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P. Simmons
P. Simmons, Attorney
Category: Estate Law
Satisfied Customers: 34330
Experience:  12+ yrs. of experience including estate law.
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My father died last week. I am his executor. It is a relatively

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My father died last week. I am his executor. It is a relatively small estate ($200,000 cash and $100,000 real property. My mom is in a locked memory unit with dementia; her costs are paid through insurance and her other income. One financial advisor told my brother and me that we should go to the local probate court for answers. Before my father's death, he put my name on his checking account so I could write checks in his and my mother's behalf. Since my mother's continuing care is now assured, can my brother and I begin to use these monies as we see fit? Do we go to probate court? We're lost regarding rights and responsibilities.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

A key question will be the status of a will. Was there a will? If so what did the will provide for (who did dad leave his estate to)?
Customer: replied 3 years ago.

A will and a trust: Beneficiaries are my mom, me and my brother. Me as POA over my mother.

Customer: replied 3 years ago.

A trust and will. Me, my brother and mom are beneficiaries.


Customer: replied 3 years ago.

Mr. Simmons, are you still there?

Thank you

The trust will not go through probate. The trust is independent of probate and the assets within the trust will be distributed according to the terms of the trust. So whomever is listed as the trustee in the trust should review the terms of the trust and prepare to distribute the assets of the trust accordingly.

But the will?

That you will need to probate.

And if mom is a beneficiary of the will? Then you (as executor) will need to distribute her portion to her.

I understand your concern. Mom is no longer competent. And is being provided for through insurance. So why should dad's estate be passed on to her.

But that does not change that requirement that her share of the will be distributed to her.

If she has insurance covering her care, then it may well be the money she receives from your fathers estate remains in her estate until she passes.

Probate for a will is not complex...but you would do well to have a local attorney assist you with this process. In order to probate, you must interface with the probate court. This requires you file written "pleadings" with the court. The adage "a man who represents himself has a fool for a client" is often true. If you act as your own lawyer, the court will expect you to know the law/rules/procedure/evidence just as if you were admitted to the bar. They (the court) will not cut you any slack.

So the best way to approach probate is with an experienced attorney.

There is an exception...

IF the total amount in probate (the the property NOT in trust) is less than $50K and does not include real property, it is possible to complete a "small estate affidavit"

This is a streamlined probate process that you can do without an attorney. You would head to the probate court with a copy of the will and a death certificate. The clerk of the court can provide you with the forms to probate via affidavit. Again, this will only work if the assets are less than $50K and do not include real property. SO if the property in probate is more than that? You will need to have an attorney assist

Please let me know if you have more questions...happy to assist if I can

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