Judith May Copeland's Answers

Can we get help from an estate attorney if we have limited funds?

The children inherit if their father died with no will, no trust and his assets are in his name alone. If the house, for example, is in joint tenancy with his brother, the house will go to the brother, not to the children. If the children stand to inherit, their mother won't have to pay money up front for legal assistance. A probate lawyer will arrange to have the children's mother or another appropriate person appointed guardian of the estate of the children. The guardian can then open...

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My mom is dying in CA, she has a will and 4 children. Is there a simple way to avoid probate in small estates less than $600K?

A small estate in California, qualifying for probate avoidance, is $100,000 or less of assets in your mother's name alone. Assets in joint tenancy, pay on death accounts or in trust also pass without probate. If your mother has no real estate, you could place all of her accounts in joint tenancy with the four kids (assuming none of the kids has problems with creditors). If she has real estate a simple trust would be the best choice. Your mother would be well advised to have an...

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Your half of a joint bank account to a living trust

Any asset held in joint tenancy will pass to the other owner on the death of the first owners. Your trust (or will) could say "everything to John Doe" but if Jane Smith is the joint tenant with you on a bank account (or stock or real property)j it will go to Jane on your death. This is very similar to life insurance. You have a contract with a company to pay X dollars on your death to a certain person, say, Jane Smith. She will get that money even if your will or trust leaves everything...

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If i terminate my attorney in a probate case does the court have any decision on his payment.

First, the court may not allow you to dismiss your attorney without first substituing in another. Probate is complex so I recommend you find an attorney you can work with. As to the fees, the court will determine how much of the statutory fee your attorney is owed at the time you close the estate. The two attorneys usually work it out together. So sorry, you can't be done with him yet.

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If the house I have a court case for probate open on Forecloses, what will happen to the probate case?

If you lose the house to foreclosure and the house was the only asset of the probate, then you should file a petition to terminate the probate on the basis that it has no assets. This will lead to you being discharged as executor. It's fairly simple to do. Good luck.

Fees for petition to dismiss probate?

I'd love to know why you wish to terminate the probate. Usually probates are only dismissed if there are no assets. The court's only fee should be the filing fee for the petition to terminate. The attorney is entitled to a fee based on the size of the estate. Your lawyer needs to file it so the fee is a matter you should discuss with the attorney. In the discussion remember two things: first, the lawyer opened the probate and spent time and worked for you. Second, if probate was not...

What is the best way to transfer a home to avoid the possibility of a medicaid lien. Into or trust or an outright transfer?

A home is exempt under Medicaid because public policy is to preserve it in event the owner is able to return home. If the owner gives the house away, outright, it would lose it's exemption since, obviously, the owner does not intend to return home. So, the best way to give it away is to transfer a remainder interest with the owner keeping a "life estate." This means that the owner retains the rights of ownership during his or her lifetime but has no interest at the moment of death. Thus,...

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When do you distribute the funds in a probate?

Life insurance proceeds are only distributable through the probate if the estate was named as the beneficiary. If that's the case, the money will be distributable the same as any other cash (see below). If the estate is not the beneficiary than the insurance company will pay the money directly to the named beneficiary. Each state has its own probate rules. Generally an executor needs court permission to make any distributions. Often certain time limits have to pass, such as a period of...

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My step dad and my mother ,signed their home over to my older brother just in case something happened to them.

Wow, death often brings out the worst in people. This is a miserable situation which raises an important point that people need to pay attention to: Family must conduct their business in a business like manner. Consult and use a lawyer and leave nothing to oral agreements or understandings, and don't do things "for tax savings" purposes that don't reflect reality. That being said, ordinarily, any agreement concerning real property must be in writing to be enforceable. Each state will...

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Is the Power of Attorney valid?

The son is not really appointed power of attorney for his parent. He is named or nominated to act as an agent for them, either at any time or in the future if they become incapacitated. It is most peculiar that the parents would name their impaired son and someone should counsel them about that choice. Can this son actually act? If he is under a guardianship probably not. Most guardianships eliminate a persons capacity to contract which would make it difficult for the son to act on...

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