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Please help me help my mom

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salchristy

Junior Member
What is the name of your state (only U.S. law)? California

These are the facts as I know them:

1. 5 years ago my mom gave my brother and his wife $400,000 to buy a house. In return she was to live there for her remaining years. The house was bought in Livermore,CA.

2. My mom is listed on the deed with my brother and his wife, but not the
mortgage.

3. 8 months ago my mom was diagnosed with stage 4 colon cancer and had surgery to remove the cancer. Unfortunately the cancer had spread to her uterus, ovaries and rectum, so all the cancer could not be removed. She still has a tumor in her rectum.

4. After the surgery, my mom went to live with her sister in Richmond,CA to
recover and go through chemotherapy.

5. My mom had no medical insurance, only medicare. She immediately signed up for an aarp supplemental plan and began the process of applying for medi-cal. She has no money, no car just her interest in the house in Livermore. She then went to a lawyer and got a irrevocable trust to protect her interest in the house from medi-cal. She was approved by medi-cal and is now receiving medi-cal benefits.

6. Last week my brother called my mom and demanded that she sign over her interest in the house to him. My mom refused. He then threatened to sue her in order to sell the house. Two days later he sent an email to her stating that a real estate agent will be coming to see her in Richmond with papers to sign in order to sell the house. The house has gone down $200,000 in value.

So this is where we are at now. Can my brother force the sale of the house? If he can, is there any way we can ensure that my mom can get some of her money back? And if she does get money from the sale, how will this effect her medi-cal benefits? What should we tell the real estate agent when he comes? Should we get a lawyer?

My mom is currently going through chemo and has hardly any energy to deal with this nonsense. We have no money and no idea of what to do. Any help or advice that anyone could give us would be greatly appreciated. Thank you all so much for your time and help.
 


anteater

Senior Member
5. My mom had no medical insurance, only medicare. She immediately signed up for an aarp supplemental plan and began the process of applying for medi-cal. She has no money, no car just her interest in the house in Livermore. She then went to a lawyer and got a irrevocable trust to protect her interest in the house from medi-cal. She was approved by medi-cal and is now receiving medi-cal benefits.
All this about the supplemental policy and Medi-Cal sounds rather odd, but skipping that...

Was her interest in the house transferred to the irrevocable trust?

If it was, did she inform your brother of that?

Who is the trustee?

First, I would call your brother and tell him to tell the real estate agent not to bother. Your mother is not signing anything.

Them I would call the attorney who created the trust and discuss what is going on.
 

Dandy Don

Senior Member
Is there anything in writing to show that she was allowed to live there for her remaining years as a condition of her giving him the $400,000?

At least have a consultation with an attorney to figure out what to do. A consultation for an hour or 2 will not be very expensive.
 

salchristy

Junior Member
All this about the supplemental policy and Medi-Cal sounds rather odd, but skipping that...

I included this because one of the main concerns is that with the sale of the house we are afraid she might lose her medi-cal benefits.

Was her interest in the house transferred to the irrevocable trust?

Yes

If it was, did she inform your brother of that?


He said he doesn't care about the trust and doesn't want to see it.

Who is the trustee?

her ex husband, my dad, is the trustee

First, I would call your brother and tell him to tell the real estate agent not to bother. Your mother is not signing anything.

Them I would call the attorney who created the trust and discuss what is going on


Yes I think we definitely need to speak with someone. A local radio show attorney emailed me this, "He can force the sale of the home in an action for partition, but the proceeds of her share of the sale of the home would be held within her irrevocable trust under the terms of that trust." So if the trust was done correctly she should be okay.
Thanks so much for your time and reply and I would love any more advice you have to give.
 
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salchristy

Junior Member
a son, who is given money for a house by his mother, is suing her. talk about a low-life !!!!

The worst of it is that my mom is broken hearted. She trusted him to take care of her and he has shown zero interest in her care or progress since she got sick. Last night we were watching a game show where one of the contestants father got cancer, and they talked about how he relocated back home to be with his dad and help out. This brought my mom tears of sadness, and it just killed me inside. At the time when she needs her kids most my brother pulls this.
 

salchristy

Junior Member
Dandy Don;2618438]Is there anything in writing to show that she was allowed to live there for her remaining years as a condition of her giving him the $400,000?

No, will this be a problem? I'm guessing yes.

