Posts By: Gene Osofsky

Q.  My wife and I had our Living Trust prepared back in the year 2001. I hear there have been changes in tax law since then which might affect us. Is it time to have our trust reviewed?

A. Yes, Indeed!. When you created your own trust, the estate tax exemption was much smaller than it is today, and special tax planning was required to minimize estate taxes for a married couple. At that time, your attorney probably recommended a form of trust tailored to the much lower estate tax exemption, which was then $675K per person. He or she likely designed a Trust with a Bypass Sub-Trust built into it. This Bypass Sub-Trust was sometimes called a “B Trust,” an Exemption Trust, a Family Trust, or a Credit Shelter Trust.

This design was to preserve the first spouse’s estate tax exemption for later use at the survivor’s later death.  Under former law, without this design, if all trust assets transferred to the surviving spouse directly, the first spouse’s exemption would be unused and lost and all trust assets at the later survivor’s death could potentially be heavily taxed, as they would be then sheltered by only the survivor’s own $675K exemption.  The excess estate value (if any) was then exposed to an estate tax at a rate as high as 55%. Understandably, couples wished to avoid that tax.

However, by directing a portion of the first spouse’s share into a ByPass Sub-Trust, rather than to the Surviving Spouse directly, the couple could shield from estate tax $675K + $675K, or a total of $1,350,000, over the span of two lifetimes.

Now, the estate tax exemption has increased dramatically, making the former use of ByPass sub-trusts unnecessary for most couples.  By comparison, the former $675K estate tax exemption is now $13.61 Million per person per the Tax Cuts and Jobs Act (“TCJA”), effective for persons dying between 2018 and 2025.  Unless Congress votes to extend that TCJA, which is set to expire in 2026, the estate tax for persons dying in years 2026 and thereafter will likely return to the prior exemption, which was approximately $5,250,000 (plus increases for inflation) under the American Taxpayer Relief Act (“ATRA”) signed by former President Obama. But even if the current law expires in 2026 and the exemption drops back to what it was under the ATRA, even that lower exemption (plus adjustment for inflation) would still be more than sufficient for most couples’ estates, and would eliminate the need for the mandatory ByPass Sub-Trust funding on the first death.

Question: You might ask why couples might now prefer to forgo a ByPass Sub-Trust.  Answer: The typical Bypass Trust had some drawbacks: (1) the survivor typically lost the right to make any changes in the Bypass portion even if family circumstances had changed, (2) the survivor’s access to the assets in the Bypass portion was usually restricted, (3) the Bypass trust could interfere with applying for a Medi-Cal long-term care subsidy, (4) the assets in the Bypass portion usually did not qualify for a 2nd date-of-death “step-up” in tax basis upon the later death of the surviving spouse, with increased exposure to a later capital gains tax for appreciating assets when, and if, the ultimate recipients (usually the children) later opted to sell the appreciating asset(s), and (5) the Bypass Trust usually required separate accounting and annual income tax returns during the life time of the survivor.  Surviving spouses usually found these restrictions burdensome.

Further, under current tax law, the unused portion of the first spouse’s full exemption can now be preserved for use by the second spouse even without the use of the restrictive Bypass Trust. The survivor need only make a proper election to preserve it by filing a timely Estate Tax Return Form 706 after the death of the first spouse.

In view of these new developments, couples with Bypass Trusts created for estate tax purposes under old tax law should have their trusts reviewed and, where appropriate, consider eliminating the mandatory funding feature at the first spouse’s death. Instead, they might now consider plans which give the survivor the option of doing post mortem planning after the first death, e.g. by funding a portion of trust assets into an optional Disclaimer Trust. The Disclaimer Trust would then operate as a tax-saving Bypass Trust if that option then appeared appropriate, whether to ensure full use of the 1st spouse’s exemption (without the need to file a timely Form 706 to so elect) and/or for non-tax reasons (e.g. creditor protection, assuring bequests to the deceased spouse’s designated beneficiaries).

An exception to the above recommendation:  The use of the mandatory Bypass Trust can still be useful for non-tax purposes, e.g. in situations involving second marriages. Here, each spouse usually wishes to provide financial security for the survivor, but also wishes to preserve a portion of assets for his/her own children. Under these circumstances, a Bypass Trust can still help these couples achieve their estate planning goals.

