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Choosing the Best Way to Protect Your Home

One of the most common themes that bring clients into our office is the concern over losing one’s home in the event that they need long-term care. Many have a preconceived notion about a certain option that they think is the best fit for them — usually because a relative or friend has done the same thing. The reality of the matter is that every circumstance is different.

For starters, the law of Medicaid Estate Recovery — the state’s ability to recover for Medicaid expenses paid on behalf of a Medicaid recipient — varies from state to state.  Importantly, it is the law of the state in which the individual receives Medicaid benefits which controls, not the state in which the person maintains a home.

An individual who owns a home in Wheeling who receives Medicaid benefits in a nursing home in St. Clairsville, is subject to the Medicaid Estate Recovery rules in the Sstate of Ohio. Likewise, an individual who owns a home in St. Clairsville who receives Medicaid benefits in Wheeling is subject to the Medicaid Estate Recovery rules in the state of West Virginia.

Thus, it is important to consider where you might receive your long-term care when deciding the best way to protect your home. Even the best-laid plans can go awry if the planning option you choose does not work in the state in which you ultimately receive long-term care.

Another important element that must be considered is whether or not the home will need to be sold in the future, perhaps because the home may become too much for you to maintain. Some potential planning options, such as a life estate deed or transfer on death deed, may not be your best option if you may replace your home or sell your home in the future.

Finally, the degree of control which you require is an essential consideration in the home planning process. Some options allow for you to have complete control, with no limitations on your ability to pledge your home as collateral on a loan or even sell the home. Other options require you to obtain the consent of your children to perform the same acts.

These are just a few of the many considerations that you must consider when deciding which planning strategy best protects your home. As is the case with most estate planning, the earlier you begin to consider these issues, the more options you have available to you. Many of the planning techniques that we use must be in place for at least five years to completely protect your home.

Rokisky, Wilharm, Blair & Rokisky are elder law attorneys with offices in Wheeling and Weirton. If you would like to submit a question for publication, email it to rrokisky@rokiskylaw.com.

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