Written by Jill Roamer, J.D.
Last month, California legislatures passed AB 133, which is creating quite the stir in the elder law community. In particular, section 364 therein is especially surprising. It states, in its entirety:
“SEC. 364. Section 14005.62 is added to the Welfare and Institutions Code, to read:
14005.62. (a) (1) Notwithstanding any other law, for an applicant or beneficiary whose eligibility is not determined using the modified adjusted gross income (MAGI)-based financial methods, as specified in Section 1396a(e)(14) of Title 42 of the United States Code, the department shall seek federal approval to implement a disregard of one hundred thirty thousand dollars ($130,000) in nonexempt property for a case with one member and sixty five thousand dollars ($65,000) for each additional household member, up to a maximum of ten members.
(2) This subdivision shall be implemented only after the director determines that systems have been programmed for the disregards specified in paragraph (1) and they communicate that determination in writing to the Department of Finance, and no sooner than July 1, 2022.
(b) (1) Notwithstanding any other law, for an applicant or beneficiary described in subdivision (a), resources, including property or other assets, shall not be used to determine eligibility under the Medi-Cal program to the extent permitted by federal law. The department shall seek federal authority to disregard all resources as authorized by the flexibilities provided under Section 1396a(r)(2) of Title 42 of the United States Code or other available authorities.
(2) This subdivision shall be implemented only after the director determines that systems have been programmed for these disregards and they communicate that determination in writing to the Department of Finance, and no sooner than January 1, 2024.
(c) (1) Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement this section by means of county letters, provider bulletins or notices, policy letters, or other similar instructions, without taking regulatory action.
(2) Within two years of implementing the requirements set forth in subdivision (b), the department shall do both of the following:
(A) Adopt, amend, or repeal regulations in accordance with the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and this section.
(B) Update its notices and forms to delete any reference to limitations on resources or assets.
(d) This section shall only be implemented to the extent consistent with federal law, upon the department obtaining any necessary federal approvals, and to the extent federal financial participation under the Medi-Cal program is available and not otherwise jeopardized.” (Emphasis added.)
This new bill is the first of its kind in the country; all states currently have an asset threshold for long-term care Medicaid eligibility. The bill purports to raise the resource cap substantially by mid-2022 and to eliminate the resource cap altogether by the beginning of 2024. Of course, as noted in the Bill, the implementation of this new law will depend on how the federal government reacts. Will the feds play ball? The Social Security Act states that 1115 waivers can be approved if the purpose thereof is to assist in promoting the overall objectives of the Medicaid program. Is the purpose of the Medicaid program to provide medical coverage to indigent individuals or individuals with means? As California’s new Bill doesn’t align with the current requirements of federal law, it will be interesting to see how this plays out in the coming months.
Written by Robert T. Nickerson
A lot of people do have an idea that they should have some kind of general last will and testament in the worst-case scenario. But you’d be surprised by how many people will ask “how” their supposed to be used. Do will begin use before or after someone is deceased? When does Probate need to come in? By breaking down all of this, this can be used to create a more constructed estate plan.
A living will is a document that legally sets an individuals decisions for end-of-life choices. A last will and testament is a document that legally sets the wishes of an individual for how their assets (physical and financial) are to be used and/or divided among beneficiaries (the people that’ll inherit from the individual).
A last will and testament can (and should!) also have arrangements in relations to children the individual may have, disabled loved ones that individuals were previously responsible for and even an individuals pets. Yes, you can leave out instructions for your beloved Fido knowing they’ll be taken care of.
Does a last will and testament play any part while one is still alive? The short answer is no with a but. What is the but? The but refers to, “…but it can help the rest of the family and even your attorney gain a better idea on what goals an individual had in mind for their property but are not able to communicate”.
There are also a variety of parts that people play in a will, so lets go over those roles. A testator is the person creating the will. The beneficiaries is a person or a group of people that’ll receive one’s assets after death. The executor is the person responsible for the deceased’s estate until the assets are distributed or court action is closed.
So what happens when someone passes away without a will or an estate plan? That’s when the court will come in and manage that person’s assets. Instead of an executor, the court appoints an administrator.
Typically, a will is filed after one’s death. The laws vary from state to state, though the person that’s named the executor will be the one to go to the county clerks office (it has to be the one in the state and county where the individual had the will or estate plan created) and open a case.
The case to determine the distribution of assets is called a probate case. Additional probate cases may need to be filed if they had property in other states, but again, the rules apply depending on the state. Once a probate case is open, it’s recorded with the county clerk and it becomes public record.
Does everything a testator owned all end up distribute within probate? You’d be surprised, but no. Accounts under definite beneficiaries will typically transfer without trouble. Property that’s held jointly with another person may have a stipulation that’ll allow the other party to be the sole owner.
