Probate Problems

Friday, May 8, 2015

UnhappyHere is an example of a common question we receive in relation to probate: “My mother recently passed away. I believe I have an inheritance, but I do not have a copy of her will and the Executor will not share it with me. What are my legal rights in this situation?”

I posed this question to Attorney David Banas, who said…

If you are entitled to an inheritance, the legal system is in place to ensure that you will receive it within due time and process. When someone dies, their assets are either probate assets or non-probate assets. For example, if two spouses are joint owners of a checking account and one spouse dies, that account is a non-probate asset because the surviving spouse has the legal authority over the account already. Likewise, if an individual dies who owns an IRA, the account will pass to the named beneficiary by operation of law, without the need for the involvement of the probate court and an Executor or Administrator. On the other hand, when a person dies owning property without any beneficiary designated, the property is said to be an “estate” or “probate” asset.

Imagine a man who owns a home, and a savings account worth $100,000. He designated his daughter as “payable on death” beneficiary on the account when he opened it. He owns the home outright and it is in his name alone. He has a Last Will & Testament that gives everything to his son and daughter in equal shares and names his daughter as the Executor. He dies. The savings account is not an estate asset. Because he named a beneficiary, all the daughter has to do is provide proof of her father’s passing to the bank, and they will transfer the account to her. The son has no right to those funds legally, nor does he have any right to know that they even exist. However, the house is an estate asset. In order to transfer title to the home, the probate court must appoint someone to take control and report everything to the Court. The daughter would admit the Will to probate, where it becomes a public record, and the son would be entitled to notice. The probate court would appoint the daughter as the Executor, and then she is required to file an inventory of all the estate assets, an accounting, pay estate debts and make distributions according to the Will. Note that the savings account is not part of the estate and therefore not included in the inventory.

Whether you are a beneficiary of a probate estate or a trust that’s outside of probate, if you are entitled to anything, the Executor or the Trustee has a duty to inform you. If you are the designated beneficiary on assets, you may need to do some investigating as to what assets are out there. An attorney will counsel you to ask the right people the right questions and ensure your rights are protected.

Of course, this is for general informational purposes only. If you find yourself in a challenging probate-related situation, you should consult an attorney directly regarding your specific needs. In the meantime, I hope we were able to shed some light on a sensitive issue faced by many families.

- Posted by Jill Fowler

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