BY ATTORNEY SUSAN I. JEAN June 28, 2019
As an attorney my job usually is giving advice of what should be done. But sometimes my best advice is to just walk away from a situation.
I met with a potential client recently. She is very upbeat and funny, and on hospice as a result of her cancer. She has been on Medicaid for her medical care for many years. She lives in her own home, and still owns the home, as well as a small bank account, and her burial plot. Because of the very limited savings and income, as well as her physical limitations, she has not been able to maintain her home as she would like.
She wanted to name her sister (who has been her caregiver for many many years) as the executor of her Will and the beneficiary of her estate.
Fundamentally, the job of an Executor or Administrator of any estate is to collect the assets of the estate, pay the debts of the estate, and distribute what is left to whomever is entitled.
We talked about the situation. Because she has been on long-term care Medicaid for many years, the Commonwealth of Virginia is owed a debt for the cost of her care and will be entitled to claim any funds that arise from the sale of the home. There will be no money left for beneficiaries.
As a result, if her sister takes charge of the estate, her sister will not be able to inherit. Her sister would be responsible for selling the home, for locating and paying off any priority creditors, and turning the rest of the money over to the Commonwealth of Virginia. Her sister would be entitled to a small fee, which would in no way compensate for the time and trouble. Her sister will have all of the problems of settling the estate, without any real benefit.
My final recommendation here was simple: let your sister know that she has more than honored you with the care she has provided to you. When you pass away, the best gift you can leave to your sister is to tell her to just walk away. Tell her not to go to the courthouse. Do not qualify at the courthouse as Executor your or Administrator. Do not deal with your creditors. Her sister is not required to do any of these things unless she volunteers.
In other words, just walk away!
By SUSAN I. JEAN, attorney at law
As always, the facts here are somewhat fictionalized to protect the identity of the folks I meet with. But the situation is very real, and very common.