Elderly aunt died, now what? Difficulty: Mass Health & pooled trust
July 18, 2016 5:20 PM   Subscribe

We're a little stumped about what to do and in what order. I've had my aunt's power of attorney for many months, but now since she has died I'm told that that no longer applies. She left a will leaving her belongings to be split evenly among her remaining siblings. However! Medicaid/Mass Health complications.

We had to put the majority of her cash into a "pooled trust" for her to qualify for Medicaid (she ran out of Medicare after many months of hospitalization). The closeout process for the trust seems pretty straightforward: Mass Health (Medicaid) has four months to claim whatever they are going to claim from the trust. Anything left over, if there is anything after trust fees, goes to her two sisters. However again! She owned a condo that Mass Health has attached a lien to, which I'm told is a standard step in the process. Obviously we will put the condo on the market, but it seems like we will have to do it basically immediately—because condo fees and quarterly real estate tax and she doesn't have much money left to keep that stuff going and it can't get paid out of the trust anymore. She owns the condo, its contents, and her 11 year old car outright.

I guess I'd like any insight into this process, if you've been through it or something similar. I know you're all going to say get a lawyer, but we already spent a lot of money on an elder care lawyer to go through the trust process and the Mass Health application, so I'm kind of gun shy about getting another one if it isn't necessary. I assume we have to go through probate, but I'm not sure if that requires a lawyer or if a person can file without one. When my Dad died we used an attorney and went through probate, but we felt really ill-used during that process because my Dad owned basically nothing except a very small bank account and it seemed like an enormous waste of money.

My aunt's will specified her brother as executor, but he's dead. Nothing is contested or will be. We just want to settle everything up and move on. Is there a simple and not-expensive way to do this? She has no creditors other than Mass Health (maybe a few small medical bills otherwise but I haven't received any at all). I haven't called Mass Health yet. I wanted a bit more info before I made that call.
posted by clone boulevard to Law & Government (11 answers total) 1 user marked this as a favorite
Who is the named executor of her will? That person will be the point person for all of this of not in practicality, at least in name. I am not a lawyer nor have I dealt with this situation directly, but getting a death certificate and letters of testamentary . From there, authority to do stuff is derived and you can start paying the condo bill out of the trust, sell the car and sign the title, etc.
posted by AugustWest at 5:56 PM on July 18, 2016

The OP says that her aunt's will named her aunt's brother as executor, but he's dead.
posted by virago at 6:08 PM on July 18, 2016 [1 favorite]

Lawyer up
posted by patnok at 6:17 PM on July 18, 2016

Lawyer up, most likely a Judge will be in charge.
posted by patnok at 6:18 PM on July 18, 2016

Missed that a dead person is the executor. That will not be very productive. I think that you need to talk to a lawyer, but that can be a short conversation about what to do. You just need guidance on how to proceed, but I think you, or your family, could do most of this on your own. Once you get a path to an executor or a legal rep for the estate, then you all just plow through the details of selling and distributing the remaining assets.
posted by AugustWest at 6:20 PM on July 18, 2016

Response by poster: Not to threadsit, but my cousin is a corporate lawyer. She's in CT. I was kind of hoping she'd be able to do any of the filing. Do we need to have a judge appoint an executor if we all are in agreement?
posted by clone boulevard at 6:53 PM on July 18, 2016

Best answer: It depends the laws of the specific state how easy it is to settle up a small estate (that's what probate is). Here is the introduction to the laws of Massachusetts. And here are the fuller set of guidelines. I would start by asking your cousin the lawyer to take a look at this and see what can be done.

Someone is going to have to appointed executor so they have the authority to take care of what needs to be done. The document goes on at length about who has priority for being named for the job so again maybe your cousin can help you figure out how hard this is going to be.
posted by metahawk at 8:55 PM on July 18, 2016 [1 favorite]

Best answer: IANAL.

I had to deal with a vaguely similar situation a few years ago when my sister died. You definitely want a lawyer. They need to be credentialed (wrong word) for the county in which your aunt died to do the filing, so odds are your cousin won't be able to do it, unless she passed the Mass bar and is up to date on her dues. You also want someone who is familiar with all the specific MA timing - stuff has to happen in the right order, and within specific timeframes.

Given that there's property and creditors involved, a judge definitely needs to assign an executor to handle things. If you're willing and no one in the family objects, the lawyer can suggest you; since you were the POA, you're clearly someone your aunt trusted with her legal affairs. Or the lawyer can be the executor; they'll get a fee from the estate, but you'll have a big burden off your shoulders.

Get a lawyer, have him/her talk to the town and condo association. If no one's living in the condo, there should be a way to stop all payments on it, especially if MassHealth is involved; they are at the front of any line. IME, things basically get put on hold while probate is sorted out.

In MA, probate lasts a year from the day that the death announcement is published in a local paper (assuming there are no issues with the estate that cause delays). The lawyer will take care of that, too, and if my lawyer is anything to go by, will pick the smallest, most local paper they can, to reduce the odds of it being seen by random people/companies. Creditors have that full year to make a claim against the estate, after which they are out of luck, and the estate can be distributed.

Really, though -- lawyer. They know this inside and out, and will make sure it goes smoothly and explain things you don't understand.
posted by current resident at 8:56 PM on July 18, 2016

You knew from the outset that the right answer as to the first step was going to be to consult a lawyer.

But, depending on the value of the condo and the size of the lien, one possible answer that the lawyer might suggest is: walk away. Leave it to the state of Massachusetts to open an estate as creditor and to deal with all of this. Whatever is left over will come to the sisters anyway.
posted by megatherium at 4:17 AM on July 19, 2016

Yeah, there is really no way around the lawyer in this situation and, what's more, you need a MA estate lawyer, not your cousin. An estate lawyer will make sure every little thing is dealt with and there are a lot of little things. So many. I am still embroiled, one full year later, as the executor in a similar thing and you would not believe how much work it is even with a lawyer. I don't even want to imagine what it would be like without one. Really, seriously, find an experienced estate attorney now.
posted by mygothlaundry at 8:52 PM on July 19, 2016

Response by poster: OK, ok, we got a lawyer. We're still in the middle of the "getting someone else named as executor" process, and in the meantime we're busy cleaning out the condo. We should be able to list the condo in a couple of weeks, as soon as the executor is settled. Some steps the lawyer had to take: notifying my aunt's two remaining siblings that there would be a new executor and getting their approval. Notifying all existing other relatives (my other cousins). Getting an original copy of her will. Getting an original copy of her death certificate. We are under the impression that the estate's bills, the lawyer fees, and any burial costs can be paid first, before Mass Health gets their cut, but we will see. I will try to remember to update one more time with how the process goes.
posted by clone boulevard at 3:08 PM on September 14, 2016

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