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The Split Gift Plan (Curing Penalized Gifts)

Medicaid is a welfare program for poor people who cannot afford to pay for their medical care. With the average nursing home in Ohio costing over $6,000 a month, most people will become poor quickly if long term care is needed. If the person needing Medicaid is single, but has trusted family members, a split gift plan may be a good option to protect some assets while still qualifying for Medicaid.

Medicaid Basics
In order to qualify for Medicaid, the state looks at a person’s medical needs, and financial ability to pay for care. If one requires more medical care than her income can cover, then Medicaid looks at her assets to see what she could sell to pay for her care. In order to qualify for Medicaid, countable assets must be spent down to $1,500 or less. When someone has countable assets in excess of $1,500, she needs to deplete those extra assets before qualifying for Medicaid. There are only two ways to get rid of money- spend it, or give it away.

Gifting and Medicaid
The Medicaid world is made up of black, white and all the shades of gray in between. Spending money on medical care until there is no more money is in the white. Medicaid fraud is illegal and is clearly in the black. Other things fall in the gray areas, including gifting.

If you have made any gifts within the last five years (sixty months), the presumption is that these gifts were made with the intent to qualify for Medicaid. You can try to rebut this presumption, but it is important to realize that making gifts may affect your Medicaid eligibility.

To be eligible for Medicaid, you must establish that you have medical needs exceeding your income and less than $1,500 in countable assets. After you are otherwise qualified, you will then be asked if you have made any gifts within the last five years.

If you have made gifts in the past five years, Medicaid will approve “Restricted Medicaid.” This means that Medicaid will cover medical expenses, but NOT care in a Nursing Home, Assisted Living Facility or Home Waiver program during a “penalty period”. The length of the penalty period is based on the amount of the gift. Until the penalty period passes, you are required to find another way to pay for your care.

A split gift plan involves part of the gift being returned to pay for care during the penalty period. With the proper plan, usually about half of the assets can be saved. This depends on the client’s income and cost of care.

Calculating the Penalty Period
The Department of Job and Family Services will “look-back” on any gifts the client has made within the past sixty months (five years) to determine if there is a penalty period. This penalty period is measured by the number of months the client could have paid for care had she kept the money instead of giving it away. Since the average cost of care in Ohio is $6,114 per month, the penalty period is determined by dividing the total amount of the gifts by $6,114.

Let’s say that the client made a $75,000 gift within the five year look-back period to her son. The penalty period assigned would be a little over a year. ($75,000 ÷ $6,114 = 12.26 months) During that year, Medicaid would not pay for the client’s Nursing Home, Assisted Living Facility, or Home Care Providers. She would need to find some other way to pay for this care.

The date that the penalty begins is the month in which the client is “otherwise qualified” for Medicaid. This means that the penalty period will not begin until after the client’s remaining assets are reduced to $1,500 and she has made a Medicaid application.

Curing the Gift
Suppose the client exhausts her assets and qualifies for Medicaid. However, because she made the $75,000 gift to her son, she now faces the 12 month period during which Medicaid will not pay for her nursing home care. She can use her income to pay for care, but she receives only $3,500 per month and the nursing home costs $6,000. It will not cover all of her costs.

The solution is to have her son begin returning part of the money given to pay for her care. Her care costs $6,000, minus her income. Her son will need to return about $2,500 a month. At the end of nine months, about $22,500 of the gift will have been completely returned. The client can then notify Medicaid and ask that they recalculate the penalty period based on the remaining $52,500 gift. The penalty on $52,500 is only about 8½ months. ($52,500 ÷ $6,114 = 8.58) Since it now has been nine months since the penalty began, the client’s penalty period on the gift has now passed. Medicaid will start paying for the client’s care.

The remaining $52,500 that was not returned is the son’s money. The son can use that money to buy things for the client (such as personal items and other things Medicaid will not cover.) He should never give the money back to mom, as it may disqualify her from Medicaid. When the client passes away, whatever money is left with son remains with the son and is not subject to Medicaid Recovery.

Making the Gift
A split gift plan does not work for everyone. In order to even make a gift, we need to consider three things. First, if we have the right assets to make a gift. Second, if we have the power to make the gift. Third, if we have trusted people to receive the gift.

