Trying to get a holographic will allowed by court to be valid likely to be difficult. An atty will likely have to find 2-4 folks who can attest to knowing her & her signature & that takes time & $ to do. And even then judge might put it under dependent administration, which take more time & detail to happen. Really meet with elder law atty to do will/ codicil & see if anything else can be done.
If your elder is needing skilled care now or looking like needing it in the very near future, the days of doing any creative Medicaid planning have passed. There’s no 5 yr availability. That 🚢 has sailed imo.