Today I will write a little more about Probate from my own experience. I want to emphasize that I am not a lawyer. There are many good books on Probate and you might want to check some out of your local library when you need some information.
It is not necessary to have a lawyer if you are an executor for a simple estate and/or if you don’t have anyone who might make the process difficult for you. On the other hand, if there is property to sell and perhaps complicated financial issues, it is probably a good idea to have a lawyer. Also since the executor is legally responsible for the decisions made during probate, I think you might want to at least consult a lawyer during the process even if you are doing most of the work yourself.
In my state, the fees for the lawyer are set by state law and vary by the value of the estate. For my lawyer, the fee setup was like this:
- 5% of the first $100,000
- 4% of the next $200,000
- 3% of the next $700,000
- 2 ½% of the next 4,000,000
- 2% for sums over $5,000,000
Needless to say, for dad’s estate we didn’t get to the higher levels!
They said the average estate is administered in 16 months, but could be as short as 8 months. It took 20 months to complete dad’s estate. It felt like a hundred years!
There are advantages and disadvantages to such a fixed rate. First of all, you know exactly what it will cost and you have no reason to fear that the lawyer will drag things out to increase his fee. On the other hand, there is a disincentive for the lawyer to put in more hours on a complicated estate. And there is nothing to push him to get to this case when others are going to be more lucrative. I did feel that our estate lawyer let some things just sit while he worked on more interesting or more profitable cases.
Now you might also be thinking about “avoiding probate” as I have seen and read many articles and talks about doing so. Again since I am not a lawyer, I won’t go into why you might want to do that. I will just say that I did NOT want to avoid probate. This is so because I believed (and still believe) that I would never get my brother out of my parent’s house if we did not have to sell it to complete probate.
Again I will say that there are times when probate is not necessary. If the decedent had very few assets, probate would probably not be necessary. If the decedent has a house or other property, this makes it more likely that probate will be necessary. In fact, one of the reasons I wanted to sell the house when dad was in assisted living was so that probate would not be necessary. Also, I knew we would reach the point where dad’s cash would run out and then I would have to either sell the house or apply for Medicaid. This would be especially true if he needed to go into a nursing home.
One thing I always kept in mind was that in our area a person needed to show they could access at least $100,000 in order to get into a good nursing home as a private pay resident. If you had less, you would need to apply for Medicaid or sign papers stating that the nursing home could take and sell your home or other property in order to pay the debt after the resident reached the point where they could not pay the monthly rent.
I have been told by people who specialize in elder care that the better quality nursing homes take mainly private pay residents. Once you are on Medicaid, it is hard to get into your first choice nursing home in an area like this. They say that even when patients start as private pay and then spend all their money they can often stay as a Medicaid resident. However in general, the Medicaid clients are given the lower quality rooms or the least desirable locations like near the elevator, laundry room, etc.
The most desirable nursing homes often won’t take Medicaid clients at all or limit the number of Medicaid clients they will take.
Therefore, I didn’t want dad to go on Medicaid as long as he could pay his own way. Also if anyone were to sell my parents home, I wanted to do it ourselves so that the nursing home or government agency wouldn’t take a share of the value of the house just for administration of the sale. I felt sure we could do it better and less expensively ourselves.
I was unsuccessful in convincing my brother to vacate the house while my father was alive. My brother believed as long as he dug his heels in, he would be able to stay there forever. This, in spite of the fact that he owned his own home in another state that was bigger and nicer than the one he was living in. Basically he wanted access to both houses for as many years as it took to move his belongings from dad’s home to his own home.
Here I will state that my brother is a hoarder. His belongings would take multiple 18-wheelers to move from one house to the next. He had little motivation to do the hard work of packing and moving so long as he was able to keep his access to both houses.