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A Will is not effective until processed through court

--- Conz Street Chronicle February 2021

I have had clients call me saying “I was just at the bank with my deceased mother’s Will. I am the named Personal Representative. But they won’t give me the money in my mother’s account. They said I need to go to court.”. Exactly. A Will is essentially a nominating document. It has to be “allowed” by a judge.

Is that easy? Generally not. Few projects involving court bureaucracy are easy. It is, however, if there is only $25,000 in the decedent’s name a shortcut is available. You can file what is called a “Voluntary Administration” which is basically a small estate without much of the aggravating paperwork and process.

But if there are more than $25,000 in assets then you will be left with no option but to process the decedent’s Will. This is called “probating the Will”. That means the completion of a 7-page petition to allow the Will and several other forms, filing them with the court and serving them on the interested parties and publishing.

Probating a Will can be a headache-inducing process. And lengthy. The pandemic and short staffing in the court has shown that.

There are many ways to avoid the hassle of probate: joint ownership, beneficiary designations, Revocable and Irrevocable Trusts and deeds retaining life estates.

If you want your beneficiary to have immediate access to your assets and not have to go to court, then consider some of the options above. But recognize that some of them have downsides. I had an elder who put her grandson on her bank accounts. He stole tens of thousands of dollars from his grandmother late in life which fouled up her attempt to gain Medicaid eligibility. The agency assumed that grandma gifted the funds since they were gone. We could not allege theft because grandson was named on the account.

If you aim to have your survivors avoid probate, then make sure every asset is accounted for. Today’s column was inspired by a client call as to two relatively small stock assets held in the deceased spouse’s name alone. All the other hundreds of thousands of dollars of assets passed seamlessly to the surviving spouse by way of joint tenancy or beneficiary designation. The stock was a loose end that will cause much grief that could have been avoided had the decedent simply sold it during the final years of his life.

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