 

Posts By: Gene Osofsky

Q. Our daughter is going through a divorce. She has a 24 year old son (our Grandson) who has a disability and gets both SSI and Medi-Cal. She plans to seek child support from the father. We worry that the child support will reduce our Grandson’s SSI and possibly eliminate his Medi-Cal. Is there a way around this?

A. Yes, indeed! Very few attorneys or judges are familiar with the work-a-round for this concern, which involves the use of a Special Needs Trusts (“SNT”). As a result, the sad fact is that many children with a disability who receive SSI and Medi-Cal see their benefits reduced or eliminated when their parents divorce. A bit of background:

To qualify for Supplemental Security Income (“SSI”), your Grandson with a disability must meet two financial conditions:  He must (a) have less than $2,000 in non-exempt resources in his own name (e.g., savings), and (b) his monthly income must be less than the SSI benefit rate, currently $1,182.94 per month if living independently or $873.87 if living in his mother’s home (in 2024).  An award of SSI also entitles him to Medi-Cal without a co-pay (“share of cost”).

But it gets more complicated in the divorce process.

For an adult child, if he is “incapacitated from earning a living and without sufficient means”, then his parents’ duty to support him continues into adulthood under California law.  However, any court-ordered Child Support (“CS”) that he receives would—unless special arrangements are made as described below — be treated as “unearned income” to him and offset his SSI dollar-for-dollar, reducing or eliminating it entirely.

The question, then, is whether there is a way to preserve both his right to SSI and his right to Child Support.?

Answer:  YES!  Enter the Special Needs Trust (“SNT”).  With professional guidance, your daughter could create a SNT for her adult son and, through her attorney, ask the court to “irrevocably assign” the payment of CS to the SNT.  If structured properly, under SSI rules there would then be no offset to his SSI !  Your Grandson would then receive (1) Full Child Support,  (2) SSI without offset, and (3) Medi-Cal without a Share of Cost.  While this strategy has been available for some time, many judges and attorneys are unfamiliar with it and, until now, some judges are of the view that they cannot order Child Support payable to any kind of trust.

Good news! On June 26, 2024, Governor Newsom signed legislation clarifying the matter.  The new law (AB 2397), was introduced by Assembly Member Maienschein and amends Family Code § 3910.  In relevant part, it provides simply as follows:

“The court may order that a support payment be paid to a special needs trust”

The law becomes effective on January 1, 2025, and will give the courts explicit authority to assign child support for children with disabilities to a SNT so that they do not risk losing their SSI benefits.

The SNT would be managed by a Trustee, which could be your daughter, who would then handle the funds in a manner compliant with the SSI and Medi-Cal rules. This typically would mean that, as Trustee, she would not disburse funds directly to your Grandson, himself, but instead would use them to pay third party providers directly for goods and services provided to him, such as a tutor, computer, clothing, etc.

The use of an SNT may also be used to shelter support for a minor child who receives SSI (although the offset calculations are a bit different), as well as to shelter Spousal Support for a spouse going through divorce.

To make this option work, it is essential that your daughter engage an Elder Law or Special Needs attorney familiar with the use of the SNT in the divorce context. The SNT attorney would then work with her divorce attorney to create the proper SNT, and might even help educate the judge and opposing counsel to the benefits of this technique. In this regard, our firm has developed a special interest in these cases, and the results have been very rewarding and usually recognized as a “win-win” by all parties before the court.

Posts By: Gene Osofsky

Q.  My father recently died. His home, bank accounts and other assets were held in a Living Trust.  His financial advisor said we should now engage a lawyer to help with trust administration. What? I thought if you had a Living Trust that there was little or nothing to do following the death of the trust-maker? Is that not so?

A.  Your father’s financial advisor is correct. One of the most common misconceptions among those who have established a Living Trust is that there is little or nothing to do following the death of the trust-maker. In fact, depending upon the nature of the assets, there is often quite a bit to do.

