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Staff Tools | Generic Program Elements | K. Estate
Administration
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DHS home | APD
Staff Tools | Generic Program Elements | K. Estate
Administration
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Worker or client questions, contact the Estate Administration Unit at 503.378.2884 or visit the EAU web to the notice of transfer or encumbrance, see 461-135-0847.
Effective July 18, 1995, the terms are as defined below:
Assets. All income and resources of an individual, including real and personal property, and including any income or resources to which an individual is entitled at the time of death, including any income or resources to which the individual is entitled, but does not receive, because of action: by the individual; the individual's spouse; by a person, including a court or administrative body with legal authority to act in place of or on behalf of the individual; or by any person, including any court or administrative body, acting at the direction or upon the request of the individual.
Assignee. A person to whom is transferred an interest in real or personal property or an asset pursuant to a written or oral assignment of such real or personal property or asset from a person with the legal right to transfer it.
Blind child. The deceased recipient's natural or adopted son or daughter, of any age, who, within two years after the Department initially asserts its claim, substantiates blindness throughout the time the Department seeks to enforce its claim by presenting evidence of:
Bona fide purchaser for value. Any person who provides consideration, including money or property, to a seller or transferor of real property or personal property equal to the fair market value of the real or personal property sold or transferred.
Child under age 21. The deceased recipient's natural or adopted son or daughter who is under 21 years of age throughout the time the Department seeks to enforce its claim.
Consideration furnished test. The method by which the ownership of real or personal property is traced to its economic origin. The fractional share of the property considered owned by a co-owner shall be that fractional share to have originally belonged to or to be attributable to the monetary consideration furnished by the co-owner. The fractional share is based on the proportion the original ownership share or monetary consideration bore to the acquisition cost and, if applicable, capital additions for the property. The fractional share is not based on the dollar amount of contribution compared to the current market value of the property. For example, if one co-owner contributed $2,500 and the other $7,500 to the purchase price of a $10,000 property in 1960; in 1995, the property is appraised at $50,000. The co-owner who contributed $2,500 is considered to own 25% of the property in 1995.
Convincing evidence includes, but is not limited to:
Date of request. The date an individual or someone authorized on behalf of the individual contacts the Department or uses another appropriate method to request benefits (see 461-115-0150). The request may be oral or in writing. It starts the application process.
Disabled child means the deceased recipient's natural or adopted son or daughter, of any age, who meets SSI disability criteria throughout the time the Department seeks to enforce its claim and who presents evidence to the Department substantiating the disability within two years after the Department initially asserts its claim.
Estate means:
Heir. Any individual, including the surviving spouse, who is entitled under intestate succession to the real and personal property, and assets, of a decedent who died wholly or partially intestate (without a will).
Interest. Any form of legal, beneficial, equitable or ownership interest.
Interspousal transfer. Any transfer, or chain of transfers, that effectively transfers title or control of an asset, or an interest in an asset, from one spouse to another, including: direct transfers between spouses, transfers from one or both spouses to a trust, and transfers from one trust to another trust.
Intestate. One who dies without leaving a valid will, or the circumstance of dying without leaving a valid will, effectively disposing of all of a decedent's estate.
Intestate succession. Succession to real and personal property or assets of a decedent who dies intestate or partially intestate.
Joint tenancy. Co-ownership of property held under circumstances which entitle one or more owners to the whole of the property on the death of the other owner(s) including, but not limited to, right of survivorship and tenants by the entirety vestings in real property assets.
Legal title. Legal ownership by a person.
Life estate. An interest in real or personal property that terminates upon the death of a measuring life.
Living trust. A revocable or irrevocable inter vivos trust funded with assets to which the recipient is legally entitled.
Medical institution. A facility that provides care and services equivalent to those received in a nursing facility. Medical Institution does not apply to in-home waivered services, adult foster home (AFH) care, residential care facility (RCF) services, or assisted living facility (ALF) care.
Ownership documents. Any applicable documents, certificates or written evidence of title or ownership such as, but not limited to, deeds, stock certificates, certificates of title, bills of sale or other similar documents evidencing ownership or legal title held by a person.
Permanently institutionalized. Means an individual, regardless of age, who, at the time of his or her death, had resided in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, for 180 days or more.
Person. Any individual, corporation, association, firm, partnership, trust, estate or other form of entity.
Personal property. Property that is not real property and is generally characterized as having substance and being moveable. Personal property includes boats, cars, furniture, personal effects, livestock, tools, farming implements, cash, currency, negotiable papers, securities, contracts and contract rights.
