Spouse has no assets. Home is JTWROS. Spouse equity interest as his name could not be taken off the loan w/out a refinance. Nursing home spouse owns nothing with resale value. The state will not need a 6 week publication notice/opportunity to file a claim. The bank will receive his death certificate and change the mortgage and public records to reflect I'm sole owner of mortgage/property. The state will notify me by the time I'm through with spouse's cremation. Between spouse's Medicare, private supplemental plan AND Medicaid very little in the way of medical costs will be outstanding.
If there is nothing to probate in our state, one is only required to file the will in the county probate court.
Forms have to be picked up at local court or through an attorney, filled out, and filed. Notice must be published for multiple weeks in local paper. Since the state will have already notified me of debt, publication does not serve a purpose. Going to court when there is no estate to probate is not normally required, but with Medicaid in the picture, it may alter the course.
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Now, if any assets are owned by only a deceased spouse, probate is required for everyone, Medicaid or no Medicaid. If someone dies without a will, probate is required.
In our case, estate recovery is already in the "master plan" whether the IS or CS dies first and regardless of whether one or both used Medicaid during their lives.
In my state Medicaid uses the expanded definition of "estate" which means all single, joint, trust, life estate, lawsuit settlement etc. will eventually be claimed by the state if anything remains. Most families have little to inherit, so many take a walk and let the state settle everything, especially if they are aging too.
On the debt side of things, all debts, secured and unsecured are owed. The auto or mortgage still must be paid. There is nothing to probate in the auto department as the car loan is in my name and there is no equity yet - so nothing for the state to claim on that if I die before it's paid off.
I've reviewed our mortgage contract and it spells out that mechanics liens or homeowner association liens come first before any other disbursements are made. Tax liens have to be paid. If the bank does not have assurances, free of Medicaid interference, it will not settle. The bank already has it's interest secured so does not need probate.
So my filing probate is of no value as far as I can see - but I may be missing something. As far as I understand Medicaid does not need probate in order to file a lien.
I will ask, when the time comes, if I can submit the notification to creditors in the local paper through the attorney. This will be like a social formality as we have no other debts. Probate would be more a more expensive way to notify everyone. The mortgage and Medicaid will already be notified.
Filing probate is quite expensive That's why I'd like to know if Medicaid trumps other laws that don't require probate for our situation. If yes, I need to determine how I will come up with the extra money for this process.
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Does that help?
That's in my state. In other states they do go after assets outside of probate. They may even go after assets in revocable trusts. Which are many of the trusts that people setup to avoid medicaid recovery. A irrevocable trust is better.