San Antonio Express-News
May 10, 2005

Co-Executors -and- Miller Trusts

copyright 2005, Paul Premack

When a Will names more than one Executor at the same time, they are called Co-executors. It is legal for one of the Co-executors acting alone to take care of most estate business. Routine matters like collecting funds from a bank account can be handled without unanimous action, without even a majority.

The exception is conveyance of real property: all of the Co-executors are required to act unanimously (a majority is not adequate) to sell land. The probate judge can override that requirement by ordering one of the Co-executors to sell land acting solo.

Most Wills do not name Co-executors. Instead, they name a solo Executor and then identify successors to act if the initial Executor dies, resigns or becomes disabled. Having a solo Executor avoids what Judge Grant of the Texas Court of Appeals described as "a hydra-headed administration of the estate in which there is no guarantee that there will not be a duplication of effort, as well as each [Executor] being able to hire an attorney to be paid out of the estate which would result in double attorneys' fees." 33 S.W.3d 282; Lesikar v. Rappeport at page 321.

How do you select a good probate attorney? You can hire a specialist who is certified by in Estate Planning & Probate or in Elder Law. You can ask for a referral from your local bar association. Or you can ask your friends to recommend an attorney with whom they have had good experiences.

Dear Mr. Premack: I read your earlier column on Miller Trusts. Does owning a house prevent a person from using a Miller Trust to get on Medicaid? Does Medicaid look at income before or after payments for medical insurance are taken out? Does the limit of $2000 worth of non-countable assets include the value of furniture and clothing? K.H.

Medicaid law has some difficult twists. First, think of a person’s monthly income separately from that person’s assets. A Miller Trust (sometimes called a Qualified Income Trust) is necessary only when monthly income exceeds $1,737 per month. A Miller Trust cannot legally own any asset except dollars from a person’s monthly income. A homestead is a non-countable asset, so owning one does not prevent a person from using a Miller Trust.

Second, income is looked at in two ways. When the caseworker is determining whether an applicant qualifies for benefits, gross income (without a set aside for medical insurance) is considered. If that income is too high, a Miller Trust might be used. When income is low enough to qualify, regulations allow the medical insurance premiums to be paid, and the caseworker uses the net income to determine Medicaid’s share of the nursing bill.

Third, non-countable assets do not have a set value cap. The house and its contents (like furniture and clothing) are non-countable, along with an automobile and some non-refundable funeral funds. The total value of non-countable assets does not matter. Conversely, other valuables like bank deposits, stocks, bonds and non-homestead land are countable. If those countable assets exceed $2000 value, then Medicaid is denied to the owner. If you need more detail, take a look at my book The Senior Texan Legal Guide, 4^th Edition.