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What exactly is probate? My 96 year old mother is obsessing about probate. She told me when she dies, she didn’t want her will to go through probate.


I have POA and I am executrix of her will. She has a house in her name and her checking account is in both of our names. Her house is in her name only.


Does her will have to go through probate and exactly what does that mean?


My mother is obsessing over it. She wants me to call the attorney and ask him.

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Your mother can avoid probate by creating a trust, but to my mind all this is silly. When she dies you will hire an attorney for advice, he will file the will in court, your will get letters testamentary, sell the home, and distribute the assets of her will as she has directed. It would be more trouble at this point to create the trust, then get the HOME and other assets INTO the Trust, and etc. Tell your mother, in order to relieve her mind, that this is a simple filing simply done. You could do it YOURSELF if you were a mind of. I am Trustee of my brother's trust and I still got a lawyer just to be certain I was do EVERYTHING correctly, and to create the short document called "Certification of Trust" to give bankers instead of the trust. Tell her you will be capable of this and it will be easy for you and she did the right thing and not to worry. And if, on the other hand, she merely wants to talk to her lawyer then let her, and let him or her advise your Mom going forward. I think what may be happening is your Mom is hearing stories about estates going through probate when there IS NO WILL. That can be costly as the court takes something to appoint an executor, and etc. She has a will. She is fine. There is a kind of good small short simple book out there called Please Don't Die! But if You DO, What Do I Do Next. It is by Kurt Grube and Keith Grube with John Nevola. Has some of the simpler answers in it.
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Elaine; It sounds like, as usual, your mom is trying to suck you into her drama. (Sorry if that sounds cruel, but I think it's true).

If she wants to disinherit your brother, there is a way to do that legitimately in her will. She needs to call her lawyer.

If she wants to avoid probate and avoid having the estate pay for a probate attorney, she needs to set that up now. She needs to call her lawyer.

When she attempts to draw you into this drama, give her the lawyer's number and refuse further discussion.
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Barbbrooklyn, you are absolutely right!!! I’m going to stay out of it and let her call.
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AlvaDeer Sep 2020
Perfect, Elaine. That is what you should do.
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We both live in Upstate New York. When my father died, she didn’t have to go through probate because he transferred everything into her name only. Is there a downside to going through probate?
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BarbBrooklyn Sep 2020
Going through probate generally means that you need to hire a lawyer (at least my brother, executor of my mom's will, did; we were all glad because although it was a fairly simple "divide by three" estate, there were taxes to be paid, etc. Having a lawyer telling us that this was being done correctly was a blessing.). Is mom worried that you will need to pay a lawyer?
I think the thing is to find out "mom, why are you worried about probate? What do you fear might happen?".

Maybe there is a rogue relative who might challenge the will if it is public?
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Barbbrooklyn, she left my brother out of her will. But since I know this is WRONG, I am splitting my money with my brother.

I also know that if something happens to my mother that I will have to sell her house to pay for her care. I’m fine with that.
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http://www.nycprobate.com/894.html
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MJ1929, I do have durable power of attorney. I can sell her house. Her house hasn’t been updated and let go so it’s probably only worth 100,000 instead of 200,000. She gambled all her savings account so all she has left is 30,000 in her checking account. She does have a will and I am executrix.
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Don't you all have to pay probate fees in America? Avoiding that is usually the main reason people try to avoid probate here in Canada.
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Are probate fees expensive?
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notgoodenough Sep 2020
They can be very expensive, 10% of the estate, even including those assets that don't have to go through the probate process to be distributed, ie. a life insurance policy. It depends on the lawyer.
Generally speaking, any assets that have to be transferred from one name to another, such as a house, have to go through probate.
When my father died, many years ago, his estate had to go through probate, even though the assets were held jointly with my mother, in order to remove his name from the property. The lawyer wanted 10% of ALL the assets, life insurance, savings accounts, stocks, etc., including the value of the house. My mom found a different lawyer who charged her by the hour, and my mom did most of the legwork. Saved her thousands of dollars.
So yes, it can be expensive. But the alternative, placing the assets in a living revocable trust, will be costly as well as time consuming.
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It says in NEW YORK STATE a will needs to be probated if assets are more than 30,000. My mother is over that limit.
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notgoodenough Sep 2020
If the assets are held in trust, they do not have to go through probate. It's the main reason to set up a living revocable trust.
Real estate is more complicated to set up in a trust that liquid assets.
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