Estate and Elder Law Q&A

Frequently asked questions

I have a will. Doesn’t this avoid probate?

A will tells the probate court how you want your estate distributed after death and who you want to handle carrying out the terms of your will. There are different ways to avoid probate such as setting up and funding a trust, adding names to assets, or adding beneficiaries to assets. Sometimes, however, probate is the best solution. There are many things to consider and each situation should be analyzed by an estate planning attorney.

Should I add my children’s names to the title of my home?

Adding names to the title of your home can avoid probate. However, you will lose the complete control you have over your real estate. Any other people on your title and their spouses are required to sign any paperwork regarding your house. Your children’s creditors could place a lien on your home, anyone suing your children could try to attach their interest in your home, your home could be seen as an asset if your child filed bankruptcy or your child could get divorced, creating problems for your title. In addition, you could lose your ability to get a tax refund and you may not qualify for certain grants, government benefits or mortgages. It is best to consult an attorney to review your particular situation.

How much can I give my children without penalty?

You can give any individual up to $14,000 per calendar year without preparing a gift tax return. However, this amount has nothing to do with Medical Assistance (Medicaid) and nursing home care. The laws have changed radically and gifting is no longer possible unless it is done more than five years before needing Medical Assistance. Transfers can be made between spouses in certain situations. It is very important to consult an attorney familiar with Medical Assistance laws as these laws change frequently.