The Right Assets to Make a Split Gift Plan
Some assets work better than others in a split gift plan. If the person has less than $50,000, the money can usually be spent down very quickly and another strategy might be more appropriate. Gifting some assets may cause adverse tax consequences or penalties. Gifts do not have to be just cash. They can be a house, or a car or investments. When making gifts of real property, there can be complications in how to cure part of the gift to provide for the client’s care. Most types of property however can be gifted.

Someone to Make the Gift
In order for a split gift plan to occur, someone must be able to make the gift. If the client is competent and wants to do a split gift plan, she can make the gift. If the client is competent, but does not want to make a gift, then there will be no gift made. The client will simply pay for her own care until the money is gone and she needs Medicaid.

If the client is no longer competent, then the question becomes did she appoint an agent under power of attorney while she was competent, to whom she gave the power to gift. The POA document must specifically give the power to make gifts, or else there is no choice but to spend down the money until it is gone. If the client is no longer competent and has no POA, a guardianship may be needed. The courts will most often require the money be spent on care, and may not approve a split gift plan.

Someone to Receive the Gift
Once we know we have the power to make a gift, we look for an appropriate person to receive the gift. We also consider how the gift will be held by that person. A lot of these decisions rely on the numbers of trusted people and the client’s family dynamic.

Split gift plans do not work between spouses as Medicaid looks at a married couple a whole unit. Any gifts made to the spouse still count as an asset that could disqualify the client from Medicaid.


TOD Affidavit: Is it right for you?

Recently there has been a lot of talk about Transfer on Death Affidavits, also known as TOD affidavits. These affidavits can be a powerful tool in controlling the transfers of assets but are not appropriate for all people. In some situations, they can be a disaster. You may be wondering if you need a TOD affidavit in your estate plan. Let’s look at some different examples of how TOD affidavits work.

What is a Transfer on Death Affidavit?

A transfer on death affidavit allows an owner of real estate to designate one or more beneficiaries who will receive the property upon the death of the original owner. It is not a “deed” itself, but rather a sworn statement, filed at the Recorder’s office, that attaches to the deed stating whom the owner would like the property to transfer to upon his death. A person named as a TOD beneficiary does not have a present interest in the real estate. The beneficiary has no rights to the property until the grantor has died. At the death of the original owner, the TOD beneficiaries file an affidavit and death certificate directly with the Recorder, avoiding the probate process.

Example 1: A is married to B. A owns a house with a TOD affidavit that transfers the house to C, her child from a former marriage, upon her death. A dies.

If A is married, then the affidavit needs to include a statement by B waiving his dower rights in the house. If the statement is not included, B may have an interest in the property as a spouse and the title will not transfer free and clear to C when A dies.

Example 2: A is single. She has a TOD affidavit on her house to transfer her house to her child C. A later marries B. She dies without changing her plan.

If A has a TOD affidavit to her house, and then later gets married, the TOD affidavit effectively bars any dower right A’s subsequent spouse would have had to the property. Therefore, C would receive the property upon A’s death and B could be evicted from his home.

Example 3: A is single. B is her friend. A promises B can have the house when she dies. A puts a TOD affidavit on her house to transfer it to B upon her death. A sells the house without telling B. A then dies.

B has no rights to the property until A passes away. A is free to change her estate plan however she likes until her death or legal incapacity.

Example 4: A is single. A has a TOD affidavit that leaves the house to her child D. A takes out a home equity line on the house. A then dies.

 D inherits the house subject to the home equity line. This can affect D’s credit, if D fails to pay off the equity line.

Example 5: A is a single person with a disabled child, D. She has a TOD affidavit that leaves the house to D.

A TOD affidavit would leave the house directly to D. If D is not living in the house, this could adversely affect her public benefits. If D is unable to handle the house, it would be more prudent for A to put the house in a trust for D’s benefit.

Example 6: A is a single person with three children, D, E, and F. She has a TOD affidavit leaving the property to all three children.

Upon A’s death, not only do D, E, and F have an interest in the property, but their spouses also now have a dower interest in the property and it cannot be sold without their consent. Any creditors of D, E, or F may also claim against the property. Using a TOD affidavit to transfer a house to multiple owners can make property management difficult.  If property is held by several individuals, all decisions have to be unanimous. Each individual must agree on who will pay costs and expenses (taxes, condo fees, utilities, etc). If the property will be sold, it is wiser to allow the entire estate to pass via a will or trust, so there is one person in charge of the selling the property and distributing the money equally after the property is sold.

