Follow
Share

My parents live with me. They gifted their car to me and no longer drive. All their assest are liqiud and in one account with all three of our names on it. I pay their bills and buy them whatever they need. There is no property, investments or anything else to take care of. They pay me to take care of them. I am an RN and quit my job to care for them.


Wills, living wills, POA, and DNRs are all completed for both of them.


They are 94 and 88 and very frail. I have VITAS providing services for them too.


I met with an eldercare attourney. I went there to get a caregiver agreement and he really didnt know what that was. He wanted to set up a living trust but when he realized I already had things set up very simple he sort of got annoyed and ended my free consult meeting.


I have one sibling, and per the will I will split 50:50 the remaining assests.


When the last parent passes will I have to file probate?

I have 2 stories. .My parents had a will. I was the executor and everything went to my mom. Dad had $2000 in a stock with only his name and no beneficiary, plus he had a car only in his name. Mom did not drive. The stock could not transfer until it went through probate. It was simple enough for me to go through it as a source of new learning.
My aunt listed me as executor and distribution listed her sister, my brother and me. She had no personal property but all investments. Everything was set up with either one of us as a joint tenant or beneficiary. She told us that her assets were not evenly distributed since the stock market varies. My brother and I balanced everything by just splitting up one of her assets. Without probate. We ensured that her sister re visited a lawyer to add a codisil to her will, naming successor executors plus POA and durable medical. It was her decision to name names.We ensured that she updated all of her retained assets by having her file paperwork to name beneficiaries or joint tenents. Her sister is now mentally incapacitated. I am again managing her assets. Her home is sold and proceeds are invested into one of the accounts. I do not anticipate issues with transfers this time around since every stock and asset have a secondary name.
What concerns me is that you went to an elder attorney who did not know how to draw up a contract. It sounds like the lawyer was interested in making a couple thousand by setting up a trust. The 2 sisters had one but with one surviving there is no longer a need to protect the other. That trust now also has my brother and I listed as beneficiaries if it ever comes to the will. We could not be listed as joint tenants. Since the trust has a broker and sister was able to get paperwork when she was still capable, I have access to use this find to pay for her care. I would call around and ask that specific question as you make an appointment. It sounds like you are lucky that tour parents are financially well off. If you are getting paid and you anticipate Medicaid for them if they are still around in the next 5 years, Then that contract is very important for you and them.
Helpful Answer (1)
Reply to MACinCT
Report

Bosscat, I realise it's going to be an awkward conversation to start, but it sounds as if the one fly in the ointment is your anxiety about your brother's expectations.

So wouldn't it be best to put all of this on the table with him and clear the air? It doesn't sound as if you and he are on poor terms, on the contrary; and if he's aware that you're being paid for a job he appreciates your taking on it seems reasonable to expect that he will accept the realities of the thing.
Helpful Answer (1)
Reply to Countrymouse
Report

It sounds as though you would like a formal care agreement in place to stop future problems. There is information and a sample document on the site with this ref:
https://www.agingcare.com/articles/personal-care-agreements-compensate-family-caregivers-181562.htm

If you want to document the payments already made, you can do it as a lump sum covering a specified past period, as part of the agreement. It would be a good idea to show it to your brother as well as your parents, agree it and get it signed all round - leave it to your brother to deal with SIL. Remember that if there is any question about applying for Medicaid in the future, your income should probably be declared for tax purposes - there is almost certainly a cross check. Perhaps the past payment could be described as a gift in consideration of your past assistance, which might cope with tax, so long as you get it right from now on.

Yours, Margaret
Helpful Answer (1)
Reply to MargaretMcKen
Report

Hi! We posted almost simultaneously, so please read my last post. It would be a good idea to talk to your brother about the payment agreement, so that the diminished estate doesn’t come as a shock to him. Go through the options you considered, so that he has a chance to come to the same conclusion or to put forward different (cheaper?) ones.

You say that your parents have left everything to each other. If the wills were prepared properly, there should be a survivership clause so that the last to die will still have a beneficiary. If they just got a will kit from the newsagent, for pity’s sake just check. Deaths often happen in quick succession, or when the second one is no longer competent to make a new will. No final beneficiary means the second one will be intestate.
Helpful Answer (1)
Reply to MargaretMcKen
Report
igloo572 Nov 24, 2018
You are spot on about the importance of the will clearly stating surviving spouse being named as beneficiary in the will for each and vice versa with secondary as the children as heirs.
(0)
Report
See 1 more reply
Igloo --- Im just trying to get everything in order to prevent problems. I read so many situations on this site where the estate or wills have not been done at all, or not correctly and there's a big mess in the family.
The car was transferred per state laws.
Each parent upon dying leaves all assests to the other spouse.
I want to keep them home and avoid any facility care if possible. The facilities where I live are terrible unless you pay for very expensive ones and then it's still questionable.
I am a nurse and am not overwhelmed. I pay for some aide help to get breaks.
My parents have been paying me a salary ever since I quit my RN job to take care of them. I initially felt very guilty about that. After reading and researching my situation I have learned this is OK andmay families work things out this way.
I just want everything on the up and up/legal and I've read on this forum that a caregiver agreement will document how and why I've been paid so it will not be a problem after the last parent dies, I don't want my one sibling, my brother claiming this past payment to me is part of my inheritance. He is aware I'm being paid but no specific amount and he is glad I am taking care of them.

countrymouse --- thanks for the references
Helpful Answer (1)
Reply to Bosscat8899
Report

Hi! when they ‘gifted the car’, was it transferred and now registered in your name? If so not their asset any longer, no need for probate. If that never got done, do it now. The account with three names on it – check with the bank. Is it technically a joint account, or are the ‘names’ just ability to sign checks and operate on it. If it’s a joint account, ownership will automatically devolve to the last survivor, no need for probate. If it’s just an ability to operate, then the ownership may still be in their names and it will be an asset. If it’s their asset, then ask about the bank’s rules. Some will transfer over an account if it is below a particular sum (particularly if the staff know the family situation). I now understand that in the USA some banks have a system where the account nominates a person to whom it is to go on their death. So no probate required. However if it’s a lot of money and no such bank system, then probably probate will be required. However if your parents are still competent (or you have the ability to operate), you can fix this in advance by changing the account now to being in joint names or in your name only (probably a new account) – so long as your parents are competent and agree.

I have also heard many stories of withdrawals a couple of days before the bank really ought to have been informed about the death. It tends to be less questioned if the balance is transferred to a new account at the same bank. Not that I am advising this of course. My friend locally told me that her husband actually told her to do it in the week before he died of cancer, to simplify the inevitable for her.

Once again, it is worth looking past the legalities at who is likely to question this. If you and your sibling are on good terms about the 50:50 split, and there is no-one else in the wings who would want to make trouble, then the chances of that no-one will question a sensible arrangement.
Helpful Answer (2)
Reply to MargaretMcKen
Report

To me, in my not an atty viewpoint, your putting cart in front of horse.

One of your parents will die first and what’s important will be IF your state requires the surviving spouse to file something in probate to have the now deceased spouse assets transfer over to them as the surviving spouse OR if the deceased assets have to be done as per their will (which is sounds like bypasses surviving spouse and instead $ goes 50/50 split to you & your sister). It’s a probate atty ?, not an elder law or estate attorney type of question.

So their both on in-home hospice, right?
I totally understand your concern as your feeling the end is near. I also totally understand why atty was less than interested and annoyed as there was no assets to do estate planning with and your questions were not his area of expertise.

Why at this point in time are you wanting a caregiver agreement done?
If you’ve been CG for free up to now, why a change?
Or is this about you getting $ now so less parental assets to divvy up with Sissy once they both die?
Are you at all thinking that it’s getting overwhelming to CG for both at home & that they may need to go into a facility? So paying you to CG enables them to get onto Medicaid sooner with less spend down?
Has VITAS suggested they go into in facility hospice?

whats the backstory on doing something now???

Also did you transfer the car as per your states requirements? Like TX has $10 fee for gifting done, license must be pulled; new owner has to retitle & registration done & new insurance & inspection. Depending on county, there’s a late fee if not done within a set period of time. State can charge taxes on the gifted vehicle too.
Helpful Answer (0)
Reply to igloo572
Report

It is excellent work on your part to have encouraged your parents to arrange their affairs so tidily. I think what form of probate you'll have to go through will depend mainly on the size of their respective estates; but - it's only a guess - I don't think you'll be able to skip the process altogether.

Try this leaflet published by the Florida Bar Association.

https://www.floridabar.org/public/consumer/pamphlet026/

Or you might want to look at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Probate

Hope these help.
Helpful Answer (0)
Reply to Countrymouse
Report

Subscribe to
Our Newsletter