Author Archives: YAY Technology

To Probate or Not to Probate

Tip – Depending on current circumstances, you may not need to probate.

Whether you have a Will or don’t have a Will, your estate must be probated if there is property in your estate that someone needs to take care of and distribute to your heirs—such as a home, a bank account, an investment, etc.

When there is a couple, after the first spouse dies, if the surviving spouse wants to stay in the home, he or she doesn’t have to probate unless the house needs to be sold or the spouse wants to take out a mortgage or home equity loan. In that case, there are various legal procedures that can be followed to transfer the deceased spouse’s interest in the home to the surviving spouse. If nothing is done, when the second spouse passes away, then a joint probate is filed.

If the surviving spouse’s circumstances change, the estate of the surviving spouse may not need to be probated. For instance, if the surviving spouse sells the house to live in a facility or to live with someone else, and if the value of the estate is less than $100,000 probate may not be necessary. To accomplish this, you can put a Pay on Death (POD) on your bank account and make sure that you have named beneficiaries on your financial investments and insurance policies.

In Idaho, probate is a quick and easy process. Nevertheless, as time goes by your situation may become more modest, and you may not have to probate if you put a few things in place. It’s a good idea to review your estate planning documents regularly, especially if events such as marriages, divorces, health problems, death of a spouse or significant financial changes occur. This could save you money and make things simpler for your posterity. It could be looked at as one more nice thing you can do for your loved ones.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

July 2023

Medicaid Review

Tip – There are very specific rules to become eligible for Medicaid.

In Idaho, the Idaho Department of Health and Welfare (IDHW) administers the state’s Medicaid program and provides services for nursing home care through the Home and Community Based Services or Aged and Disabled waiver program for qualified individuals who are age 65 or older who need long term care. Medicaid is a means-tested entitlement program. Eligibility for Medicaid is based on the applicant’s medical condition, their assets, and their income. When applying for Medicaid, the IDHW requires proof of citizenship or legal status, residence in Idaho, social security, pensions and other incomes, assets and for couples, proof of marriage.

Medical eligibility. To be eligible for Medicaid, a person age 65 or older must have a medical need. In Idaho, IDHW uses a Uniform Assessment Indicator form to determine whether the candidate meets the medical need requirements. An application for Medicaid will require a Level of Care Verification from a physician or nursing home representative showing that the participant meets the required level of care.

Resource Eligibility. Medicaid strictly limits the assets people may own while accepting benefits.  Generally, the assets that do not count against the beneficiary are the following:

  • The principal residence
  • One car
  • Burial plot/prepaid funeral
  • $2,000 in cash

All other assets count toward the state determined maximum, which in Idaho for a single person is $2,000. Countable assets are bank accounts, CDs, cash, stocks, retirement accounts, second cars, recreational vehicles, camp trailers, and any other items that can be turned into cash.

When there is a community spouse (the spouse still living at home), Idaho has established levels of exempt assets within a range of what’s allowable under federal standards. These exempt assets, called the Community Spouse Resource Allowance (CSRA), will be the amount of money available to a community spouse as a resource allowance when an institutionalized spouse applies for benefits under the Medicaid program. For 2023 the minimum CSRA in Idaho is $29,724 and the maximum CSRA is $148,620. If the couple’s assets are below the minimum CSRA, the community spouse is allowed to keep all the couple’s assets. If the couple’s assets exceed this amount, the community spouse may only keep half of the couple’s countable assets calculated at the time the couple’s resources are assessed up to the maximum Community Spouse Resource Allowance.

When assessing the couple’s resources to determine the resource allowance, the resources are assessed on a snapshot date which is the first day of a continuous period of long-term care that lasts at least 30 consecutive days or the date a physician states that the institutionalized spouse meets the required level of care. Establishing a snapshot date is crucial in protecting the couple’s countable assets for the community spouse.

