do I need to have my Mom's will probated?

What is the name of your state? AL

I'm trying to decide if I need to get my Mom's will probated or not. She had a straightforward will splitting what she had between my siblings and I. I do not forsee any problems with anyone contesting her will. She did not own any property and all of her accounts CDs were jointly owned. There should not be any bills that she owes.

The only thing I'm concerned about is a law suit that I filed on her behalf last September. She was in a car that was rear ended and was suffered permenant injury to her brain from the accident. She was in the hospital and rehab for 3 1/2 months. When she came home she I had to hire a sitter so she wouldn't be left alone at any time. She suffered a massive stroke and passed away this April. The only bills that MIGHT apply would be her medical insurance wanting part of the settlement in repayment for what they paid out. She was almost 91 when she died and has lived with me for the last 7 years. I have handled her bills and so on for that time period, so I should be aware of any outstanding debts she had.

Also, since the accounts and CDs are joint accounts do I need to worry about taxes?

Thanks for any advice.

Cherie

Layman that has been there.
Probate is typically not required for accounts that are owned jointly or POD. The estate is responsible for any debts. Alabama follows federal law on inheritance tax so there is none on the first 2 million dollars you receive.

There may be no federal taxes but you would want to check with a local tax preparer or CPA to find out if there are any state taxes involved.

Cherie,

Check with the lawyer handling the lawsuit. In many states (don't know specifically about Alabama, but your lawyer will), only an exectutor has legal standing to continue a lawsuit on behalf of someone who has died. There will be a lien (as you suggested) for the medical bills related to the accident, which will have to be settled, and, again, it is likely only the executor will have authority to agree to such settlement.

Your situation is different than a wrongful death action (a lawsuit over an accident where the person is killed in the accident). In those instances, the lawsuit can typically be brought by the next of kin/survivors, etc. without the necessity of being the executor. In your case, however, you're dealing with a lawsuit that was filed while your mother was alive, and the estate must step into the shoes of your mother.

Again, your lawyer should be able to address this issue for you; if not, consult with a probate lawyer.

You need a lawyer.

"avoiding probate" may not be all that is cracked up to be, esp in mom's situation.

If you are trying to dodge the debt and distribute the assets before the suit (or just not have the lawsuit...) you need to think twice.

Also, you opinion about likelihood of contesting the will is just opinion. It would not change anything if a problem came up...

Esp. given mom was mentally incapacitated for a long period before death.

Do no distributions until this is clearly sorted with the aid of professional help.

Thank you for the replies. The estate right now is definately under $50,000, so it looks like I don't need to worry about taxes. I will check on the state taxes to be sure though.

I am the executor of her will and I had durable POA while she was alive. She had that drawn up 20 years ago and I never had to use it until this past fall. I filed the lawsuit on her behalf as POA since she was unable to do so at that point. The main reasons I filed the suit were a) I didn't know how much care she would need for the rest of her life due to the accident and b) I didn't want the insurance companies to come back and say "We aren't responsible because this injury was from an automobile accident". If the estate gets anything from it, great, but that wasn't my main goal. Medicare and her supplemental insurance has paid for all of her medical bills (I've paid for any small bills for deductibles from her accounts.) The lawyer has substituted me as executor in the lawsuit. I'm assuming that any liens would be in relation to the lawsuit and not the rest of the estate. Would that be correct or not?

Xylene, I'm not sure what you mean by "dodging debt". She didn't have any debt. Her medical bills were paid by her insurance. Since I'm the one who filed the lawsuit on her behalf to begin with, why would I want to avoid it? Mom wasn't mentally incapcitated for the entire time she lived with me, just since the car accident (a period of about 7 months). Any money I spent from her account was strictly for her benefit and I kept records to that affect. I do appreciate your advice, but honestly your post confused me.

Cherie

snowflake123 said:

I am the executor of her will and I had durable POA while she was alive. She had that drawn up 20 years ago and I never had to use it until this past fall. I filed the lawsuit on her behalf as POA since she was unable to do so at that point.

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The will NOMINATES you to be the executor. However, you are NOT the executor until the will has been filed with the appropriate court for your state and the judge issues the proper documents appointing you as the executor.

snowflake123 said:

Xylene, I'm not sure what you mean by "dodging debt". She didn't have any debt. Her medical bills were paid by her insurance.

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I'm only going by what you said. You, in your first post state you are worried about insurance trying to recapture money paid that was subsequently recovered.

Avoiding probate does not resolve that.

Since I'm the one who filed the lawsuit on her behalf to begin with, why would I want to avoid it?

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Well, lawsuits are time consuming, and you might lose, and still end up with bills. I really hope you get a measure of justice. I am just trying to make you aware of the downsides of not filing probate.

The lawyer has substituted me as executor in the lawsuit. I'm assuming that any liens would be in relation to the lawsuit and not the rest of the estate. Would that be correct or not?

There's your answer - you need to open up probate so that you can be the executor. You aren't until the probate process is started and you are appointed executor.

The liens will only exist to the extent that the lawsuit results in payment for the medical services that the insurance companies paid for.