Think of it this way: many people create Living Trusts in order to avoid a formal probate proceeding, which many people correctly understand to be a cumbersome, time-consuming process overseen by a judge in court. By comparison, administering a trust following death involves many of the same processes, except that it is controlled by a trustee in an out-of-court process called trust administration. Further, a probate is a public proceeding, while administering a trust is typically a private matter. Still, even with trust administration there are things to do and laws to follow.

While everyone’s situation is different, here is a partial list of things that should to be done during a typical trust administration:

Prepare formal, written Notice to Trust beneficiaries and heirs in legal format;
Identify and protect decedent’s assets;
Lodge decedent’s Will with the Court;
Give formal notice to agencies: Medi-Cal, FTB, IRS, Social Security; VA
Prepare a trust accounting, if required by the terms of the trust;
Obtain appraisals for tax purposes and for distribution purposes;
Ascertain and pay creditors;
Advise Beneficiaries about any “Disclaimer” option;
Resolve disputes among beneficiaries;
Take title to real property in the trustee’s name;
Sell real property where appropriate & distribute the proceeds;
Handle sub-trust funding if required by the trust;
File fiduciary income tax returns, if required;
File estate tax returns for larger estates or to elect / preserve tax portability
Arrange care for pets

Sometimes there are problems with a trust which  need to be corrected by seeking an appropriate court order. One example would be a trust prepared years ago, when tax laws were different, which should now be revised to comport with new tax law.  Another example: where a trust leaves assets to a beneficiary who is now disabled and receives public benefits (such as SSI and/or Medi-Cal), and whose bequest should, instead,  now go into a Special Needs Trust for his benefit so as not to disturb the continuation of those benefits. Where these issues appear, the trustee must also consider whether to seek a post-mortem trust modification via a Court Proceeding, or via the newer out-of-court Decanting Process.

While the rules regarding trust administration are generally more relaxed than those governing a probate proceeding, nevertheless it is wise for the successor trustee to consult with an attorney knowledgeable in these matters, so that he or she can be properly advised and avoid tripping over legal requirements. Remember: the successor trustee typically has a fiduciary duty to honor the terms of the trust, comply with relevant law, and deal fairly with the designated beneficiaries.

We recommend that all successor trustees seek appropriate legal guidance so that they discharge their duties lawfully, minimize family disputes and avoid creating liability for themselves.

Posts By: Gene Osofsky

Q. My wife and I have an adult son with a disability.  He receives SSI and lives in our home and pays us a modest rent from his SSI benefit.  We also help him with groceries. We report this to SSI.  To date, our “assistance” to him has been deemed a subsidy by SSI, and has reduced his monthly SSI benefit amount. However, I hear that there may be some favorable changes coming soon in how SSI treats this financial “assistance”. Can you tell us more?

A. Sure.  The Social Security Administration (“SSA”) recently announced some changes in the way it will calculate a reduction for the value of financial assistance for food and housing received by the recipient of Supplemental Security Income (“SSI”).

Background: SSI has been designed by Congress to provide a qualifying individual with money for food and housing. To qualify, an individual must be over age 65, blind or have a qualifying disability, AND have income less than the SSI benefit amount, and have less than $2,000 in countable resources (such as savings). To the extent the SSI beneficiary receives some income in any given month from other sources (so long as less than the SSI benefit), his SSI benefit will be reduced, but not eliminated.

In terms of income, there are three (3) types that SSI counts: (1) earned income, (2) Unearned income (such as pension income), and (3) In-Kind Income.  The treatment of In-Kind income is what will change.

In Kind Income results where a third party, such as parents or other family members, purchase some of the beneficiary’s food for him, or subsidize his housing expense. The treatment of this third kind of income is what the new rules will address when they fully go into effect on September 30, 2024.  This In-Kind income is frequently referred to as In-Kind-Support & Maintenance, or “ISM” for short.

Under current rules, the value of that ISM is deducted from his SSI benefit, but only up to a certain cap. That cap is called the Presumed Maximum Value (“PMV”), and this number increases each year with inflation. In 2024, that PMV amount is $334.34. In addition, there is also a $20 ‘unearned income exclusion ‘, so that the net PMV reduction from an individual’s SSI is capped at $314.34 ($334.34 – $20) in any given month. The benefit reduction for food and/or housing is always the lesser of the actual value thereof or that year’s net PMV amount.

