“My mom said she doesn’t want me to do probate for her estate.”
The daughter of a deceased woman called me complaining that the bank wouldn’t give her access to her deceased mother’s bank accounts and she couldn’t get the money out. The bank accounts had no joint owner and no beneficiary designations (POD, TOD, ITF). Mom had a will and her three children were named beneficiaries in the will. I explained to her that in order to obtain access to the bank accounts and distribute the money, mom’s will had to be probated.
The process of Probate means that the person who is named the “Executor” in a deceased person’s will has to file a probate petition with the Surrogate’s Court. After the court’s review of the petition, the original will, additional supporting documents, and its determination that the will is valid and acceptable, the court will issue a decree granting probate and issue “Letters Testamentary” to the Executor(s) named in the will. The Executor can then take the Letters Testamentary to the bank to evidence his or her authority to collect the funds on behalf of the estate and beneficiaries. It is only through this process that survivors can access bank accounts that are solely in a deceased person’s name.
Probate is a multistep procedure. There are filing fees, there is the need for cooperation by multiple family members and ultimately, there is the discretion of the Court. Once filed, the will becomes a public document, which can be viewed by anyone. Disinherited children or other close family can object and challenge the process. Letters Testamentary can be issued in two weeks, or in bad case scenarios, even two years. It can be a smooth process, but sometimes, it can also be a long or expensive one.
Sure, mom was right. Many people prefer to avoid probate. Where she went wrong was that she assumed that she could simply want to avoid probate and instruct her children not to probate her will, and her wishes could be honored.
The truth is, you can’t just want to avoid probate, you actually have to set everything up in advance, while you are alive.
The daughter can’t go to the bank and tell the teller to give her mom’s money “because mom said so.” The bank needs to follow procedures to ensure that accounts are only accessed by those legally entitled to them. There is a legal process and a person’s wishes must be reflected in a supported legal plan.
If mom wanted to avoid probate, she should have consulted with an experienced attorney who could have helped her set up her estate, the money and property she owned, so that it would smoothly transfer to her children, or any other chosen beneficiaries with minimal or no court involvement. There are several simple techniques that could have been implemented. Unfortunately, she didn’t. Mom’s wishes to avoid probate were not able to be honored because of her failure to plan in advance.
In the case of this family, ultimately probate was not as expensive, long, or scary as the daughter had anticipated. Mom had a valid will and we helped the daughter and her siblings through the probate process. The estate was settled smoothly and efficiently.
Probate will take some time, but in many cases, it is not bad at all.
One lesson that the daughter learned was to get her affairs in order now, to make it simple and smooth for her children whenever the time comes. She now has peace of mind and her children will thank her later.
We would be honored to help you get your affairs in order and give you and your family peace of mind. Call us today to start the process!