Example 7: A is a single person with three children, D, E, and F. She has a will or trust that lays out specifically what she would want to happen upon her death. She has a TOD affidavit with only child E.

A’s will only governs property that passes through probate. Because a TOD affidavit passes property outside of probate, the transaction is not governed by the will. Similarly, a trust governs only property that is titled to the trust. If the house is not held in the trust, the entire estate plan may change. If A had the intent of leaving everything to be divided equally among the three children, that result will not happen. Instead, the house will go directly to E, and only the remainder of the estate, excluding the house, will be divided among all three children. Child E will receive a much larger share than A intended.

While transfer on death affidavits can be very useful tools, they may not be appropriate for your personal estate plan. There is no one size fits all in estate planning. You should consult with an attorney to find out how you can build an estate plan that is carefully tailored to meet your personal needs.

Ohio’s Probate Modernization Act

Ohio’s probate statutes have been updated to bring more efficiency to the probate process and modernize the language of the law.  The new laws will apply to estates of decedents who die after January 13, 2012.  Many of the provisions are revised to make the statutes gender neutral and to update archaic language such as “lunacy”, “forthwith” and “chattels”.  Other provisions adjust time limits on certain actions; limiting the time allowed for extensions (6 months maximum), reducing the time for admitting an oral will (from 6 to 3 months) and the time one can wait to file a will without penalty (from 3 years to 1 year).  Some of the most significant changes expand or limit the rights of creditors, fiduciaries and beneficiaries.


Creditors will be entitled to question a fiduciary under oath and to receive notice of the filing of accounts.  Actions brought against the fiduciary for failure to pay debts of the estate may be transferred from probate to the General Division of the court.


Fiduciaries’ rights will be expanded to allow them to use or purchase property from an estate or trust.  Investment options will be expanded to allow a broader range of asset classes such as credit union accounts and foreign investments.  Commissioners appointed in a Release from Administration will be permitted to sell property.  Individuals who are not Ohio residents may be appointed guardian of the person.  Fiduciaries that conceal assets or fail to keep the court informed of their current address will be removed.  The new rules establish procedures to ease the process for replacing fiduciaries.


Beneficiaries will also be able to examine fiduciaries under oath.  They may be able to avoid probate in collecting the last wages of a loved one, or transferring certain real estate.  Allowing an auditor’s evaluation to be used rather than hiring an appraiser will save on estate administration costs.

 It’s important that our legislature update statutes periodically to keep pace with society’s changing needs and customs.  It’s equally important that you choose an attorney who keeps abreast of these changes. 


Ohio’s New Uniform Power of Attorney Act

 Effective March 22, 2012 Ohio’s Sub Senate Bill 117 will bring major changes to the law governing financial powers of attorney.  The new statutory form is intended to create uniformity and certainty in the way powers of attorney are construed and to provide certain protections to those who create the documents.

 General Provisions

 A power of attorney is a document in which one person (the Principal) names another person (the Agent) to act on his behalf in handling financial transactions.  The basic form provides for identification of the parties (including successor agents) and spaces to initial next to specific powers given to the agent or to give all general powers.

 Hot Powers

 Set off from the general powers are the so called “hot powers”.  Because these acts pose risks of diminishing the principal’s property or changing his estate plan, they require an express, specific grant of authority.  The “hot powers” include:

  • The power to create, amend, revoke, or terminate living trusts (provided the trust is subject to amendment by the agent)
  • The power to make gifts within certain limits
  • The power to create or change rights of survivorship or beneficiary designations
  • The power to delegate authority to someone else
  • The power to waive the principal’s right to be a beneficiary of certain annuities or retirement plans
  • The power to exercise any fiduciary powers that the principal could delegate

 Special Instructions

 The agents’ powers can be expanded even further if the principal gives special instructions above and beyond simply initialing general grants or hot powers.  For example, he can allow gifts of any size for Medicaid planning, tax planning or exonerate an agent from liability for breaching his duties.

 Special instructions can also be used to name a co-agent and to broaden or limit any of the default presumptions provided in the statute.


 Certain presumptions will apply unless the principal states otherwise.