Any property that was in the original name without a named survivorship will ultimately end up as a part of a probate case.
This happens because once a person dies, without a designated beneficiary, there is no living person that has any legal right to transfer any assets. Therefore, the court must determine and make a ruling on who the rightful owners are. Creditors can even step in and make a claim of money the individual had owned them before. If the court sees them as valid, the estate may have to pay them before beneficiaries can receive assets.
If no will was created for an individual, then a probate case still needs to be filed. The difference is that the court will be following default laws of that state in relation to who receives the property and how. An administrator or an executor isn’t able to act until the probate case has been opened.
Understanding what wills do and how probate can affect ones assets and beneficiaries is a proper step in establishing a full estate plan. The next step is to talk to an attorney into drafting those documents. The Law Offices of Jeffery C. Nickerson is committed to helping families and guiding through the process in a simple way. Contact us by clicking on the button below for more information.
Written by Jill Roamer , J.D.
Each year, the Internal Revenue Service (IRS) puts out their “dirty dozen” list. This is a list of scams that are prevalent that the IRS wants everyone to watch out for. Let’s see what’s going on in scammer-town this year.
The scams fall into four main categories: pandemic-related scams; scams relating to personal information; schemes focusing on certain victims; and scams that persuade taxpayers into taking crooked actions.
Due to the pandemic, the government passed legislation that provided financial help to individuals and businesses. A scam can focus on stealing these payments. The IRS alerts taxpayers to watch out for mailbox theft of stimulus checks. The IRS reiterates that an IRS employee will not initiate contact via phone, email, or text asking for your social security number or other information in order to process stimulus checks.
Scammers have stolen identities and filed unemployment claims, the IRS says. These scammers have benefited from the bolstered unemployment benefits but the legitimate taxpayer is the one who may receive a Form 1099-G to report on their income tax return. If you received this form and you didn’t actually receive those unemployment benefits, you should contact the appropriate state agency for a corrected form.
Scams Related to Personal Information
Personal information (PI) is information that is used to identify you and thus could lead to a scammer impersonating you. PI includes your social security number, driver’s license number, banking information, passwords, and more.
The first scam related to PI that the IRS warns against is phishing. This involves the scammer sending you a communication that looks like it is from a legitimate source, like a government agency. You think you are dealing with the IRS but you are instead dealing with a ne’er-do-well. The scammer collects your PI and then is able to perpetrate fraud on your accounts. Or the scammer has a virus embedded in the communication that compromises the security of your computer or phone.
There are also scams related to social media. The scammer may open a social media account and pretend to be friend or family member in order to extract PI from you. Or the con artist could ask you for money due to an “emergency” or for a fake charity contribution.
Schemes Focusing on Certain Victims
With the pandemic, fraudsters have set up fake charities or disaster relief companies. Or they create bogus stories on social media about a fake family that has had it particularly rough due to COVID-19. These stories or charities pull at your heart strings. Before you give to a cause, do your research to make sure it is legitimate, and your funds will be used as you intend. Be wary of a charity asking for a donation via gift card or money wire.
Immigrants are the targets of some scammers. The con artist will impersonate a government employee and threaten deportation or jail if a sum is not paid. The IRS states that a legitimate IRS agent will not make these threats. Similarly, those with limited English-speaking capability are susceptible to phone scams. The Schedule LEP let’s a taxpayer request a change in their language preference so that they can more easily understand official IRS communications.
Scams that Persuade Taxpayers into Taking Crooked Actions
Scammers may offer big discounts for a “settlement” with the IRS, or say that they will file for certain relief programs, such as an Offer in Compromise. While relief programs do exist with the IRS and can prove very helpful for some taxpayers with IRS debt, you need to make sure you are dealing with a reputable company who will actually do legitimate work on your behalf. Look out for misleading advertising or deals that seem too good to be trust. It might be worth contacting the IRS yourself first to see what options you have. There are many resources on the IRS’ website, including a questionnaire to see if you qualify for an Offer in Compromise. And, of course, the IRS offers its forms online.
Scammers are out there waiting to prey on the vulnerable and unsuspecting. The IRS warns to look out for any scam that requests payment via gift cards. Also, be aware that in most circumstances, the IRS will first communicate with you via mail. If the first contact is a phone call, be cautious. And the IRS will almost never send out communications to you via email.
As an elder law attorney, It's important to keep my clients informed. If someone contacts your clients purporting to be from the IRS, they should call the IRS at 800-829-1040 to see what the facts are before proceeding.
Jeffrey C. Nickerson - Estate Planning Attorney - My Passion is Special Needs Planning!