My dad recently passed under hospice. If you dont know the tumultuous background of it with siblings and other relatives.. please refer to my previous post.

Anyway.. my Mom and Dad both have dementia and are both in memory care.. I am the sole sibling caring for them (have 3 siblings and are all on some level MIA through the last 7 years or so).

My dad does have a willl (although currently I only have a copy which I thought was an original because it was stored in his lockbox).. his will leaves everything to Mom.. as expected. (the original may still be in the lockbox in Oklahoma.. I will check this week)

All his assets that I know of so far are co owned by mom. I live in Texas and Dad has a house in Oklahoma.. the deed on the house has both mom and Dad's name.

My Dad's will is from many years ago... back in the 80's. He named my Mom's sister as executor.. which was a good choice back then..not so good now as she is somewhat bumbling.

The night my Dad died my sister began harassing me about his will... so I handed it over to them. My mom's sister got a relative who has a law firm to probate my dad's will. She is already asking for money.... 5,000 ... and that is just the retainer. This attorney has no probate experience.. and is more of a litigator. (this aunt was also in contact with my sisters while they were here.. refer to my previous post)

My attorney that I have consulted prior about my parents specializes in elder law and estate planning and is very sought after in those areas. I consulted her yesterday about what this attorney that my aunt found was asking for... she informed me that the detailed documentation about his accounts, his taxes.. and other things was inappropriate for just probating a willl... she said the attorney is either very inexperienced and doesn't know what she is doing... or she is going after ME in some way.

My attorney also said.. based on what I told her about my Dad's assets that it is possible that since he had alll assets with mom's name and with beneficiaries.. that no probating will be necessary.

She said you MIGHT have to probate the house in Oklahoma.. but that should be with an Oklahoma attorney. I did research this and found info that if the house is in both their names.. it may not require probate.. just a title change.

The only asset of his that is still in question is he has some bonds in Oklahoma that are either in his or mom's name.. but it is highly possible that he has mom as a beneficiary on those as well.. I will be going to OK this week to check.

Sorry this is so complicated... my aunt is over there playing executor .. my sisters have more then likely been spreading false stories about me to my mom's sisters.. and I am sure they believe them.. and I am afraid this attorney may not just be probating his will... if that is even needed.

Anyone have experience with one spouse passing and having assets in both of their names? Was probate necessary?

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Keep in mind that a “retainer” is not the same as a bill. It is an amount the attorney holds, to draw from. This practice is not uncommon.

Attorney estate charges are typically court-approved.
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Dealt with this twice earlier this year, different attorney both times. All assets were left to the surviving spouse. We didn’t even ask if the Will needed to be probated, we just did it. But, it was NOT anywhere near $5,000! I’m thinking it was around $1,500(?). Here in GA, you can even probate a will yourself (one lawyer even told us to save money & do it our self), but since there was money to pay an attorney, we did.

There was an issue with the way the deed to my Mom’s home had been written & it had to be redone to get Dad’s name taken off, but it wasn’t a big deal.
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There may be nuances from state to state but in our experience if husband and wife are both listed on each asset it's a fairly simple process and I can't imagine why it would cost $5000 for an attorney to do it. First I don't think an attorney needs to do most if any of the work. Since you already have PPA for your mom you should be able to take care of most of it. You will need copies of dad's death certificate to give all account grantors and for property you want to take him off the deeds, again I think that's fairly straight forward with a death certificate. The reason to do this is to prevent headaches and complications in the future when Mom passes. There is a difference in the way papers are worded often though, like on a car title if it reads "and" rather than "or" it may be a bit stickier. As far as taxes go they must file jointly so I don't think that comes into play until the next time she files alone but you should notify SS and any pension plans, anything that they derive income from. I would think that any paperwork needing to be filed with courts could either be done by the attorney you have been consulting or by you with his or her guidance, I don't think it needs to be your dad's executor or her representative doing it. If the will leaves everything to mom, she already is listed as an owner on everything anyway and you have every authority to act as an extension of her (POA) and I'm not sure there is any need for your dad's executor to do much if anything. Certainly since your mom owns the bank accounts as well filing his death certificate with them should give her (and you) control over those funds so this attorney who is probably just trying to help, can't simply collect this $5000 retainer out of your moms funds. Then I would get in touch with that attorney if I were you in an effort to feel things out, see what you can gather about what is really going on. Let them know you have spoken with your aunt who wants to keep it as simple as possible and the attorney who specializes in this stuff you and parents have been consulting with for a while and know that since mom is already owner on everything it's just a matter of leg work which you will do on her behalf to save some money since she will be needing it for her care. Be nice but well informed and clue them in that you aren't as lost as your aunt.
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One additional thing to my answer below - your executor aunt and her lawyer will learn plenty about your siblings in this process.

