Dear Mr. Premack: My mother was in the process of changing her Will for her house, her only asset. My dad (deceased now for eight years) had asked her to leave the house to my deceased brother’s children, but they have not contacted her in 15 years. She decided to have me sell the house to divide the proceeds with my sister, myself, and those grandchildren. The attorney she went to hesitated to make a new Will for her because she was 99 years old, and she died before he finished it. Can we honor her new wishes? Those grandchildren do not know she owns the house or anything about her Will. HT

A person’s wishes are not enforceable until they are legally formalized. Discussing her wishes with her attorney did not make the new ideas enforceable. They must be written, signed and witnessed in order to replace her prior Will.

What options exist? First, examine whether her prior Will was ever revoked. Did she tear it up, or sign a witnessed statement saying it was revoked? If so, she died intestate and the law would give the house just like her new wishes: split between you, your sister and your deceased brother’s children.

Second, examine her written notes. Did she write her ideas down on paper 1) in her own handwriting, 2) with the date, and 3) with her signature? If that handwritten document was worded in a way that expresses testamentary intent, it might be enforceable as a holographic Will.

Third, realize that if the prior Will was neither revoked nor replaced, you cannot unilaterally take away the rights of those grandchildren. The fact that they do not know about the Will (can you really be sure they don’t?) does not give you authority to ignore it. Instead, you can discuss the situation with them and ask them to agree to a family settlement. They can waive their right to have the Will probated, and the family can sign a legal contract agreeing to split the house under the intestacy laws.

Dear Mr. Premack: I am trying to get my Mom qualified for Medicaid. I am having trouble with her life insurance policy, which has $5,000 cash in value. This would be used for her funeral, so why is Medicaid counting it as income? She also has a prepaid funeral plan on which I make payments, and a living trust with $36,000. I want to keep it away from the government to save it for her children. What am I doing wrong? BAM

Congress and the states wrote incredibly complex rules that must be followed before an elder can qualify for tax-payer funded assistance. For instance, they exempt only one fund earmarked for funeral expenses: if it is a life insurance policy, it cannot exceed $1,500 in value. If it is a prepaid funeral, it can have any value but must be non-refundable. Medicaid is therefore counting her insurance as a resource (not as income).

If her non-exempt resources exceed $2,000 she cannot qualify for benefits. Her trust, with $36,000 in value, is not exempt and exceeds the resource limit. It cannot just be saved for her children or hidden from the government. There are legal techniques that might help, such as using her cash to pay off the balance on her funeral plan. You or she need to speak with an Elder Law attorney for help through this maze.