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Note: Not sure if in correct forum, however, posting here due to the fact that many have dealt with this issue (parents, spouses, etc)
Have gotten 2 different opinions from attorneys - thought we were all set.
However, one attorney stated that once the person dies, the POA also "dies" (we did know this) but then anything with the deceased person's name on it has to go through probate.
So, in other words, it sounds like the person with POA has to transfer all assets into his/her name to avoid probate, right?
Person who has POA is only child and yes, mentioned in the will that all goes to him.
In general you are correct that the POA dies and all the assets in the deceased name has to go through probate.
Does the power allow the child to transfer assets to his name? Unlikely that this is a good move legally so I would ask an attorney for a written opinion.
The transfer would be a gift and subject to the gift tax rules. Probably no tax but forms to file. You also would lose the step up in basis.
Their is a summary probate you can do without and attorney. Assets have to be under 75,000. House does not count as part of the 75,000.
Best to title assets in owners name with a TOD (transfer on Death) or naming the child as beneficiary to avoid probate on those assets.
You might want to state if the assets are under 75,000 and in general what assets you are discussing and how are they titled and who is the beneficiary to get a better answer.
Is the person deceased? If not start changing the account titles. Be careful the child should not become an owner of the account only a beneficiary or a TOD.
The child in this case is my husband, the only child and named in the will as such. If something happens to my husband first, the assets go to our 2 children (in their 20's) - (No, I was not listed!!)
The 2nd attorney we talked to is the one who talked about transferring the assets into my husband's name before my FIL passes away. The TOD or POD account is also fine.
My husband has been a joint account holder on these accounts since 2005.
Met with 2 attorneys but they dealt with wills, trusts, etc. Not actually identified as an elderlaw attorney.
The initial meeting was years ago and we got certain things set up, however, the 2nd attorney was someone over the phone just a few days ago who brought up other issues.
We do not have much time left and thought we were prepared.
Here's the issue: The single family home is titled in both names - FIL and my husband. Long time since 2005. The home is in disrepair and needs work, however, FIL will not allow any work. We thought OK, once he passes, then we can do the renovations and get it rented. However, this may go to probate with what I am hearing and that could take a while. Trying to avoid all that. (could be some code violations from the city also - not sure - due to disrepair).
Florida recognizes transfer on death financial accounts (bank, brokerage, etc.). That sets up the transferee as a beneficiary on the account, which usually just requires the beneficiary to present a death cert to get the account. Florida does not allow a transfer on death deed for real property.
How the property ownership moves after your FIL's death depends on how the house is titled with your husband. If the house is titled jointly with right of survivorship (and I think, in Florida, it has to be expressly stated), then your husband will become sole owner on your FIL's death. Until then, he is an owner and can be sued, fined, etc. If there are no survivorship rights, then your husband owns half of the property and your FIL owns half. Your FIL's half will have to be dealt with in the will. You can still get the house retitled to meet your needs if your FIL is willing. You could also consider transferring full ownership to your husband and having your FIL retain a life estate. An elder law attorney should be able to discuss the options.
Sounds like the attorneys are not giving you good advice. I would look for an elder attorney who also understands taxes as related to estates.
Sounds like you can get your estate under 75,000 plus the house. Not sure how the house gets counted since your husband is on the title. My recommendation is to change the accounts to TOD and remove your husband's name. My assumption is that the money was 100% contributed by his farther. He can retain check signing rights with the POA.
I would say the title to the home goes back to his father but this can be a problem so I would consult with an attorney. Might consider a Lady Bird deed. This is not the legal name but do a google. This should avoid probate. I do not know costs but it cost just as much to do this as to let the house go through probate.
When my father died he owned a modular home in an over 55 neighborhood. He had but me on the deed. I found out that it is important what conjunction (and/or) is used. If "or" is used then the survivor owns the property in its entirety. If "and" is used the 1/2 of the property is owned outright by the survivor and 1/2 is probated by the will. My dad used "or" so it was much easier for me. Hope this helps.
We are going through this now. My mother passed away and my father has refused to have anything to do with probate. Not sure how this is going to eventually pan out. They owned property together.
When my father died he owned a modular home in an over 55 neighborhood. He had but me on the deed. I found out that it is important what conjunction (and/or) is used. If "or" is used then the survivor owns the property in its entirety. If "and" is used the 1/2 of the property is owned outright by the survivor and 1/2 is probated by the will. My dad used "or" so it was much easier for me. Hope this helps.
The word "and" was used.
I am being told that my husband (has the POA) can actually change this from his dad to himself.
It can't be done for a few days, however, and we don't have a lot of time left.
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Assets over 75K not including house
