Real Estate

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McHugh & Macri's experience in residential and commercial real estate extends for our entire 43 years of practice and has proven invaluable in counseling our elder law clients for 22 of these years in legally preserving/protecting/sheltering their home. The most important asset any client owns is their home and their first concern when a spouse or loved one needs long term care is to protect the home, typically to allow the well spouse to live there.

It is critical to preserving/protecting the home that the client plan before illness or at minimum consult a certified elder law attorney immediately when any signs of potential long term care present themselves, since there is a five year look back/penalty period for transfer of the real estate before eligibility for public benefits. However, there are legal techniques which a certified elder law attorney can utilize which can reduce the five year penalty or exempt the transfer from any penalty.

There are traps and mine fields related to protection of the residence which should be addressed only by an experienced real estate and certified elder law attorney. An example follows: A spouse moves to a long term care assisted living or nursing facility. They apply for Medicaid public benefits to pay for the cost of the facility. They are advised that all of the spousal assets will be considered before Medicaid qualification, including the marital residence but are assured by the Medicaid worker that they will not be forced to sell the residence provided the well spouse continues to reside there. Although technically correct, this advice does not disclose the following pitfalls:

A. What if the well spouse becomes ill and infirmed and also needs a long term care facility? The home is then no longer protected from forced sale and spend down of the proceeds since it is not serving as the residence of either spouse.

B. What if the well spouse residing in the home dies before the infirmed spouse? Under New Jersey law, the title to the home passes to the surviving spouse..the one in the nursing home. That spouse then loses Medicaid, will be forced to sell the home and spend down all of the sale proceeds before qualifying again for Medicaid.

Who can foresee these circumstances and prevent these dire consequences? A certified elder law attorney versed in real estate has a legal solution to protect the home from forced medical spend down under these scenarios.

There are additional legal techniques to protect a second home, vacation home, and even homes held for investment purposes.

These examples highlight the need to receive expert advice from a certified elder law attorney with real estate experience to achieve peace of mind that your home will not be subject to medical spend down and impoverishment.

Our real estate department is headed by Richard J. Lutz, Jr., Esq., with 28 years experience, 23 years of which are at McHugh & Macri with the able assistance of Pat Kropin, real estate paralegal with 30 years experience at McHugh & Macri. They provide real estate buy and sell, title closing and title search expertise on a daily basis.

Don McHugh and Vince Macri are two of 450 attorneys nationwide who are certified in elder law (CELA) by the National Elder Law Foundation and each have 43 years of real estate experience.