Once the resource allowance is determined, if the couple’s assets exceed the minimum CSRA, the couple must spend down their countable assets before the institutionalized spouse will qualify for Medicaid benefits. The issue for the elder law attorney is to educate and guide the couple in spending down their countable assets. To spend down assets a couple may convert their countable assets into noncountable assets. For example, the couple may purchase a new car or pay down a mortgage.

Income eligibility. For 2023, a candidate for Medicaid cannot have more the $2,742 per month in income in order to qualify for Medicaid. Income is anything that can be used to meet needs for food or shelter. Income is cash, wages, pensions, in-kind payments, inheritances, gifts, awards, rent, dividends, interest, or royalties the participant receives during a month. If a potential participant has too much income, they may still qualify for Medicaid by creating a Miller Trust. The Medicaid applicant may divert the excess income into a Miller Trust account bringing their income below the income cap. The diverted income is used to pay for the Medicaid applicant’s monthly care costs.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

June 2023

Medicare Vs Medicaid

Tip – There’s a lot of misinformation and misunderstandings about these two programs.

On July 30, 1965, President Lyndon B. Johnson signed the Medicare and Medicaid Act, also known as the Social Security Amendments of 1965, into law. It established Medicare, a health insurance program for the elderly, and Medicaid, a health insurance program for people with limited income.

Medicare is an entitlement program that pays for hospital, doctor, and prescription medication costs. Medicare covers skilled-nursing services, physical, vocational, and speech therapy, and hospice care whether provided in a facility or in the home. It will cover up to 100 days of rehabilitation following a hospital stay in a rehabilitation center. Medicare does not pay for personal care services or the cost of care in an assisted-living facility or a skilled-nursing facility beyond the 100 days. There is no repayment requirement for any services you receive from Medicare. To qualify for Medicare all you have to do is to turn 65 and apply for the program.

When the elderly need long-term care they apply to Medicaid. Medicaid is not an entitlement program, and you must prove eligibility to receive Medicaid benefits. For an individual to qualify for Medicaid, they must have liquid assets of less than $2,000, which does not include their home, a single vehicle, or a prepaid funeral policy. A Medicaid recipient who is single cannot have income over $2,567 a month. (as of May 2023). However, if their income does exceed that amount, they can set up and use a Miller Trust, and still qualify. Finally, they must meet certain healthcare needs as evaluated by a nurse who is working for the Department of Health and Welfare.

Medicaid will pay for limited personal care services in the home, or it will pay for long-term care in an assisted-living facility or skilled-nursing facility. If you apply and qualify for the Medicaid program, your monthly income is applied to the cost of your care at the facility, and then Medicaid will pay the unpaid balance. You are allowed to keep a small amount of your income for personal needs and to pay for prescription costs. The calculation for a married couple is more complicated.

Generally, the spouse who is not in the facility can keep the home, car, and half of the liquid assets to provide for their needs.

Unlike Medicare, the benefits paid to you for your care under the Medicaid program must be repaid from your estate when you pass. This program is known as Estate Recovery. Your personal representative must notify Estate Recovery of your passing, and then your estate will receive a claim against it for the money that was paid by Medicaid for your care. I often compare it to a student loan; once you graduate from school, you receive a letter from the government saying that you now must pay your student loan back.

It has been my experience that there is a lot of misunderstanding and misinformation about how these programs work. It makes sense to talk with an attorney who specializes in this area of the law to help you receive the benefits you need.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

May 2023

Keeping Wills Valid

Tip – Don’t “write in” changes on your original Will.

Your Will is an expression of your desires concerning who you want appointed to handle your estate after you pass away and to whom you want your property and other assets in your estate to go. Your Will is probated, which means that you file an application and your Will with the court, the court appoints your Personal Representative and issues Letters Testamentary, and your Personal Representative then inventories your property, pays your creditors, and distributes your estate to
the person or organizations you have named. Your original Will is filed with the court, so it is important that you take good care of it, and that those who will manage your affairs knows where it is at. Here are some of the problems that come up occasionally with a Will:

  1. People decide they want to make a change in their Will. Rather than write a new Will, they cross out and write in new information in their Will. This can invalidate the Will.
  2. When one spouse passes away the surviving spouse throws away the deceased spouse’s Will, thinking everything automatically goes to them, not realizing that some of the property in the estate may need to be probated now or when the second spouse dies. Without both of the
    original valid Wills, you must then go through a more complicated, formal process to probate the Will, which takes more time and money.
  3. Occasionally, even though a person has a valid Will, it cannot be located. You can request that a copy of the Will be probated, but you have to use a formal probate process which requires extra time and money and leaves the Will open to challenge.

