Ethan R. Okura
Hawai‘i Herald Columnist
Although a Revocable Living Trust is beneficial for avoiding probate (and for married couples, an A-B Trust can reduce or eliminate estate taxes), it cannot protect your home from nursing-home costs.
Some years back, the State of Hawai‘i passed a Medicaid rule: If your home is in a Revocable Living Trust, you cannot qualify for Medicaid until you take your home out of the trust. Now I am seeing more cases in which the Revocable Living Trust may actually act as a trap trapping your home so that it could be lost to nursing-home costs.
Here’s an actual example: Husband and Wife are elderly, and because Wife suffers from Alzheimer’s disease she is not mentally competent. She lives in a nursing home while Husband is healthy. Husband and Wife own a home which is held in their Revocable Living Trust. The trust says that when both Husband and Wife die, the property will go to their children equally. Wife has large nursing-home expenses of $10,000+ per month.
The trust says that the wife’s half of the trust assets are to be used for her support. Wife is not mentally competent, so she cannot take her half of the property out of the trust. Husband can take his half of the property out of the trust, but he cannot take Wife’s half of the property out of the trust. Or even if the trust does allow Husband to take Wife’s half out of the trust to put it into her name, the trust does not allow him to give the house to himself or their children.
The problem with this trust is that it does not clearly allow Husband or the children to transfer Wife’s property out of the trust to themselves after she is incapacitated. The trust provides that after she is incapacitated, her share of the trust assets are to be used for her benefit. When a person becomes incapacitated, there is a danger of the trust “trapping” her assets.
If the trust assets can be used only for her benefit and Husband is not allowed to even take her half of the property out of the trust, then she could never qualify for Medicaid until the house is sold and half the money is spent on her nursing-home costs. If the trust does allow the husband to take the property out of the trust to put it back into Wife’s name, she could become qualified for Medicaid, but once Husband passes away or moves out of the house, the state will put a lien against her half of the property for every penny the state spends on her nursing-home care.
A trust like this may be fine for a single person with no children who wants to make sure that no one gets any of her assets, unless some assets are left after she dies. However, if a person has a spouse or children, or would prefer to have a relative or friend — rather than the government — receive her assets, the trust should be worded differently.
Many trusts are written so that the assets may become trapped if the person becomes incapacitated and enters a nursing home. The reason for this is that most trusts were written to avoid probate or estate taxes. The attorney who prepares the trust should also consider protecting assets from nursing-home costs.
The problem can be solved by amending the trust to make it more flexible. Your trust should allow some way of transferring the assets to someone else in case of your incapacity. If you have a trust, it would be a good idea to have it reviewed to make sure it gives you the flexibility you need in case nursing-home care becomes necessary.
© OKURA & ASSOCIATES, 2020
Honolulu Office (808) 593-8885
Hilo Office (808) 935-3344
Kauai Office (808) 241-7500
Ethan R. Okura received his JD from Columbia University in 2002. He specializes in Estate Planning to protect assets from nursing-home costs, probate, estate taxes and creditors.
This column is for general information only and is not tax or legal advice. The facts of your case may change the advice given. Do not rely on the information in this column without consulting an estate-planning specialist.