Example: Let’s assume you purchased for him $100 in groceries this month. Let’s also assume that you charge him $400 for rent where, if you had rented his room out to a stranger on the open market, the Current Market Rental Value (“CMRV”) would be, say, $750/month. Your combined financial assistance to him would then be calculated as follows:  $100 + $350 rent subsidy ($750–$400) = $450 in total ISM.  Since the current net PMV for any given month is only $314.34, his SSI benefit reduction would be capped at only $314.34 for that month, which is much less than the full financial benefit he actually received from you. Here are the calculations:

$1,182.94 Gross SSI Benefit (with the California State Supplement)

<   314.34 ISM (Capped at the net PMV Amount)

$    868.60 Reduced SSI Benefit for that month

Not a bad deal, even under the current rules. But, with the implementation of the new rules on September 30, 2024, the good news will soon be even better. Here is why:

Food: When the new rules take effect, there will no longer by ANY reduction for food that you (or any other family member) purchase and give to your son, or even the value of a meal you purchase for him at a restaurant;

Rental Subsidy: So long as the rent you charge him is at least equal to the then existing PMV Amount ($334.33 for year 2024), it will generally be treated as if it were equivalent to the Current Market Rental Value (“CMRV”), and there should then be no reduction in his SSI by reason of your rental subsidy. Note: there may be some variation in application of this rule for different individuals, depending upon the number of persons in the household and other factors. But the basic thrust of the new rule is to benefit SSI recipients and eliminate the current reduction for the rent subsidy.

Caution: As before, if you give your son money directly, for whatever purpose, then there will continue to be a dollar-for-dollar reduction in his SSI. Thus, the way to maximize the benefit to him for, say, groceries is for you is to purchase them from the grocery store and then gift the groceries to him. Admittedly this two-step gifting process can be a bit cumbersome, but that is the best way to continue your assistance to him and avoid a reduction in his SSI Benefit.

This should come as welcome news to SSI beneficiaries and their loved ones.

Posts By: Gene Osofsky

Q. My brother-in-law just died, and I expected the entire family to be invited to a formal reading of his will. So far, nothing has been set up. Does that sound right?

A.  Actually, yes it does. You have probably seen a number of old movies where, after a person’s death, his next of kin gather in the attorney’s office for a formal ‘reading of the will’. In the movies, the attorney somberly reads the will aloud while the family listens with anticipation to learn how the decedent provided for them. Typically, the camera captures audience reaction as the decedent’s wishes are finally made known.  In reality, however, that scenario rarely occurs in today’s world..

Instead, within 30 days of death, the original of the decedent’s Last Will must be lodged with the Superior Court clerk in the county of the decedent’s residence and then becomes a semi-public record. If there is to be a probate of the will, the decedent’s probate attorney will send formal notice to the decedent’s heirs and beneficiaries advising of the date, time and place of the initial court hearing to determine the validity of the will and commence a probate proceeding. Often, a copy of the will is attached to this formal notification and, if not, the will is available for viewing and copying at the courthouse by persons receiving notice.  However, even if there is no probate (for example, if the decedent held all assets in a trust),  the will is still kept in a secure file by the court clerk and becomes a semi-public record, available for viewing or copying at a nominal fee upon showing the clerk the decedent’s death certificate or by obtaining a court order.

Essentially, each interested person receives, or can secure, a copy of the will to read for himself. That is typically how the ‘reading of the will’ actually occurs.

Some have suggested that the formal ceremony of reading the will has its roots in earlier times when literacy was not as common as it is today, and that the ceremonial reading aloud was therefore necessary to inform beneficiaries of the will’s contents. However, it is my guess that a more accurate explanation may have more to do with technology, i.e. the advent of copy machines.  Certainly, in the days of Abraham Lincoln and even into the last century, copying a legal document for review by others would have been a labor-intensive process, usually performed by hand and therefore prone to error.  In that context, reliance upon a single original made sense.  By contrast, today we can quickly and accurately reproduce the decedent’s Last Will and easily distribute a true copy to as many persons who have a legitimate interest.