At least have a consultation with an attorney to figure out what to do. A consultation for an hour or 2 will not be very expensive.

Yes I think we will have to do this, thanks for reply and help, I'm pretty clueless here and I'm the only one my Mom has right now.
 

anteater

Senior Member
I mentioned the supplemental policy because my understanding is that, unless one obtains the policy during the open enrollment period, the application is subject to medical underwriting. If I remember correctly, the open enrollment period is the 6 months after reaching age 65 and, during that period, the health insurance company must issue the policy without regard to pre-existing conditions and at the same price as healthy applicants. If your mother was outside the open enrollment, I am kind of surprised that she was issued a policy. If she was issued a policy, the price must be awfully high.

(I want to be clear that Medigap insurance is not an area of great knowledge and I may be off in what I said above.)

I don't want to go too far into the Medicaid/irrevocable trust thing since it isn't an area of expertise and each state has some flexibility in how it applies the rules. But I am looking closely at the sequence you described. Your mother applied for Medi-Cal and then went to the lawyer to create the trust? Did your mother include a mention of the trust when applying?

Here's what troubles me. For Medicaid purposes, the home is an exempt asset, with a few conditions. (Although it could be subject to estate recovery when the Medicaid recipient passes away.) And, since assets in an irrevocable trust are not owned by the applicant, they are not considered a resource - if the trust was created and the assets transferred to the trust 5 years (what is called the lookback period) prior to application for assistance. In general, one can't transfer assets within 5 years of applying for Medicaid assistance without being hit with a period of disqualification.

That is why I am scratching my head as to how this plays out. Was the lawyer the one who suggested the irrevocable trust and was the lawyer experienced in Medi-Cal issues?

All that said...
He said he doesn't care about the trust and doesn't want to see it.
Well, it may not be necessary for him to see it, but he darn well better care about it if he is taking this path. Your mother does not own the interest in the house any longer. The trust does. And your Dad is the trustee. Your brother needs to be dealing with your Dad.

A local radio show attorney emailed me this, "He can force the sale of the home in an action for partition, but the proceeds of her share of the sale of the home would be held within her irrevocable trust under the terms of that trust."
Sounds right.

So if the trust was done correctly she should be okay.
I'm not too certain about that. But that is why I suggested having an attorney with Medi-Cal experience look at the whole situation.

(Out of curiosity, why is brother insisting on selling? Can't make the mortgage payments?)
 

ecmst12

Senior Member
If the house has dropped in value that much, then there is not going to be much in the way of proceeds from a sale anyway, right?
 

salchristy

Junior Member
I mentioned the supplemental policy because my understanding is that, unless one obtains the policy during the open enrollment period, the application is subject to medical underwriting. If I remember correctly, the open enrollment period is the 6 months after reaching age 65 and, during that period, the health insurance company must issue the policy without regard to pre-existing conditions and at the same price as healthy applicants. If your mother was outside the open enrollment, I am kind of surprised that she was issued a policy. If she was issued a policy, the price must be awfully high.

This was confusing to me also. At the first appointment after her surgery with her oncologist, the majority of the discussion was about getting some kind of coverage. He recommended going to the aarp website and finding supplemental coverage. So she did and an aarp representative (salesman) came to her house and signed her up for coverage and told her everything would be just fine. She told the rep that she was also applying for medi-cal. The rep told her that it would be good to have both because the aarp plan might cover things that medi-cal doesn't. To me this all sounds fishy. She pays $170 a month for this and was 67 (68 now) when all this happened.

I don't want to go too far into the Medicaid/irrevocable trust thing since it isn't an area of expertise and each state has some flexibility in how it applies the rules. But I am looking closely at the sequence you described. Your mother applied for Medi-Cal and then went to the lawyer to create the trust? Did your mother include a mention of the trust when applying?

Here's what troubles me. For Medicaid purposes, the home is an exempt asset, with a few conditions. (Although it could be subject to estate recovery when the Medicaid recipient passes away.) And, since assets in an irrevocable trust are not owned by the applicant, they are not considered a resource - if the trust was created and the assets transferred to the trust 5 years (what is called the lookback period) prior to application for assistance. In general, one can't transfer assets within 5 years of applying for Medicaid assistance without being hit with a period of disqualification.

That is why I am scratching my head as to how this plays out. Was the lawyer the one who suggested the irrevocable trust and was the lawyer experienced in Medi-Cal issues?

