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apply for medicaid

How to apply for Medicaid

Below is a general guide to the Medicaid application process. Be sure to contact your local Medicaid office for state-specific rules.

Note: Your Medicaid office may be called the Department of Health, the Department of Social Services, the Department of Insurance, or by another name.

  • Contact your local Medicaid office to ask how you need to submit your application. Some states require you apply in person, while others may allow you to apply by mail, online, by telephone, or at locations in the community, such as health centers and community organizations.
  • Find out which documents and forms of identification you may need in order to apply. Your Medicaid office may ask you to show the following:
    • Proof of date of birth (e.g., birth certificate)
    • Proof U.S. citizenship or lawful residence (e.g., passport, drivers license, birth certificate, green card, employment authorization card)
    • Proof of all types of income, earned and unearned (e.g., paycheck stubs, retirement benefits, Supplemental Security Income)
    • Proof of resources (e.g., bank or stock statements, life insurance policies, property)
    • Proof of residence (e.g., rent receipt, landlord statement, deed)
    • Medicare card and any other insurance cards (you can also provide a copy of the insurance policy)

Note: Medicaid coverage is available, regardless of citizenship status, if you are pregnant or require treatment for an emergency medical condition. A doctor must certify that you are pregnant or had an emergency, and you must meet all other eligibility requirements.


  • If you have any problems applying at a Medicaid office, ask to speak with a supervisor.
  • If you do not receive a timely decision on your Medicaid application or are turned down for Medicaid, you can appeal by asking for a state fair hearing (not a city or local one). Check with your Medicaid office to learn more about requesting a fair hearing.
  • Once you have Medicaid, you must recertify (show that you remain eligible for Medicaid) to continue to get Medicaid coverage. When you submit your Medicaid application, be sure to ask when and how you will need to recertify. In many states, recertification is an annual process.

Read more related articles here:

Florida Medicaid

New to Medicaid? How It Works

Also, read one of our previous Blogs here:

What It Means to Need ‘Nursing Home Level of Care’ for Medicaid Eligibility

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

estate planning and gifting

Estate Planning Techniques for Gifting

Estate Planning Techniques for Gifting

Many families routinely gift assets to heirs and some plan to leave assets to heirs above the amount the government allows to pass free of gift or estate tax.  When it comes to estate planning there are both simple and complex ways to reduce your estate.   Here are a few simple gifting ideas to consider.

Making Annual Exclusion Gifts

The IRS agrees that tracking “small” gifts is too much of a hassle, so they elected to create annual exclusion gifts. This exclusion allows $15,000 (in 2021) per recipient per year to be given away in cash or property value, without reducing your ability to shield future wealth transfers from tax using your lifetime exemption and without having to file a gift tax return. This is an incredibly effective tool for families to transfer wealth to their loved ones without being penalized with a gift or estate tax (or the hassle of filing a return). In addition, your loved ones don’t have to recognize the gift as income on their own returns, a common misconception.

For example, a couple with four children and six grandchildren may transfer a total of $300,000 a year to these 10 members of their family. The couple can give each family member a check, securities, or fund a new or existing 529 college savings plan. Keep in mind, while this is an example of a family member bestowing gifts to their children and grandchildren, a gift can be made to any individual and still fall under the exclusion.

Caution – Loved ones should cash their checks, receive their stock or certify that a 529 plan provider has deposited the gifted funds before year-end, or the gift will not count for that tax year. You should also be mindful that the annual exclusion is cumulative, so you need to consider the value of all transfers you make during the year to each recipient when looking at your ability to give $15,000.

Give the Gift of Compounding – for College

Get started growing tax-free savings for college by funding a 529 plan. The couple in our example above could use their annual exclusion gift to contribute to a 529 college savings plan or take advantage of the special rule that allows up to five years of annual exclusion gifts to be lumped together to kick-start or significantly boost a loved one’s college savings. These college savings plans are great because they grow tax deferred and distributions used for qualified tuition and fees are income tax-free. However, any gains on contributions not used for qualified higher education expenses are subject to income taxes and a 10% penalty, so be sure not to over fund the 529 plan with more than you think your children or grandchildren will need for college.

Give the Gift of Compounding – for Retirement

The couple in our example could alternatively use their annual exclusion gift to kick-start a loved one’s retirement by contributing to a new or existing Roth IRA.  If your loved one is working, consider the benefits of a Roth IRA for retirement. Roth IRAs grow tax-deferred and qualified distributions after age 59½ are income tax-free.  The power of compounding is exponential when combined with starting young, tax-deferred growth and tax-free retirement distributions.  In 2021, your employed children/grandchildren can use $6,000 of your annual exclusion gift to fund a Roth IRA, reduced by any other contributions to an IRA they made that year.  To be eligible, your child/grandchild must have earned at least $6,000 in 2021 and not more than $125,000 (if single) or $198,000 (if married) or the contribution amount may be limited.

Stuff Their Stocking

Make someone a part owner in a company that they love. For younger loved ones, it could be an educational exercise, teaching them about the stock market and public companies. Stock makes a great gift because (1) it allows you to reduce your estate by the fair market value of the stock (up to $15,000 in 2021), (2) it reduces your future potential income tax liability as any embedded gain in the position is not realized upon transfer (but rather transfers to your loved one), and (3) it jumpstarts investing for your loved ones. Giving shares of stock is also a great way to reduce your exposure in a concentrated position and is a great way to remove future appreciation from your estate if you believe you are holding a company that will appreciate highly in the future. It also frees up cash for other liquidity needs.  If you want to purchase a new stock for someone, physical shares of stock can be purchased online through websites such as Giveashare.com. If the site doesn’t have what you are looking for, consider buying (or giving your own shares) through your brokerage firm. Over the years, this systematic gift-giving can drastically reduce an estate and maximize the tax-free transfer of wealth.

