If there is no will, must the estate go into probate? 27 Answers as of February 22, 2013

Mom passed without a will and owned an apartment with a large mortgage. She was receiving Medicaid at the time of her passing. Will Medicaid seek to recoup their expenses from the sale of the apartment?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Law Ofices of Edwin K. Niles | Edwin K. Niles
It sounds as if probate will be necessary, and yes, MediCal will seek reimbursement.
Answer Applies to: California
Replied: 2/22/2013
Lampton Law Firm LLC | Norman Lampton
This site is not a substitute for competent legal counsel.
Answer Applies to: Missouri
Replied: 2/20/2013
Richard J. Keyes Attorney at Law | Richard J. Keyes
If the net value of the apartment is over $40,000, then in Missouri you need to open up a full probate estate. Medicaid may come after the probate estate to recoup the expenses.
Answer Applies to: Missouri
Replied: 2/20/2013
Law Offices of Frances Headley | Frances Headley
An estate with no will must be probated unless it is too small. You should consult a probate attorney to review all of the facts and advise you if any of the small estate alternatives would work in this case and what Medicaid reimbursement is required.
Answer Applies to: California
Replied: 2/19/2013
Peters Law, PLLC
Peters Law, PLLC | Mark T. Peters, Sr.
Yes, it should probably go into probate. Call up Medicaid and see if someone can tell you how much Medicaid thinks your mother owes them.
Answer Applies to: Idaho
Replied: 2/19/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    Medicaid, or HMS in Colorado may assert a claim against the estate. They may have already filed a lien on the property. Generally, in Colorado, any estate that owns real estate goes through probate, referred to in Colorado as our system of simplified estate administration.
    Answer Applies to: Colorado
    Replied: 2/19/2013
    Scott Polsky
    Scott Polsky | Scott Polsky
    The Department of Public Welfare (DPW) will seek to be repaid from the sale of the apartment.
    Answer Applies to: Pennsylvania
    Replied: 2/19/2013
    Law Office of Pamela Braynon | Pamela Y. Braynon
    It is probable that Medicaid will attempt to recoup their expenses if the condo is sold. However, if this is your mom's homestead Florida does not allow creditors to place claims against the homestead. See an attorney familiar with the probate process.
    Answer Applies to: Florida
    Replied: 2/19/2013
    Law Offices of Gerald A. Bagazinski
    Law Offices of Gerald A. Bagazinski | Gerald A. Bagazinski
    Moms estate is subject to probate. MDCH will not recover assets from the home of a Medicaid recipient while one of the following individuals is lawfully residing in that home: 1. A Medicaid recipient's spouse. 2. A Medicaid recipient's child who is less than 21 years old. 3. A Medicaid recipient's child who is blind or permanently disabled. 4. A survivor who lived in the home and provided care that allowed the Medicaid recipient to remain in their home for at least two years immediately prior to the Medicaid recipient's admission into a medical facility. 5. A Medicaid recipient's sibling who has an equity interest in the home and who lived in the home for at least one year immediately prior to the Medicaid recipient's admission into a medical facility. Certain Medicare cost sharing benefits are exempt from Estate Recovery. The above exemptions are temporary. Additionally, MDCH will not pursue Estate Recovery if it would result in an undue hardship. What is an Undue Hardship? An undue hardship may exist when (1) the estate subject to recovery is the primary income-producing asset of the survivors (where such income is limited), such as a family farm or business; (2) the estate subject to recovery is a home of modest value; or (3) the State's recovery of a decedent's estate would cause a survivor to become or remain eligible for Medicaid. To qualify for an undue hardship waiver, the applicant must satisfy a Means Test. This ensures that an actual hardship would result. An applicant will satisfy the means test if both of the following are true: Total household income of the applicant is less than 200% of the poverty level for a household of the same size: and Total household resources of the applicant are less than $10,000. As stated above, there is a presumption that no hardship exists if the hardship resulted from estate planning methods where assets were diverted in order to avoid estate recovery. "Home of modest value" means a home that is worth less than 50% of the average price of a home in the county where it is located on the date the Medicaid recipient died. The average price of a home may be determined from the tax assessment values in the county. A "survivor" is an heir who did not die before the Medicaid recipient. The survivor must have lived in the Medicaid recipient's home for at least 2 years immediately before the Medicaid recipient went into a medical institution. The survivor must show that he or she provided care that let the medical assistance recipient stay at home rather than in an institution during that 2 year period.
    Answer Applies to: Michigan
    Replied: 2/19/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    Medicaid is entitled to be reimbursed. It is probably in your best interest to sit down with an attorney and go through your cases specific facts.
    Answer Applies to: Nevada
    Replied: 2/19/2013
    Norman Reitz | Norman Reitz
    Probate will be necessary. And Medical will recover, unless we help you prove a hardship.
    Answer Applies to: California
    Replied: 2/19/2013
    Law Offices of Robert P Bergman
    Law Offices of Robert P Bergman | Robert P. Bergman
    Generally speaking, if an estate in California is worth at least $150,000, or, if not worth that amount, there is real estate in California that is worth at least $50,000 fair market value, then an estate is required to go through Probate unless action had been taken ahead of time to avoid Probate, such as: 1. Property owned in a living trust 2. Property that had a "pay on death" beneficiary 3. Property owned in joint tenancy with someone who survived the person who died. Indicating that an apartment was owned with a large mortgage suggest that, even with the large mortgage, a probate may be necessary. If Medi-Cal was received by your mother as you indicate, it is also likely that the State of California will seek reimbursement from the estate, including from any equity in the apartment if and when it is sold. You should seek advice directly from an estate planning attorney in your area to determine just what needs to be done.
