Medicaid

Proposed Legislation Would Change Notice Requirements for Probate Estates

August 14, 2017 | by Mike Drabant

On February 9, 2017, Representative Bill Mitchell of Decatur, introduced HB3089 to the Illinois House of Representatives. The proposed legislation would amend the Probate Act of 1975, by adding an additional subsection to 755 ILCS 5/18-3, which provides the notice requirements for probate estates. This bill has not yet cleared the House of Representatives, as it was referred to the Rules Committee on March 31, 2017, which is where it currently stands.

Section 18-3 of the Probate Act of 1975 states the current requirements for notice of probate estates. Most probate attorneys are already familiar with these requirements: Publication of creditor notice for three consecutive weeks in the county where the estate is being administered, and mailing direct notice to any known or reasonably ascertainable creditors. HB 3089 would add an additional subsection which would require direct notice be sent to the Illinois Department of Healthcare and Family Services (DHS) if the decedent was 55 years of age or older or resided in a nursing facility or other medical institution. HB 3089 further provides that the notice be sent to the Bureau of Collections at the Chicago office of the Department, and must include a copy of the underlying petition as well as the decedent’s social security number and date of birth.

There are a few interesting pieces of this proposed legislation which are worth examining. The first is the number of probate estates this would impact. Presumably, a large number of decedents are over age 55 at the time of death. Furthermore, the notice would also be required for any decedent (regardless of age) who “resided in a nursing facility or other medical institution.” The concern with this language is that it is broad and undefined. Does it apply for a decedent who ever resided in a nursing home, or just resided there at the time of death? What is considered a “medical institution?” Does it apply for assisted living facilities, rehab, or extended hospital stays? If this legislation passes, the best practice for attorneys may simply be to send the notice to DHS for every probate estate opened.

Rethinking the Reverse Mortgage

May 30, 2017 | by Wilson & Wilson

The Reverse Mortgage has gotten a bad reputation in the time since it was first created by the Federal Housing Administration in 1988. The mere mention of the Reverse Mortgage usually brings to mind foreclosed homes and declining financial health. In fact a Reverse Mortgage is simply an equity loan secured by someone’s home with a deferred payment plan. Unlike a traditional home equity line of credit, no reverse mortgage interest or principal is due until the loan reaches maturity. As long as the homeowner resides in the property and stays current on property tax and insurance payments, they can reside in the home without making any payments on the money they have borrowed.

In order to qualify for a reverse mortgage, a homeowner must be age 62 or older with substantial equity in their home. There are no income or credit score requirements. Typically, the older the homeowner, the more they can borrow. A homeowner has the option of taking out a lump sum amount or establishing a line of credit that grows over time if money is not withdrawn.

A homeowner does have the option to pay down the balance of a reverse mortgage over time. Interest paid on the loan can be taken as a tax deduction. If no payments are made, the reverse mortgage is still not due until the last surviving borrower passes away or fails to occupy the home as their primary residence. Reverse mortgage lenders will give the heirs of an estate up to 12 months to complete the sale of the home or refinance the balance of the reverse mortgage. It is VERY important that the heirs of a deceased home owner contact the mortgage lender as soon as possible to inform them of the passing and the heirs’ plans for the property.

First Party and Third Party- The 2 Types of Special Needs Trusts

May 7, 2017 | by William S. Wilson

A Special Needs Trust (“SNT”) or Supplemental Needs Trust is a certain type of trust which can be used for goods and services that governmental programs will not cover. The SNT must have special language within the trust such as: “This trust shall be used to supplement and not supplant governmental programs”. Having such necessary language, the assets in the trust are not counted against the special needs beneficiary as an asset in determining eligibility for governmental programs such as Medicaid and Supplemental Security Income (SSI).

There are two types of SNTs. The First Party SNT is funded with the special needs person’s own funds. For instance, if a person with a disability is awarded monies from a settlement from an auto -mobile accident, those funds can be placed in a First Party SNT to preserve the eligibility for SSI and/or Medicaid. The same process can be used for when a special needs person inherits a sum of money outright.

There is one disadvantage with the First Party SNT. When the beneficiary dies, Medicaid will send a bill to the Trust for the monies spent by that program during her life. The trust must pay back Medicaid the amount of the bill. However, if the trust assets are less than the Medicaid charge, Medicaid will absorb the balance of its bill. If there is a balance after paying the Medicaid bill, the proceeds may be distributed to family or anyone who is a distributee of the Trust.