Hence, in today’s world there is no need for a solemn gathering to hear the reading aloud of the original Last Will, and the law does not require that an attorney do so. In fact, in all my years of practice, I have only been asked on one single occasion to read a will aloud to assembled family members, a request that I obliged out of respect for the family.

Posts By: Gene Osofsky

Q. My primary asset is my home, which I purchased about 35 years ago and now own free and clear. I would like to leave it to my son, but in a way that avoids the fuss of a probate or trust administration when I die. Is there some way to do this?

A. Yes, indeed. You might consider leaving it to your son via a Life Estate Deed. A Life Estate Deed (“LED”) is a special kind of deed which you would sign and record now, but which would transfer your home to your children down the road, upon your death, while reserving to you the exclusive right to live in your home during your lifetime. Upon your death, your child’s interest would mature into a full ownership interest

One of the nice features of this LED, is that the clearing of title upon your demise is very simple.  At that time, your son need only file with the county recorder an affidavit reciting the fact of your death, along with a certified copy of your Death Certificate and other routine transfer documents.  There would be no probate and no trust administration to deal with.

However, as with many legal matters, there are “Pros” and “Cons” to using this special deed. Here are some of them:

Advantages:

1) Upon your demise, clearing title and confirming ownership in your children is a simple procedure, handled without probate or trust administration.

2) The home would receive the same favorable tax treatment accorded a transfer, upon death, via a Living Trust or Will: Your children would receive the home with a tax basis equal to its increased value at your death, thus minimizing any capital gain tax if they later sell the home.

3) Should you ever apply for a Medi-Cal Long Term Care subsidy to help with nursing home expense, the home would be protected from a post-mortem recovery claim for reimbursement.

4) In terms of title insurance, this LED is better than the new Transfer on Death (TOD) Deed, as many title companies are unwilling to insure the transfer of title where the newer, TOD Deed has been used.

Disadvantages:

1) Once the deed is signed and conveyed, you cannot change your mind by revoking the conveyance, or at least not without your son’s agreement.

2) Once the deed is executed, you would not be able to obtain a conventional or reverse mortgage secured by the home. This could impact your financial needs in the future, including funds for long term care.

3) Once done, you could not sell the home without agreement of your son, and if sold, the proceeds must be “split” between you according to the value of your respective interests.  This restriction could impair your ability to sell the home to help fund your own retirement or long term care expenses.

4) Disputes may arise regarding responsibility for repairs or improvements.

5) If your son were to predecease you, his interest would go as he directs in his own trust or will or, if none, to his heirs-at-law. Thus, you would no longer control the ultimate disposition of your interest.

While many of these disadvantages can be eliminated by creating a formal “Living Trust”, the trade-off is the greater expense of creating a trust, and the time and expense of a formal, post-mortem trust administration upon your demise. Another alternative is a Transfer on Death Deed (“TOD” Deed), but there are downsides to that option as well. See this link to an article on the TOD Deed.

Before making the decision to use a LED — rather than a “Living Trust” or Will–  it would be wise to seek professional advice from a knowledgeable attorney to make sure that this special deed is right for you.

 

Posts By: Gene Osofsky

Q: My husband just passed away. He did not have a Will or Trust, and our home was his separate property from his prior marriage. His son is now anxious to sell the home in order to receive his inheritance share, but that would force me out of the home with nowhere to go. Do I have any rights?

A.  Yes, you do! There are two important rights of which you should be aware: the Probate Homestead and the Probate Family Allowance. These key provisions of probate are designed to safeguard the interests of surviving family members, and together they play an important role in providing financial protection and stability to them during this time of transition.

Probate Homestead

The probate homestead provides a valuable shield for you and any minor children by allowing you to claim your husband’s home as your “homestead”, with the right to continue to reside in the home. This right is liberally construed and favored by the law. In ruling on the request for a Probate Homestead, the court has discretion to determine the proper conditions and appropriate duration of this homestead. Such conditions can include the assignment of other property owned by your husband to his son or other heirs or devisees, i.e. as a kind of “ trade – off” so, as here, the son might receive other items of value from his father’s estate while you continue to reside in the home. The court will also set the duration of the Probate Homestead in its order, and this can be as long as your own lifetime if the court determines that your financial and shelter needs so require. However, if you later remarry, it is likely that the homestead would then dissolve.

