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Probate after your Spouse Dies?
by Mark A. Krohn, Esq., Partner
Jacobowitz & Gubits, LLP
Why Use an Elder-Law Attorney?
by Mark A. Krohn, Esq.
Jacobowitz & Gubits, LLP
A client recently asked why he needed to hire an Elder-Law Attorney verses an estate
lawyer to prepare a will, health care proxy, and a living will for him and his wife.
Elder law attorneys guide clients through the legal complexities associated with long-term
health care, guardianships, and disability planning, subjects not usually known or often times
considered by the estate planner. For example, I was able to recently prevent problems with a
client's Health Care Proxy which would allow her agent to place her in a nursing home if need
be. Elder-law attorneys place special emphasis on preparing for illness or incapacity.
Who generally hires an elder-law attorney?
Elder-law attorneys are often times retained by either the senior adult or by someone
acting on his or her behalf. In any event, the elder-law attorney holds the senior's interests
paramount and seeks to satisfy the senior adult's desires or needs first. In other-words, the senior
adult is generally the attorney's client, not the person assisting such person. For example, Dick
came in and explained to me that he wanted me to prepare a deed to his father's house to avoid
the necessity of probating his father's estate. I asked Dick if I could speak with his father and,
after some difficulty, was given his father's telephone number. We called his father together
whereupon he explained that he had no intention of transferring his home to anyone, including
his son. Thus, preparing the deed would have just been a waste of time since it became quite
clear the Dick's father was not going to transfer his home. Matters turned out for the best,
however, because we did make an appointment to see Dick's father and met with him and the
entire family separately. The purpose of meeting with the father separately from the rest of the
family was due to our concern with "client confidences", since the father was our client. Based
upon our meeting, we were able to provide an elder-law plan for Dick's father that he understood
and was happy with.
How do I find an elder-law attorney?
Remember that this field of the law is fairly new. There are some attorneys that call
themselves elder-law attorneys but have no or very little experience in this area of the law. If you
are considering hiring an elder-law attorney you should ask the attorney how long he has been in
practice. Next, ask what percentage of his practice is devoted to elder law. Finally, use your sense
of experience to help you determine whether the attorney has the experience and knowledge
necessary to assist you or your loved ones.
Question:
My husband passed away recently. Do I need to go to court for probate proceedings?
Answer:
I frequently receive phone call asking this very same question and the answer is : "It
depends".
Let's first look at the more basic question: "What is probate?"
Probate is the process of
submitting an individual's Last Will and Testament to the Surrogates Court and asking the judge,
among other things, to appoint someone as Executor of the deceased person's estate. The judge
will make this appointment only after you have proved that the Will is valid by bringing in
witnesses to the signing or submitting affidavits of the witnesses. Only when a Will is proved to
be valid to the satisfaction of the judge, will the judge admit the Will to probate and appoint the
Executor.
Why is it so important to have an Executor appointed?
Without an Executor there is no
one who has the ability to transfer the decedent's assets as outlined in the Will. Remember that
Powers of Attorney die with you.
To complete the picture, in the event that someone dies without a will, assets will be
distributed to his or her heirs according to law. The court proceeding required in such cases is
call an "estate administration" and the one appointed to distribute the assets is call the
"administrator".
If the Court needs to appoint someone to distribute the assets, isn't Probate or
Administration always necessary?
The first question to ask is whether there is any other alternate
means of distribution. When one spouse dies, most of the assets are owned jointly with the
surviving spouse. Often this means that as soon as one spouse dies the other automatically owns
the property one hundred percent. Consider the following:
- The most prevalent example of this is a joint bank account. No transfer is
necessary and, therefore, no court proceedings.
- Almost all real property (your home, etc.) owned jointly by husband and wife
passes automatically as well. In order for such property to fall into this category,
look at the deed for the phrases "Tenants by the Entirety", "Husband and Wife" or
simply "His Wife" next to your names. Any of these will transfer property directly
to the survivor with no new deed required.
- Any asset that designates a beneficiary, such as life insurance or a retirement fund
does not need court proceedings.
- Motor vehicles can generally be transferred by obtaining the appropriate form
from the Department of Motor Vehicles.
What is left? Look for any assets in the deceased spouse's name alone. This most often
comes up in the case of shares of stock especially those distributed by an employer. While recent
legislation requires that a shareholder be allowed to designate a beneficiary, many have not taken
advantage of this provision. Nonetheless, is often possible to transfer stock directly from a
corporation without probate. However, these procedures usually are so time consuming that one
may well be better off going to court instead.
Finally, bank accounts in the sole name of the decedent under a certain amount may be
transferred to the heirs by the use of affidavits. Banks are usually reluctant to volunteer this
information so you must be persistent when you ask them if this can be done in your case.
If there are still assets in your deceased spouse's name which cannot be otherwise
transferred, probate or administration proceedings are most likely necessary. While these
proceedings may be costly and time consuming if the estate is large or contested, many probate
or administration proceedings, especially in the hands of a skilled Estate Attorney, can, in fact, be
relatively painless.
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