An Executor is the person who manages a probate estate. The Executor must be appointed by the court to do this job. In Arizona we call an Executor a Personal Representative. The Appointment is made by a document called Letters of Personal Representative. This is important because even though a Last Will and Testament may say, I appoint my son JJ Jones to serve as personal representative. JJ cannot act until the Last Will and Testament is admitted to probate court and the Letters of Personal Representative have been created.
Executors must Communicate
An Executor must communicate with all of the beneficiaries of the probate estate. That is fine. Except most people transfer assets upon death without a Last Will and Testament. In Maricopa County about 90% of the people who die, don’t have Last Will and Testaments. So, what does that mean to you?
If there is no probate, no one is ever notified at all.
Most assets pass to beneficiaries by a process known as ‘Operation of Law’. That means that when someone dies the assets pass automatically to someone, not through probate. No probate: No notice.
If the deceased love one has life insurance, most times, the life insurance goes directly to the beneficiaries named in the life insurance policy. No one else is notified.
Real estate is often titled as joint tenants with rights of survivorship. That means when the deceased loved one dies, the real estate passes to the surviving joint tenant. If your loved one is married, it generally goes to the spouse, and not the children. No one except the spouse, is notified.
Bank Accounts are also titled as joint tenants with rights of survivorship. So, if Dad dies, and the account is in joint name, the bank assets pass to the surviving joint owner. This happens automatically on death. Once again, no one has to be notified.
IRAs and Pensions
The same is true with IRA accounts and Pensions. IRA accounts pass to the beneficiaries named in the IRA account. Pensions pass to the beneficiaries named in the pension account. There is another rule with pensions. Pensions have to pass to your spouse if you are married. If not, the assets pass to the named beneficiary. No one else is ever notified.
When there is a Probate
You need a probate when a person dies, and the asset cannot pass to a beneficiary without a court order. In JJ Jones’ estate he owned his home. He wasn’t married. No one else’s name is on the deed. In that circumstance a probate will have to be opened to decide the new owners of the property.
If there is a Last Will and Testament, the court transfers the real estate to the beneficiaries who are named in the Last Will and Testament. If there is no Last Will and Testament, then the statutes of the state where the real estate is located, makes that decision.
That’s not Fair
I understand that it’s not fair. It may not be what JJ Jones’ wanted. It may not be what JJ Jones’ told you. It may not be what you were promised. But the court cannot care about that. Since 90% of Americans die without any estate planning, the state, every state in the U.S., must have a default clause. So, for all the JJ Jones’ in the world who don’t do their estate planning, there is still a way to pass these assets to the living.
Who is Told about the Probate?
The people who have to be told about the probate depends on where JJ Jones’ lived. In some states, only the people who are named beneficiaries have to be told. So, if JJ took you out of his will, you would not need to hear about the probate from the Executor.
What if there is no Last Will and Testament?
If there is no Last Will and Testament the court opens an intestate estate. Intestate means without a Last Will and Testament. If JJ did not have a Last Will and Testament and an Intestate Probate is opened, only the heirs at law have to be told.
So, let’s say JJ is your grandfather, and he promised you his car. Usually, in an intestate probate only the spouse or children are told about the probate. Even though you were promised the car, the Executor would not tell you that a probate was opened. You would not be on the list. Also, you probably won’t get the car.
Do your estate planning
If the Last Will and Testament were done properly you would have to notified. The Last Will and Testament needs to say something like:If the Last Will and Testament were done properly you would have to notified. The Last Will and Testament needs to say something like:
I give my grandson Louis my car.
Then, the Executor would have to notify Louis about the probate. The Executor would have to send Louis a copy of the Last Will and Testament and the Letters of Appointment. Louis would have to be informed.
Without Estate Planning
If the Last Will and Testament is not prepared, or if it is prepared incorrectly, Louis would not have to be informed and he would not receive his inheritance. It is absolutely essential that the estate planning is done properly. If its you, get to a qualified estate planning attorney immediately. If you have a loved one who needs to do their Last Will and Testament or other estate planning, then you need to help. Get your loved one the help they need.
Have you done your estate planning with a qualified attorney?
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