Co-authored by Joanna C. Feldman
This is a question that often comes up in the midst of the grief of losing a loved one. The thought of having to deal with bureaucracy, attorneys and Courts can be overwhelming.
The first step is to determine – to the extent that you’re able – whether your sister had any assets that must be distributed pursuant to the terms of her Will. We call these assets “probate assets,” and, legally speaking, they cannot be accessed without the Court granting authority to someone to access them. Your sister, by nominating you as the Executor in her Will, made it known that she would like the Court to give you that authority.
Probate assets are only those owned individually or without a beneficiary. If you are absolutely certain that, for example, your sister owned a joint bank account with you as beneficiary (or someone else) or an IRA on which she named you (or someone else) as the beneficiary, there are no probate assets. In that case, unless additional information is discovered, there is no need to probate her Will.
Sometimes, however, because the assets of the decedent aren’t fully known, probating the decedent’s Will becomes necessary. Banks, for example, will not (or should not) disclose any information about the decedent’s accounts without receiving proof that they are dealing with someone who has the Court’s authority to administer the decedent’s Estate.
If there are probate assets, it’s advisable to consult with an attorney as soon as possible about the probate process, as certain facts can increase or decrease the complexity of the probate proceeding and the probate process takes quite some time. This is one of the reasons why we often advocate the use of revocable trusts.
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