What is probate?

Periodically I have a client who says to me, “Since I have a will, my estate does not have to go through probate, right?”  The answer is, “No, your estate may still have to go through probate.”

The word probate comes from the Latin word “probare” which means “to prove,” or “to test”  It is a process that we go through to make sure that bills of the decedent are paid and the heirs/devisees get clear title to the remaining assets.  Having a will just instructs us what to do with the assets.  It does not avoid the process.  If there are liquid assets worth over $50,000 or real estate solely in the name of the decedent, then there will be a probate proceeding.

It is possible to avoid probate.  Common mechanisms for doing this are (i) to own property in joint tenancy with right of survivorship, (ii) name a beneficiary on an account or insurance policy, (iii) make a stock or stock brokerage account TOD (transfer on death) or an bank account or bond POD (pay or payable on death) or (iv) use a TODD (transfer on death deed) for real property.  For all assets subject to such mechanisms, the will is irrelevant.  What the title paperwork says to do will be what happens.  By using such mechanisms, you have converted what would otherwise be a probate asset (governed by the will) into a non probate asset.

However, the ability to do anything very complex using such mechanisms is limited.  It is difficult to protect people from themselves or deal with minors or plan for multiple contingencies with non probate mechanisms.  Also since even with these mechanisms there may be bills that have to be paid, getting co-operation among the people getting assets to get the bills paid may be very difficult and more expensive than a simple probate.  The best mechanism to avoid probate and still deal with such issues is to create a revocable trust (commonly called a living trust) during your lifetime and put your assets in that trust.  While you are alive, you are usually the trustee and the beneficiary.  On your death we follow the directions in the trust but you have the same flexibility that you have with a will for leaving complex instructions and gifts in trust.  After your death we do this through a trust administration, not a probate. In New York, California and Florida the difference between a trust administration and a probate is huge.  In Minnesota, the differences are small but there still are differences.

Glick. "Jest Is For All." Bench & Bar of Minnesota Mar. 2015: 4. Print.

Which is better: to do a transfer on death deed or convey property to relatives during your life time?

The difficulty in comparing these two procedures is that each is designed to address a different issue.  In the following discussion the person who currently owns the property is called “grantor” and the person to whom the property would be transferred is called “grantee.”

Transfer on Death Deed

The principal purpose of a Transfer on Death Deed is to avoid probate. 

A transfer on death deed is a conditional conveyance of real property with the conveyance only taking effect upon the grantor’s death.  Once the grantor passes away, the property is transferred to the grantee by filing an affidavit with the county.  It is possible to do a transfer on death deed that takes effect only on the death of both joint owners.  It is also possible to have more than one grantee.

Advantages of a transfer on death deed are that the conveyance can be revoked; the grantor maintains complete control of the property during the grantor’s lifetime; and the property is transferred to the grantee without the need for a probate proceeding.  

In addition, the property passes to the grantee with a “stepped up” basis which is equal to the value of the property as to the date of death of the grantor.  If the property is sold at that time, the tax obligation to the grantee will be little or none. Since the grantee has no interest in the property until the grantor dies, if the grantee gets into financial difficulty, the grantee’s creditors cannot attach the property until after the grantor dies.  If the grantor knows about the financial difficulty, the grantor can revoke the transfer on death deed and make other arrangements that would protect the grantee from the grantee’s creditors.

The big disadvantage of a transfer on death deed is that it cannot be used to avoid paying for the cost of nursing home care.  As the conveyance of the property only occurs upon the death of the grantor, the county may consider the homestead an available asset and force the sale of the property if the grantor is no longer living in the home or the county may assert a claim against the homestead upon the death of the surviving spouse of the joint grantors.

Medical Assistance Planning/Transfer of Property

The principal reason people consider transferring property outright is usually medical assistance planning.

In order to protect property from being sold to pay for nursing home care or avoid a medical assistance claim from being asserted upon death, the property must be transferred to the grantee outright and more than five years must pass before any application is made for medical assistance on behalf of the grantor.  This 5 year period is called a “look back” period.  Any application made before the expiration of the 60 months–even by one day–will trigger the Medical Assistance ineligibility rules. During the ineligibility, the grantor must pay for the grantor’s own care.  The county can also require that the value of the asset transferred be transferred back.

