Kevin Staker (Kevin Glen Staker) is the principal in his firm, Staker Law Tax and Estate Planning Law Corporation.
He received his bachelor’s degree in Economics from Brigham Young University and law degree from the University of Utah. He went on to an extra year of law school to receive a Master of Laws in Taxation degree from New York University. He is admitted to the State Bars in California and Utah.
Kevin Staker is certified as a specialist in both Taxation as well as Estate Planning, Probate and Trust Law by the California Board of Legal Specialization. He is one of the few attorneys in the State of California with such a dual specialization.
He is the founder of the Planned Giving Council of Ventura County. He is also on the Planned Giving Committee of a number of local charities. Kevin has been a member of the Board of the Ventura County Bar Association three times, and chaired its annual dinner committee 14 years. He is one of the few California attorneys certified as a Specialist both in Taxation and also in Estate Planning, Trust and Probate Law.
Kevin Staker is a member of the Board of Ventura County Legal Aid, Inc. and was the President in 2016. VCLA is the non-profit public service affiliate of the Ventura County Bar Association.
Kevin Staker specializes in several areas of estate planning and related law:
Probate is a court proceeding that determines who receives the assets of a decedent and gives creditors an opportunity to make claims against the estate for the debts of the decedent. Probate can be avoided if the assets in the name of the decedent alone without a beneficiary, a joint tenant, or a trust total less than $150,000. A full blown probate can even be avoided on an interest in real estate if it totals less than $150,000 in value. See California Probate Code sections 13000 through 13660 for more details.
If probate cannot be avoided (which is a shame because having a properly funded living trust so easily avoids probate), a petition must be filed with the probate court in which the decedent had his or her primary residence. A filing fee of at least $435 must be paid. The court will set a date for hearing the probate petition. Notice of the initial probate hearing must be published in a newspaper with general circulation in the area of residence of the decedent. The petitioner must send notice of the hearing to anyone who may have the right to get some part of the estate, plus any family members who receive part of the estate under the law if the Will did not exclude them. In addition, anyone who wants to be kept informed about the probate may file a Request for Special Notice ( Form DE-154). (All references to forms are to those created by the California Judicial Council.) The filing of such a form means that the personal representative must send a copy of any paperwork he or she files with the court to the requesting party.
It may seem a bit strange but the petitioner CANNOT mail the initial notice of hearing or any other notice. It must be mailed by any other adult who is not a party to the case.
First, the court will determine whether or not there is a valid Will of the decedent. If there is a valid Will, it will determine the beneficiaries of the estate. Most times the Will appoints an executor, also called the personal representative of the estate, the person in charge. On occasion a Will states who receives the estate but fails to appoint an executor. In that case, the personal representative is called the “administrator with Will annexed.”
If there is no valid Will or the Will fails to appoint an executor, the court will name an administrator as the personal representative. The court will require the personal representative to “post a bond”, meaning get a company to guarantee to make good if he or she steals the money. The court can waive bond, especially if the Will waives bond. However, the court will still likely require a bond if the personal representative lives outside of the State of California.
The court will oversee the work of the personal representative . The entire case will take at a minimum 6 ½ months to 18 months, or even longer.
The key moment in time in a probate is the date the court issues “Letters” to the personal representative. Letters are not issued until after the court signs the order appointing the personal representative. That date starts a four month clock ticking only during which creditors may make claims against the estate. The final probate order discussed below cannot be issued until after that four month period expires. Such period will be extended by law if the personal representative fails to send notice of the probate to a known creditor. That formal notice is called formal notice to creditors the Notice of Administration to Creditors (Form DE-157).
The personal representative will then use the Letters to get the assets of the decedent transferred into the name of the personal representative as executor/administrator of the estate. The personal representative must file an Inventory and Appraisal (Form DE-160) with the court. The personal representative usually will need to contact a probate referee appointed by the court to value the nonmonetary assets. Also, very important is to notify the County Assessor of the death of the decedent.
The personal representative needs to give notice to the Franchise Tax Board and certain other individuals and agencies. These notices should go out fairly quickly after the issuance of the Letters, again the true start of the probate. Especially important is a form to take advantage of the parent to child exception of Proposition 58 to the Proposition 13 change of ownership rules regarding property taxes.