Spread the Wealth

Ask your loved ones how they would best like to make a difference in the world and make a donation to a charity in their name. If you have a donor advised fund, consider giving a “Gift for Giving” that allows them to give an amount you determine from your donor advised fund to a charity of their choosing.  Alternatively, Amazon Smile has made it easier than ever to give to charity by providing the option to donate a portion of qualified purchases to a charity (or charities) of your choice, with the same conveniences as Amazon Prime. For more information on the best ways to give to charity, read our piece on Thoughtful Charitable Giving.

Paying Education and Medical Expenses for the Benefit of Loved Ones

Annual exclusion gifts are not the only option when it comes to strategic estate tax techniques.  You can also chip away at your estate by covering loved one’s qualified expenses. These include anything from qualified education expenses such as tuition, books and fees to medical expenses such as doctor or hospital visits or even insurance premiums. There is no limit to the amount of qualified education or medical expenses you can pay since they do not count against the $15,000 annual exclusion gift. Let’s go back to the couple utilizing annual exclusion gifts in the example above. They are planning to gift $300,000 in annual exclusion gifts to their children and grandchildren. On top of the planned $300,000 in gifts, they can also easily pay $100,000 in tuition costs for their grandchildren and perhaps another $100,000 in medical expenses within the family, making their annual wealth transfer over $500,000 a year, tax-free!

Caution – If you are going to pay for education or medical expenses, be sure to make your check payable directly to the health care provider or educational institution. You should also confirm with your tax advisor that the payments you intend to make are in fact qualified educational or medical expenses.

Read more related articles here:

The Estate Tax and Lifetime Gifting

Minimize Taxes With Estate Planning and Gifting

Estate and Gift Taxes IRS

Also, read one of our previous Blogs at:

What Do I Need to Know about Gift-Giving with the Biden Administration?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


Multi-Generational Family Wealth Planning – What You Need to Know

Multi-Generational Family Wealth Planning – What You Need to Know

Legacy and family are both inherent parts of wealth planning. Take steps to create and preserve multigenerational family wealth with these tips.

Patrick Hicks, @PatrickHicks
When we think about wealth planning, we often turn to concepts like personal finance management, investments, and retirement planning. However, have you ever thought about what kind of legacy you’d like to leave? What steps would it take to create wealth and pass it on to your loved ones?According to Forbes, 90 percent of wealthy families lose their wealth within three generations. That means that at some point along the way, family members who inherit wealth make decisions that erode that wealth and have nothing left to pass on to the next generation. A lack of estate planning can also cause wealth erosion due to probate and taxes.Even if you were to successfully build wealth, the risk of losing it all is high. This indicates that protection and prevention are equally as important as wealth-building itself. In this guide, we’ll delve into multigenerational family wealth planning: what it means, why it’s important, and how to do it.

What Does Generational Wealth Mean?

Before we jump into tips on how to build multigenerational wealth, let’s first define generational wealth, and why it’s something we should all be thinking about.

Generational wealth is wealth that is passed down from one generation to the next. It begins when one member of a family accumulates enough wealth in their lifetime to pass down to their children, usually through a Trust or a Will. In turn, these children may leverage this wealth to create additional wealth and pass it on to their own children, and so on and so forth. Passing on wealth for more than one generation is considered multigenerational.

Building wealth with the plan of passing it on to future generations is valued because it can help provide them with the financial foundation to live a comfortable, secure life. Some families believe the adage, “it takes money to make money,” implying that an inheritance can increase someone’s chances of long-term success. For example, one child who inherits enough money to pay for tuition might graduate from college without any debt. Another child might inherit a family home, and is thus set up with housing that could be used as a primary residence, or as a rental income property.

Both of these examples demonstrate how multigenerational wealth planning can set up your loved ones for success much earlier in life. Not only will they be able to begin building their own wealth sooner, they can take advantage of opportunities that might not have been available to them otherwise.

Multi-Generational Family Wealth Planning Tips

If you’re working hard to create wealth for your family, you should also be thinking about how to protect that wealth to create a long-lasting legacy. All too often, we witness heirs who squander their inheritances. We also watch estates get diminished at the hands of heavy taxes and probate. Both of these unfortunate outcomes can be avoided through proactive estate planning.

This is where family wealth planning comes in. It’s a process through which you can identify risks and challenges your estate might face, and create a plan on how to mitigate them. Here are some multigenerational family wealth planning tips to help you get started.

1. Educate the younger generation

According to NBC News, one in four U.S. adults state that their parents did not provide them with money lessons as a child. There is also a severe lack of financial literacy education in the classroom, although some schools are beginning to tackle the issue.

One cannot expect our younger generation to know how to manage their inheritances in a healthy, responsible manner if we don’t impart any financial wisdom on them. Invest time in providing your children and grandchildren with a financial education, starting with basics such as the principles of giving, saving, and spending.

Practicing basic money principles in a safe environment as a child will help your future heirs develop sturdy financial habits in adulthood. This will increase the odds of protecting multigenerational wealth in your family for years to come.

Not feeling confident in teaching your kids about money? Investopedia recommends 7 finance books for children to help you educate your little ones.

2. Foster value-based financial transparency

Although it might feel awkward at first, this is also the perfect time to model financial transparency in your family. In our society, we’ve been conditioned to believe that speaking openly about money is distasteful. More likely than not, your parents have raised you with the notion that talking about personal finances is taboo and not to be spoken about at the dinner table, or anywhere else.

With this arguably outdated belief, many families have never openly discussed their finances with each other. This can cause harm in the long-run, because younger generations won’t understand the importance of financial and estate planning, nor will they know what to expect.

Instead, practice modeling leadership in your family where the family estate and financial values are talked about openly. Try holding family meetings to encourage discussions and hold a safe space for questions. This will expose the younger generation to the concept of wealth planning from a young age, and give them practice to talk about money. A high level of transparency and communication will help ensure that each family member is on-board with values and expectations. The New York Times provides a guide on how to talk about money.

