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Elderlaw Advocates

Elderlaw Advocates

 

Len Tillem & Rosie McNichol

Dear Len & Rosie,

My mother is 75 years old and receives Supplemental Security Income (SSI). She has somehow managed to incur $15,000 of credit card debt. Every time she received something in the mail offering her a good deal, she’d sign the pre-approved application and a few weeks later she’d have another credit card. I finally put a stop to this when I got involved in her finances. My mother owns nothing except for two insurance policies worth $10,000. Should she declare bankruptcy? Can bill collectors demand payment from mom’s insurance money after her death?

Andrea Dear Andrea,

Your mother can declare bankruptcy if she wants to, but it isn’t really necessary. She owns next to nothing. Since she is on SSI from Social Security, the total value of her countable assets has to be less than $2,000. Her life insurance policies are certainly term life policies with no cash surrender value, otherwise she wouldn’t be eligible for SSI. Since SSI payments are exempt from attachment, your mother is judgment-proof, if only because the consumer lending industry hasn’t yet figured out how to squeeze blood from a turnip.

If your mother’s insurance policies do not name her children as beneficiaries, then she should change that now. She gets Medi-Cal benefits automatically because she collects SSI. Upon her death, the California Department of Health Care Services will assert a claim against anything she owns in her estate that isn’t spent on her funeral and burial expenses. If the insurance pays into her estate, it will be subject to the Medi-Cal reimbursement claim, and anything left after that will wind up going to your mother’s creditors.

If you are the beneficiary of your mother’s life insurance policies, then the money will pass directly to you upon her death. Since the insurance money will not be part of her probate estate, it will not be subject to the claims of her creditors. You will not have to reimburse Medi-Cal either.

You are not legally obligated to pay your mother’s debts, but this will not prevent her creditors from asking you to pay them off after your mother’s death. If they do, mail them a photocopy of your mother’s death certificate with a note telling them that your mother died with no assets and that she was on SSI and Medi-Cal. That should take care of it. If they continue to ask you for money, give them nothing.

Len & Rosie Dear Len & Rosie,

My mother died three years ago. My father is still alive. We are trying to upgrade the house. My father granted me the right to the property, but when I tried to apply for a loan, the title company told me that my mother still owns 1/3 of the property. The title company suggested that we have to do a probate since my mother died without a will. Is it necessary to do probate, since my father is still alive? And what will be the easiest and most inexpensive way of clearing title?

Jose Dear Jose,

Most married couples buying property together purchase their homes in both spouses’ names as joint tenants, or more recently, community property with right of survivorship. When parents add their children to the title of their home, they usually title the property in joint tenancy. Joint tenancy is cheap and easy to deal with — all you would need to do to remove your mother’s name from the title to the home would be to sign and record an Affidavit of Death of Joint Tenant with a certified copy of your mother’s death certificate attached.

Since we do not have a copy of the deed to your parents’ home to review, it’s probably safe to guess that the property was either titled in your parents’ names as community property, or maybe as a tenancy in common. Either way, your mother’s interest in the home belongs to her probate estate and may be subject to probate.

A full probate shouldn’t be necessary. It’s almost certain that your parents’ home was their community property, as it was likely purchased with money they earned during their marriage. Since your mother died without a will, her husband inherits all the community property by “intestate succession,” the law that says who gets what when someone dies without a will.

Instead of filing for probate, your father can hire a lawyer and file a Spousal Property Petition. Unless someone objects, claiming that the home really wasn’t community property, the judge will grant the petition and issue an order transferring your mother’s interest in the home to your father. A Spousal Property Petition is much quicker, cheaper and easier than filing for probate. Once you record the court’s order, you and your father will have the clear title necessary for the title company to close escrow on your loan.

After that, your father should review his own estate plan, if only so you may avoid the problems you are dealing with now again after your father passes away. He should either hold title with you as joint tenants, or he could create a revocable trust.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at lentillem.com.

 

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