Probate Family Allowance

Another feature of the probate process is your right to request a probate family allowance, a feature designed to provide immediate financial assistance to you and surviving family members during the administration of your husband’s estates. This provision can ensure that you, as the surviving spouse, will have access to a reasonable allowance from your husband’s estate to support yourself during administration. This allowance can help cover essential expenses such as expenses related to the home, utilities, food, and other necessities during the probate process.

If your husband’s estate is solvent, the court has wide discretion in determining the duration of a family allowance, but it must terminate no later than the entry of the final order for distribution of his estate, which could very well be a year or more from the beginning of the probate process.

Some local court rules, however, require that it be of limited duration, and require additional petitions in order to extend the duration of this allowance. These are all matters that you should discuss with your attorney.

In conclusion, the Probate Homestead and the Probate Family Allowance serve as essential safeguards for surviving spouses and minor children, providing a place for them to continue to live, and for immediate financial assistance in their time of need. These provisions can play an important role in ensuring your own well-being during and even beyond the probate process. Be sure to discuss these matters with your attorney as soon as possible.

Posts By: Gene Osofsky

Q. My mother just died, and her will leaves her estate equally to us three children. I am fairly well-off, but my two brothers are not quite as fortunate. Is there a way that I can redirect some or all of my share to them in a tax efficient way?

A. The answer may very well be “yes.” One way to accomplish this is by the use of a disclaimer. A disclaimer is a renunciation of one’s right to receive a gift or bequest, whether the gift is left in a will, trust, or by beneficiary designation.

However, whether it will accomplish your purpose in routing your share to your siblings depends upon how your mother structured her will. Here is why: in order for a disclaimer to be effective, it must pass to the next person in line without any direction on your part. In other words, it must pass to the successors whom your mother, herself, has chosen to take in the event you predeceased her. A couple of examples will help illustrate the matter:

Example #1: let us suppose your mother’s will recites as follows:

“ I leave everything to my three children, equally, but if any of my children predecease me, then I leave that deceased child’s share to my other surviving children, equally.”

Example #2: now, let us suppose your mother’s will, instead, recites as follows:

“ I leave everything to my three children, equally, but if any of my children predecease me, then I leave that deceased child’s share to his own surviving children”.

In example #1, your mother provides that the share of any predeceased child would go sideways to your siblings, while in example #2, she provides that it would go downward to your own children. In example #1, a disclaimer by you would accomplish your purpose, but a disclaimer by you in example # 2 would not.

A disclaimer is treated as if the target beneficiary had predeceased the decedent. So, before exercising a disclaimer, it is very important to first determine whom the decedent, herself, has selected as the successors. If the decedent died without a will, then the successors would be determined by state law.

The nice thing about a disclaimer is that it is treated for tax purposes as if you never owned the asset; it passes to the successors without any adverse tax implications to you. As a result, a disclaimer can be a very tax efficient way of postmortem planning. By contrast, if you first accept your share and then re-gift it to your siblings, the gift tax scheme would be implicated: you would need to file a Gift Tax Return for amounts over $18,000 per recipient (in year 2024), and the gifts to your siblings would reduce your own lifetime exemption from gift and estate tax (currently $13.61 Million per person through the end of year 2024. Thus, accepting and then re-gifting the assets to your siblings would use up some of your own lifetime tax exemption, making less available for you later on to shield bequests to your own beneficiaries. Note, however, that the current very generous lifetime gift and estate tax exclusion is set to expire at the end of 2024. Thereafter, unless a new law is enacted, it is expected to reduce to approximately $7 million per person (or, $14 million for married couples). So, if it would accomplish your purposes, using a Disclaimer is a better way to go.