3. Plan for financial futures of younger generations

So far, we’ve addressed two aspects of multigenerational family wealth planning: education and communication. We can help our younger generations develop healthy money habits through financial education and communication from an early age. A third aspect of building family wealth is to put plans into action.

As parents, we typically take on the expense of raising our own children. This can include food, housing, childcare, education, and the cost of extracurricular activities. As children get older, they can begin to contribute by working part-time for their own spending money or cell phone bill. However, by planning ahead, we can also come up with ways to support them in the long-run as well.

For instance, the largest looming expense for children is college. Not only is it expensive, the cost of tuition and living expenses continue to increase. Most parents want to set up their children for financial success, and one way is to prevent their need to take out student loans. The key here is to start saving early. Many banks offer specialized college savings accounts that allow tax-advantaged contributions. Interest will also help your savings grow over time, and hopefully enough to keep up with tuition rates as they increase.

You should also consider setting up a Trust fund for your child. These are fiduciary accounts that allow you to provide financial support for your child, even after you’re gone. You can also include special stipulations, so that you can have peace of mind knowing that funds will be dispersed only upon meeting certain conditions.

4. Plan for financial futures of older generations

When we think about multigenerational family wealth planning, we tend to look toward the future and how to ensure the financial success of our young ones. However, planning for the financial futures of our elders is just as valuable.

Taking care of an aging parent or grandparent can create a financial strain on the entire family. In our recent exploration about the Sandwich Generation we revealed how adult caretakers spent $10,000 annually, a cost that increased significantly during the COVID-19 pandemic.

This data demonstrates that one should never assume that our older generation will be able to take care of themselves. Here, you can take a two-pronged approach: self-empowerment and family support. By self-empowerment, we mean that you can have discussions with your parents and grandparents to ensure that they’re setting themselves up for success as they age. This includes saving up enough money for retirement, setting up insurance policies, and ideally a health savings account for medical costs. Aging adults who can care for themselves financially can relieve financial burden from their children and grandchildren.

However, there are cases when it’s too late or it’s not possible. To protect your own financial health, and that of your younger generations, you may want to consider setting up a family Trustthat includes savings and investments earmarked for the cost of caretaking if it becomes necessary.

5. Establish a trust to protect assets for the long-term

A well-crafted estate plan will serve as the legal framework that ensures your multigenerational family wealth planning will be executed, especially if you are no longer available to oversee your efforts come to fruition. For starters, you can communicate your final wishes through a Will. Although they may not be legally-binding, you can also include supporting documents as a part of your estate plan. For example, you can write out a detailed document that shares family history and financial values.

Many families also set up Trusts as a part of their estate plans. These are powerful legal vehicles that will help protect your hard-earned assets in the long-run. Trusts provide financial protections and tax advantages, and contain assets such as cash, investments, real estate, and businesses. When setting up the Trust, you will also appoint a Trustee, who is a firm or individual who will make sure that assets are distributed to your beneficiaries. They are also responsible for following the instructions that you’ve left behind, including any special stipulations for distributing funds to your family members.

Protect Your Legacy with an Estate Plan

The list of different types of Trusts above demonstrates just how vast the world of estate planning can be. There are a wide array of options that you can choose from, each offering its own unique set of advantages and disadvantages. The task at hand is to choose wisely.

It’s always helpful to work with a trusted professional to select an estate planning strategy that will best support your multigenerational family wealth planning. At Trust & Will, we can help you select the best estate planning tools that will protect your assets as much as possible, while making sure that your future generations will be supported in the long-run.

We hope that this discussion encourages you to start thinking about the financial future of your loved ones, including your children, future children, grandchildren, and elders. Perhaps you might have even reflected on how your family may or may not have set you on the financial path you’re on now. What could they have done better? What are you grateful for? Every individual is doing their best based on their access to information and resources, so there’s no need to criticize yourself or others. However, this should help highlight just how important it is for families to prioritize financial literacy, communication, planning, and transparency. Is this missing from your family? You can be the one to break the cycle and begin modeling the way.

Read more related articles here:

Communication Can Be The Key To Creating Harmony In Multi-Generational Estate Planning

Your Legacy: How To Create A Multigenerational Estate Plan

Also, read one of our previous blogs at:

How Estate Planning Keeps the Peace for a Blended Family

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


medicaid house

Is Prior Occupancy Required to Have Home Excluded, When Qualifying for Long-Term Medicaid?

Is Prior Occupancy Required to Have Home Excluded,When Qualifying for Long-Term Medicaid ?

When qualifying for long-term Medicaid, there are asset and income restrictions. In many states, the applicant cannot have more than $2,000 in assets and receive benefits. Luckily, the equity in the applicant’s home is an excluded asset, up to a certain amount. But in order to have the home’s equity excluded, must the applicant have occupied that home prior to applying for benefits? This issue was recently litigated in Texas.

Clyde and Dorothy owned a home and lived in it until late 2010 when they sold it to Linda and Robby. Clyde and Dorothy moved into a rental property that was owned by Linda and Robby. In 2017, both Clyde and Dorothy moved into a nursing home. A week or so later, they purchased a one-half interest in the home they sold. They filed a Commission form stating that the home was their place of residence and indicated an intent to return there. About a month later, Clyde and Dorothy applied for Medicaid benefits. Their respective applications were denied, due to being over-resourced because the state counted the equity in the home as a countable resource.

Clyde and Dorothy appealed the decision; the Commissioner agreed with the state. Clyde and Dorothy appealed again. The trial court agreed with Clyde and Dorothy. The state appealed and now we have this case out of The Texas Court of Appeals, Third District.