In conclusion, put your Will in a safe place and let your Personal Representative know where it is at. Don’t throw away your spouse’s Will when they pass away—it will need to be probated at a future date. If you need to make changes or update your Will, have your attorney make the changes and then sign the new Will.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

April 2023

Holographic Wills

Tip – Holographic Wills are frequently ambiguous and are often challenged by heirs.

A Holographic Will is a Will written in a person’s own handwriting. In Idaho, a Holographic Will is valid, whether or not it is witnessed, if the signature and the material provisions are in the handwriting of the testator—the person making the will. (Idaho Code §15-2-503) Even though Idaho recognizes Holographic Wills, they frequently have problems.

A brief example illustrates this point. A woman brought in a Holographic Will of her friend who had recently passed away. The woman who made the Will had no children to leave her property to. Because of ill feelings toward her siblings, the woman had left her entire estate to the friend
who had brought in the Will, leaving nothing to her 2 siblings.

When the Will was filed for probate, it was quickly challenged as invalid by the excluded siblings. The Will was clearly invalid because she had not written the entire Will in her own handwriting but had used a filled in-the-blank form. Some of the Will was in her handwriting and some was typed, so the material provisions were not completely in the woman’s handwriting as required by the statute. Since the Will was invalid, the friend received nothing and the estate was divided equally between the 2 siblings under Idaho’s Intestate Laws—even though the woman who brought in the Will claimed she had many witnesses who would testify that her friend intended to leave her everything.

Sometimes another person will write a Will for an individual who is unable to write and then have him or her sign it. This is invalid also. The person making the Will must write it in its entirety and then sign it.

In conclusion, Holographic Wills are frequently ambiguous, done incorrectly, challenged by potential heirs and result in costly litigation.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

March 2023

Organize Your Important Information – Just Do It!

Tip – Consider taking time now to organize your records and give your
agents appropriate instructions.

Many people understand the importance of keeping their estate planning documents—Will, Trust and Powers of Attorney—in a safe place. People should also consider gathering all their personal information and put it into a binder, where it will be in one place. A planner or binder provides the framework that your agents will need to carry out their eventual responsibilities in an orderly, informed way.

To get started, begin gathering biographical information—birth certificates, marriage certificates, insurance policies, financial/investment information, social security cards, retirement/pension information, personal/family information, etc. It’s also beneficial to have a list of real estate assets, tax information, credit cards, automatic bill-pay, safe deposit boxes and password-protected software or devices.

Next, begin to organize your planner. It’s a good idea to have labeled tab dividers and plastic sheets for inserting related documents. Place your estate planning legal documents in your binder along with instructions for your agents. This keeps all your important information at the fingertips of the people that will be assisting you.

Assembling the rest of your information will take time, don’t expect to do it in one or two sittings. To accomplish this, set aside one-or two-hour windows to work on your planner until you’re done. Make short lists of follow-up tasks and check off each item as you finish it. Pacing yourself will help you make progress without becoming discouraged. (See Nolo “Get it Together, Organize your Records So Your Family Won’t Have to.”)

Having a complete planner with all the important information in one place can avoid the perils of incomplete planning. For example, one lady had everything her family needed, including information about a safe deposit box—with the key taped to an index card, but unfortunately forgot to include where the box was located! She had moved several times, and the family had no idea where the safety box was, even though they had the key. By having all the necessary information and documents in place, your agents will then be ready to step in, in the case of incapacity or death.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

February 2023