  • The poa is presumed to be durable – that is, the agent can continue to act even after the principal is incapacitated
  • The poa is effective immediately
  • The signature is assumed to be genuine if properly notarized
  • Photocopies and electrically transmitted copies have the same validity as the original
  • The agent accepts his appointment when he begins acting
  • The agent is entitled to reasonable compensation
  • The agent is authorized to look at medical records, but not to make medical decisions
  • If more than one agent is named, each may act independently
  • Successor agents have the same power as the first agent
  • One agent is not liable for the acts of another agent


 The poa will continue until the principal or agent dies unless it is revoked by the principal, terminated by a court, the agent resigns or becomes incapacitated, or (in the case of a spouse as agent) an action for divorce or annulment is filed.  The agent must have actual knowledge of the terminating event.

 Duties of the Agent

The new law imposes four mandatory duties on agents:

  1. They must act in good faith.
  2. They must act only within the scope of authority given to them by the principal.
  3. They must act according to the principal’s reasonable expectation, if known, and if not known, in the best interest of the principal.
  4. They must attempt to preserve the principal’s estate plan unless it is not in his best interests.

 In addition, an agent must act loyally, avoid conflicts of interest, act with care, competence and diligence, keep records and cooperate with health care agents unless other written directions are given in the document.

 Judicial Relief and Oversight

 Because of the ease with which powers of attorney are drafted and the broad powers that can be given, financial powers of attorney are frequently abused to take advantage of vulnerable seniors or others with limited capacity.  Ohio’s new law addresses these issues by granting interested individuals the right to challenge the agent and require him to account for his actions before the court.

Agents concerned about the extent of their duties and liabilities may also petition the court to construe the meaning of the poa.

The following people are authorized to bring matters before the court:

  • The principal or agent
  • A guardian, conservator or executor (if the principal is deceased)
  • The principal’s spouse, parent or descendent
  • An adult sibling, niece or nephew
  • A beneficiary of the principal’s estate plan
  • Adult Protective Services
  • The principal’s caregiver or another person with sufficient interest in his welfare
  • A person who has been asked to accept his power of attorney
  • Anyone who can petition the estate administrator to petition for an accounting

 If an agent is found to have violated his duties, he must restore the principal’s property and reimburse for attorney fees and costs.  He may also be subject to civil or criminal liability for financial abuse.

 Even though the statutory “form” will be readily available, it is important to have an attorney’s assistance in customizing the document to meet your specific needs and wishes.  Agents may also wish to have an attorney’s help in understanding and fulfilling the responsibilities given.

Veterans Service Commission

Each county in Ohio has a Veterans Service Commission (VSC) to assist veterans and their families. Totally separate from the United States Department of Veteran’s Affairs (VA), Veterans Service Commissioners have two basic functions:  to provide assistance in making claims for benefits with the VA and other government agencies and to provide short term financial assistance to veterans and their families in times of need.


             The VA provides many benefits to qualifying veterans, their spouses, widows and children, but the application process is complicated and requires extensive documentation.  VSC officers and staff are fully trained and accredited by the Department of Veteran’s Affairs to assist applicants in completing the forms and in gathering the appropriate documentation.  This service is provided without charge to all veterans and their families regardless of financial need.

             To qualify for veteran’s benefits, an individual must provide proof of military service, dependency, injury, or disability. The VSC can assist in gathering documents such as the veteran’s DD-214, marriage licenses, birth certificates and medical records.



             The VSC provides short term assistance to eligible veterans and their families who demonstrate a need.  This can include:

  • Food
  • Temporary housing
  • Prescriptions/medical bills
  • Utility payments
  • Security deposits
  • Rent or mortgage payments
  • Employment assistance
  • Car repair
  • Transportation

To be eligible for financial assistance, the veteran upon whose service the claim was made must:

  •  have served at least 90 days of active duty
  •  been discharged under honorable conditions
  •  be a resident of the county in which he or she is applying
  •  show a financial need based on income, living expenses, medical expenses, available assets, and other special circumstances if any.


            Individual VSCs may also provide other services such as free transportation to VA medical facilities, emergency shelter for homeless veterans, transitional housing, case management, counseling, home health aides, and lifeline devices.  The Portage County VSC even has a job development and training program of its own.  The private lawncare business hires, trains and supervises veterans to give them work experience and references for future employment.