The state argued that a Medicaid applicant must live in the home prior to applying for Medicaid, in order for the equity of the home to be excluded for Medicaid-eligibility purposes. Since Clyde and Dorothy did not live in the home before they entered the nursing home, the home’s equity should not be an excluded asset. In turn, Clyde and Dorothy argued that the home should be an excluded asset because they had an ownership interest in it, they both considered it to be their principal place of residence, and they intended to return there.

The list of excluded assets for Medicaid eligibility is enumerated in 42 U.S.C. § 1382b. Therein, the “home (including the land that appertains thereto)” is listed as an excluded asset.

In turn, 20 C.F.R. § 416.1212(a) defines “home”:

“A home is any property in which an individual (and spouse, if any) has an ownership interest and which serves as the individual’s principal place of residence. This property includes the shelter in which an individual resides, the land on which the shelter is located and related outbuildings.”

The state of Texas has modified this definition a bit. In 1 Tex. Admin. Code § 358.103(38), (69), it states:

“Home–A structure in which a person lives (including a mobile home, a houseboat, and a motor home), other buildings on the home property, and all adjacent land (including land separated by a road, river, or stream), in which the person has an ownership interest and that serves as his or her principal place of residence.”

“Principal place of residence–The home where a person resides, occupies, and lives.”

Finally, in Texas’s Medicaid handbook, in Section F-3000, it states, in part:

“For property to be considered a home for Medicaid eligibility purposes, the person or spouse must consider the property to be their home and:

  • have ownership interest in the property; and
  • reside in the property while having ownership interest.”

The court here affirmed the decision and sided with Clyde and Dorothy. The court reasoned that whether a home was someone’s principal place of residence is subjective, pointing to POMS SI 01130.100.A.2 which states that someone’s principal place of residence is what that person “considers his or her established or principal home”. (emphasis added)  The court looked at other relevant case law as well. In the end, it was ruled that a Medicaid applicant doesn’t have to physically live in the home that is sought to be excluded before the applicant moved to a nursing home. Indeed, it is not a requirement under federal law that the individual had occupied the property for it to be an excluded asset. If federal legislators had intended on this being a requirement, they would have written such in federal law. The court stated that it wouldn’t make practical sense or further the objectives of the Medicaid program to interpret the federal statute as having such requirement.

Read more related articles at:

Florida Medicaid (SMMC-LTC) Income & Assets Limits for Nursing Homes & Long Term Care

Medicaid Eligibility: 2022 Income, Asset & Care Requirements for Nursing Homes & Long-Term Care

Also, read more related articles at:

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


Estate Planning for Single Parents

A Single Parent’s Guide To Estate Planning

A Single Parent’s Guide To Estate Planning

If you are a single parent, it is important to understand the benefits of having an estate plan. Here’s what you need to know.

Estate planning is essential for everyone, particularly single parents. While estate planning does consist of making decisions regarding the distribution of assets, single parents face a variety of estate planning concerns that married couples may not encounter. Single parents’ first and most pressing concern is usually the protection of their children. As a single parent, you may wonder – if anything were to happen to you, would your child be well cared for and protected? Would they have the same opportunities as the other kids in their neighborhood and school? Who would have custody of them? Consider the following estate planning tips that specifically address the concerns of the single parent.

Helpful Estate Planning Tips for Single Parents

Consider Creating a Last Will and Testament (Will)

A will is one of the most crucial estate planning documents for single parents. A will allows a single parent to choose the guardian of their child after their death. This legal document also outlines the child’s inheritance, financial support, and living arrangements if they are under 18 years of age. Without a will, your child could end up with relatives that you had never even met. It is important to note that if your child has another living parent, in most cases they will have the legal right to full custody of your child. Consider talking with an estate planning attorney experienced with those who’ve recently divorced, who can help you better understand your legal rights as a single parent, and ensure they remain protected.

Consider Creating a Trust

A trust will not allow you to choose a guardian for your child, however, it will allow the beneficiaries of your estate immediate access to your assets, which can help your child if they are still young. Trusts do not go through the probate process, which allows a trusted adult to immediately provide financial support for a single parent’s children. Additionally, a trust enables a trustee to safeguard a single parent’s assets for their child’s health, education and general needs until they become adults.

Consider Planning for Incapacitation

Large costs may arise if a single parent becomes disabled, injured, ill, or incapacitated in any way. If a single parent is unable to care for his or her children due to illness or injury, he or she must create a strategy in the event of incapacity. A comprehensive estate plan for a single parent should include incapacity planning, which would name a person to make important health care and financial decisions in the event of a serious accident, injury, or illness. Some of the important documents that can be included when planning for incapacity are a Durable Power of Attorney, a Durable Power of Attorney for Health Care, a Living Will, and a HIPAA Authorization or Waiver.

Durable Power of Attorney

Including a Durable Power of Attorney within an estate plan can allow a designated agent to pay bills for the children from the single parent’s financial accounts. Also known as Financial Power of Attorney, this document allows someone to manage your assets and financial affairs if a single parent remains unable to do so due to any form of incapacity.

Durable Power of Attorney for Health Care

A Durable Power of Attorney for Health Care allows someone to make decisions related to a single parent’s health care.  These decisions include life support, hospice care, organ donation and burial. Consider carefully who you want to choose as your agent, as they will have the responsibility to make important health care decisions on your behalf.

Health Care Proxy or Living Will

Some states use a Health Care Proxy or Living Will rather than a Durable Power of Attorney for Health Care.  This Health Care Proxy is very similar to the Durable Power of Attorney for Health Care, but this document must be updated if there are any changes made in a single parent’s medical plan due to family dynamics after estate planning is completed. A living will provides instructions to medical professionals regarding your end-of-life plans. While every state has its own form, the basic format allows a single parent to indicate what kind of care they would want if they cannot communicate, and what kinds of treatments or interventions (such as CPR) they do not want.

