QUESTION
Is probate lengthy or hard? Wouldn't it be good, to leave her checking account open so medicare and champus (sp?) can be auto-paid?
Asked on Jul 31st, 2013 on Estate Planning - California
More details to this question:
My mom recently had a stroke. She is 89. My brother has power of attorney and wants to close her accounts in case she passes away so we don't go through probate. Her will divides everything equally between my brother, my sister and I. Most likely she will need nursing home care after she completes rehab. This happened 2 weeks ago.
14 ANSWERS
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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You should avoid probate. It is expensive and time-consuming. You may want to set up a trust to avoid probate.
Answered on Aug 13th, 2013 at 3:31 PM
Probate can be short or long depending on the decedent's assets, creditors, beneficiaries and any other matter that may cause a delay in closing the probate. However, the fact scenario you present indicate your mother is alive and has bank accounts open. You do not have to close out these account in order to avoid probate. An easier way to handle the matter is to go the bank and talk to them about the different kind of accounts they have. She can have a joint account or beneficiary designation account that will provide upon her death the account does not go through probate, rather the funds are disbursed to the designated beneficiary or is not in the name of the joint account holder. With that said, you should talk to an attorney to find the best way for her to hold accounts and transfer after her death. There may be other issues to consider as well as other assets to be aware of.
Answered on Aug 06th, 2013 at 9:33 PM
2 Awards
Closing her accounts is not necessary and it is certainly better to keep them open under the circumstances. If her estate is under $150,000 it will not go through probate anyway. If she owns a home it might have to whether she has accounts or not. Not a good idea to close her accounts.
Answered on Aug 06th, 2013 at 9:33 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I would advise that you see counsel of attorney regarding the actions your brother is seeking to undertake.
Answered on Aug 06th, 2013 at 9:33 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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Probate is not hard or lengthy, but it is still good to avoid it if you can. The POA will terminate on your mother's death. If her only assets are in the bank accounts, the best thing to do would be for one of you to have your name added to the accounts. After your mother's death, and after her debts have been paid, you can just divide up the remainder.
Answered on Aug 06th, 2013 at 9:33 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Probate in Oregon is not lengthy, difficult or expensive, unless greedy heirs get to fighting. Doing weird stuff like closing all of a person's accounts assuming she will die will create a wide variety of bizarre unintended consequences. Besides, power of attorney doesn't give your brother power to do whatever he wants: it gives him the power to do what your mother would do on her own behalf if she were able. I guarantee she wouldn't decide to close all her bank accounts and die. If all your mother has is cash in bank accounts, probate may not even be necessary. First, you should all concentrate on caring for your mother, being there for her, and making sure that whatever money she has is used to make her last time on earth comfortable. After she dies, grieve. Then start worrying about dividing up the estate.
Answered on Aug 06th, 2013 at 9:33 PM
It would be a very bad idea to close her accounts while she is alive because then she would be keeping money in her mattress or your brother would take it. If there is a concern about probate on bank accounts, then she should consider using POD beneficiary designations.
Answered on Aug 06th, 2013 at 9:33 PM
Thomas Edward Gates
Probate is not hard or lengthy. The problem you will be facing is the cost of the nursing home. Any cost paid by the state will be repaid at probate, since they will place a lien on the estate. It would be best to keep the account open for the automatic payments and receipts from social security. This will also give you a better accounting of where the money is going and how much was received.
Answered on Aug 06th, 2013 at 9:33 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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Your brother with power of attorney can actually do what he wants as long as its in your mother's best interests (not his). Contact an attorney personally for more information.
Answered on Aug 06th, 2013 at 9:33 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Probate is not that terrible. Besides, no probate is necessary if her total assets subject to probate are less than $150,000.
Answered on Aug 06th, 2013 at 9:33 PM
If the estate is small and there is a will, probate doesn't need to be lengthy or difficult. Probate protects the estate by giving creditors and debtors of the estate deadlines by which they have to act. I would recommend that your mother's accounts be kept open unless the power of attorney document specifically permits your brother to close and/or consolidate accounts.
Answered on Aug 06th, 2013 at 9:32 PM
3 Awards
Closing the account is probably not a good idea. You cannot just stash money under the mattress especially if she may be going into a nursing home. Such a closure could be construed as a gift and result in lack of benefits. If the account is the only asset that you are concerned about for probate, in Nevada a set aside may be completed once the person has been dead for 40 days and all bills have been paid. A set aside may be used for assets with a total value of $100,000 or less. This proceeding in probate court takes less than 3 weeks. If the total in the account is $20,000 or less an Affidavit may be an option, if all debts are cleared. If in doubt meet with a probate attorney before taking an action.
Answered on Aug 06th, 2013 at 9:32 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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You can close the account now, but the fact a will exists, sounds like there is some property, which will require a probate. As to whether probate is lengthy or hard depends upon the circumstance and your point of view.
Answered on Aug 06th, 2013 at 9:32 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Your brother should seek consultation with an elder law attorney. There are things that can and should be done, but he is likely to make numerous mistakes, if he tries to handle this on his one. This is not an area where do-it-yourself makes any sense. The rules are complex and ever-changing. A lawyer is needed.
Answered on Aug 06th, 2013 at 9:32 PM