Family Home Ownership Concerns and Options for Seniors

The conversation about the family home with a father and son.

Like many seniors, you may have concerns about the future of your family home, such as what happens if you or your spouse go into a nursing home or whether your children can keep the home after you pass away. Fortunately, options and strategies are available to address your concerns. But because of the complexity of related legal issues, talking with a knowledgeable elder law and estate planning attorney is the only way to find out what approach for family home ownership is best for your specific circumstances and needs. Making a decision without help from a lawyer can have significant and unintended negative consequences.

The legal issues relating to family home ownership fall into three major areas: estate planning, Medicaid benefits for nursing home care, and tax implications. All three areas must be fully evaluated before a senior can determine the best option for addressing their family home concerns. A senior who attempts to address the homeownership issues without help from a lawyer can create complicated legal problems for themselves and their family.

Estate Planning

Estate-related concerns usually arise out of wanting to make sure that children can keep the family home after the senior passes away. These issues should be addressed as part of a sound estate plan, developed with help from an experienced elder law and estate planning attorney.

Seniors sometimes try to address these concerns by changing the ownership of the home on their own, such as gifting the property to their children. As we discussed in detail in our previous article, Thinking of Gifting Your House to Your Kids? (Stop! Read This First!), transferring home ownership to your children as a gift is usually not a good approach to estate planning. The transfer can create complex legal issues that may not be easily resolved.

Specific matters should be taken into account when addressing the estate planning issues relating to family home ownership. They include making certain you (and your spouse) maintain control of your home during your lifetime, addressing issues that could arise with respect to a beneficiary (such as creditor problems, a divorce, irresponsibility), avoiding court involvement if you become incapacitated, avoiding probate of the estate, and ensuring long-term family ownership of the home. There may be other considerations arising from your individual circumstances as well.

If you want to make certain your family home concerns are properly addressed, you should discuss your goals with your estate planning attorney as part of creating a comprehensive estate plan. Your lawyer will help you find the best way to accomplish all your goals without creating other significant problems for you or your children. Our elder law and estate planning attorneys at Asset Protection & Elder Law of Georgia are always here to help.

Medicaid Planning

For many seniors, Medicaid benefits can help with long-term care costs, including nursing home expenses. However, your home ownership interest is a significant factor in determining whether you can qualify for Medicaid benefits. If you anticipate applying for Medicaid benefits, any transfer of your home ownership can jeopardize your Medicaid eligibility, because of the five-year look-back rule that applies to asset transfers. Before you take any action regarding home ownership, you should discuss your situation with a Medicaid planning attorney.

A second home ownership issue that affects seniors who receive Medicaid nursing home benefits is the potential for the government to recover for benefits after the Medicaid recipient’s death through the Medicaid Estate Recovery Program. There are strategies for avoiding estate recovery, but they require advance planning as part of an overall Medicaid strategy developed with your attorney.

Actions you take relating to the ownership of your family home can significantly impact your ability to receive Medicaid nursing home benefits and whether the government can seek reimbursement through a recovery action after you pass away. You can protect your home before you enter a nursing home, but you should do so only by following advice from an experienced Medicaid planning attorney.

Tax Implications

Any action concerning the ownership of your home may have significant tax implications for you and your family in the future, primarily with regard to capital gains and income tax. Your estate planning and Medicaid planning attorney takes the tax laws into account in developing your strategy for addressing family home ownership concerns.

Family Home Ownership Options

Your attorney has a range of options, tools, and strategies available to address family home ownership concerns of seniors. In some cases, a different ownership structure may better serve your goals and needs and those of your family members. In other cases, a trust may be a better tool to use in addressing your concerns while avoiding issues relating to estate planning, Medicaid, and taxes. Your lawyer explains the available options for your circumstances in detail and helps you choose the one that is best to accomplish your goals. You should never attempt to conduct this type of assessment on your own or take steps to change the ownership of your home without discussing your situation with an experienced elder law and estate planning attorney.

Talk with a Georgia Elder Law and Estate Planning Attorney

Our estate planning and elder law professionals at Asset Protection & Elder Law of Georgia can help make sure you make the best decisions about your family home based on your own goals and needs. Call us at (770) 382-0984 or reach out to us online today.

Categories: The Family Home