Estates Left Unattended

When we get a call from family members when a loved one has passed away, they typically ask how quickly they can or need to probate the will or otherwise begin the estate administration process.  The act of probating or “proving” the will – presenting it to the county Surrogate and seeking appointment as the executor named in the document – can be done at any time.  The actual appointment by the Surrogate cannot be issued earlier than 10 days after death.

Sometimes there is no need to probate – or at least there doesn’t initially appear to be a need.  That typically can be the case when a spouse dies leaving a surviving spouse.  Because many married couples hold their assets jointly with right of survivorship, these accounts automatically pass to the surviving co-owner by operation of law.  No probate of the will is necessary.

Other assets may have a payable on death (POD) or transfer on death (TOD) designations such as retirement accounts, life insurance policies and annuities.  This designation also overrides what is in the will.  This can result in many cases where probating the will is not necessary or at least not yet necessary until an account solely in the name of the decedent without a POD or TOD designation is discovered or a refund check in the name of the decedent is received.

Even though there is no deadline or even requirement to probate in each and every instance, there is a danger in doing nothing when probate is necessary.  Because there is no “reminder” generated by the government – or anyone for that matter – assets can sit for years unattended to.  The risk in doing nothing is that these assets can be lost entirely.

Next week I’ll explain how that can happen.