Power of attorney. A document authorizing a person, the attorney-in-fact, to act as agent on behalf of another for the purposes indicated in the document. Unless specifically provided for in the document itself, generally speaking, a power of attorney should not be used by the agent either to benefit the agent, or the agent’s family, or to give away the principal’s property for less than its fair market value. Attention should also be paid to the mental capacity of the principal at the time that the power of attorney was executed.
Real property means all land wherever situated, including improvements and fixtures thereon, and every estate, interest and right, whether legal or equitable, therein including, but not limited to, fee simple, terms for years, life estates, leasehold interests, condominiums or time share properties. Real property includes property conveyed by the individual to, subsequently acquired by, or traceable to, a person, including the individual's surviving spouse and any successor-in-interest to the individual's surviving spouse, if the real property may be included in the individual's, or the individual's surviving spouse's, estate, as defined in this rule.
Recipient of property:
Survivor. In joint tenant situations, any person who, as a co-tenant, is automatically entitled to an expanded share of real or personal property upon the death of a fellow co-tenant.
Survivorship. An interest in real or personal property that expires upon the death of an individual whereby the Interest of the individual's co-owners automatically expand to the same extent without necessity for any act of transfer or distribution.
Tenancy in common. Ownership of real or personal property by an individual together with one or more other persons in which each owner possesses an undivided right to the entire property and which ownership interest shall not pass by survivorship upon the death of the individual.
Time of death. The instant of death for the which time and date shall be established in the place of the decedent's residence; in no case shall time of death be construed to mean a time after which an interest in real or personal property or other assets may:
Value. The fair market value is the price at which real or personal property would change hands between a willing buyer and a willing seller. In the event the Real or Personal Property was not reported to the Department by the deceased Medicaid recipient, the Value would be established based on its fair market value at the time of discovery.
For BCCM, GA(M), OHP and OSIP(M):
The amount of the claim is as follows:
Any GA payments made are recoverable from the estate of any deceased recipient or the estate of the recipient's spouse. In the GA(M) programs, the amount of the claim will not exceed the total amount of cash and medical benefits paid. The claim will include benefits provided under the Home and Community-Based Care Waiver program. This applies to all GA programs, even those that are no longer active.
For BCCM, OSIP(M)-AD, OSIP(M)-OAA and QMB the amount of the claim includes all GA category benefits paid at any age and all Title XIX benefits provided after the recipient reached age 55, except any QMB program payment. If the recipient was permanently institutionalized, the claim shall include the total amount of all GA benefits and Title XIX benefits paid at any age. This applies to all Old Age Assistance and Aid to the Disabled recipients, including those served by Home and Community-Based Care Waiver programs. It also includes recipients covered by programs that are no longer active.
For OHP, OSIP(M)-AB, the claim shall include the total amount of GA category benefits paid at any age and all Title XIX benefits provided after the recipient reached age 55. If the recipient was permanently institutionalized, the claim shall include the total amount of GA and Title XIX benefits paid at any age. The claim includes benefits provided under the Home and Community-Based Care Waiver program.
The priority for payment of claims against the estate will be as established under ORS 115.125.
EAU may nominate a personal representative for an estate if the Department has a claim and it appears that no person with a higher preference, as established in ORS 113.085, is willing to be the representative.
Property disposal will be in accordance with rule 461-135-0838.
When the Department has a claim against the estate of a deceased person, EAU will be responsible for recovering the claim from the estate.
EAU may take necessary action to identify or otherwise preserve assets so they will be available for claims against the estate.
EAU will determine the most cost-effective way to dispose of real and personal property. EAU may dispose of the property by conducting sales through licensed real estate brokers, public auctions, competitive bidding, or other methods found most cost-effective.
When property has been disposed of, EAU will credit the proceeds to the Department's claim. Any amounts exceeding the claim will be available to all other claims against the estate. If no other claims exist, any excess amounts will be paid to the heirs or devisees, if any. Any remaining amounts revert to the Department of State Lands.
The Department may take title to real and personal property in performing its duties. Title shall be taken in the name of the Department. The Department may convey the property by deed or other appropriate conveyance under procedures adopted by rule of the Department.
The Department is authorized to convey, as Grantor, property to the Grantee through issuance of the Bargain and Sale Deed or other appropriate conveyances.
