[WSBAPT] life estate

Tue Dec 19 12:31:08 PST 2017

I think you have everything correct except:
The gift tax issue: The gift giver has to file a 706 gift tax return. There will be no tax owed on the gift. The giver is who would pay the tax if one was due. The recipient of a gift never pays the tax.
Medicaid: The 5 year look back on Medicaid gifts: the life estate holder may be eligible for Medicaid sooner than 5 years, but will have to apply for Medicaid and a period of ineligibility (based on the value of the gift) will apply before Medicaid will actually start. The Medicaid lien will be asserted against the value of the life estate upon date of death. There is a table that assigns the value of the life estate that the State uses. Its not a realistic value, example: an 80 year old’s life estate is: .43659 of the property value.
Jane Bitz.

Jane G Bitz
Of Counsel
Wolff, Hislop & Crockett, PLLC
12209 E Mission, Suite 5
Spokane Valley WA 99206-4824
(509) 927-9700; FAX (509) 777-1800
jbitz at whc-attorneys.com<mailto:jane at jbitzlaw.com>

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Rachel Edmiston
Sent: Tuesday, December 19, 2017 11:29 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] life estate

So, let me see if I’ve got this right.  The problems with a life estate are that the person receiving the house has to pay a gift tax, the life estate holder won’t be eligible for Medicaid for 5 years, Medicaid can recoup some costs by putting a lien on the life estate holder’s house, all parties would have to consent to selling the property and would be entitled to the proceeds, and if there’s a debt due, the grantor would pay an excise tax.  But there is a step up in tax basis when the holder of the life estate dies and the house doesn’t have to go through probate.  Is that right?  I’ve tried talking the client into a TODD before, but based on this discussion, I think I’ll try again.

Thank you,

Rachel Edmiston

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On Tue, Dec 19, 2017 at 11:04 AM, Mike Winslow <mike at winslegal.com<mailto:mike at winslegal.com>> wrote:
Thanks for that clarification, Kate. I stand corrected.
Good to know.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321<tel:(360)%20336-3321>
Em. Mike at winslegal.com<mailto:Mike at winslegal.com>

This message is from an attorney, so it’s confidential. If you are not the intended recipient, it’s too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Kate Szurek
Sent: Tuesday, December 19, 2017 10:04 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] life estate

Transfers with retained life estate bring the property into a decedent’s taxable estate, under IRC § 2036.  Thus, step-up in basis on death.

Kate

Kate Szurek, J.D., LL.M.
kate at skagitlaw.com<mailto:kate at skagitlaw.com>

[SkagitLaw_Signature (2)]
Skagit Law Group, PLLC
P.O. Box 336 / 227 Freeway Drive, Suite B
Mount Vernon, WA  98273
360.336.1000<tel:(360)%20336-1000>
360.336.6690<tel:(360)%20336-6690> (fax)
http://www.skagitlaw.com<http://www.skagitlaw.com/>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mike Winslow
Sent: Tuesday, December 19, 2017 8:55 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] life estate

The use of the QCD, with reserved life estate, will result in loss of the step up in tax basis at Mom’s death (check with CPA to verify this). This is a significant benefit to lose for daughter. CYA letter if you go this route.
Using a TODD avoids probate transfer of the house and retains the step up.

Regardless of approach, Daughter should be documenting now mom’s care needs, as the rendering of care by daughter, under circumstances which allow mom to avoid nursing home care (saving the state and taxpayers money) can allow daughter to avoid a later Medicaid lien if mom becomes institutionalized. Jacob Menashe or others on this list could advise further about how to meet those requirements. Preplanning on this issue will save trouble and money later.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321<tel:(360)%20336-3321>
Em. Mike at winslegal.com<mailto:Mike at winslegal.com>

This message is from an attorney, so it’s confidential. If you are not the intended recipient, it’s too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Rachel Edmiston
Sent: Monday, December 18, 2017 4:51 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] life estate

The plan is for the daughter to move in with her and take care of her so that she doesn’t have to move into an assisted living facility.  Since she’s in her late 60s, she’s not expecting to meet Mr. Right, but you never know.  I’ve explained to her that if she wants to sell the house later on, she would need her daughter’s consent.  I also explained that her daughter’s creditors could reach the house, but again, she doesn’t think this will be a problem.

On Mon, Dec 18, 2017 at 3:16 PM, Marcus Fry <mfry at lyon-law.com<mailto:mfry at lyon-law.com>> wrote:
Josh,
Neither will she with a transfer on death deed.
Rachel,
I think you need a better understanding of client's goals. What if your client wants to move into an assisted living facility? Does she have other resources to pay for it? What if she meets the man of her dreams and she wants to sell and move away with him. With a life estate, she has no authority to direct the sale of house. Lastly, what if her daughter has creditor or marital issues, does she want the house exposed to those?
Marcus Fry
Lyon, Weigand & Gustafson P.S.
Yakima, Wa.

Sent from my Samsung Galaxy smartphone.

-------- Original message --------
From: Josh Grant <jgrant at accima.com<mailto:jgrant at accima.com>>
Date:12/18/2017 2:46 PM (GMT-08:00)
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Cc:
Subject: Re: [WSBAPT] life estate
Clients will not start the 5 year waiting period for Medicaid eligibility as to this asset if they retain a life estate.

From: Rachel Edmiston<mailto:rachel.edmiston at gmail.com>
Sent: Sunday, December 17, 2017 1:44 PM
To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] life estate

Hi,

One of my clients wants to give her house to her daughter and retain a life estate for herself.  I thought this was done by filing a quit claim deed that retained a life estate, but I’m having a hard time finding a sample. Do any of you have one I could use as a guide?  I’d also appreciate any helpful tips you might have or warnings about pitfalls as I’ve obviously never done this before.

Thank you,

Rachel Edmiston

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Rachel Edmiston,
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Rachel Edmiston,
PO Box 13738
Mill Creek, WA  98082
T: 425-945-6333<tel:(425)%20945-6333>
F: 425-272-4294<tel:(425)%20272-4294>

CONFIDENTIAL: ATTORNEY/CLIENT PRIVILEGED; ATTORNEY WORK PRODUCT The information contained in this email is intended for the individual or entity above. This email is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and is legally protected by the attorney/client privilege and/or work product doctrine. If you are not the intended recipient, please do not read, copy, use, forward or disclose this communication to others; also, please notify the sender by replying to this message, and then delete this message from your system. Thank you.

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--
Rachel Edmiston,
PO Box 13738
Mill Creek, WA  98082
T: 425-945-6333
F: 425-272-4294

CONFIDENTIAL: ATTORNEY/CLIENT PRIVILEGED; ATTORNEY WORK PRODUCT The information contained in this email is intended for the individual or entity above. This email is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and is legally protected by the attorney/client privilege and/or work product doctrine. If you are not the intended recipient, please do not read, copy, use, forward or disclose this communication to others; also, please notify the sender by replying to this message, and then delete this message from your system. Thank you.
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