In Elder Law News

A lot depends on how your mother-in-law’s assets were held. If they were in joint names or had a named beneficiary, they will pass to the other owner or owners or the beneficiaries, probably free of claim. If the assets were in your mother-in-law’s name alone, they will have to be probated. But there are at least three issues here.

First, whether your mother-in-law’s Medicaid application will be accepted. We would recommend that you assist the nursing home if necessary so that it’s paid for the services it provided.

Second, if the Medicaid application is denied, the facility will have a claim for payment against your mother-in-law’s estate, undoubtedly exceeding whatever assets your mother-in-law had left.

Third, if the Medicaid application is approved, the Medicaid agency may have an estate recovery claim against your mother-in-law’s estate. This where the probate/non-probate issue could come into play. Some states seek recovery only against probate property and some against both probate and non-probate property.

Harry S. Margolis practices elder law, estate, and special needs planning in Boston and Wellesley, Massachusetts. He is the founder of and answers consumer questions about estate planning issues here and at

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