Forms of Asset Ownership 510-05-70-20

(Revised 7/1/09 ML #3183)

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(N.D.A.C. Section 75-02-02.1-29 and 75-02-02.1-32)

Ownership of real or personal property or accounts can take various forms. The first basic consideration is the distinction between real and personal property. Real property relates to land and those things, such as houses, barns, and office buildings, which are more or less permanently attached to it. Personal property describes all other things which are subject to individual rights. Personal property includes liquid assets, but liquid assets are distinguished from other personal property because liquid assets have a market at a price that may not ordinarily be negotiated between buyer and seller. Liquid assets include cash, accounts, publicly traded stocks, bonds, and other securities, and commodities for which there is an established market.

Since the various types of property ownership may affect the valuation of the applicant's or recipient's assets, it is important to carefully record information relating to such property.

"Fee" or "fee simple" ownership is a term applied to real property in which the "owner" has the sole ownership interest. A fee simple interest will, in theory, last as long as the land. Even though one owner dies, that owner has the power to sell or to "will" the property. The resulting series of owners each has a fee simple. A fee simple ownership interest is not changed when the property is mortgaged. The mortgage merely secures the owner's promise to repay a debt. If the debt is not paid, the owner may be obliged to forfeit the property. Fee simple ownership may be individual or may be shared.

Shared ownership means that the ownership interest in the property is vested in more than one person. Shared ownership may be by "joint tenancy" or by "tenancy in common". Shared ownership occurs both with real property and with valuable personal property such as accounts, motor vehicles, and mobile homes.

In joint tenancy, each of two or more joint tenants has an equal interest in the whole property. On the death of one of two joint tenants, the survivor becomes the sole owner. On the death of one of three or more joint tenants, the survivors remain joint tenants in the entire interest. Any joint tenant, acting independently, may convert the joint tenancy to a tenancy in common by selling that person's interest.

In tenancy in common, two or more persons have an undivided fractional interest in the whole property. There is no "right of survivorship" in a tenancy in common. On the death of one of the tenants in a tenancy in common, the surviving tenants gain nothing, and the estate of the deceased tenant thereafter owns the deceased tenant's share.

Life estate and remainder interests.

Real property interests may be divided in terms of the time when the owner of the interest is entitled to possession of the property. The owner of a life estate (life tenant) is entitled to possession of the real property for a period measured by the lifetime of a specific person or persons. A life tenant has the right to use the property and is entitled to any rents or profits from the property. A life tenant may sell the life estate, but such a sale does not change the identity of the person or persons whose lifetimes measure the duration of the life estate. A life estate may be referred to as a "life lease".

When a life estate is created, a right to possess the property, after the death of the life tenant, must also be created. That right is called a "remainder interest," and the owner of that right is called a "remainderman." Upon the death of the life tenant, the remainderman owns the property. The remainderman is not entitled to possess or use the property until the death of the life tenant. The remainderman does have the right to sell the remainder interest.

A life estate may be created where the right to possess the property returns, upon the death of the life tenant, to the person or entity which created the life estate. This rare form of ownership may arise when a legal entity which does not die a natural death (i.e., a trust or corporation) creates a life estate. The right to have possession of property returned after the end of a life estate is properly called a "reversion", but is treated as a remainder interest for purposes of valuation.

Liquid assets in shared ownership are available in total to the Medicaid unit , unless the liquid asset is held jointly with an individual who is in a different open Medicaid case. In that instance, the liquid asset is considered to be owned in equal shares by each Medicaid unit so that the assets are not counted more than once.

Occasionally a liquid asset may be held jointly with individuals who are not members of the Medicaid unit. Such accounts may be established for convenience of the parties involved, and the Medicaid unit may not have contributed to the account and may or may not have knowledge of its existence. Regardless of the source of funds, whenever an applicant or recipient is a joint account holder and can legally withdraw funds from the account, the account is presumed to be available. If it is clearly established, however, that despite having access to the account, the applicant or recipient has neither contributed to nor withdrawn funds from the account, and the account was not intended for the applicant or recipient’s use, the applicant or recipient should be given the opportunity to have his or her name removed from the account. For applicants, such action must be taken before a decision is made on the application. For recipients, the action must be taken within 30 days of discovery by the county agency.

Real property and nonliquid personal property, in shared ownership, is presumed available in the proportion equal to the number of shared owners (i.e., half is available where there are two joint owners, and only one is in the Medicaid unit; one-third is available where there are three joint owners, and only one is in the Medicaid unit; two-thirds is available where there are three joint owners, and two are in the Medicaid unit).

When an applicant or recipient is a trustee, guardian or conservator, or has a power of attorney responsibility, the applicant or recipient may have legal access or ownership to real or personal property (liquid or nonliquid) that is intended for the benefit of someone else. Likewise, an applicant or recipient may be named on a bank signature card and have the right to sign checks or withdrawal slips on that account without being a joint owner of the account. In these situations, the trustee, guardian or conservator, the power of attorney, or the individual on the bank signature card is not considered to be the owner of the property for Medicaid eligibility purposes.