Im SO glad for you, that you aren’t in that role. This is where the sibs show their true colors to all. Some of what happens next (for your aunt) may be impossible for her to “un-forget.”
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katiekay May 2019
I dont think my aunt will learn much about my siblings in this process..

my Dad passed and most of their assets (if not all)..still checking... are co owned by my Mom.. and I am my Mom's POA. I have an interest that my mom gets these assets as I am responsible for providing care for her.. she also has dementia and is in a memory care..

If I can keep probate from happening. (if everything In mom and dad's name)... I will.

The only role my MIA sibs may have is to possibly find some issue with how I spent their money. If they are hoping I spent it on myself... they will be disappointed as that did not happen.

As far as standing back and letting my aunt do the work... that isn't happening... she presented me with a 2 page list of things I have to provide for her litigating attorney.

At this time... I dont think my aunt has any bad intentions against me.. we spoke yesterday... she is also for avoiding probate if we can. I am just so untrusting with all that has gone on concerning my Dad and my siblings.. I feel I am living a nightmare.

Now when my Mom passes (if their are many assets left).. thats when the sibs will crawl out from the woodwork again... I told my brother (who is trying to be neutral).. that I will not be around for that... they can fight it out amongst themselves..
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Katie Kay,

Although your Mom gets everything, paperwork must still be processed. Stand back and let your aunt deal with this. Take a break from all the emotional stress.

Your aunt can’t be removed unless she does something inappropriate or incompetent. (At this early point, such as missing a filing date requirement, but since she has already hired a lawyer, this is probably unlikely).

Detailed documentation about accounts and taxes is a standard lawyer’s request. There is tax paperwork that must be filed, along with an inventory of assets. (Now I am questioning the lawyer you talked with - why would he/she want to stress you out, unnecessarily, by suggesting you will be sued, in the face of your loss?).

There is no reason to worry about getting sued if/until it happens. Don’t even think about it until then.

If you do get sued, send me a private message. You should not discuss your lawsuit with anyone in a public forum until the decision is finalized.

I’ve been there and know how it feels. You lose a parent and simultaneously lose siblings too. My siblings were also MIA when my parents needed help. They suddenly became permanently available when they thought there would be money to be had. They didn’t want to visit my parents but were immediately ready to come visit the “stuff.”

Classic Little Red Hen. (It wasn’t until after my parents died and I was being sued that I realized the analogy/pun of all the absentee animals finally coming around for “bread,” after they refused to help (make it).

I hope your situation will not be like mine.

I’m so sorry.
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My brother tried the same nonsense when my Dad passed.

since everything was in both of their names, there was no estate to probate...everything was already Moms.

Your Aunt is an awful person. Who would try to deprive the widow of the inheritance from her deceased husband? Awful.

I think you have no need to be concerned with this issue. But, it does beg the question...what is the Aunt trying to do.
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Thanks Freqflyer,

Did your parents own a house a the time of your moms death? My parents do and are both on the deed.

So your Dad was able to remove your mom's name since he was able...My mom is not able because of the dementia. I'm thinking I just need to get the death certificate to the bank to clear up their co accounts at the bank.

I'm hoping his bonds (which are in the lockbox) have Mom as the beneficiary.

I do have authority to get into their lockbox and a key.. as long as the bank doesn't freeze everything...ugh.. that would be a problem.
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freqflyer May 2019
Katiekay, yes both my parents were on the Deed. Dad didn't need to remove Mom's name. All he needed was to show a Death Certificate when he sold the house. Hopefully this is common in all States.
katiekay, your Elder Law Attorney is correct, there shouldn't be any probate if your parents co-owned the assets.

When my Mom had passed, everything passed smoothly to my Dad since both were equal owners of all the assets.

Later Dad did update the bank accounts to remove Mom's name, and have my name as second so I could write checks for Dad. Dad didn't update the title on the house, it wasn't necessary.... when the house sold, I just needed to bring to the Settlement Attorney a State issued death certificate. And I got Dad to update his Will to make it reflect current state of affairs.

Now, when my Dad had passed, that was a whole different ballgame... probate was in the picture and in my area probate can take over a year to complete.

I don't know why some parents place important documents such as Wills and Power of Attorney into a lockbox or bank box. Like it is a huge secret. If both should pass, no one will know such lockbox or bank box exists, and if they did, who has a spare key and signed authorization? Some banks freezes the bank box, so that creates complications.

Thankfully my parents had given me a copy of their Will, to which I had read and found it to be older than dirt. I quickly got my parents in to see an Elder Law Attorney to update the Wills and Power of Attorney. Neither of my parents could be POA for each other [age related decline] but the Attorney kept their names on the POA with adding me as second in line. So that worked out fine.
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