If someone in your family, or a close friend, has passed away, you may be wondering what you are supposed to do next. Perhaps they have a Last Will & Testament and you are not sure whether it needs to be filed (or how) or if they do not have a Last Will & Testament, you may be wondering what you are supposed to do with their bank account or other assets.
A Last Will & Testament is just paper, without any power, until it is filed with the Probate Court. The Will is supposed to be filed within thirty (30) days of the Testator passing. Whether you file the Last Will & Testament “with Probate” or “without Probate” depends on the assets that the person owned when they passed away.
Probate Court is designed so that there is a consistent process to wrap up the affairs of someone who passes away owning assets. For example, if you own a car and want to give it or sell it to someone, you must sign a bill of sale and/or the title to transfer the car to them. If you pass away, you are no longer able to sign the necessary documents. The Probate Court appoints an Executor so that someone would be able to sign the necessary documents to give or sell the asset for the person who passed away. The Probate Court process also creates a consistent process so that people who are owed money know what to do to get paid, and to keep track of what happens with assets to try to prevent them from being lost.
Clear signs that you will need to open Probate are:
You will need to open Probate if: Someone has asked for your “Letters of Testamentary”, “Letter of Appointment”, or “Court Paperwork”; A financial institution is telling you that you need to open an “Estate Account” and need a “Tax ID number”; You cannot get information about the person’s accounts or sign checks for their accounts; and/or, you do not have “authorization” to sign necessary document to sell or donate an asset belonging to the person who passed away.
Please note: A Durable General Power of Attorney terminates at the death of the principal, so even if you had access to the accounts with this document prior to the person’s death, at the person’s death that access ends.
You may not need to open Probate if:
If all of the persons bank accounts and were held Jointly with another person, there were “Transfer on Death” or “Beneficiary” designations, or the assets were held in a Trust, and the person wrapping up the affairs of the person who passed has complete ability to access all of the assets, then you may only need to file the Last Will & Testament and not “open Probate”. Even if the majority of the persons assets were held in Trust, had Joint Owners, or Beneficiary Designations, there are still some instances where Probate becomes necessary.
It is not always straightforward to know when to open Probate and it may be worth your time to speak with an attorney to discuss the assets and the next steps in administering the Estate. For more information or to schedule an appointment contact us.