[WSBAPT] Estate Recovery against Joint Tenancy Interest from before July 2005

[Jeff Davis]

Look at Estate of Wegner, 157 Wn. App. 554 (2010).  This dealt with
imposition of administrative costs against the decedent's joint interest in
real property.  I know it does not involve DSHS or the WAC but a properly
filed DSHS claim is no different then any  other creditor.

 

Jeff Davis

 

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Forrest Carlson
Sent: Monday, April 3, 2017 12:26 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Estate Recovery against Joint Tenancy Interest from
before July 2005

 

Although nobody responded to this, I discovered an answer and will share it
with the list for posterity:

I put in a call to the Estate Recovery department at the Office of Financial
Recovery of DSHS. The representative told me that DSHS's position on WAC
182-527-2746(4)(c) is that DSHS will make no effort to recover Medicaid
payments against property that was held by the decedent at the time of death
as JTWROS if the joint tenancy had existed continuously since before July 1,
2005. This is true even if the estate is otherwise insolvent (as one would
expect it to be in a Medicaid recovery scenario), which means DSHS will not
pursue the JTWROS asset in its capacity as an unsecured creditor -- at
least, according to the representative I talked to.

I have been unable to find any case, ruling, or even discussion on this
specific question in any of the state deskbooks or practice materials.


Forrest Carlson
Assemble Law Group, PLLC
www.assemblelaw.com <https://www.assemblelaw.com> 
(206) 631-9575 

On 3/30/2017 2:07 PM, Forrest Carlson wrote:

Greetings list mates,

Can any of you provide any guidance on this estate recovery scenario?

The hypothetical elderly, unmarried client (HC) has qualified for and is
receiving Medicaid benefits that will subject her estate to estate recovery.
HC's home is an exempt asset held as JTWROS with her adult son. Importantly
(or perhaps not), HC acquired the interest in the home several decades ago
(long before the critical date of July 1, 2005). Assume the son is not a
caregiver, blind, disabled, or otherwise eligible to receive the home by
inter vivos gift without risking Medicaid ineligibility. Other than the
home, HC's estate is expected to have no assets having more than nominal
value.

I understand the general rule is that DSHS can use a lien to recover against
nonprobate assets, including JTWROS property. However, WAC
182-527-2746(4)(c) says that the agency "may not enforce a lien" against
JTWROS property if the decedent's right in the property vested before July
1, 2005. This looks like a blanket prohibition against enforcing a lien
against the property HC will have held JTWROS.

Is this a complete bar to DSHS's recovery against the JTWROS property, or
does it simply mean that DSHS's claim against the estate is unsecured? I
have too little experience to know whether DSHS's authority to recover
Medicaid payments is limited to enforcing liens or whether it could simply
treat the debt like any other unsecured creditor's claim against the estate.

Thank you for any guidance.


Forrest Carlson
Assemble Law Group, PLLC
www.assemblelaw.com <https://www.assemblelaw.com> 
(206) 631-9575 






_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com <mailto:WSBAPT at lists.wsbarppt.com> 
http://mailman.fsr.com/mailman/listinfo/wsbapt

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170403/7fd7c967/attachment.html>