Dear Len & Rosie, My 85-year-old mother has an extremely modest estate consisting of about $10,000 in a money market account and her home furnishings and personal effects.

She receives social security benefits and a modest monthly pension from her previous parttime employment. She does not own a home. My father is no longer living.

My three siblings and I wish to avoid the expense of probate upon our mother’s death. Can we avoid probate by now establishing the account holding her $10,000, as a joint account with one of the siblings and simply divide her furnishings and personal effects as we choose, upon her death?

Jim

Dear Jim,

Since your mother has only $10,000 in assets, it’s pointless for her to spend two or three thousand dollars on a trust. There should be no probate upon her death. She has too little money. If your mother were to pass away with no joint tenants on her bank account, her estate will still avoid probate because its total value is under $100,000. You and your siblings can simply wait 40 days or more after her death and collect her accounts using a small estate declaration under California Probate Code section 13101. You may not even have to pay a lawyer to draw up the declaration, because many banks have their own small estate forms that already comply with the law.

But your idea is better. Using a small estate declaration, not only would your family have to wait 40 days after your mother’s death to close her accounts, but you would also become personally liable for your mother’s debts, even if they exceed the value of her estate upon her death. Small estate declarations are easy and convenient, but you should always be careful in using one, even for a simple matter such as transferring title to an automobile using DMV Form REG-5. You could wind up owing more to your mother’s creditors than what you inherit.

If your mother names her children as joint tenants, then you’ll have continuous access to her accounts, both now and after your mother passes away, and you won’t become personally liable for your mother’s debts after her death. In your mother’s case, joint tenancy is the way to go. But she shouldn’t just put one of you on her accounts. It’s better for your mother to name all of you as joint tenants.

Your mother doesn’t even need a will, because if she dies without one, her estate would pass equally among her children by intestate succession (the law about who gets what when someone dies without a will). If her accounts are in joint tenancy, then the only assets of her estate will be her personal possessions.

But your mother hasn’t entirely avoided the need for estate planning. She absolutely needs to have a durable general power of attorney and an advance health care directive. If she became incapacitated, and she doesn’t have these documents, then it may become necessary to put her into a conservatorship to give someone the authority to make important legal and medical decisions on her behalf.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, 996-4505, or  at www.lentillem.com. He also answers questions weekdays, noon-12:45 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.