To be effective, a disclaimer must meet certain requirements: it must be in writing, it must be made before you accept the gift or any of its benefits, and it must be made not later than nine months after your mother’s death. Caution: a person receiving some public benefits, such as SSI, should never make a Disclaimer without getting professional guidance, as doing so would be treated as a prohibited transfer of assets and could jeopardize continued eligibility for those public benefits.

Another approach: if your mother’s bequest were made in a Trust (rather than by will), you might, instead, use a relatively new procedure in California called “Decanting”. For more on this option, check our website for articles on this topic.

Posts By: Gene Osofsky

Q. My mother will need care in a Nursing Home, but the cost is beyond our reach. I understand that Medi-Cal can help subsidize that cost if she were eligible for that financial assistance. I also heard that there are new rules now in place that may make it easier for her to qualify. Can you shed any light on this, and is there still a role for advance planning?

A. Yes, and you heard correctly! Because of legislation (AB 133) signed by Governor Newsom, and fully effective this year, Medi-Cal has abandoned its long-standing asset test for all categories of Medi-Cal.

Until this year, there were, broadly speaking, two categories of Medi-Cal: (1) Medi-Cal for those under age 65, who qualified under the Affordable Care Act by reason of having modest incomes  (where assets did not count), and (2) Medi-Cal for those over age 65 and the disabled, who qualified by reason of having “countable resources” under certain limits (that is, where assets did count, although income only counted toward their “co-pay” or “Share of Cost”). Asset resources did not count for the younger group, but did count for the older group. Now, they no longer count for either group!  With this transformative change in the law, eligibility for the older group is now in sync with the younger group. In short, the value of assets is no longer disqualifying for either group. This comes as very welcome news for many seniors.

That said, there is certainly a role for advance planning, especially for seniors, and I am glad you asked that question. Here are some bullet points:

1) Income still matters: For seniors, income is still considered for purposes of determining whether he or she will have a monthly Share of Cost for the care received. While the rules regarding income are different for care received in a nursing home, as compared with care received at home, there are still lawful planning strategies available to shelter that income. These strategies can be helpful so as to either minimize the patient’s monthly Share of Cost or eliminate it entirely. For example, in appropriate cases, certain trusts may be used to shelter income generated by income-producing assets, in full compliance with the Medi-Cal rules. Furthermore, know that some Medi-Cal options are only available when the beneficiary’s Share of Cost has been reduced to zero. One such option is the Assisted Living Waiver Program, which provides a Medi-Cal subsidy for care in assisted living facilities for those who qualify. Other programs are only helpful where the Share of Cost is substantially below the actual cost of care, such as the In Home Supportive Services (“IHSS”) Program.

2) Estate Recovery: When the Medi-Cal beneficiary dies, Medi-Cal looks to his or her estate to determine if it may recover payments made on his or her behalf. In this regard, estate recovery is now limited to cases where the patient’s estate is administered in a formal probate proceeding. Thus, in order to avoid Estate Recovery, Medi-Cal planning may include strategies to hold assets in certain trusts and/or creating financial accounts with named death beneficiaries.

3) Good Planning Documents are still essential: It is still essential to have good planning documents in place, such as a Durable Power of Attorney containing the requisite Medi-Cal planning powers: should you become incapacitated, these powers may be necessary for your designated agent to use so as to enable him or her to help you take advantage of the new rules. And these powers should always be coordinated with your trust and meet your other estate planning objectives. So, advance planning is just as essential as before.

Medi-Cal has been issuing new rules and guidance to help Medi-Cal eligibility workers comply with the new law and to assist advocates, such as myself, help their clients. So, stay tuned as the new law moves forward and good wishes to you and your mother on securing a Medi-Cal subsidy to help with the cost of her care.

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Note: Be mindful that the new rules for Medi-Cal do not change the rules for other public benefit programs, such as the Supplemental Security Income (“SSI”) program. Indeed, the SSI program still has an asset cap of only $2,000 for a single individual and $3,000 for a married couple. So, persons who rely upon other public benefit programs, such as SSI, must be sure to take this into account. Also, know that California is unique among the states; no other state has thus far eliminated its asset cap for what is called “Medicaid” in the rest of the country. So, if one plans on relocating to another state, be sure to take this fact into account, as well.

