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Why You Should NEVER Use a Life Estate Deed

By July 7, 2016October 29th, 2019Uncategorized

WHAT IS A LIFE ESTATE DEED?

A life estate deed is a deed that creates a life estate for your benefit during your lives. At your death, the property that is in the deed will pass automatically to who you designated beneficiaries in the deed without going through probate. This will protect the property from estate recovery should you require Medicaid-covered long-term care in a nursing home. While it does give your beneficiary an interest in the property now, you retain the sole right of possession during your lives, meaning that you can tell them to leave if you wish. The only limitation on your control of the property at this time is that you cannot sell or mortgage it without your beneficiary agreeing and signing the deed.

Businessman with Coat and Tie Holding House.

Businessman with Coat and Tie Holding House.

 
After your deaths, your beneficiary will own the property as cotenants with other named beneficiaries, meaning that if either dies before the property is sold, his or her share will pass under the terms of his or her will. The alternative would be to make them joint tenants so that the property would belong entirely to the survivor.
 
Creating this life estate is considered a transfer that will make you both ineligible for Medicaid for 5 years. If the grantor does require nursing home care during that time, the transfer penalty can be ‘‘cured’’ by the beneficiary conveying their remainder interest back to the grantor. We would discuss the best strategy to follow in that circumstance.

Why should you avoid using a life estate deed?

When you transfer property with a retained life estate to someone else, you can not sell the property without the remainder owners’ consent. You also lose the right to change who the eventual owners will be; once the transfer occurs, you can’t take it back without consent. This contrasts with a trust which allows you to retain a limited power of appointment and change who the eventual beneficiaries will be at any time. The property will become an asset of the remainder beneficiaries immediately upon the transfer and will also be available to the creditors and may prevent them from obtaining means tested governmental benefits such as Medicaid and SSI.
One of the biggest reason why you wouldn’t want to transfer the home subject to a life estate is that should the family decide to sell the home while you are in a nursing home, it will result in the life estate portion of that transfer (calculated using the LIFE ESTATE VALUATION TABLE) becoming an available resource and disqualify you from Medicaid eligibility.
THE MORAL OF THE STORY: If you plan to use a life estate deed, you should plan on holding title in the life estate until the death of the grantors.
A preferred method of holding title would be via an Income Only Trust which would allow for a sale of the real estate without the corresponding ineligibility from Medicaid or having the proceeds being deemed available for the grantors.
Want to discuss more? Contact our office to schedule a no-cost consultation.
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Matthew J. Leonard, Esq. has devoted his practice to handling the legal needs of individuals and their business interests through all stages of life. As an attorney with the law firm of Leonard Legal Group, P.C., he has been engaged to handle matters from basic to sophisticated involving Estate Planning, Elder Law, Medicaid Planning, Probate, Trust and Estate Administration, Real Estate, Business Transactions, Business Creation and related litigation.