Teri is a single widow, age 78, living in the hypothetical American state of New Worcester. Teri purchased a house in New Worcester in 1967 for $28,000. The current fair market value of the house is $385,000. Teri has four children: Alan, Beth, Cathy and Don. All four are adults and all four have children of their own. However, Don has been having marital troubles and is contemplating divorce. Beth is estranged from one of her adult children, Bertha.
Teri is in relatively good health, but suffers from hypertension and mild heart disease. She is on medication and is being treated for both. Mentally, she is sharp and astute.
Aside from the house, Teri has about $200,000 in cash and securities in savings and a 401(k) account with a current balance of $225,000. She is taking annual minimum required distributions from that account. In addition, she receives $1,800 per month in social security benefits.
She is primarily concerned with Medicaid planning as she doesn’t want to lose her assets if forced to go to a nursing home eventually. Your supervising attorney decides to recommend that Teri set up an irrevocable Medicaid planning trust and to transfer some or all of her assets to that trust.
During the course of the meeting and subsequent discussions, the following questions come up:
1) How much of a taxable capital gain would Teri have to report if she sold the house tomorrow for fair market value?
2) If the house is transferred to the Medicaid trust, what should the trust do to ensure the best capital gains tax treatment of the house?
3) What should the trust do to ensure that Bertha and Don’s soon-to-be-ex spouse do not have access to the trust funds?
4) Should the 401(k) assets be transferred to the trust? Explain.
5) What kind of rights or powers can or should the trust safely give to Teri?
6) The state of New Worcester has an income limit of $1,000/month to be eligible for Medicaid. Is there anything that can be done to protect the excess social security payments from being subject to spend down requirements?
Please answer each question in 1-2 paragraphs. Please make sure to explain your answers and please cite applicable authority for all assertions of law that you make.
There is no need to IRAC each question.