Q: Found assets that were unaccounted for, planning to open probate. Am I thinking clearly?

A: You should talk to an experienced probate lawyer in the state where your step-father received Medicaid and presumably where his property was located. Medicaid has a right under federal law to recover from your step-father's estate (with a few exceptions) the cost of his care that it paid for. (A transfer on death deed may or may not defeat their ability to recover that asset. ) But if Medicaid is paid and satisfied or will waive its right to recover from the estate, an heir or, if he left a valid Will, a devisee, may be able to use a "small estate affidavit" to avoid probate.

Each state has some form of small estate affidavit whereby an heir or devisee may sign under oath and with penalty of perjury to certain facts, such as: the names and addresses of all of the decedent's heirs or devisees, that all of his creditors (this would include Medicaid) have been paid or satisfied, that no probate proceeding has been commenced or completed anywhere for his estate, etc. The questions vary from state to state, and the estate must be below certain limits in value. Such an affidavit may be available to avoid probate, if title to real estate is not involved and if an heir/devisee can truthfully complete it and sign it. The big question is Medicaid's recovery right and the ownership of your step-father's property when he died. Justia.com can help you find experienced lawyers. Good luck.