Fairfield, CA asked in Elder Law and Estate Planning for California

Q: My 89 year old father (widower) in Arizona wants to set up a living trust for his mobile home and car.

My father still has a small mortgage on the home. He already has a Will and Durable POA. He is interested in creating a mechanism such as a living trust by which his home and minivan can be transferred to me as his sole heir without the necessity of the property going through probate. His Will directs that all of his property pass to me upon his death.

Although I could purchase the property from him now, we are concerned about my capital gain taxes and the potential Medicaid issues of :1) qualifying for care; and, 2) Medicaid attempting to recover all of the costs they pay for his care prior to his death (as I understand it, they usually attempt any recovery from assets that must be probated after a patient’s death).

Please let us know your thoughts about whether we should use a Living Trust or other vehicle to address his desire to avoid the need to probate his estate solely to transfer ownership of his home and minivan to me (giving consideration to the tax and Medicaid issues).

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3 Lawyer Answers
Jonathan Purcell
Jonathan Purcell
Answered
  • Estate Planning Lawyer
  • PETALUMA, CA
  • Licensed in California

A: I'm not familiar with Arizona laws. A quick internet search reveals that Arizona has a form for beneficiary designation of automobiles. Please refer to the link below.

https://apps.azdot.gov/files/mvd/mvd-forms-lib/96-0561.pdf

Jonathan Purcell is a California Attorney. This posting does not create any attorney-client relationship. The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. For specific advice about your particular situation, please consult with your own attorney. This posting is not intended to constitute an advertisement or a solicitation.

James Edward Berge agrees with this answer

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney
PREMIUM
Answered
  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: A Living Trust will not solve the payback problem anywhere except California. In the lesser States it requires an Irrevocable Trust.

James Edward Berge agrees with this answer

Sally Bergman
Sally Bergman
Answered
  • Estate Planning Lawyer
  • San Mateo, CA
  • Licensed in California

A: You need to seek the advice of an Arizona attorney where the Medicaid rules are very different from California's Medi-Cal rules. The probate rules are also very different.

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