If my uncle leaves my mom an inheritance, will Medicaid take it?

Ljkaden asked...

My 88 year old mother resides in a New Jersey nursing home with diagnosed dementia. She is on Medicaid. Her brother lives in Florida and has been hospitalized there with inoperable cancer. His will was drawn up but never signed and now won't be signed due to his state of health. When the will goes through probate, if his sister who is next of kin, is awarded an inheritance, how can I keep the nursing home from taking it? I have Power of Attorney for my mother's finances and health.

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

If his Will is not signed, there is no Will to be presented to Probate unless he had a previous Will that is still in effect. If your mother were to be eligible to receive anything from her brother's estate through the laws of intestacy (if he dies without a Will and has no surviving parents, spouse or children)you could through the Durable Power of Attorney disclaim her receipt of an inheritance, but most states' Medicaid offices consider this to be a disqualifying gift.

The only way you could preserve the assets would be for your uncle's guardian, conservator or attorney under a durable power of attorney, if sufficient authority is contained within it to set up a trust that would avoid assets going to your mother.