Dick and Jane came to see me shortly after Lizzie, Dick's mother, a widow, died in Chatham, Massachusetts. Dick indicated that he was named the executor of his mother's will. Despite having advised Dick that his mother should consider re-titling her assets in order to avoid probate, she either refused or forgot to do so. As a result, all of her assets were solely in her own name, which requires Dick to go through probate court to settle her estate. Her estate includes everything she owns: her home, bank accounts, CDs, savings bonds, mutual funds or other investments, automobiles and other assets which have titles. Dick further related that his brother Albert has been estranged from the family for the past 40 years and no one knows where he lives. Lizzie's will did not exclude Albert, so he is a legitimate heir of her estate.
I informed Dick as to what he could expect of the probate process. First, he will need to petition the court to have himself appointed executor and present the Will to the court for allowance. The court will ask him to notify all heirs at law and next of kin. Since Albert's address is unknown, Dick may have to hire a private investigator to track him down. Albert will have a set amount of time after a citation is issued to either contest the Will itself or to contest Dick's appointment as executor. I told Dick that he could expect this process to take anywhere from two to six months. During that time, Lizzie's assets will be frozen and he will have no access to them. Dick told me that he had his mother's power of attorney and that he could use that to access the assets. Dick was mistaken; powers of attorney expire at the moment of the death of the principal.
LESSON: No matter your age, if you have assets in your own name, you should consider re-titling those assets so that probate can be avoided in the event of your demise. This can be done easily by designating a loved one as a beneficiary of your bank or investment accounts or creating a simple trust.
(Note -- We've changed the language in Massachusetts from Executor/Executrix to Personal Representative, but I find that many clients are more comfortable with the older language).
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