The main advantage of transferring title to a grantee now is that, if the grantor satisfies the five year look back period, the property will pass to the grantee or grantees without being subject to a medical assistance claim. 

There are several disadvantages to putting someone in title to assets now.   The main concerns are as follows: 

1. After the time the deed is signed, the grantor no longer owns the property. Instead, the grantee owns it.  Each grantee has a right to sell or transfer his/her share of the property.

2. Even if the grantor does not put the grantee’s spouses in title, under real estate law, for any sale or mortgage, the grantee’s spouse will have to sign the documents. So, if the grantee decides to mortgage or put a lien on the property for some purpose, such as to fund repairs or improvements, the lender is going to require that not only the grantee, but also the grantee’s spouse, sign the mortgage or lien.

3. If the grantor wants to sell or refinance the property, the grantor must have the cooperation of all the grantees and their spouses.  Legally any proceeds are not the grantor’s but belong to the grantees.

4. Because the grantee owns the home, creditors of the grantee can attach the grantee’s interest and force a sale of the home.  Any proceeds that would otherwise have gone to the grantee go to the creditor.

5. If the grantor retains a life estate in the property, then a portion of the property is subject to Medical Assistance claims.  In order to avoid the County arguing that the grantor retained a life estate in the property, the grantor would have to pay rent for the grantor’s use on the property.

6. Since the grantor no longer owns the property, the grantee has more control over the decision of whether the grantor is healthy enough to continue living in the property.

7. If one of the grantees dies without a will, the grantee’s heirs will inherit that interest. If that heir is married, then the spouse of the heir would have to consent to any sale or mortgage.

8. ALL GIFTS made during the look back period count in the Medical Assistance calculation. So if  a grantor gives his/her children the grantor’s $250,000 house and sometime next year the grantor gives one of the children $20,000 to help with their unexpected financial problems, Medicaid will use $270,000 in calculating the grantor’s ineligibility during the overlapping look back periods.

9. If a grantor has a mortgage on the house and it has a due on sale clause (almost all mortgages do), the grantor’s lender has the right to call in the loan if the grantor transfers an interest without the bank’s permission.  That includes an outright gift of the house to relatives but not a transfer on death deed.

10. There are gift tax consequences if the grantor gives property worth more than the annual exclusion amount in any one year (currently $14,000).  Since everyone has a lifetime/death exemption of over 5 million dollars, the grantor may not have to pay a gift tax but the grantor still has to file a gift tax return.

11. If the house is gifted to the grantee without any retained interest in the grantor, there will be a carryover of tax basis to the grantee instead of a stepped up basis as would have been the case had the grantor died owning the property.  Between Federal and State taxes, that tax could be more than 20% of the gain in the home.  Depending on how much the property has increased in value while the grantor has owned it (the amount of the gain), it may not be advisable to do the gift. 

12. The grantee will not be eligible for the income tax exclusion for a primary residence when the grantee sells it if the grantee does not live in the house.

13. Although in Minnesota property that is gifted to one spouse is considered non marital property in the event of divorce, it is possible for the other spouse to make a claim against non marital property if that spouse has a need for assets or income.  This idea of non marital property is also not accepted in all states.  So, if a grantee gets a divorce, the property may be considered in making the property settlement, and the house may possibly be awarded to the grantee’s spouse.

You may also want to look at our page that discusses Medical Assistance and Homestead Property.

If I or my spouse goes on Medical Assistance, will we have to sell our home?

It is very common for clients to call and be worried that if they or their spouse has to go into a nursing home, the County will take their home away from them.  This is not the way Medical Assistance works.

First, the County does not take assets away from people who apply for Medical Assistance.  What the County does is say that it will not start paying bills for nursing home care until certain income and asset criteria are met. 

Second, the rules for what an applicant can keep classify a homestead as exempt as long as one of the spouses resides there. As long as you or your spouse is living in the home or has a reasonable expectation that you can return to the home, the County cannot force the sale of the home.    

However, when neither of you is living in the home, then the County can force a sale.  Also, if one of you has been living in the house and dies while the other is in the nursing home or after the other has already died, the County also can assert a lien against the home to pay for expenses the County has incurred for either of your care.