Is probate still necessary? - AgingCare.com

Is probate still necessary?

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If everything was jointly in mom and dad's name and there was no debt. Everything went to Dad. So is probate still necessary?

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Your question indicates that your parents owned everything jointly, and there is no need for Probate authority to transfer title, or obtain access to any assets.

If that's the case, the only circumstances requiring Probate Court authority would be to enforce a right or interest that your Mom may have had at the time of death, such as a personal injury claim.

As one of the community members has pointed out, the next question might be about probate avoidance for your Father. Your Father's estate will need Probate, if he is the individual owner of any assets at the time he passes. But setting up joint ownership arrangements for him involving yourself or other people can create costly problems, including income tax liability and unexpected creditors claims.

Talking with an estate planning attorney who is also aware of the elder law issues in your state, can save your family form many potential problems.

If your Father is competent to make decisions, the attorney may suggest a Living Trust as a way to avoid Probate for your Father, because legal ownership of real estate, bank accounts, stocks and bonds or any other asset is held by the Trustee of the Trust.

Your father would be the Trust "Grantor." Instructions in the Living Trust tell the Trustee how to handle and distribute the property and assets in the Trust.

ADVANTAGES: The Trust is Revocable. Trust assets can be withdrawn and the Trust can be changed and even revoked, without needing approval from a Probate Court. Upon death of the Grantor, the Trusts becomes irrevocable.

The Living Trust can also save survivors from paying capital gains taxes on stocks, bonds and real estate that has appreciated in value.

DISADVANTAGES: Because it is Revocable, the Living Trust assets are still owned by the Grantor, and will be subject to creditors. The assets will be countable if your Father ever needs Medicaid benefits to pay for nursing home care in a nursing home.

The Living Trust is not the only option to consider. An estate planning - elder law attorney in your state can analyze your Father's health and financial circumstances, and explain whether an irrevocable trust is an option for avoiding probate and obtaining Medicaid eligibility in the future. Your Father’s health is a key factor in this conversation; even if the Irrevocable Trust complies with Medicaid regulations, any transfers into the Trust are subject to a 5 year look back period.
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Atty Berry is correct. The next question or thought should be when your father dies? If you want to avoid probate, you'll need to ensure their estate is protected via a trust.
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Assuming everything transferred to your father on your mother's death, it doesn't seem as though there are any assets at all to probate. Sounds like they planned very well!
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No probate for transferring assets to the remaining spouse. When the last person of a household dies, your last parent, is when it's needed.
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I don't know about your state but here in Oregon - no probate. My dad had my mother as beneficiary on everything - and vise versa. Mom and dads attorney told me no probate needed. It was a matter of sending death certificates and filling out new account papers for mom. We did have one problem with an account that was called "tennents in common" that did not allow "survivorship" and since mom and dad owned it jointly they did not list beneficiaries because they didn't understand how that type of account works. We ended up having to use the attorney for that one and file in court. Since all the other accounts had already been transferred we filed a "small estate" claim and it worked out. Overall it was pretty simple if it weren't for that account and one IRA - which was difficult more because the broker was an ass - things would have been completed in about six months - and my dad had a decent sized estate.
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There are four ways assets transfer out of your name during estate administration. 1) Joint ownership 2) Beneficiary Designation 3) Trust 4) Probate. Typically, with a married couple everything is handled through joint ownership and beneficiary designations....therefore, there should be no need for probate.
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I'm in Australia, so perhaps it is different? But if it's not, under the circumstances you describe, Probate is not necessary. But it would be very prudent to lodge a "Survivorship Application" as quickly as possible. This will transfer the title to property into your Dad's name. If you don't do this before your Dad passes away (and who knows with anything), it can make Probate, which will then be necessary, complicated.
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In the States, it is similar everywhere, but some are different than others. In Michigan, I believe the 'estate' has to be worth a half million or more before it will be probated - it could be actually more than that. Check with an attorney before assuming anything for the state or country in which you reside and especially before the parent or whomever holds the estate to see what is what so plans can be made for the future so it won't be bumpy and so it doesn't all end up in the court's pockets. At the moment I do believe I'm good, as everything is for the survivor, but I will need to check that out with an attorney that is specially educated in that area within our state.
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Chris, I think you're one of the elder law firms that provides a booth with information and free goodies at the AAA Caregiver Expos? I've been by your booth many times. It's nice to see a familiar name from the Michigan legal contingent
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My Mom didn't do probate after Dads death. When she wanted to freeze her property taxes she needed to probate since Dad had died. This is in NJ.
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