By Caryn B. Keppler, Partner

When an individual dies leaving a Last Will and Testament, their property must go through a process called probate. In a probate proceeding, the court examines the Will to determine its validity, appoints an executor, and oversees that the property is properly distributed in accordance with the provisions of the Will and the law. However, with careful planning, probate can be completely avoided. Here are answers to common questions.

What happens to a Deceased Person’s Bank Accounts?

When individuals die, in most cases, their bank account becomes the property of their estate. If the account is jointly owned, the joint owner becomes the sole owner upon the death of the other joint owner. If, alternatively, the bank account was individually owned, it will pass through their estate in the probate process, if there is a Will, or through intestacy, if the individual died without a Will.

How does the court decide what is to happen to the accounts?

The court will make a determination based on the provisions of the Will, or a lack thereof. In the case that there is a Will, then the bank account will pass in accordance with the terms of the Will. If there is no Will, then the account will pass via intestacy. Intestacy means that you died without leaving a Will. In intestacy, the court will have to decide how your assets are distributed based on local and state law.

Do Bank Accounts with Beneficiaries have to go through Probate?

No. A bank account that has designated beneficiaries does not go through the probate process. A bank account that has beneficiaries is given to the beneficiaries in their respective shares upon the receipt of a death certificate. However, if you have a Will, designating beneficiaries of your bank accounts will, in most cases, disrupt your estate plan as set forth in your Will.

How does Probate work when there are Foreign Assets?

The probate process does not change all that much if you have foreign assets unless the foreign jurisdiction has “forced heirship.” In a forced heirship jurisdiction, assets pass according to statute regardless of whether or not you have a United States Will UNLESS you direct that your United States Will covers all of your assets worldwide. In non “forced heirship” countries, you will likely have to file a second, shorter, probate in the foreign jurisdiction called an Ancillary Probate for the disposition of real property and tangible personal property located in that jurisdiction. In non “forced heirship” jurisdictions, the findings of the court for the first probate will be accepted.  That jurisdiction will also monitor that everything passes according to its local law. Since the laws of every country vary widely, it is important to consult with an estate attorney in the United States that is familiar with international estate planning and administration, as well as an attorney in the foreign jurisdiction.

I have a Will – Is That Enough?

Not necessarily. Having a Will is a great first step towards directing where your assets go after you are gone. However, having a Will does guarantee that your family will not end up in lengthy and costly court fight or have to return to the courts for subsequent determinations.  For instance, if your estate plan is contained in a Will and your executor dies, a subsequent court proceeding will be required to appoint a successor executor even if that successor is designated in your Will.  If you don’t want your family to have to deal with the costs and time of litigation or to return to court for future determinations, you should discuss probate avoidance with an estate planning attorney.

Do I need an attorney for Probate? Probate and estate administration is a complicated process that requires the expertise of an attorney.  If a loved one has died, contact an estate administration attorney to assist you with all of the legal requirements. At Pierro, Connor & Strauss, LLC, our estate administration attorneys can help guide you through the estate administration process and make sure that the estate is administered properly.  If you want to avoid probate entirely and make sure that your assets pass as you desire when you inevitably pass away, please contact one of our estate planning attorneys at Pierro, Connor & Strauss, LLC.