The personal representative files a final income tax return for the decedent’s year of death. The personal representative will like need to file an income tax return also for the estate, especially if it sells any real estate.
After the four months have expired from the issuing of the Letters, the personal representative files a final report to the court on how the estate has been handled, in particular that the proper notices have been filed. This report also requests the court to approve to whom the estate will be distributed. This report is a final accounting of the assets, income and expenses of the estate; however, many times the beneficiaries will waive this accounting requirement. The report is scheduled for hearing so the judge can review the report and the proposed distribution. The judge needs to be satisfied that all is proper. The report also includes a request for attorneys fees. Those fees are usually quite large and so a great reason for having a living trust and avoiding a probate. The personal representative can take the same amount as compensation for his or her work, but many waive that compensation.
After the court approves the final distribution, the personal representative distributes out the estate. He or she then files with the court any required final receipts to show that everyone received their property from the estate, and the court discharges the personal representative from his or her duties.
Medi-Cal Planning for Long Term Care in a Nursing Home
Planning for Medi-Cal to pay for nursing home care should be done by:
Those who have been diagnosed with a degenerative disease, such as Alzheimer’s disease;
Elderly individuals concerned that if they have a stroke or some other disability afflicts them, they do not want their assets to be used up in paying for possible care in a nursing home.
Long Term Care under Medi-Cal Details
Medi-Cal is the California state version of what is called Medic-Aid in other states. It is funded primarily by the federal government and is administered by the State. It pays for the medical care of those who do not have much in income or assets. It has no minimum age limit (unlike Medicare). In particular, it will pay for long term care in a skilled nursing facility (but generally not for care in assisted living or a board and care home). Medicare will only pay for part of the cost of the first 100 days in a skilled nursing facility, and only then if they have come from an acute care hospital.
The asset limits of Medi-Cal
The “non-exempt” assets of the ill individual (the “applicant”) must be under $2,000 (at the end of the month of application). What is exempt then is the key.
The primary residence is exempt. This includes a mobile home or even an apartment building if the applicant lives in one unit. The applicant does not even have to live there, just must have the intent to return to live there if they could. As of today, the home can be of any value. However, please see the discussion below regarding the implementation of the federal Deficit Reduction Act (the “DRA”). Under the DRA home equity would be limited to $750,000.
Motor vehicle (one) (of unlimited value), is exempt if used to benefit the applicant or is needed for medical reasons.. In California, this would presently include even a motor home worth a couple of hundred thousand dollars.
Household items and other personal effects are exempt.
Jewelry is exempt in any amount for a married person. For a single person, wedding rings, heirlooms, and other jewelry up to $100 in value are exempt.
Life insurance is exempt if a term policy or a permanent policy if less than $1,500 in cash value.
Burial plots are exempt. In addition, an irrevocable burial fund of any amount and a revocable burial fund if up to $1,500 are exempt.
IRA’s work-related annuities, and other retirement plans are exempt for the applicant if they are taking distributions of all income and some amount of principal each year. Such plans of a spouse are exempt in any event.
Annuities are exempt if issued on or after March 1, 1996 if payments are to be made over a period not to exceed life expectancy and include both income and some principal. If issued before March 1, 1996, other rules apply.
Business assets are exempt. However, rental real estate is not a business and so is a problem asset for the applicant and their spouse.
Assets of a spouse are exempt if they do not exceed an amount called the Community Spouse Resource Allowance (the “CSRA”), $123,600 in 2018. (Note: the exempt assets of a spouse are not counted, such as their jewelry.)
Give Away Assets?
Gifting is an area in long term care planning that is presently very advantageous. However, we will quite frankly not discuss it in detail because it would be like giving a loaded gun to a five year old, not a good idea. This is a very dangerous area if done improperly.
However, may we share a few hints to demonstrate the power of gifting. First, these rules only apply to qualifying for long term care paid by Medi-Cal, they do not apply regarding the normal payment of medical bills by Medi-Cal. Second, the general rule is that if an individual gives away more than an amount called the “average private pay rate” ($8,515 through March 2018) it will cause one month of ineligibility for nursing home care paid by Medi-Cal. Hence, if the applicant gives away in one lump $85,150, it will cause you 10 months of ineligibility. On the other hand, under the present rules, Medi-Cal cannot “look back” more than 30 months in California. (The DRA would change that to 60 months.) In addition, a gift of an exempt asset will not cause any ineligibility. This is an area of loopholes the DRA will significantly close when the regulations discussed below become final. Hence, this is an area that some may want to take advantage of while they can. (Again, “don’t try this at home”. Get proper advice.)
