I have to go to court!? But my mom had a will?

  |  October 9, 2015

Many people believe that just because your loved one had a will, that they are automatically entitled to whatever the will says.  For example I hear, “Well, I am my mom’s executor.”  While you might be named in the will as Executor, that means you are your mother’s nominated Executor. In order to be appointed as Executor, you must obtain court approval.

Why do you need to be appointed Executor?

Executors are appointed when there are assets in the name of the decedent that need to be collected, or property that needs to be sold and/or debts paid. For example, if your loved one left behind a bank account with no named beneficiaries or without a co-owner, then you cannot access that account.  The only way to access the account is to be appointed Executor and obtain Letters Testamentary from the court.  Similarly, if you need to sell the decedent’s house or file the decedent’s final income tax return, then you must be appointed as Executor in order to sign the necessary paperwork on behalf of the decedent’s estate.

Why such a process?  If my loved one created a will, why does the court need to get involved?

While your family may get along swimmingly, unfortunately, there are families out there that do not get along.  For example, there are some family members that might take advantage of their loved one, or there are those individuals without close family members who falls prey to strangers.  What this implies is that sometimes people create wills while under “undue influence” or when incapacitated.  Maybe your mother lives with your greedy sibling.  That greedy sibling tells your mother, “I will not take care of you anymore if you give one penny of your money to my sister, Susie!”  This frightens your mother and she changes her documents to make sure that she is taken care of.  Or what if your father has severe dementia and your greedy neighbor advises him to come to his lawyer’s office to sign the new will that they discussed for him.  It is likely that in these scenarios, the new wills do not reflect your loved one’s true wishes and were executed under questionable circumstances.  This is why court involvement is necessary.

The court ensures that the will offered for probate reflects a person’s true wishes and that the will was executed properly.  Part of the process in ensuring that the will reflect the decedent’s wishes, is through the requirement that a decedent’s heirs be given notice that the will is being offered to the court for probate.  Under New York State law, a decedent’s heirs would be his/her spouse, children, and if none, then his/her parents, if living, if none, then the decedent’s siblings, if living, and if none then decedent’s nieces and nephews. This continues through the family tree of the decedent’s grandparents until an heir is found.  The Notice of Probate provides the heir(s) an opportunity to contest the will.  A will can be contested on very specific grounds, the most common are: fraud, undue influence, incapacity, and improper execution.

So what do you do if you don’t want your beneficiaries to wait to receive their inheritance or you do not want to involve the court?  Here are a few suggestions:  First, name beneficiaries on as many financial accounts that you can.  For example, your stocks can become “payable on death” and/or designate beneficiaries on your 401K/IRA/403b, etc.  You should name both primary and contingent/successor beneficiaries on each account.   Second, you may also consider creating and funding a Revocable Trust for those assets that do not permit you to name beneficiaries.  A Revocable Trust is an instrument that enables anything titled in the name of the trust to be distributed to the named beneficiaries on the creator’s death, therefore bypassing the court process.  Bypassing the court process could save your family a considerable amount of time and money with regard to the overall administration of your estate.

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