The Bargain and Sale Deed will be signed by the Department Administrator of Department or his/her designee.
Recording responsibilities of the Deed will be the responsibility of the Grantee unless otherwise agreed upon by the Department.
The Department may waive enforcement of any estate recovery claim if it finds that enforcing the claim would result in an undue hardship to the beneficiaries, heirs, or family members of the deceased client claiming entitlement to receive the assets of the deceased client.
In determining whether an undue hardship exists, the Department may consider the following criteria:
Waiver of an estate recovery claim may include, but is not limited to, the following:
No waiver will be granted if the Department finds that the undue hardship was created by resort to estate planning methods by which the waiver applicant or deceased client divested, transferred or otherwise encumbered assets, in whole or in part, to avoid estate recovery.
No waiver will be granted if the Department finds that the undue hardship will not be remedied by the grant of the waiver.
Effective July 18, 1995, The Legal Title to or other Interest of a Person in Real or Personal Property or other Assets shall be presumed to be that set forth in any Ownership Documents. The presumption raised by such Ownership Documents may be rebutted by Convincing Evidence that accurately reflects a Person's Legal Title to, ownership of or Interest in the Real or Personal Property or other Asset. However, the department shall not consider property or assets in which the decedent held only bare legal title in the capacity as a trustee with no beneficial, equitable, reversionary or other ownership Interest in the property or assets, as property or assets in which the decedent had an Interest or held Legal Title.
The form of Interest created by the Ownership Documents shall be governed by the law in effect at the Time of Death of the jurisdiction in which the Real or Personal Property or other Assets are located.
The Department will provide written notice of the hardship waiver rules to:
Any beneficiary, heir, or family member claiming entitlement to receive the assets of the deceased client may apply for a hardship waiver under this rule by submitting a written request for a waiver to the Department within 45 days of the date the notice was sent to the person or to the probate court. The Department may, in its discretion, consider waiver applications filed after the 45-day period if the waiver applicant demonstrates that there was good cause for the delay.
The written request shall include all the following information:
The Department may request additional information or documentation from the applicant. If the additional information or documentation is not provided within 30 days of the Department's request for additional information or documentation, the hardship waiver application will be considered by the Department on the basis of the information and documentation provided.
Within 90 days of receipt of the hardship waiver application, the Department will issue a written decision granting or denying, in whole or in part, the applicant's request for an undue hardship waiver.
If the decision is adverse to the hardship waiver applicant, the Department's written decision shall include information regarding the applicant's right to a contested case hearing before a hearings officer employed by the Department.
The rules and procedures adopted by the Department pursuant to rule 411-01-0010(3) shall apply to hearings challenging the denial of a hardship waiver application.
The issue for the hearing will be whether the Department's decision was correct based on the information available to the Department at the time the written decision was issued unless the applicant can show good cause for failing to submit relevant information or documentation to the Department prior to the date the written decision was issued.
Receipt of a timely request for waiver or request for hearing shall not prevent or delay the Department's pursuit of its estate recovery claim pending issuance of a final order at the conclusion of the hearing. The Department shall return any funds it collected if it is ultimately decided that the waiver should have been granted.
Effective July 18, 1995; the value of a Life Estate or other Interest in Real or Personal Property or an Asset measured by or valued with respect to a life span, including that of the relevant recipient of public assistance, is established by reference to the life estate valuation tables set forth 461-135-0845 and is valued as of the time of death of the recipient of public assistance irrespective of the actual life span of the measuring life.
The Interest of a Person in Real or Personal Property or an Asset held in Joint Tenancy with Right of Survivorship (including transfers with right of survivorship covered by ORS 93.180) or other form of concurrent ownership with one or more persons with Right of Survivorship, other than a spouse, is presumed to be the value of the fractional share held by the Person. The fractional share of a Person is presumed to be the share reflected in the Ownership Documents. Such presumption may be rebutted under the Consideration Furnished Test or by Convincing Evidence of the actual consideration contributed by another co-owner of the property or asset. In the absence of any stated fractional share on the Ownership Documents, each co-owner is presumed to have an equal fractional share of ownership of the whole, unless rebutted by the Consideration Furnished Test or as otherwise established by Convincing Evidence.
With respect to Real or Personal Property or an Asset held jointly by spouses, as Tenants in Common, tenants by the entirety, with right of survivorship or otherwise, such property or asset is conclusively deemed to be owned one-half by each spouse; provided, however, that in the event the Ownership Documents expressly set forth a different fractional share of ownership, and such fractional share is lawful in the appropriate jurisdiction, then the fractional share set forth in such Ownership Documents is presumed to be the fractional share owned by each spouse. Such presumption may be rebutted by Convincing Evidence.