I hope so. Her sister had a trust done with this lawyer and recommended her to my mom. I looked her up on the internet and couldn't find out much about her. The trust was $4000 which was paid by her other sister. This sounded high to me.

I'm not too certain about that. But that is why I suggested having an attorney with Medi-Cal experience look at the whole situation.

We are going to make an appointment with the lawyer who did the trust. My mom wants to meet with the real estate agent first to find out how much is owed on the house and other questions about the mortgage. Do you think that's a good idea? I want to see the lawyer as soon as possible.

(Out of curiosity, why is brother insisting on selling? Can't make the mortgage payments?)

Well he told my mom that he can't afford it because now he has to pay for child care. We find this hard to believe since he makes an okay living while his wife does very well. So we don't really know why. We don't understand why he couldn't have just come to my mom and told her what going on and why he has to sell in a civil, caring manner. I'm sure something could have been worked out. Ever since my mom applied for medi-cal he has been trying to get my mom to sign over her interest in the hose to him. He got a lawyer to do a will for her provided she sign over her interest. My mom didn't want to do that and that's when my aunt stepped in and paid for a trust for her. I think he just wants to hurry up and sell to get out of this situation. Thanks again for all your help and advice. I going to go stay with her next week so I'll try to find out more information.
 

salchristy

Junior Member
If the house has dropped in value that much, then there is not going to be much in the way of proceeds from a sale anyway, right?
Yeah, I've been thinking about this also. The house was bought for I think almost $800,000, now worth $600,000. I know he refinanced once so who knows how much they'll see in the sale. It's a sad situation all the way around.
 

anteater

Senior Member
My mom wants to meet with the real estate agent first to find out how much is owed on the house and other questions about the mortgage. Do you think that's a good idea?
Can't really hurt as long as your Mom keeps control of the conversation. If nobody has told the real estate agent that Mom's interest is now part of an irrevocable trust, I'm sure that it will be interesting.

Ever since my mom applied for medi-cal he has been trying to get my mom to sign over her interest in the hose to him.
Yeah, I'm sure his sphincter tightened quite a bit when he heard that.

It's a sad situation all the way around.
It certainly is and you and your Mom have my sympathy. Try to keep focused on what's really important.

(If you are going to be involved with this and you have not done so already, you might want to take a look at what Medi-Cal is all about:

http://www.dhcs.ca.gov/services/medi-cal/Pages/MCIndividual.aspx

And, if you would, come back and update us with what happens.)
 

salchristy

Junior Member
Well this situation has gotten pretty bad. Turns out my mom does not have an irrevocable trust, she paid $4000 and her lawyer wrote a revocable trust knowing about her medi-cal situation. And meanwhile my mom never filed her trust with the county so right now she has nothing. She tried to get a consult with her lawyer but the lawyer rarely answers the phone and seems disinterested in helping my mom.
My brother has moved forward with the sale of the house and now has his real estate agent hounding my mom to sign off for the sale of the house. There is an estimated profit of $50,000 from the sale of the house. My brother wants half of this even though my mom put down $400,000 and he put nothing down.

So now we need to find out if my mom will my Mom lose her benefits when the house is sold and she gets some money. What to do with the money and if we should report it to medi-cal. So right now I'm looking for a new lawyer that can help us. If anyone knows of any good resources
to find lawyers please post, Thanks again.
 

anteater

Senior Member
I don't believe that trusts in California have to be filed. But assets do have to be transferred into the name of the trust for the trust to have any meaning. I assumed that mother's interest in the house had been transfered. My bad.

$4,000??? For a revocable trust??? When the attorney knew of the Medi-Cal situation??? And the fee did not include assistance in transferring the assets???

My brother has moved forward with the sale of the house and now has his real estate agent hounding my mom to sign off for the sale of the house.
Your mother can notify the agent to cease contacting her and that she will consider any further contact to be harassment and she will take appropriate legal action of the harassment continues. Same goes for brother if it is necessary.

Not certain if this was mentioned earlier in this thread... But the "cease contact" steps are a delaying tactic. Brother could file a partition suit that eventually would result in a court-ordered sale of the property. That action would take awhile. What your mother wants now is to get them to cool their jets until she can get decent legal advice.

Does your mother have a durable power of attorney in place?
 
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