[NM] Can a transfer-on-death deed protect my parents’ jointly owned home from Medicaid estate recovery?

NM Estate Planning

Liz

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In New Mexico, a TODD allows property owners to transfer real estate to a beneficiary upon their death without going through probate. This can be a useful tool to prevent Medicaid from claiming the property, as it bypasses the estate. (NM Stat § 45-6-405)

Since the property is jointly owned, both owners would need to agree to any changes in the deed. The POA may allow you to act on their behalf, but it's crucial to ensure that the POA document grants you the authority to make such decisions.

Medicaid has a five-year look-back period for asset transfers. Any transfer made during this period could affect Medicaid eligibility and recovery efforts. It could allow them to try and seek to invalidate the deed. (NM Stat § 27-2A-4)

Does that all make sense?

New Mexico Transfer on Death Deed

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I want to have a Deed Upon Death signed so that Medicaid can't take my Mom's home upon entering a long term care facility. Is this legal?

Lexi, Chatbot

I understand your concern about protecting your mom's home from Medicaid claims. Have you already consulted with a lawyer regarding this matter?

No.

Lexi, Chatbot

Is your mom currently in a long-term care facility, or is she planning to enter one soon?

Most likely in the next months. We are in New Mexico.

Liz

Hi there! Welcome. My name is Liz and I’ve been an attorney for more than a decade, and I am here to assist with your legal concerns. Just so you are aware, our service is a legal information-only site. No attorney-client relationship is formed from our conversation. So I can best help, does your mom currently have capacity to sign the deed?

Yes, she does.

Liz

Is she the only owner?

No. It is jointly owned with her husband. (He has dementia and needs to go to long term memory care.) I am their POA.
And only heir. I just don't want the state to end up with it, because my husband and I have spent all of our retirement caring for them over the last 10 years.

Liz

Got it, thanks for sharing that. Do your mom and her husband have any existing estate plans or wills in place? With filing it now, if she or he go into care soon, it can be part of the look-back period, which can allow Medicaid to then still seek to pursue it. If you live in the home though, there are also exemptions.

They do have a will, but it was created in Arizona. I do not live with them. I don't know if I can even find that will. They moved back to NM so I could care for them, and I've never seen it.

Liz

Does that all make sense?

Yes. That makes complete sense. Thank you for helping me!

Liz

Great! How else can I assist?

I believe that’s all for now.

Liz

Have a wonderful day!

Liz

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