Aging Options Blog : Washington Estate Planning Lawyer & Attorney : Rajiv Nagaich : Aging Options Law Firm : WA Elder Law, Wills & Trusts

An original appraisal was given, and the appraised value decreases monthly.  Every month, the banks withdraw from that.  If after 20 years, there is nothing left to withdraw, can I be kicked out of my house?

No. They cannot kick you out. The worst thing that can happen is that they can say you have no more equity that you can access from this house anymore.  As you grow older, the amount of equity, and the percentage you can access grows.  But they can never kick you out of the house so long as you are living there.  This government program was initiated in order to allow seniors to access their home equity without jeopardizing their right to be able to live there.  

The other end of the spectrum is that if you pass away and the value of your house is down. If the amount you have taken out over your lifetime exceeds the value of the house, you will still be covered by PMI insurance.  This protects your children and your family from having to step in and take care of it. 

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My father passed away in PA, my brother is currently the executor. He is claiming the executor fee is 10% and wants to take 10% from the inheritance.  There is no documentation.  Is this legitimate and what can the rest of us do?

Unless the will spells out that he will be paid, he does not get the fee. If he wants to be paid or resign, someone else can step into his position as the executor and do the same job for no cost.  When we prepare wills, we do cover this issue because sometimes it does take a considerable amount of time to do it.  There is no percentage that an executor is entitled to, and in the state of WA, it is limited to what is reasonable.  This tends to be between $2500-$5000 at most.  You may have to go court and file a petition stating that it is an unreasonable amount, and that you do not wish to see paid as someone else can fulfill that position. 


 

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My mother recently passed away. My father is 94 years old. The trust contains a house, with my eldest sibling as the executor of the estate. My father does not have power of attorney set yet.  I have moved in with my father to take care of him, although I am still paying for my apartment until the end of the year.  I would like to live in the house for less than one year after he passes away to allow time to get the house ready to sell and find my own place. Am I being unreasonable?

My father is worried about making anyone upset and is unwilling to sign anything stating I can stay here although he has told me he does not have a problem with it, though others might.  What should I do?

It is not unusual for caring family members and children to set up to the plate to make someones life better.  The alternative to this is that it is likely that if she does not step up to the plate the father will have to go to an institutional care setting. If in a family of several children, one child steps up, it is my experience that the other children will be thankful that they do not have to give up their lives.  But at the end of the day, when the father passes, everyone seems to forget. Everyone gets fixated on the issue of inheritance.

Your siblings need to come together with your dad and discuss what needs to happen for his needs. He can have it stated in his will that my daughter has the right to live here for one year, and no one will have the right to do anything.  If they cannot solve the issues, it may go to court, in which case it would be up to the attorneys, who may decimate the estate and fuel the fires to the interests of the attorneys and not the family. 

I feel like it is a personal aspect in terms of being reasonable. If she chooses not to step up to the plate, than someone else will need to be paid to do so.  In this case, she would be paid for caring for her father through private resources and government programs.  This way everyone comes out better.

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 Is property conveyed by a single person to a safe harbor trust subject to the five year transfer penalty for purposes of qualifying for Medicaid coverage? If so, what are the advantages of a safe harbor trust as compared to simply gifting the estate property? 

 For a single person the act of transferring property is what starts the five year penalty. Which makes the owner of the property the wrong individual to create the trust unless the trust will name someone other than the transferor as the beneficiary. For those who want to remove assets out of their own estates for asset protection purposes would need to first gift the assets out of the estate to someone they trust; it is that transferee who will then create the safe harbor trust and place the gifted assets in the trust (subject to planning around a concept in law referred to as the step-transaction theory). The purpose would be for the transferee to want to protect the assets from his/her own creditors for the benefit of the named beneficiary (hopefully the transferor) and from title XIX benefits (Medicaid benefits).

For example, a parent might gift a home to a child. The child could consider that unless he put the home in a trust it would be vulnerable to his creditors (accident claim creditors, divorcing spouse etc.) By creating a trust he would remove the asset out of his own estate and thereby be able to afford a level of protection in the home for the parent who gifted the home in the first place.

Alternatively, the parent could place the home in the safe harbor trust naming the child as the exclusive beneficiary. Clearly nothing would stop the child from allowing the parent to use the home even though it is not owned by the parent. Either way, the gift out of the parent’s name subjects the transfer to the five year rule.

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