Legal Question in Wills and Trusts in Georgia

Ok - if dad is still alive then you and your brother only have an expectancy of an inheritance. When your father passes, by law, Medicaid is mandated to seek recovery from your father's estate. You do not indicate what potential assets there will be in your father's estate besides the home or even what the home is worth or if it has any liens/mortgages or is owned free and clear. Nor do you indicate your father's age and condition or how long he has been in the nursing home. It may well be that the home will have to be sold and the money used for Medicaid and other debts. In such case, there would be no need to protect yourself from anything as you would get nothing.

Perhaps the home could be sold, when your father dies, to you. You would get the home free and clear and the estate would have money to repay Medicaid would be repaid.

I am not sure what you are talking about regarding "adult child exception." Each state has its own Medicaid rules. Under the rules, in order to be eligible for Medicaid, a person has to have no more than a certain amount in assets. In NC, its around $2000 and I assume that it would be fairly comparable in GA. The home does not count as an asset for Medicaid eligibility usually, but it depends on the home's value. There are exceptions - one of which is if a child lived in the home to care for the elderly person or if an adult child is abled. If these exceptions apply, then the person who is applying for Medicaid will not have the home counted as an asset. But when the person dies, Medicaid still is entitled to recovery so I don't see how any adult child exemptions will help upon death.

Your brother has a duty to pay child support. I don't know where his child is located, but most states have various ways of recovering money (wage garnishment, intercept of state/federal tax refunds, liens and so forth). If your brother receives any kind of monetary inheritance, this can be factored into the child support calculation. Any inheritance of land can be liened and the support order satisfied when the real estate is sold. That is why it would be better to have the estate sell this asset to you and never have the land be inherited by your brother at all.

Your brother really needs to speak with a family law attorney to figure out ways of dealing with this. I am not overly sympathetic to a deadbeat dad who does not pay his child support. If your brother had personal hardship and couldn't pay, there were ways of getting the order amended. But your brother should have paid something not let this accrue and get out of control. Child support is like a money judgment - it never goes away regardless if the child is now over 18 or beyond the age of support.

In answer to your question, I don't know what you could be protecting yourself from prior to the death of your father. The time for estate planning was long long ago, before your father was in a nursing home and receiving Medicaid. There are things he could have done, but not now. If he is mentally competent, I suppose that your father could draft a new will. He could disinherit your brother completely or create a spendthrift trust for your brother where a trustee could parcel out money to your brother. But that would assume that there would be assets and if your father is getting Medicaid, it means that your father does not have significant assets and if there is anything left at death, like the house, its going to have to be used to reimburse Medicaid.

You might want to consult an attorney specializing in estate planning or elder care law and pay the attorney to review your father's existing will and circumstances (your father's age, overall health and the fact he is in a nursing home getting Medicaid) and see how best to shape things to maximize the estate and preserve it for the beneficiaries.