HIPAA Authorization or Waiver

The Health Insurance Portability and Accountability Act (HIPAA) forbids the sharing of patients’ private medical information with anyone other than those affected by it. If a single parent is ever incapacitated and unable to make important health decisions on their own, other loved ones may not be able to access important medical data about your condition. For a single parent, the dissemination of this information may be vital for both the parent’s health and the child or children’s ancillary aftercare. This HIPAA authorization or waiver allows a single parent to create a list of people that are authorized to obtain information regarding protected health care information in order to make appropriate decisions.

Consider Business Succession Planning

Business succession planning is an important component of many estate plans for single parents who are business owners. Business succession planning can ensure that a small business continues to operate after the death of its owner, ensuring the children’s well-being in the process. When they are old enough to receive their inheritance, the company may continue to provide money for them or transition the business to them. Additionally, business succession planning can also liquidate or close a business after the death of a single parent.

Consider Life Insurance

Single parents may wish to purchase additional life insurance coverage to ensure that their children are properly cared for in the event of their death. An estate planning lawyer can assist a single parent in creating a strategy that would minimize taxes while also safeguarding the life insurance money for several years after their death and using it for their children’s benefit.

Consider Visiting with an Estate Planning Attorney

If you are a single parent, it is important to understand the benefits of having an estate plan. An estate planning attorney can help you avoid confusion about what happens to your children, property, and finances in the event of your death. Furthermore, an estate planning lawyer can also represent you if any disputes arise with family members over property left behind. While no single parent wants to think about their own death, it is a very important issue that should not be overlooked. If you are a single parent, it is essential to have a comprehensive estate plan in place. Consider visiting with an experienced estate planning attorney to ensure your health and financial expectations are followed, and your children are cared for according to your wishes.

Read more related articles here:

Estate Planning for Single Parents

Estate planning and will for single parents

Also read one of our previous Blogs at:

How Much Control from the Grave Can Parents Have?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Medicaid POA

Importance of Having the Right Power of Attorney When Applying for Medicaid

Importance of Having the Right Power of Attorney When Applying for Medicaid

A Power of Attorney is one of the most important documents for an older person to have, especially when they plan on applying for Medicaid Long Term Care and receiving its benefits. Without it, the application process could stall or benefits might be denied.


Power of Attorney (POA) basics are fairly straightforward. It’s a document where a “principal” or “grantor” (usually an elder) legally names an “agent” or “attorney-in-fact” (typically an adult child) to act on their behalf in medical and/or financial dealings if they are not capable of doing so themselves. POAs can be canceled or changed at any time for any reason, as long as the principal is competent enough to make those types of decisions. In all POAs, the agent’s powers end upon death of the principal.

Without a POA, anyone who loses the capacity to make decisions for themselves will have their financial holdings and health care choices managed by the state. In order to reclaim those powers, a family member would have to go to court and establish legal guardianship, which can be a lengthy and expensive process. In the context of applying for Medicaid Long Term Care, the state could choose not to apply, instead they could choose to sell the individual’s home and pay for care with those proceeds or make other financial decisions family members would likely not make.

Creating a POA is critical for potential Medicaid Long Term Care applicants. If the applicant’s health happens to fail rapidly and they are not capable of completing the Medicaid application on their own, having a POA will allow the agent (usually an adult child) to collect the necessary financial and medical documentations and complete the application. A POA will also prove valuable after the application has been approved so the agent can make further financial and medical decisions for the principal/elder/Medicaid beneficiary while they are receiving long term care.


The most common type of POA for those considering Medicaid Long Term Care is a Durable Power of Attorney (DPOA). A DPOA is effective immediately and gives the agent (usually an adult child) decision-making power after the principal (typically an elder parent) has become mentally or physically incapacitated and is no longer able to make decisions on their own.

A springing POA can also be helpful for those seeking Medicaid Long Term Care benefits. Instead of being effective immediately, a springing POA is “sprung” into effect by a predetermined event like an incapacitating trauma such as a stroke or major accident, or a change in a preexisting illness or condition like Alzheimer’s disease or dementia.

A POA that will not be entirely helpful when it comes to Medicaid is a general or non-durable power of attorney. This type of POA is also effective immediately, but the powers of the agent/adult child end when the principal/elder is incapacitated, and therefore won’t allow the agent to perform the tasks needed for Medicaid application.


POAs do not give the agent (typically an adult child) full control of the life and possessions of the principal (usually an elder parent). Instead, the agent’s powers must be specifically detailed in the wording of the POA document. For Medicaid Long Term Care purposes, the principal should grant the agent control in two key areas – health care and finances.

With a DPOA for health care, the agent can decide if the principal needs to live in an assisted residential setting like a nursing home facility or Alzheimer’s care unit; the agent can make decisions regarding the principal’s health care options such as surgery, in-home health care and hospitalization; and the agent can choose the principal’s healthcare professionals and types of medications.

Even though the agent for the health care DPOA can make all of these choices, they can not use the principal’s funds to pay for the health care without approval from the agent for the financial DPOA. The health care and financial DPOA agent can be the same person, but they do not have to be.

The financial DPOA allows the agent to manage the principal’s finances – access bank and retirement accounts, write checks, pay bills, file taxes, manage real estate, file insurance claims, etc. The financial DPOA also allows the agent to apply for benefits like Medicaid for the principal, and just as importantly, access all the documentation needed in the Medicaid Long Term Care application process. Required documents for the application include year-end statements from all bank accounts, investments, IRAs, 401Ks and annuities for the last five years to satisfy Medicaid’s “look back” rules (except in California, where the look back period is 2.5 years instead of 5) as well as proof of all income streams (pensions, interest, royalties, wages) from the payer, and copies of all life insurance policies and trusts.

A Certified Medicaid Planner can help navigate all the DPOA permutations and options for your particular case. To schedule a free consultation with a Certified Medicaid Planner, start here.


The truth is it’s never too early to get a DPOA because the creation of a DPOA does not mean the principal (usually an elder parent) is incompetent, nor does it take away the principal’s rights to make financial, health care or any other kind of decision on their own. It simply means that if the principal is incapacitated and can no longer make their own decisions, the agent (typically an adult child) will do so on their behalf.

An elder can also grant an adult child, or another family member, power of attorney in a living will, as long as the elder was mentally capable while creating that living will.

POAs for Persons with Dementia / Alzheimer’s

If an elder is the early stages of Alzheimer’s or some other form dementia and still has the capacity to understand what the power of attorney documents mean and what powers they transfer, they can still create a DPOA. In cases like this, consulting with a Certified Medicaid Planner is strongly recommended.

Understanding how state Medicaid offices evaluate Alzheimer’s / dementia cases is critical because Medicaid applications could be ruled invalid if POA documents were created by someone the state considers incapacitated by those conditions. If that happens, the elder could become a ward of the state and family members would have to go to court to gain guardianship (also known as conservatorship) of the elder.

Read more related articles at:

Importance of Durable Powers of Attorney for Finance and Health Care to Medicaid

FloridaMedicaid.com/Durable Power Of Attorney

Also, read one of our previous Blogs here:

How Medicaid And Medicare Fit Into Planning For Long-Term Care

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


No One Knows The Time Or Hour…Incapacity Planning

No One Knows The Time Or Hour…Incapacity Planning

No One Knows The Time Or Hour…Incapacity Planning.

“However, no one knows the day or hour when these things will happen, not even the angels in heaven” Matthew 24:36

The first thing to discuss is how to prepare for even a temporary incapacity, like creating documents to allow another to care for children and pets if you have a long stay in the hospital. You may also want someone to take over paying bills and have someone secure firearms and other tangible property in your home that might be stolen. You may even need to have someone clean out perishable food in the refrigerator.

Further, in this digital age, you will need to set up who can access your data if you are incapacitated, and provide passwords and usernames. The document to give someone the authority to act on your behalf is a durable power of attorney. This appointment of an agent to act on your behalf can be a general power or a limited power.

The second thing to do is to tell people what you would like to have done. This can be in the form of a letter, but to make your wishes legally binding it will need to be in the form of a will or a trust. Some things you can decide for yourself, such as funeral arrangements with a prepaid funeral contract. Make sure that these and other documents are held in a secure place and where someone can access them in an emergency. Here is a quick Estate Planning Document Checklist:

‡        Durable Power of Attorney

‡       Health Care Proxy

‡       Revocable Trusts

‡       Irrevocable Trusts

‡       Declaration of Homestead

‡       Beneficiary Designation Forms

‡       Retirement accounts

‡       Life insurance

‡       Annuities

In addition, you should discuss how decisions are too be made, and by whom, if you are incapacitated – even going as far as a written procedure for friends and family. Also, make a detailed outline of your wealth trasnfer wishes and then review your documents – do your documents match you estate planning desires? If so, are your assets are titled correctly and have you set up the appropriate beneficiary designation forms? If not, then consider revision of those documents. Finally, make sure current copies of those documents go to the correct people. No One Knows The Time Or Hour…Incapacity Planning.

Read more related articles here:

5 Legal Facts You Need to Know About Incapacity Planning

Legal Planning for Incapacity

Also, read one of our previous Blogs here:

How Can I Plan For Incapacity?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


TOD vs Revocable Trust

TOD Accounts Versus Revocable Trusts – Which Is Better?


TOD Accounts Versus Revocable Trusts – Which Is Better?

Both help you pass down assets while avoiding the time and expense of probate, but one comes with a lot more flexibility than the other.

What is a TOD account or POD account?

A TOD account allows the account holder to name a beneficiary on a non-retirement financial account to receive assets at the time of the account holder’s death, thereby (generally – i.e., when used correctly) avoiding probate.  A TOD account generally handles distributing stocks, brokerage accounts or bonds to the named beneficiary when the account holder dies.

A POD account is similar to a TOD account except that it handles a person’s bank assets (cash), instead of securities.

Both TOD and POD accounts are quick and dirty ways of avoiding probate, which can be slow, expensive, public and possibly messy.  Financial institutions offer TOD and POD at their discretion.  But, almost all major brokerage houses and investment houses now have these types of accounts, as well as most banks for standard bank accounts.  Many even allow you name such a beneficiary easily online.

What is the benefit of using a POD or TOD account?

Probate avoidance. As mentioned, TOD and POD accounts avoid the probate process by naming a beneficiary or beneficiaries to receive the asset directly when the account owner dies.  They distribute assets quickly and (usually) seamlessly to the intended beneficiary when the account owner dies.

What are the pitfalls to using a POD or TOD account?

When someone passes away, there can be creditors, expenses of administering the decedent’s estate, and taxes owed. The person or persons responsible for administering the decedent’s estate are typically empowered under the law to seek contributions from the POD and TOD beneficiaries to pay those debts, expenses, and taxes. If the beneficiaries do not voluntarily contribute, then there may be no choice but to file a lawsuit to obtain the contributions.

In addition to the beneficiary choosing not to contribute, the beneficiary may have spent those assets, have other circumstances, such as involvement in a lawsuit or a divorce, that will complicate turning over those assets, be a minor or otherwise legally incompetent, or be the recipient of government benefits. All of these circumstances will cause complications.

Revocable trusts give you much more than probate avoidance.

A trust allows you to plan for incapacity. If the creator of the trust becomes incapacitated, a successor or co-trustee can take over managing the account for the benefit of the creator.  With a POD or TOD account, a durable power of attorney would be needed to have another person handle the account. Many times, financial institutions can be reluctant to accept powers of attorney, for example, if the documents are old or do not have the appropriate language.

A trust allows you to plan for your beneficiaries. If your beneficiaries are minors, have special needs, have creditor issues, or have mental health or substance abuse issues, trusts can hold and manage assets over a period of time and protect those assets for the beneficiary’s use.  Inheritances can also be managed over long periods of time with a trust. You can also name individuals to receive any remaining assets when the original beneficiary passes.
Revocable trusts hold the assets after the death of the creator of the trust and use those assets to first pay any debts, expenses, or taxes, thereby negating the need to ask for contribution from direct beneficiaries.

While in some cases POD and TOD accounts can be appropriate for probate avoidance, their limitations at addressing other issues can cause many individuals to opt for a revocable trust. Speak with an estate planner to determine what is best for you and your family.

Read more realted articles here:


Pros and Cons of Using TOD Accounts to Avoid Probate

Also, read one of our previous Blogs at:

Does Transfer-on-Death Become Fraudulent Transfer?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

millennials estate planning

Why do Millennials need estate planning?

Estate Planning for Millennials.

Get on top of your estate planning, so you can get on with your life.

If you are a Millennial in your twenties or thirties, you may be wondering why you need an estate plan in the first place.  Estate planning is probably the last thing you are thinking about.  This is especially true if you are renting, don’t have kids, and don’t have a lot of belongings or assets to worry about. However, an estate plan covers much more than your belongings — it covers nearly every aspect of your life. While no one, Boomers included, likes to think about death or disability, planning ahead for these events is part of #adulting and can make life so much easier for yourself and your loved ones.

Why do Millennials need estate planning?

Although you may believe that estate planning is not necessary at this stage in life, you will be surprised to find out that it is more important than you think.


If you have been with your partner for a long time and you trust them to make financial decsions for you if you are incapacitated or unexpectedly pass away, an estate plan gives them this legal power.


An estate plan can give the person whom you choose the legal power to make medical decisons for you, based on your wishes, in the event you are hospitalized or put on life support.


With an estate plan, millennials can protect their digital assets and designate who will be responsible for them in the future. These assets can include things like cryptocurrency, websites, social media accounts, intellectual property created and stored on the cloud, and photos and videos.


If you have kids, they are likely minors. This leaves them vulnerable if you pass away, as they can be at the mercy of the court system. Make sure you have designated guardians in your estate plan to ensure your kids are cared for by those whom you trust.


Pets are property under the law. Yes, they are property!Without a legal plan for your pet, such as a designated guardian and caretaker, a cherished animal could end up with an unintended caregiver, in a shelter or euthanized.


If you own any belongings or assets – such as collectibles, artwork, jewelry, designer clothing, Air Jordans, Yeezys, Louboutins, Louis Vuitton bags, family heirlooms – you want to make sure the people you choose will get them when you’re gone. Likewise, if you have any amount of life insurance or retirement benefits, you want to properly name your partner, siblings, friends or parents as your beneficiary to ensure they receive your payout and it doesn’t go into the state’s unclaimed property coffers.

Now is the time to start planning.

You are mentally and physically capable of making an estate plan, right now.  Do not put it off until it is too late. You never know what the future holds, so it is entirely possible that you will be unable to properly make an estate plan years from now. Get ahead of the unexpected and design an estate plan while you are in good health, both mentally and physically. You can always revisit the plan in the future to make revisions and updates as life changes. If you pass away without an estate plan or, at minimum, a Last Will, your assets may go into Florida’s unclaimed property coffers (currently holding over $1 billion in unclaimed property).  Alternatively, your estate will go through the lengthy and costly probate process.  This is where the court will decide what happens to your things and can end up giving them away to the wrong people.

What makes up an estate plan?

Estate plans are not one size fits all.  Each plan is as unique as the person for whom the plan is designed. There are various documents that may be used together to make up an estate plan. However, there are more common documents that must be a part of a Millennial’s estate plan no matter your age, financial standing, or martial status.



Estate planning for Millennials final tips.

I hope you thoughtfully read everything up to this point, and have a better understanding of why estate planning is important at this point in your life and what is needed in your plan. It cannot be understated that estate planning is a process that takes time and prep work. You cannot phone this one in. There’s no half-assing it. Pull up your big-person pants and get started today. The following final tips will help you stay on top of your estate planning from beginning to end, and ensure you do not miss anything important along the way.

Things to Organize

✓ Important health care information
✓ Bank account statements
✓ Physical property inventory
✓ Personal property inventory
✓ Digital asset inventory & access info
✓ Life Insurance policy & documents
✓ Retirement account documents
✓ Investment account & stocks
✓ Real property deeds and titles
✓ Mortgage statements
✓ Student loan documents
✓ Credit card & other debt documents
✓ Automobile, boat, RV title
✓ Self-owned business documents
✓ Human Wealth passages

Agent & Guardian Considerations

✓ Level of trust
✓ Location of person
✓ Age and life experience
✓ Qualifications
✓ Family dynamics

Documents to Prepare

✓ Last Will & Testament or Living Trust
✓ Power of Attorney
✓ Advance Health Care Directives
✓ Nomination of Guardian for Minor Children
✓ Beneficiary Designation forms

As life goes on, things will change. You might purchase a house, open a business, get married or divorced, have a kid (or more kids), open new investment accounts, obtain life insurance, receive a funded retirement plan from an employer, and/or receive an inheritance from a parent. No matter the life event, don’t forget to continually update your estate planning documents.  Make sure your Agent, guardian and beneficiary designations are up-to-date, and confirm that your trust (if you have one) is always properly funded. Working with an experienced estate planning lawyer is always a good idea to ensure that you and your family are protected now and in the future.

Read more related articles here:

Estate Planning for Millennials – How to Get Started

Demand for Estate Planning Booms Among Millennials

Also, read one of our previous Blogs at:

Estate Planning for Millennials: Your Ultimate Guide

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

grand parents and grand child

What is a generation-skipping trust?

What is a generation-skipping trust?

A generation-skipping trust helps you transfer money and assets to someone who is at least 37.5 years younger than you, while minimizing estate taxes

A generation-skipping trust is used to transfer money or other assets to someone who is at least 37.5 years younger than you. The primary purpose of a generation-skipping trust is to minimize estate taxes and generation-skipping transfer taxes.

Normally, very wealthy estates have to pay an estate tax each time the estate is passed from one person to another. The federal estate tax applies to estates worth more than $12.0 6million in 2022 ($11.7 million in 2021) and 12 states (plus Washington, D.C.) levy their own estate taxes. Some people may try to avoid tax by passing everything to their grandchildren instead of their children, but this also comes with a tax — the generation-skipping transfer tax — which is levied in addition to estate tax. A properly constructed generation-skipping trust can help minimize both types of taxes.

Traditionally, people use a generation-skipping trust to bypass their children and pass assets directly to their grandchildren or even great-grandchildren. A recipient of the trust assets is known as a skip person and while grandchildren are common skip persons, the trust beneficiaries don’t have to be related to the grantor (trust creator). The beneficiary could even be another trust. The only big exception is that your spouse cannot be the trust beneficiary.

Since generation-skipping trusts are complex, you will need to work with an estate planning attorney to create one. You should also create one as soon as you can, to ensure your estate plan is as effective as possible.

Key Takeaways

  • The main purpose of a generation-skipping trust is to avoid paying estate tax more than once.

  • The trust beneficiaries are called the “skip persons” and they don’t need to be related to the trust creator.

  • Generation-skipping trusts are created as irrevocable trusts.

  • Generation-skipping trusts are complicated and you will need to work with an estate planning attorney to create a strong one.


The benefits of a generation-skipping trust

The primary objective of a generation-skipping trust is to help someone minimize their estate taxes when passing on their money and assets. Normally, very wealthy estates (worth more than $12.06 million in 2022, or $11.7 million in 2021) have to pay estate tax based on the value that is being passed on to others. For example, if someone passed a wealthy estate to their son and then the son passed the estate to his children, estate tax would be assessed twice (once at each transfer). By skipping over the son’s generation and passing the estate directly to the grandchildren, the estate tax is only assessed once. However, another tax, called the generation-skipping transfer tax, would still be levied on this generation-skipping bequest. To minimize your GST tax, you could pass assets through a generation-skipping trust. Generation-skipping trusts also don’t have to disinherit any of the skipped generations. In fact, it’s common for generation-skipping trusts to provide income to multiple generations over the course of decades. When planning your trust, it’s important to consider what you want to give to the generation you’re skipping.

Generation-skipping trusts & taxes

A well-made generation-skipping trust will help the grantor avoid multiple rounds of estate tax in the future, but there are three main types of taxes that wealthy individuals and estates may need to consider:

  • Estate tax

  • Gift tax

  • Generation-skipping transfer tax (GST tax)

Who has to pay estate taxes?

An estate owes estate taxes if it’s worth more than the estate tax exemption. At the federal level, the estate tax applies to an estate worth more than $11.58 million in 2020 (going up to $11.7 million in 2021). The lifetime exemption amount changes annually to keep up with inflation. There are also estate taxes in 12 states and the District of Columbia. Some estate tax exemptions at the state level are the same as the federal exemption, while others are less than $1 million. States also set their own tax rates. The lifetime estate tax exemption is also referred to as the unified credit, because it works in conjunction with gift tax and the generation-skipping tax.

Gift tax

You are allowed to give gifts (money, property, or other assets) during your lifetime without paying any taxes, as long as the total value of your gifts doesn’t exceed your lifetime exclusion, which is the same as your estate tax exemption: $11.58 million in 2020 and $11.7 million in 2021. However, there is also any annual exclusion of $15,000 and each time you give a gift worth more than that amount, your lifetime exclusion (and also your estate tax exemption) decreases by the excess value of the gift. So if you’ve given away $5 million worth of gifts (beyond the annual limits) during your lifetime, your estate will owe tax if it’s worth more than $6.58 million if you die in 2020 or $6.7 million if you die in 2021.

Generation-skipping transfer tax

To prevent someone from avoiding multiple rounds of estate tax, there is also a generation-skipping transfer (GST) tax. The GST tax applies when someone gives direct gifts of money or other assets to a person who’s at least 37.5 years younger than them, even through a trust. The GST tax rate is a flat 40% on the value of transfers that exceed the exemption. The GST tax exemption is $11.58 million for 2020 ($11.7 million in 2021) — the same amount as the estate tax exemption and the lifetime gift tax exclusion — so most people do not need to worry about paying it. The GST tax is also called the GSTT, or simply the transfer tax.

However, if you have a very wealthy estate, a properly crafted generation-skipping trust can be an effective tool for minimizing the tax liability for you, your estate, and your heirs. To better understand the complexities of this tax and a trust, it’s best to talk with either a financial advisor or an estate attorney.

How to create a generation-skipping trust

Generation-skipping trusts are complicated and the exact details of your trust will depend on your specific goals. For example, do you want to provide trust income to people in multiple generations? Do you know how your overall estate plan could affect a surviving spouse?

A generation-skipping trust must be constructed with attention to IRS code to ensure you receive its full benefits, so you need to work with an experienced estate planning attorney. This trust and other trusts that preserve tax benefits must be irrevocable in nature, which means you can neither modify it nor retain the ability to do so. (At the same time, you may be able to serve as trustee and direct, to an extent, how the funds assets are managed or invested.)

Also consider making your trust sooner rather than later. Having the trust created decades before your death will help you make other important estate planning decisions, like whether you want to make large gifts to anyone, how to structure your last will and testament, and how your estate plan affects your spouse.

Read more related articles here:

Generation-Skipping Trust

Why a Generation-Skipping Trust May Be a Good Idea

Also, read one of our previous Blogs at:

How Does the Generation-Skipping Transfer Tax Work in Estate Planning?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


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