[WSBAPT] SNT and IRAs

Wed May 6 14:06:31 PDT 2015

OK, OK.  Uncle Uncle.  If I can’t even get the questions right, then I am
waaaaay over my head in this area of the law and I plan to refer the PR for
advise in this matter.  Thanks to all who attempted to save me (and my
malpractice carrier) from myself.

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Wednesday, May 6, 2015 11:23 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] SNT and IRAs

Yes, Medicaid considers a disclaimer as a gift. 42 U.S.C. 1396p(e) provides
that the term “assets” used to determine income and resources of an
individual or the individual’s spouse includes any income or resources which
the individual “is entitled to but does not receive because of action by any
person, including any court or administrative body, acting at the direction
or upon the request of the individual or such individual’s spouse.”
Washington State construes “action” to occur when one disclaims.

The one issue I am unsure of the answer to, is that a third party SNT
created by a deceased spouse’s will, if one disclaims and the result is that
it goes to this SNT, is this “transfer/disclaimer” to trust that Medicaid
considered an exempt transfer.  

Also, if the IRAs didn’t name a beneficiary, you are under a 5-yr pay out
period anyway assuming W didn’t die after 70 ½.  Thus, it may be better to
cash them out, take the tax hit and divide one-half to H and one-half to W.
H may have some offsetting medical expenses to reduce the tax hit too!

Really complex situation Paul.

Marcus J. Fry

Lyon, Weigand & Gustafson, P.S. 
Adoption Attorney*

P.O. Box 1689 
Yakima, Washington  98907 
Telephone:  (509) 248-7220 
Facsimile:  (509) 575-1883 

NOTICES:

 *Adoption Attorney reflects election as a Fellow of the American Academy of
Adoption Attorneys, an invitation based organization of 300+ attorneys
nationwide, under its criteria of experience, ethics and peer
recommendation. Washington's Supreme Court has not yet developed or
recognized a credentialing process for specialties, and
certification/fellowship is not required to practice law in this state.

Confidentiality: This e-mail transmission may contain information which is
protected by attorney-client, work product and/or other privileges.  If you
are not the intended recipient, you are hereby notified that any disclosure,
or taking of any action in reliance on the contents, is strictly prohibited.
If you have received this transmission in error, please contact us
immediately and return the e-mail to us by choosing Reply (or the
corresponding function on your e-mail system) and then deleting the e-mail.

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Wednesday, May 06, 2015 10:46 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] SNT and IRAs

This raises the question for me of whether a disclaimer by a Medicaid
recipient is considered an asset gift when disclaimed.  Who knows that?

Roger Hawkes, WSBA # 5173

19909 Ballinger Way NE

Shoreline, WA 98155

 <http://www.hawkeslawfirm.com> www.hawkeslawfirm.com

206 367 5000

Fax is 206 367 4005

From: Marcus Fry [mailto:mfry at lyon-law.com] 
Sent: Wednesday, May 06, 2015 10:28 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] SNT and IRAs

Paul: 

The facts are bit confusing.  When you state non-probate assets you are not
including the IRAs, correct?  You are talking about checking, savings and
other accounts, correct?  If so, the problem in this situation is that H is
automatically vested on death with the non-probate assets assuming he is
either JTWROS or a beneficiary.  If he disclaims, that will have impact on
Medicaid eligibility assuming he is either on Medicaid or will be on
Medicaid in the next 5 years.  However, if the non-probate asset was just in
wife’s name and payable to the Estate, one-half of that asset would go to
the SNT and the other one-half to H outright.  As to any non-probate asset
in H’s name only, one-half of that account would be disbursed to the SNT and
the other half H would keep.

Of course, the above is assuming there was to CP agreement and I assume
there wasn’t one because W’s Will had a SNT.  If there was a CP agreement,
you are back in the disclaimer situation.

Marcus J. Fry

Lyon, Weigand & Gustafson, P.S. 

Yakima, WA.

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Wednesday, May 06, 2015 9:50 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] SNT and IRAs

Anyone??

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Monday, May 4, 2015 12:42 PM
To: wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> 
Subject: [WSBAPT] SNT and IRAs

Listmates: H & W make contributions to traditional IRAs and Roth IRAs over
the years.  W dies and leaves a Will with all of her assets going to a
special needs trust (“SNT”) for H.  There is no “Super Will” provisions in
the Will for non-probate assets.  H is presumably the sole beneficiary on
the non-probate assets.  H opens probate as the personal representative.
Assume that H wants to transfer as many assets as possible to the SNT.

1.       How does H, as PR, get at and transfer W’s IRAs to the SNT?  Is
this where a waiver would work if H is the only beneficiary listed on the
savings account? What if a waiver doesn’t work because there are alternative
beneficiaries (adult children) on the accounts?

2.       How do Washington’s community laws work here?  Shouldn’t,
technically, ½ of W’s savings accounts go into the SNT and ½ of H’s savings
account go into the SNT?

All guidance appreciated.  

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20150506/2917ed67/attachment.html>