The Value of the Real Property prior to the Time of Death, is determined:
The Value of Real Property at, or prior to, the Time of Death is determine by establishing the fair market value of the property to the satisfaction of the Department. The burden of proof for establishing the Real Property's fair market value to the satisfaction of the Department lies with the person or, after the Time of Death of the person, with the person's representative,a nd may be established by any methodology, including the provision of an appraisal performed by an appraiser certified or licensed in the applicable jurisdiction, that the Department determines most accurately reflects the Value of the Real property. The Value of liens and other encumbrances against the Real Property that is established by Convincing Evidence, if appropriate, is subtracted from the fair market value of the Real Property in order to derive a net fair market value of the Real Property.
The Value of Personal Property consisting of shares of stock or other securities traded on an exchange is evidenced by the average of the bid and ask prices on the date of the Time of Death, or the next trading day thereafter. If such bid and ask prices are unavailable for certain stocks or securities, the Value may be established by a written estimate from the corporation or other entity issuing such shares or securities of the Value, or if such estimate is unobtainable, an estimate from a broker, trader or other Person with knowledge in the field of the Value. Liens and encumbrances established by Convincing Evidence against shares of stock or other securities is subtracted from the value of such stock or securities established by the foregoing procedure.
The Value of tangible Personal Property, including, but not limited to, livestock, furniture, vehicles and other tangible items may be established:
The Value of intangible Personal Property not otherwise provided for in this section, is established by a written estimate from a Person knowledgeable in the field of appraising such items of intangible Personal Property. Liens and encumbrances established by Convincing Evidence against tangible personal property is subtracted from the value of such property established by the foregoing procedure.
Notwithstanding anything to the contrary contained in this section, in cases where an inventory has been filed with the appropriate court or an estate tax return has been filed with the appropriate governmental authority, the Value of any Real or Personal Property or other Asset is presumptively established by the amounts set forth on such inventory or estate tax return. The presumptive Value established by such inventory or return may be rebutted by Convincing Evidence.
The Department of Human Services has determined that a plain and decent funeral and disposition of the remains of a decedent can be arranged for an average cost of $3,500. This cost includes all professional services and merchandise. Preparation of the remains will be done in accord with applicable laws and regulations.
For individuals dying on or after April 1, 2008, where the Department of Human Services is a claimant in their estate and where there would be insufficient assets remaining after any funeral costs to satisfy the Department’s claim in full, not more than $3,500 in estate assets, less any prearranged funeral trust, funds set aside for burial, life insurance policies specifically identified to pay for funeral expenses, or burial insurance, may be expended for funeral expenses and disposition of the remains of the decedent.
In instances where a pre-paid funeral plan is sought to be changed for a Medicaid client after their death, and pre-paid funeral funds are refunded, it is the responsibility of the funeral home and the recipient(s) of the funds to inform, in writing, the Department of Human Services, Estate Administration Unit, PO Box 14021, Salem, OR 97309-5024, of any refund within 30 days of such action. Any monies refunded after the client has died are an estate asset and subject to the claims of creditors.
The following items are not considered professional services or merchandise and will not be allowable in meeting the plain and decent funeral standard: Transportation of the remains beyond the State of Oregon; the cost of flowers; the cost to pay for an obituary; donations to charities in the decedent’s name; the cost of memorial videos; and the cost of a reception after the funeral. The aforementioned list is not all-inclusive and other similar costs may be denied if the estate of the Medicaid recipient is inadequate to meet the public assistance claim amount.
A person required by ORS 93.268, 113.145, or 114.525, 128.266 to send notice to the Department Human Services must send or deliver the notice to EAU, Office of Financial Services, Department of Human Services.
The address is:
Estate Administration Unit
PO Box 14021
Salem OR 97309-5024
When the Department has a claim against the Estate of a deceased Native American Indian or Alaskan Native Village tribal member, certain exemptions from recovery apply. The following income, resources and property are exempt from Medicaid estate recovery:
Protection of non-trust property described in the first two bullets in the above section is limited to circumstances when it passes from an Indian (as defined in section 4 of the Indian Health Care Improvement Act, Pub. L. No. 94-437) to:
The following are subject to Medicaid estate recovery:
