Can I skip probate?

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.

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

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.

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

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.

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.

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.