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Old 08-06-2018, 12:42 PM   #21
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In PA, a lawyer is not required to settle an estate, that is the responsibility of the executor/administrator!
I found a lawyer that would do all work required to settle the estate, either on a percentage or hourly charge, or just hire out as and adviser on a per hourly rate. So I was the doer, he would review some documents for completeness and guide me on the next step. Legal fees for each estate were less than $1k with a couple of hundred $ in probate fees. Each estate was about half million but many accounts were joint w/survivorship or beneficiary designated. I did have to transfer title of some real estate in a different county and he took care of the transfer.
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Old 08-06-2018, 03:06 PM   #22
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Originally Posted by gauss View Post
Wow! Is a lawyer required in California for probate?

In my state I did an unsupervised - informal probate for my late father on my own without a lawyer.

I was considering hiring an attorney and did consult with one.

The treasurer of a local organization that I have volunteered with assured me that I had the necessary skills/temperament etc to do it on my own.

So glad that he had the talk with me. I learned much in the process.

BTW - The fee to the court was a few hundred dollars on $60,000 in assets.
I was glad that Dad did not spend any of his rather scarce funds on a Living Trust attorney.

-gauss
No, a lawyer is not required by law to do a probate in CA. My mother passed in 1992 and I did not hire a lawyer and did all the legal work for the probate myself. What I found was that when there is a maximum limit set by law what a lawyer can charge for services, they always charge the maximum.
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Old 08-06-2018, 08:32 PM   #23
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I don't know anything about NC law and how probate is handled there. But...why do you want to avoid probate? How onerous it is can vary a great deal from state to state and depending upon the provisions of the will and of state law. Agree that it is good for DW to consult with an attorney.


If you have a simple estate situation probate is probably fine. In fact,, you can avoid probate altogether in some cases if the assets are low enough or if everything is dealt with using TODís. The problem comes in if you have a larger estate or somewhat complex situation. If there are family disputes, mental incapacity, serious physical decline or other complexity, probate is very likely to be much slower, more expensive, and difficult than a trust.

Probate requires public disclosures and invites parties to engage in court procedures to air and resolve disputes. Setting up a trust is not inherently more complex or expensive than writing a will. I donít get the argument that people are saving tons of $ by using a will instead of a trust.
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Old 08-07-2018, 06:08 AM   #24
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DW is going to find a lawyer for this, but she asked me to do a little research and help her get schooled in the options so she and her brother know what to expect as they move forward on this.

Situation:
  • DW's dad (DWD) wants to make it easy after he's gone
  • DWD owns his house, free and clear
  • DWD wants DW & her brother to split everything evenly

I've done a little poking around on this site and learned a few things:
  • NC Doesn't allow a transfer on death for real estate
  • Joint tenancy with right of survivorship seems to be an option, but might have "gift" consequences
  • Certain options might allow step-up in basis of the house
I think there are probably other options, for instance, selling the house to the kids and DWD "totes the note" (which would be a wash once it got into the estate).
Might want to look into a life estate as well (dad gifts the house to the kids but retains lifetime rights to live in the home, with dad still paying taxes/upkeep)
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Old 08-07-2018, 08:30 AM   #25
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I am not familiar with NC laws, but it seems that establishing a living trust and putting the house into that will avoid the probate and allow for quicker disbursements after DWD passes.


In my parent's case, where I was also the trustee, the trust was pretty easy process and I did not have to do any probate.
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Old 08-07-2018, 08:44 AM   #26
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how do you know if it is undisputed until it goes thru probate? I recently signed my rights away on a will for a relative. I was not named in the will, but legally had an interest. If I hadn't signed they would have sent registered mail to make sure all possible interested parties were notified. I would assume you need all these people notified before anyone can be determined as "undisputed". This may go beyond "close" family.

I would expect if a car is put in a living trust, then it could be retitled to the beneficiary at death outside of probate.
I don't know the answer to your question. I was told by an estate attorney that all heirs have to sign the affidavit indicating that they are the only known heirs of the deceased. And it has to be notarized. But no other documentation is required.

My former boss at Megacorp did this when his Dad passed a couple years ago. He also inherited the house (via TOD deed) and a few fairly large financial accounts via TOD/POD/beneficiary designation. But the remaining estate was not probated because it only consisted of two vehicles and a house full of furniture and other personal effects. He is an only child and he's the only one who signed the affidavit.
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Old 08-07-2018, 08:51 AM   #27
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I have no idea why avoiding probate would be such a big deal? It really isn't complicated if the estate itself is simple (a few accounts, house/property).
Having done this for a simple estate in PA.. avoiding or limiting the lawyer fees would be part of the big deal, in my opinion.