            Veteran’s Service Commissions are an invaluable resource dedicated to serving those who have served in the military.

Simple Spend Down for Singles

Medicaid is a welfare program for poor people who cannot afford to pay for their medical care. With the average nursing home in Ohio costing over $6000 a month, even the middleclass can become poor rather quickly if long term care is needed. There are different strategies that can be used to become qualified for Medicaid. The simplest plan is to spend down the assets until the person reaches a qualifying level.


In order to qualify for Medicaid, the state looks at a person’s medical needs, and financial ability to pay for care. If one requires more medical care than her income can cover, then Medicaid looks at her assets to see what she could sell to pay for her care.

Assets are divided into two categories, “exempt” and “countable” assets. Exempt assets are things such as a house (for the first 13 months of Nursing Home care), a prepaid funeral, gravesite, headstone, one life insurance policy worth no more than $1,500 face value, and all of the Applicant’s personal stuff. Countable Assets are everything else; bank accounts, retirement savings, stocks and bonds, other real estate, etc. In order to qualify for Medicaid, countable assets must be spent down to $1500 or less.

Excess assets can be used to purchase or improve exempt assets, or to provide services for the Medicaid applicant. The goal in a proper Medicaid spend down is to use this money in the most advantageous way possible for the applicant without interfering with her Medicaid qualification.

Spend Down

The first thing to do is make sure that the applicant has a prepaid funeral. Pay ahead for any funeral expenses possible, including the burial plots, headstone, the flowers, the service, and the obituary. Make sure that the funeral contract is irrevocable to comply with Medicaid requirements.

Consider using the money to pay for medical expenses that Medicaid won’t cover: motorized wheelchairs, lift chairs, special hearing aids, dentures, and glasses.

Buy any sort of personal items the Medicaid recipient may need or want either now or in the future. This money should not be used to make gifts to family or friends. It must be used for the Medicaid recipient’s benefit. There are no set rules of how much or what type of personal goods a person may buy. A good rule of thumb is the old adage, “pigs get fed and hogs get slaughtered”. Avoid expenditures that seem excessive or inappropriate. Keep all receipts.

For example, you may buy the Medicaid applicant a new tv, but do not buy one that is too big to fit in the nursing home room. One may buy a new watch, but do not buy twelve Rolexes. Avoid buying gift cards, gifts for other people, or things that the person cannot use (for example, an iPod player for a person who is completely deaf).

Use excess assets to pay off debts or invest in exempt assets. For example, if the house needs repairs, it is fine to fix it up to sell it. However, once the house sells, the proceeds will again need to be spent down.

Consider using excess funds to pay for services to make life easier. Pay for attorney fees to handle the Medicaid application, prepare powers of attorney, or a guardianship if necessary. Prepay any taxes that may be due. Prepay any contractors who may be making improvements to the house, a hair stylist, personal aide, or masseuse for personal services. Again, be careful that expenditures are not excessive.

Finally use the money to pay for the Medicaid applicant’s care. At $6,000 a month, nursing home bills can spend down this money quickly if other things are not purchased first. It is usually easier to place a person who has private pay, than to wait until she is receiving Medicaid to find a placement.


Once the Applicant is spent down to only her exempt assets and $1,500, she then should be eligible for Medicaid. After the application is made and the person is approved, she must keep her assets under this amount. Later, if she receives an inheritance or other unexpected funds, this money must be quickly spent down to $1500 again.

Once a person is on Medicaid, her income must go to pay the nursing home. The Medicaid recipient may keep a small amount of her income as a personal spending allowance. In 2014, this personal spending allowance is $45. In 2015 it is slated to rise to $50. Qualified single Veterans or their widows may be eligible for an additional $90 in personal spending allowance each month.

In addition to the personal spending allowance, a Medicaid Recipient can use her income to pay for a supplemental medical insurance policy. The rest of her monthly income is paid to the nursing home. Medicaid will then pick up the balance of the nursing home payment as well as deductibles, copays and other uninsured medical bills. If there is an increase in the amount of income a person receives, it must be reported. That raise must go to the nursing home as well.

