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Property Transfers & Asset Protection

Asset / Property Transfers and Asset Protection Attorney – Spartanburg, Greenville, Upstate SC

The elder law attorneys at the Smith & Haskell Law Firm, provide a broad range of elder law services including Property Transfers and Asset Protection for people seeking Medicaid eligibility in the Spartanburg, Greenville, and Upstate surrounding areas and throughout South Carolina.  We are committed to helping people and families, while focusing on providing attentive and compassionate legal counsel; navigating you through every step in the legal process while protecting your interests and advocating for your rights.

Our property transfers attorneys / asset protection attorneys for the Smith Law Firm, LLP assist individuals and families the complexities of Medicaid laws and rules.  We strive to create an environment for those in need of benefits to be eligible to receive the best possible care for them or a loved one should they require nursing home or other care.

Asset / Property Transfers and Asset Protection

It is important to speak to an experienced property transfers attorney / asset protection attorney when considering the transfer of property prior the applying for Medicaid.  The rules on property transfers are complex and can have significant consequences on Medicaid eligibility if you have not properly followed the established rules.

In 2006, Congress, through the Deficit Reduction Act (DRA), significantly changed the rules governing the treatment of asset transfers effecting the period of ineligibility for Medicaid and those who transfer assets.  For transfers made prior to enactment of the DRA, Medicaid officials will look only at transfers made within the 36 months prior to the Medicaid application (or 60 months if the transfer was made to or from certain kinds of trusts).  But for transfers made after passage of the DRA the so-called “look back” period for all transfers is 60 months.

If you have made an asset transfer or property transfer, you should consult first with an experienced property transfers attorney / asset protection attorney before applying for Medicaid.  Our elder law attorneys at the Smith & Haskell Law Firm can advise you of your rights and course of action and with regards to the five-year look back period.

Permitted Asset / Property Transfers

While most transfers are penalized with a period of Medicaid ineligibility (there is no limitation on the length of this penalty), certain transfers are exempt from this penalty.  Even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility.

  • Your spouse;
  • Your child who is blind or permanently disabled;
  • Into trust for the sole benefit of anyone under age 65 and permanently disabled;

In addition, you may transfer your home to the following individuals (as well as to those listed above):

  • Your dependent child who is under age 21 or a blind or disabled child;
  • Your child age 21 or older who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
  • A sibling who already has an equity interest in the house and who lived there for at least a year before you moved to a nursing home;

Medicaid Asset Protection

The asset protection attorneys at the Smith & Haskell Law Firm can assist you in advising of your legal rights under the law on asset protection.  It is essential for individuals to work with an experienced asset protection attorney to create an effective Medicaid plan to protect you estate and assets in advance or in response to the unanticipated need for care.

Medicaid Estate Recovery and Liens

When a Medicaid recipient dies, the state of South Carolina must attempt to recover from his or her estate to cost of benefits paid for care.  In August of 1993, Congress passed a law that requires states to recover amounts that Medicaid has paid for certain recipients.  In South Carolina the Estate Recovery Program went into effect on July 1, 1994.  The state will recover amounts paid by Medicaid for services received July 1, 1994 or later.  Estate recovery applies to the following beneficiaries:

  • A person who was 55 years of age or older when he or she received medical assistance consisting of nursing facility services, home and community based service care to include prescriptions and hospital stays associated with either of these services paid by Medicaid; or
  • A person of any age who was an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or long term care facility at the time of death; and, who was required to pay most of his/her monthly income to the facility toward the cost of care.

The law does not allow the State of South Carolina to recover the cost of the benefits paid until after the death of the decedent’s surviving spouse, if one exists, and only at a time when the decedent has no surviving child under age twenty-one or no child who is blind or permanently and totally disabled as defined in Title XVI of the Social Security Act.

The state of South Carolina is required to recover funds from the Medicaid recipient’s estate during probate.

South Carolina Medicaid Estate Recovery Process

When a beneficiary dies, the state files a claim with the probate court against the beneficiary’s estate to recover amounts paid by Medicaid for the deceased beneficiary’s medical care. An estate is all real and personal property and other assets of the deceased person (recipient) as defined in South Carolina State Law.

This claim will be similar to claims for funeral expenses, attorney’s fees to administer the estate, and tax. This claim will need to be satisfied in order to close the estate; however, it may not require the selling of the decedent’s home and land if there are other assets available to pay the Medicaid claim. In the event other assets are insufficient to repay the Medicaid claim and/or other expenses of the estate, the Personal Representative (Administrator, Executor, and Executrix) may choose other options to repay the Medicaid debt. The state is not interested in taking title to anyone’s home. (Source: South Carolina Department of Health and Human Services)

The federal and state of South Carolina Medicaid laws are complex and require knowledgeable and experienced elder law Medicaid planning attorneys.  The South Carolina asset protection attorneys at the Smith & Haskell Law Firm can assist you in providing you with effective estate planning to legally protect you from Medicaid estate recovery and liens.

Informational Resources Regarding Medicaid Rules for Asset / Property Transfers and Asset Protection

For general informational purposes, we have provided relevant information to Medicaid Asset Rules frequently asked questions.  This information is a reference as the complexities of the Medicaid laws and rules and we encourage you to schedule and consultation with a Medicaid planning attorney today to speak about your individual situation.

Choose a South Carolina Property Transfer Attorney / Asset Protection Attorney – Spartanburg, Greenville, Upstate SC

A property transfers attorney / asset protection attorney at the Smith Law Firm, LLP will help you navigate through the complexities of federal and South Carolina Medicaid laws and rules.  Medicaid choices are just too important to leave to chance.

If you or a loved one has questions about property transfers and asset protection, we encourage you to contact a property transfers attorney / asset protection attorney to discuss your situation with the Smith & Haskell Law Firm today at 864.582.6727 to schedule an appointment.  The property transfers attorneys / asset protection attorneys at the Smith & Haskell Law Firm can help, don’t wait and act now.

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