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Stephen T. DiGregorio

Stephen DiGregorio’s Answers

2 total

  • Is a person in a MA nursing home and on Medicaid allowed to gift any portion of a $40000 inheritance she is about to receive?

    She has been in a nursing home since 2007 due to advanced dementia, She is 71 and has zero assets after I did a spend down of over $180000. Is her court appointed Guardian allowed a stipend for dealing with the red tape of again spending down the...

    Stephen’s Answer

    The spending down of her $40,000 inheritance would imply that she would have to come off MassHealth for a period of time while paying privately, then reapplying for MassHealth. There is no portion she would be able to gift without incurring a penalty, except for possibly a spouse living in the community.

    One possible strategy would be for her to disclaim the inheritance. That way, if the inheritance never reaches her, it cannot become a countable asset and she cannot be kicked off MassHealth.

    Another strategy might be to create a self-settled supplemental needs trust. She would have limited access to the money, and MassHealth would have to be named as a remainder beneficiary to the extent it has paid out benefits on her behalf.

    I hope this helps.

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  • Do we need a probate lawyer or can we research on our own?

    My father recently died (3 weeks ago). My brother & I have been estranged from him ever since he re-married. We live in California and my Dad and his wife resided in Massachusetts. She neglected to let us know anything about the wake and/or funera...

    Stephen’s Answer

    • Selected as best answer

    Dear LKM,

    First, let me extend my condolences for the loss of your father, notwithstanding your estrangement. If he died without a will there would be nothing to contest. The probate court would look at the statute to determine the heirs at law, which may include you and any siblings. The court would have to appoint a personal representative to administer your father's estate. His wife may petition the court to be appointed as such. She would have to notify you and your siblings so you have the opportunity to object to her appointment. If he did in fact have a will, and you and your brother were omitted intentionally or unintentionally, it may be possible to contest it. You would need grounds to contest it, e.g., that he did not possess the mental capacity to execute a valid will. A will contest is litigation, not probate strictly speaking, and is typically done by a lawyer on an hourly basis with a retainer up front. Even if you do not succeed in getting his will disallowed by the court, you may be able to negotiate a settlement with the personal administrator of his estate. I agree with Attorney Callahan that a good place to start is searching the registry of deeds online for the county where your father may have owned real estate. You will be able to ascertain whether your father's real estate was owned jointly with his wife, or by a trust, in which case it would pass outside of probate court in accordance with the terms of the trust. You may also contest a trust, but the likelihood of success is lower than with a will. Also, a trust is a private document so it is more difficult to obtain a copy. It is unusual for a complete trust document to be recorded at the registry. In Massachusetts we use trustee certificates or realty trusts which keep much of the relevant information private. Any other assets that he owned jointly with his wife will pass directly to her outside probate court. Any retirement accounts or life insurance policies he had will have a payable on death (POD) or transfer on death (TOD) designation and those assets will pass directly to the person named on the account or policy, regardless of what his will says. I think your first step is to start doing to detective work to learn what his assets were and how they were titled (in his name individually, jointly, or held in a trust). Then you will be able to ascertain whether any of his assets will have to be administered through the probate court, and whether you may have a claim to them.

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