Legal Question in Wills and Trusts in California

Re: How can we avoid probate

If your power of attorney is specific to the real property (mentions the house by address) you may be able to deed it out of your mom's name and thus avoid probate. However, that can have negative tax ramifications so, even if you could do it, you may not want to. Most people do not have a specific POA so it's probably not an option anyway. As far as the probate goes, I recommend you hire an experienced probate attorney right away. Probate is 7 months minimum so the quicker you start the quicker you finish! Our law firm handles probates throughout California. Feel free to email or call if you have any more questions.

Re: How can we avoid probate

If your mother is able, she can sign a living trust and deed the house to the trust. Or, if the power of attorney specifically authorizes you to make a living trust, you can do it on her behalf (the terms should likely be the same as her present will).

Another way, if the house is her only asset worth more than $100,000, is by using a "revocable grant deed". This deeds the house to her beneficiaries, but the transfer is effective on death, so it allows her to change her mind before death. It also allows the "step-up" in basis for better capital gains treatment (the trust does as well, but is more expensive to prepare).

Re: How can we avoid probate

The only way to avoid probate is to get anything of value out of an estate 120 days before the person passes away; this must also not be done to avoid creditors (ans a few other restrictions). Alternatively, we suggest starting a family trust. Although a will decides how a person's estate is to be divided, it is still necessary for the estate to pass through Probate. A trust will keep all property out of Probate.

Please take a moment to learn about Probate and how to avoid Probate on our firm's site at NO-Probate.com.

Our firm specializes in Trusts and Estates, so please feel free to contact us to make a free consultation to go over your issues.

Scott

Re: How can we avoid probate

I am in Arizona. If the house is in Arizona my advice would be totally different than the previous answers. If the house is in California, see an attorney there, perhaps one who has posted an answer. If Arizona, you can speak with me in a free, no obligation consultation by calling to arrange it at 480.835.1500.

I would recommend a trust if possible. It avoids probate and gives powers now to handle the estate. The house will need to be sold after her death, or refinanced to pay the reverse mortgage. You can also request a complimentary copy of my audio CD, "Your Estate Plan" by calling the above number and mentioning Law Guru.

Best regards.

Re: How can we avoid probate

If she is competent have her set up trust, if not have her legal reprsentative (if the power of attorney authorizes such, which ost do) do it. Call me directly at 1.619.222.3504.