    Answer Applies to: California
    Replied: 2/19/2013
    Reger Rizzo & Darnall LLP | Kathleen DeLacy
    If she owned real estate an estate must be opened. Medicaid may put a lien on the real estate to recoup what they paid on her behalf.
    Answer Applies to: Delaware
    Replied: 2/19/2013
    The Center for Elder Law
    The Center for Elder Law | Don Rosenberg
    Frankly, the answer to your question is it depends. When did your mother begin receiving Medicaid benefits? This could be the determining factor whether the state has a claim.
    Answer Applies to: Michigan
    Replied: 2/19/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    The Oregon DHS will have a claim in your mother's estate for the benefits advanced to her under Medicaid. If selling the apartment is the only way to raise funds, then you'll have to. Of course, if anybody in the family can afford to buy it, that can be worked out; or you may be able to negotiate a settlement of the DHS claim. The estate goes into probate (technically, probate if there's a will, administration if there is no will). Spouse would be first in preference as personal representative, one of her children would be next.
    Answer Applies to: Oregon
    Replied: 2/19/2013
    The Law Offices of Laurie E. Ohall, P.A.
    The Law Offices of Laurie E. Ohall, P.A. | Laurie E. Ohall
    If the apartment was her homestead, then Florida Medicaid will not have a lien against it. Florida homesteads are protected from creditors, including Medicaid. However, the mortgage still must be paid (as they have a security interest in the house).
    Answer Applies to: Florida
    Replied: 2/19/2013
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    Assuming that the title to the property is in the mother's name and there was no language which would have transferred the property to a named person at death, so as by a joint tenancy, the only way to transfer title is through a probate. Since she died without a will, the intestacy laws of the state will control who receives the property through the probate. Since each state has different intestacy laws, you would have to consult a probate attorney as to who the heirs may be and the requirements for a probate. Yes, Medicaid may seek to recoup their expenses, but then again, you would be best served to consult an experienced probate attorney.
    Answer Applies to: California
    Replied: 2/19/2013
    The Wideman Law Center, P.C. | Susan Wideman Schaible
    If she was the only owner of the property, there will need to be a Probate to change the ownership to someone else. The will (if there was one) would have instructions on what to do with the property. Since there is no will, the State laws will determine what happens with the property.
    Answer Applies to: Michigan
    Replied: 2/19/2013
    Frederick & Frederick PLC | James P Frederick
    Your situation is not simple. Probate is likely needed, unless some estate planning was done. Are the apartments titled in mom's name alone? If so, it is possible, if not likely, that the State already has placed a Medicaid lien on them. It is likely that that will happen, once probate is started, if it has not happened, already. There may be some exemptions, depending on the circumstances.
    Answer Applies to: Michigan
    Replied: 2/19/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    Yes you will need a probate to clear title to the property and to determine who the heirs are, and yes Medicaid will have a lien on the property; however, you may be able to compromise the lien with Medicaid.
    Answer Applies to: California
    Replied: 2/18/2013
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    Even is Mom had a will it would go into probate. If it's California, then yes, Medi-Cal will get reimbursed.
    Answer Applies to: California
    Replied: 2/18/2013
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    An estate must be probated whether there is a will or not. Where property of any kind is to be managed the executor is the one to do it. In the case where Medicaid funds are being used then recovery is likely.
    Answer Applies to: Georgia
    Replied: 2/18/2013
    Randy M. Lish, Attorney at Law | Randy M. Lish
    If there is any property with a title that needs to be changed the only way to do so is go through probate, and have a personal representative (executor) appointed by the court to transfer the title. If the estate is less than $100,000.00, and the deceased was a resident of Utah, you can use a small-estate affidavit to collect the assets and then transfer title.
    Answer Applies to: Utah
    Replied: 2/18/2013
    Law Offices of Terrell Monks
    Law Offices of Terrell Monks | Terrell Monks
    In Oklahoma the real estate (and any other assets) would pass through probate and it is reasonably likely that the state would file a claim for Medicaid benefits it paid to or for your mother. Medicaid might be willing to compromise its claim to assure that there is money for the probate and maybe some money for the family as well.
    Answer Applies to: Oklahoma
    Replied: 2/18/2013
    James Law Group
    James Law Group | Christine James
    Yes the apartment must go through probate if you want to pass it down to your mother's heirs. There will likely be a medical expense recoupment claim against the estate.
    Answer Applies to: California
    Replied: 2/18/2013
    Winnick Ruben Hoffnung Peabody & Mendel, LLC | Daniel N. Hoffnung
    If she owned real estate, it must go to probate.
    Answer Applies to: Connecticut
    Replied: 2/18/2013
    Edward L. Armstrong, P.C. | Edward L. Armstrong
    If your mother had assets in her name alone and debts you should retain counsel and have the attorney open a probate estate. The State of Missouri may seek reimbursement from the estate for her Medicaid benefits.
    Answer Applies to: Missouri
    Replied: 2/18/2013
Click to View More Answers:
12 3 4 5 Free Legal QuestionsConnect with a local attorney