Will a Transfer of Deed upon Death protect my Dad's property from WI Medicaid Recovery?

Asked almost 2 years ago - Saint Paul, MN

My Dad lives in Wisconsin and is in a nursing home right now as of today He did a TOD upon death to me 2 1/2 yrs ago. He is a widow so no spouse. He has Medicare and WI Medicaid. His land is 5 acres and worth around $17,500 and lived in a trailer house but that is in my brother name. His income is very minimal around $500-$600 a mth from Social Security. He has terminal cancer so will be passing very soon. Can the make me sell the land or will the TOD be null once he passes because he is on Medicaid??

Attorney answers (3)

  1. Michael Leo Potter

    Pro

    Contributor Level 20

    9

    Lawyers agree

    Answered . Medicaid typically has a '5-Year Lookback' rule that applies so that Medicaid can recover the $$$ it spent on nursing home costs etc. However, not all States are the same when it comes to Medicaid so I'd recommend you sit down with a Minnesota Elder Law attorney. You can easily find one on Avvo.com under 'Find-A-Lawyer'. Good Luck on this case.

  2. Jerry E Shiles

    Contributor Level 14

    8

    Lawyers agree

    Answered . As noted this is state specific. A local elder law attorney can advise you whether WI has an expanded recovery rule and can recover against non-probate property such as a TOD deed.

  3. Lawrence A Friedman

    Contributor Level 18

    7

    Lawyers agree

    Answered . As someone noted, gifts made within 5 years are within a 5 year look back period. However, there are 2 issues at play heare. Gifts within the look back period usually (but not always) trigger a temporary Medicaid disqualification period. Regardless of when a gift that takes effect at death is made and even if it precedes the look back period, Medicaid still can recover against the property if the state provides for broad Medicaid estate recovery. Obviously, I'm not answering your question directly, but that is deliberate. No lawyer can (or should) say for sure from a general posting on a site like AVVO whether a particular action will have a particular result because various circumstances not included in the post can affect the result. Therefore, I strongly recommend consulting a WI elder law attorney, since your dad is in a WI nursing home and on WI Medicaid. BTW, there may be things that can be done even now to protect asssets from Medicaid recovery. Since any such opportunities would end once a Medicaid recipient passes away, time is of the essence.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax and SpecialNeedsNJ.com/blog for timely updates. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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