Issues Regarding a Spouse
As mentioned above, the non-exempt assets of a spouse cannot exceed the CSRA. Getting the countable assets of a spouse down to that limit is the key to planning for a married couple. That is a key part of how we can help.
Another issue is whether the income of the spouse in the nursing home will go to the well spouse or to the “share of cost” of the ill spouse in the nursing home. There is something called the minimum monthly maintenance needs allowance (”MMMNA”), $3,090 in 2018. Please note that we can go to court in what is called a 3100 petition to most likely effectively raise the CSRA and the MMMNA.
Another issue is that the assets the well spouse acquires after the ill spouse qualifies for Medi-Cal do not cause a subsequent ineligibility. An inheritance is a good example.
Can Medi-Cal Take My Assets After I Am Gone?
It is a common misconception that if an individual receives aid from Medi-Cal, they will “take your home” or “put a lien on your home.” However, Medi-Cal can recover for what they have expended after a single person has passed away. Note they cannot recover any amount from a surviving spouse. They also cannot recover against a child who is blind or disabled (or a minor). Medi-Cal cannot recover against an IRA or other retirement plan or life insurance. On the other hand, for decedents who have passed away before 2017, Medi-Cal can recover against the home if still owned by a single person at death, as well as joint tenancy assets and account payable on death. However, beginning in 2017, Medi-Cal can only recover for long term care expenses (such as nursing home expenses) only in a probate; hence, they cannot claim against living trusts and other common estate planning devices. However, Medi-Cal can recover against annuities purchased on or after September 1, 2004.
Some Loopholes Will Likely Close. Consider Acting Now.
The DRA, the Deficit Reduction Act, was signed by President Bush in February 2006. For example, it limits home equity to $500,000 ($750,000 if the state so mandates, as California has done). It does away with rounding down on partial months of ineligibility. It tightens up some on annuities.
However, California has yet to implement the DRA. More than 10 years have passed and Medi-Cal has implemented little of the DRA. However, California is finally showing signs of moving forward. Senate Bill 483 passed in September 2008 did the Legislature’s part. However, it on its face says it would be effective until Medi-Cal (technically the Department of Health Care Services) issues regulations. DHCS finally issued proposed regulations in 2012. However, they will not become final for a number of months. However, we can see that the end is coming for staggered gifting and some of the other great loopholes we have been able to take advantage of. One should consider what can and should be done now before it is too late.
The time is now to consider whether or not to take action to qualify for Medi-Cal to pay for long term care in a nursing home. The window of time to give away certain assets and take other actions is limited.
The page with a number of links with pages relevant to Kevin Staker is found at http://kevinstaker.com/kevin-staker/about-kevin-staker/
The Avvo.com listing of Kevin Staker is found at https://www.avvo.com/attorneys/93010-ca-kevin-staker-349731.html. Avvo is a website that has valuable information on attorneys.
The Twitter feed of Kevin Staker is located at https://twitter.com/kevinstaker. Kevin Staker “tweets” fairly often. His subjects on Twitter usually focus on politics and estate planning.
The California living trust video seminar of Kevin Staker is found at https://vimeo.com/156134189. Many individuals have commented how this “webinar” has better informed them about estate planning with a living trust. The webinar also is a good introduction to Kevin Staker as a individual. Many have commented how they feel they have come to know Kevin Staker through this video and so have felt comfortable having him assist them with their estate planning.
The Visual CV, or Curriculum Vitae, of Kevin Staker is at https://www.visualcv.com/kevinstaker. This site is a rather comprehensive CV of Kevin Staker.
Kevin Staker also is a probate and trust mediator. The California Probate and Trust Mediation website of Kevin Staker is found at http://kevin-staker-mediation.com/.
The SuperLawyer profile of Kevin Staker is at https://profiles.superlawyers.com/california-southern/camarillo/lawyer/kevin-g-staker/d9fa5c59-0c2a-4e8f-94e0-682892fe4481.html.
Email : firstname.lastname@example.org
1200 Paseo Camarillo
Camarillo, CA 93010