Example: Steve is in a nursing home that costs $6,000 a month in expenses. Steve receives $1,020 from social security and $525 from a pension each month. His only other asset is a bank account with $1,450 in it. Once Steve is approved for Medicaid, he will get to keep $45 a month from his income. He has a supplemental medical insurance premium that costs $325. The rest of his income, $1,175 will go to pay the nursing home. The government will pay the nursing home the remaining balance of $4825. If Steve does not spend his monthly allowance and puts it in the bank account, he will soon be over the allowed resource amount, and he may be disqualified from Medicaid.

The simple spend down is just one of many strategies that can be used to qualify for Medicaid. There may be other better options available. If you are concerned about how you will pay for your long term care, or want to know more about a simple spend down plan and if it’s right for you, make an appointment with a knowledgeable Elder Law attorney. Please contact Williger Legal Group at (330) 686-7777 to set up an appointment.

What Every Executor Should Know

The job of executor is difficult because he must perform tasks that are complex and unfamiliar at a time that can be emotionally trying. You can ease your executor’s burden by providing him with the information he will need to perform his duties.


 The executor must gather and inventory all of your assets, pay your debts including taxes and costs of administration, distribute the remaining assets as you direct in your will and then account to the court for all he has done. He needs to report the date of death value for both probate and non-probate assets for the taxes.

 You should provide your executor with current information about the location and value of bank accounts, brokerage accounts, stocks, bonds, IRAs, collectibles, antiques, life insurance policies and annuities. You should also make him aware of the location of your will, stock certificates, deeds, auto titles and tax returns.  A list of your valuable jewelry, furnishings and personal items will also be helpful, especially if you are wanting to give specific bequests.


 Your executor will need to contact your beneficiaries and next of kin and to report their names and addresses to the court so they can be properly notified. He will need the names and addresses of not only those who inherit by the will, but also those who would have inherited had there been no will.  You should also leave your executor the names and addresses of any one who receives property outside of probate, such as by a joint or payable on death account or as the beneficiary of an annuity, life insurance policy or IRA.  These items must be reported on your estate tax return.


 Make your executor aware of people who can help him with the estate. Provide him with the names and phone numbers of your attorney, accountant, broker, financial advisor, banker and insurance agent.  They will be able to provide both assistance with the estate and historical information.

 The law directs the steps the executor must take in administering the estate and the time in which each step takes place. The executor is responsible to the court for following through.


 Initially, the executor files an application to probate the will and an application to administer the estate. He will also file a listing of those who would inherit with and without the will and are, thus, entitled to notice of the proceedings.  He must then serve a notice on these people by certified mail or present a waiver of notice which they have signed. If he does not know all the heirs or their addresses, he must publish a notice in the newspaper.

 The executor must present proof of service or the waivers to the court and certify that everyone who was entitled to notice received notice. The filing of the certificate begins the three month period during which the will can be contested.

 Once the executor has filed his application with the court, he receives his official Letters of Authority which allow him to begin managing the estate assets. He will need to order a tax identification number from the IRS.  He may petition the court to appoint an appraiser to value real and possibly personal property.  Once he has ascertained the value of the assets he will file an inventory with the court.  He will gather together all the assets and place them in an account under his name as executor.  He can then proceed to pay the debts and expenses of the estate and sell or transfer the real and personal property.

 Estate Tax

 There are three or four taxes the executor must concern himself with. He must file the decedent’s final 1040 income tax in April of the year following the death.  He must also file a form 1041 for income received by the estate after death.  This is filed at the end of the estate’s tax year.  He must file an Ohio Estate Tax return and pay tax on amounts over $338,000 (if death is prior to December 31, 2012).  This is due nine (9) months from the date of death.  If your gross estate exceeds the federal limit, he must also file a Federal Gift and Estate Tax.  This tax is also due nine (9) months from the date of death.

 Finalizing the Estate

 Creditors have six months from the date of death to file their claims, but most bills are paid much sooner. If the beneficiaries are willing to accept responsibility for any remaining bills the estate can be closed early.  The executor must file an account with the court six months from the date the estate is opened.  This accounting shows all income and expenses of the estate.  At this time, applications for attorney fees and fees for the executor are presented to the court.  When all is distributed and approved, the estate can be closed.

 Handling your estate can be a complicated and difficult process for your executor. You will make his job infinitely easier by providing as much information and instruction as possible as to how you want your estate to be managed.