Time and time again we receive phone calls from family members regarding their loved one's recent death. In our typical scenario, the bank or financial institution says that the family member will need to see an attorney or that you may need to go to court to get a letter from the judge, or something to that effect. Often, the caller is stumped and does not know what else to do. Sometimes, the family has already gone down to the courthouse and they told them they need to see an attorney, so it can be very frustrating. So what should the family do at this point?
When a bank or other financial institution says that you need to see an attorney or go to court, it is very likely that this means that the decedent's asset(s) must be probated. Probate itself carries a great number of negative connotations, some of which are true, but the next step is to look at how the decedent's assets are titled. In order to correctly determine if probate is needed, who is in charge, and more, we need to look at the nature and extent of the decedent’s assets and how they were owned. There are generally four types of assets to consider:
- Probate Assets
- Joint Tenancy Assets with Survivorship
- Assets with Beneficiary Designations
- Trust Assets
- Probate Assets: These are assets that are in the decedent’s own, individual name. You will need to work with an attorney to help you probate these assets. We are glad to send you a free download of Navigating the Florida Probate Process to help you learn more about what to expect in hiring an attorney. Probate is necessary for the assets held in the decedent’s own name at death, such that title does not pass automatically to someone else. As an example, even if a bank account only has $2,000 and no one else is a co-owner or beneficiary, this account will need to be probated.
- Joint Tenancy Assets with Survivorship: These assets are now owned by the survivor thereof. Nothing needs to be done with the attorney. The surviving owner should work directly with the financial institution to take control of these assets. The surviving owner may or may not want to distribute this to the other beneficiaries, if any. (As an aside, we generally do not recommend adding co-owners to your assets during your lifetime in order to avoid probate).
- Assets with Beneficiary Designations: These assets are distributed by the respective company to the named beneficiaries. These assets include life insurance, IRAs, 401ks and annuities. You would generally contact the financial company to walk you through the process. Generally, your attorney does not need to assist you with this.
- Trust Assets: Assets owned in the decedent’s revocable living trust are distributed by the successor trustee. Legal advice is likely needed but the process of settling the decedent's trust is typically much easier than the more formal probate process.
If your decedent's financial institution has given you difficulties, you may need to see a probate attorney to assist you.