My folks estate was no more than 200k including the house and IRA. Between filing early estate with state to get a discount. Filing estimated estate and then actual estate tax info, made the lawyer fees high. To compound that the lawyer did not have ANY office staff and did all the work himself. He also was not computer literate and had trouble "fitting" my excel spreadsheets into his "word" format.
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Old 08-07-2018, 09:12 AM   #28
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Having done this for a simple estate in PA.. avoiding or limiting the lawyer fees would be part of the big deal, in my opinion.

My folks estate was no more than 200k including the house and IRA. Between filing early estate with state to get a discount. Filing estimated estate and then actual estate tax info, made the lawyer fees high. To compound that the lawyer did not have ANY office staff and did all the work himself. He also was not computer literate and had trouble "fitting" my excel spreadsheets into his "word" format.
PA has an inheritance tax (not estate tax). I prepared the inheritance tax return myself, ran it by the lawyer, I was the doer, lawyer the advisor, paid him on an hourly basis.
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Old 08-07-2018, 09:51 AM   #29
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Thanks, all, for fleshing-out so many options. I always learn so much from the collective wisdom on this board! I'll post back here to let you know how it goes.
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Old 08-07-2018, 10:39 AM   #30
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In NY there is a Life Estate deed. The title transfers on death. The owner technically no longer owns the property but has a right to live in it until death. This is a way to avoid estate recovery.
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Old 08-07-2018, 11:26 AM   #31
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In NY there is a Life Estate deed. The title transfers on death. The owner technically no longer owns the property but has a right to live in it until death. This is a way to avoid estate recovery.
That's the first thing I checked, but we don't have that in NC.
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Old 08-07-2018, 11:42 AM   #32
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To gift a home may be subject to gift tax. I wouldn't do that.

Establish a living trust that is congruent with your parent's wishes then change the title of the house the same as the title of the trust.

Yes, you will pay an attorney to do that but you would likely incur more attorney fees if you don't.
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Old 08-08-2018, 08:27 AM   #33
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I think I'll buy some Nolo books today on estate planning and living trusts. Not that I will try the DIY approach, but I think it will help me pick out an appropriate lawyer.
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Old 08-08-2018, 03:54 PM   #34
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I haven't read every post in this thread, but the answer is very simple. A will leaving the property to the two of you is the answer with contingency provisions if one of you predecease. Probating the will and transferring title of the house is no big deal.
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Old 08-08-2018, 04:01 PM   #35
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Thanks Gill. I've interviewed a few estate lawyers, and they're tending to agree that putting the house and/or cars into a living trust isn't worth the trouble and expense as compared to just doing probate. Apparently in NC real estate doesn't necessarily need to go through probate. I need clarification on that bit, but I've found a guy who knows the specific NC county probate people, and he says they're easy to work with.
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Old 08-09-2018, 12:44 PM   #36
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That is a huge relief.
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Old 08-22-2018, 08:36 AM   #37
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"Keeping House of Elderly Parent out of Probate"

Sometimes the way we state a problem limits the range of solutions to things that are really not optimum. I would suggest that you state your problem in terms of the result you want, not talking about the process to get to the result. I think your problem is to arrange for the transfer to occur in the simplest and most tax-efficient way. The process (i.e. avoiding probate) is really irrelevant.

& BTW, that basis step up (assuming he has a low basis in the house) is A Very Big Deal. Usually, selling or giving the house to the heirs prior to death is A Very Bad Idea. A good trusts & estates attorney can make sure this doesn't get screwed up.
I agree with these points. Avoiding probate for ease, and privacy to the amount / value of assets being distributed are valid reasons to avoid probate. This can be done by establishing a living trust for Dad, heirs are the two siblings. If the only asset were one home, and the two beneficiaries/heirs, the house would transfer at stepped up fv, new basis for heirs. They could own it jointly thereafter. But they'd have to work out financially supporting it, who could would live in it. Could be problems depending on the sibs. Or, as I did with my mom's house, I bought out my siblings at time the estate was settling, two still living at the time vs four at time of my mom's will drafting. She had little in assets so probate wasn't a big concern. I have a living trust for privacy reasons, as did my late sister. All this stuff is routine for a specialty estate attorney.
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Old 08-25-2018, 06:14 PM   #38
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Thanks Gill. I've interviewed a few estate lawyers, and they're tending to agree that putting the house and/or cars into a living trust isn't worth the trouble and expense as compared to just doing probate. Apparently in NC real estate doesn't necessarily need to go through probate. I need clarification on that bit, but I've found a guy who knows the specific NC county probate people, and he says they're easy to work with.
I recall Suze Orman telling horror stories about real estate and probate in California. But that would differ significantly from state to state.

I suspect, but do not know, that the form of the deed (for example reflecting rights of survivorship) may dictate whether real estate goes through probate. Hopefully your attorney will give you more information. Good luck!
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Old 08-29-2018, 07:28 AM   #39
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