August 2024.
Q: My mother just died. Do I need to do probate?
A: If there was anything just in her name, with no living joint owner or beneficiary, then we have something that nobody owns. Nobody can take money out of a bank account that nobody owns; nobody can sell a car or house that nobody owns. “Probate” is the way we get someone appointed by the court to take care of an asset or account that nobody owns. If all of your mother’s assets and accounts had joint owners or beneficiaries, no probate is necessary.
Q: My mother is the only owner of her bank account. My mother’s will says I get everything and that I’m the executor. Can’t I just take that to the bank?
A: Sorry, that’s the stuff of old movies, but not how we do things now. The bank isn’t in the business of figuring out whether the will is valid, or whether it was forged or procured by illicit means like undue influence, or whether it is the latest will or has been revoked by a subsequent will – and the bank doesn’t want to be sued for honoring the wrong will. So they’ll send you to the Register of Wills so they can figure all that out and then appoint you or whoever as “Personal Representative” of your mother’s estate or “PR.” Your mother’s PR is the only person who has the right to take money out of your mother’s bank account, but her PR can only deposit it in a new account in the name of your mother’s estate, and use it for proper estate purposes.
Q: How do I do probate and become PR? The bank said I need something called “letters of administration.” Is that “probate”? Is that something you can give me?
A: You do probate and become PR, and get Letters of Administration, by filling out forms and taking them to the Register of Wills. The Register will review the forms and, if everything is satisfactory, appoint you as PR and give you Letters so you can close your mother’s bank account and open a new account in the name of the estate. If the account is a small one, the process might be very simple, but if it’s larger, the process gets more complex. Of course, if there are more assets subject to probate – that is, only in your mother’s name with no living joint owner or beneficiary – the complexity only increases.
Q: Do I have to hire a lawyer?
A: No, the process does not require a lawyer, but many folks feel that at least consulting with one at the beginning of the process is helpful. Some want the lawyer to complete the paperwork and direct the process and just tell them where to sign. It’s up to you. The more complex the situation, the harder it is to do on your own, unless you have unlimited time and patience.
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Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771
(301) 829-3778
Wills & Trusts | Estate Planning | Probates & Estates
Elder Law | Real Estate | Business Planning