Posts By: Gene Osofsky

Q.  My wife and I have high prescription drugs costs. I hear that there may be changes to the Medicare Drug program that may make them more affordable for us. Is that correct and can you provide any more information?

A. Yes, indeed. As part of the Inflation Reduction Act (“IRA”) passed by Congress and signed by President Biden in August 2022, good news is here for seniors with high cost medications, and even more good news is coming in 2025.  In short, in 2024 and 2025, the prescription drug benefits available to enrollees under Medicare Part D will undergo dramatic changes, the thrust of which is to curb the exorbitant cost of medications, thereby making prescription drugs more affordable to seniors and to the disabled on Medicare.

Background: Under Medicare Part D as it existed through 2023, enrollees would typically pay for drugs based upon their accumulated Out of Pocket Costs (“OOP”) during the plan year.

Notably, when “OOP” exceeded $7,400, he or she would thereafter be obliged to pay a 5% co-insurance cost for medications. For those seniors with high drug costs, this arrangement posed a real economic burden. Under the IRA, this is now changing for the better.

Here are some bullet point summaries of the changes:

1) Catastrophic Phase: the 5% Co-Payment Eliminated: For those with very high drug costs which  exceed the Catastrophic Phase ($7,400 threshold in 2023 and $8,000 in 2024), the new rule for 2024 eliminates the 5% co-payment entirely for the cost of drugs above that Catastrophic Phase cap. This change, alone, will result in significant savings to enrollees who use expensive drugs, such as drugs for cancer treatment.

2) Insulin Price Cap: the law now provides a $35 cap on a 30 day supply of any insulin that Medicare covers, whether the drug coverage is under a Medicare Part D Plan, or under a Medicare Advantage Plan;

3) Vaccines Without Cost: Vaccines recommended by the Centers for Disease Control continue to be covered without cost to Part D enrollees. Included are vaccines for shingles and RSV, flu, COVID-19, pneumonia, hepatitis A, rabies and tetanus.

4) Drug Prices Inflation Controlled:  Drug makers who increase pricing more than the rate of inflation must pay a rebate to Medicare, thus effectively discouraging excessive price increases on drugs subject to this rule. There are currently 64 drugs earmarked for this rebate requirement.

5) Drug Price Negotiation Now Authorized:  Under the new drug law, Medicare – for the first time – is now permitted to negotiate with manufacturers over the price of drugs. Currently, 10 drugs have been selected for this process, and CMS will publish in September, 2024, a list of what the maximum prices will be for these drugs.

6) ‘OOP’ Drug Costs Payable In Monthly Installments: Beginning in 2025, Part D enrollees will have the option of paying Out-Of-Pocket (“OOP”) drug costs in monthly payments spread over the calendar year, rather than all at once at the pharmacy. This is an Opt-In program called the “Medicare Prescription Payment Plan”. Program participants will pay zero to their pharmacy for covered drugs. Their Part D plans will then bill the participants monthly for any cost sharing.  The Part D plans will be required to notify the pharmacy to provide information to participants when their “OOP” is $600 or more for a single prescription at the point of sale.

7) Extra Help Program Requirements Relaxed: As of 2024, the IRA made it easier to qualify for this Low Income Subsidy Program (aka, LIS or “Extra Help”), by increasing the qualifying income threshold. Now, individuals with annual incomes up to $21,870 per year can qualify.

8) Donut Hole To Be Eliminated: In 2024, you enter the so-called “Donut Hole” when you and your Part D Plan spend a total of $5,030. In the Donut Hole, enrollees pay up to 25% OOP for covered medications, and leave the Donut Hole when they have spent $8,000 in OOP costs for covered medications. The good news:  Year 2024 will be the last year for the Donut Hole!.

9)”OOP” Cap of $2,000 in 2025: Perhaps most importantly, as of January 1, 2025, the maximum Out-Of-Pocket payment for drugs will be capped at a flat $2,000 per person, resulting in very significant savings for most seniors and the disabled, especially those with high “OOP” prescription drug costs.

The whole thrust of the changes made by the IRA is to make it significantly easier for Seniors and the disabled on Medicare to purchase necessary medications to maintain their health.