The sole purpose of an Income Cap Trust is to qualify an individual for Medicaid assistance. When an elder has fixed income over a certain limit (in 2011 it is $2,022 a month gross income), the elder will be unable to qualify for Medicaid assistance. When the current average cost of assisted care is over $5,000 a month, the Medicaid limit would make it impossible for many elders to get assistance. When the gap between the Medicaid limit and the cost of care is so wide, many elders would be without a place to live. This is where an Income Cap Trust comes in.
The elder can create an Income Cap Trust to receive all of the elder’s fixed income. The trustee for the Trust would then use the income to pay the elder’s monthly expenses as required by Medicaid law. Such expenses include: personal needs allowance and maintenance; trust administrative costs; community spouse allowance; health insurance premiums; burial plans; incurred medical expenses; other reserves; and patient liability to care facility.
There are three parties to the Income Cap Trust – the grantor who signs the trust, the beneficiary who benefits from the trust, and the trustee who administers the trust. Usually the grantor and beneficiary are the same person. The beneficiary cannot be the trustee and usually the trustee is a family member or friend of the beneficiary.
To establish the Income Cap Trust, the legal document creating the trust is drafted by an elder law or estate planning attorney. The document is executed and the trustee deposits the income into a new bank account established by the trustee in the name of the Income Cap Trust. The trustee then pays expenses according to the budget prepared by the attorney and approved by the Medicaid case worker.
After the elder passes, any remaining funds in the trust will go to the state. Generally, however, there will be no funds remaining in the trust when the elder passes away.
The Oregon legislature has passed the Real Property Transfer on Death Act (SB 815), which is effective January 1, 2012. The Act is based on the Uniform Real Property Transfer on Death Act.
The purpose of the act is to provide a reliable and inexpensive probate-avoidance tool to allow an individual to execute and record a Transfer-on-Death Deed. When the owner dies, the act provides for the transfer of title to pass to the designated beneficiary. Beneficiaries must be specifically named and a class or group of beneficiaries cannot be designated as beneficiaries (such as “all my living children” etc.).
A Transfer-on-Death Deed is revocable at any time prior to the owner’s death and the owner retains exclusive control, ownership, and interest in the real estate up until the owner’s death. A designated beneficiary obtains no rights or ownership in the real estate prior to the death of the owner.
Upon the death of the owner, the real estate is transferred equally to the beneficiaries. The real estate property is transferred subject to all encumbrances, liens, and restrictions.
As with a will, the Owner must have “capacity” to execute a Transfer-on-Death Deed.
One of the potential problems created by Transfer-on-Death Deed is that it is likely that “due-on-sale” clauses found in mortgages and other loan documents will be triggered upon the death of the owner when title transfers to the beneficiaries. Lenders may not be willing to waive the due-on-sale provision resulting in the beneficiaries being forced to sell or refinance the property to pay off the debt or risk seeing the real estate going through a foreclosure sale.
Another issue to keep in mind is that there is an 18-month cloud on title following the death of the owner. Creditors and other claimants have 18 months to set aside the Transfer-on-Death Deed. If the owner’s estate has insufficient funds to pay off claims, those claimants and creditors can recover against the real estate. Other claimants can set aside the Transfer-on-Death Deed on the grounds of capacity, fraud, or undue influence. For these reasons, it may be very difficult for beneficiaries to sell the property during the 18 months following the owner’s death.