A POD Question, Effect On Probate

[bluebutterfly]

A couple of general questions regarding the mechanism of probate of a Will

1. If a rather sizeable bank account (over 200K) is created as a "pay on death" account, my understanding is that such an account is considered to be "outside the will" and not subject to probate. But an Executor needs monies to carry out various duties associated with settling an estate such as: selling property (a house), a car, paying an attorney, and whatever else may be necessary. It is my understanding that the POD account can go swiftly to the beneficiary (in this case, a charitable organization is the primary on the Will), and thus, those funds would rather soon be unavailable to the Executor. Therefore, is it perhaps not a good idea to set up such an account as POD so that funds are available to the Executor? The concern here is that if the account is NOT set up as POD, and something goes wrong with the Will (i.e. the Executor fails to properly file Will documents with probate court in timely manner or some other snafu), the bank account might end up in the hands of an heir that shouldn't have it. It's supposed to go to a charity, and not to any family members or other individuals. To make clear, there are a couple of sizeable bank accounts, so perhaps if at least ONE of them is set up POD, that would take one of them firmly out of the Will proceedings.

One of the bank accounts apparently cannot even be shown as POD to a charity according to the brokerage rep who is handling the account, so for now, the estate is shown as the 100% beneficiary. Two other brokerage accounts (at different banks) are permissible to be POD to a charity. Apparently different banks have different policies as to POD and how they handle it or what they allow. So, at least one account will need to be probated. btw, this estate is one in which probate is a good thing, because there is court oversight and other "eyes" watching how things are handled, so there's no desire to avoid probate entirely. Just wondering if it's a good idea to take a sizeable account and list it POD which might potentially deprive the Executor of funds needed to accomplish various things associated with the estate such as paying taxes on a home, paying outstanding bills, etc. etc.
Just looking for some general advice about this particular issue.

2. This may seem like a rather dumb question, but here goes: when someone dies, even if the Executor has a copy of the notarized Will, and the Will is also safely deposited at the courthouse for safekeeping, how does the Executor even know a person HAS died in order to get probate started? What are the mechanisms that go into play to get things started? In particular, a situation where an Executor is not a particularly close family member (unfortunate, but was the only practical individual available to serve). An alternate Executor has also been named.....but again, not a close family feeling of warmth, etc. A Will is merely a piece of paper until it is filed. That much I do know. A small bequest is included in the Will for the Executor, and the Executor has been told that if they fulfill their duties as Executor, they receive 2-4% of the value of the estate, so there is some financial incentive there. But there's still a worry that something will go wrong and the particular Executor (or alternative), won't even file the Will or bother with it at all and just let it go. How would any outside party such as a bank or creditors find a Will at the court or even know to look for one? Thank you so much for addressing these two issues!

 

[Betty3]

You can always get a will/estate attorney to help you.

 

[army judge]

Here you go, OP, all you ever wanted to know (and much, much more) about the probate process in Nevada:


http://www.wikihow.com/Start-the-Probate-Process


http://www.nvbar.org/sites/default/files/probate and administration.pdf

http://rushforth.net/probate.html

http://www.stevesanson.com/nevada_probate.html

 

[bluebutterfly]

Here you go, OP, all you ever wanted to know (and much, much more) about the probate process in Nevada:

I already am fairly familiar with what happens once probate is opened and the various steps involved. My question, however, does not pertain to what happens once probate is started. My question pertains to how an Executor of a Will even KNOWS that the testator has died. As I stated, a Will is just a piece of paper in the Executor's file cabinet. Without knowledge that the testator has died, it remains merely a piece of paper in a file cabinet. Or a piece of paper sitting in safe deposit box or a file at the courthouse for safekeeping. None of the links you posted refer to that particular problem or question of how exactly a death which has occurred where the Executor (who may not be an overly close family member), even finds out or knows of the death in order to START probate proceedings in the first place.

I presume eventually a bank or credit card company may start investigating, but that could take weeks or months. This particular issue is never addressed in discussions of probate. It's always stated thusly: "When someone dies, an Executor starts probate", etc. etc. But I wanted to know what would trigger or get the attention of the Executor in the first place that death has occurred. Naturally, this is not a problem in close families, but when there's distance and not particularly close association, I can see that it could be a real problem. If that question is answered in any of the links you gave me (which I looked through), I failed to see it. Any suggestions?

 

[army judge]

No one knows anything until they research it, or are told about it.
In the situation you posit, the executor-in-waiting will learn of the death when told by a relative of the deceased.
In some cases, as in notable people (or celebrities), a death would be made known via the media.

 

[bluebutterfly]

No one knows anything until they research it, or are told about it.
In the situation you posit, the executor-in-waiting will learn of the death when told by a relative of the deceased.
In some cases, as in notable people (or celebrities), a death would be made known via the media.

In this particular case, the Executor IS a relative, and is the primary relative who is still somewhat in contact enough to be named as an Executor. There is no other relative or other means by which this one relative would be able to find out about the death of the testator. Therefore, that's the basis of my initial question regarding how an Executor in this type of scenario would find out that the testator was deceased. I'm sure there are other people in similar situations, where they are in a situation where a relative who isn't particularly close to them is an Executor due to lack of other relatives or available family members. Otherwise, they'd have to name an estate lawyer or some other entity which also is not a good solution and can be expensive. So, unless there's some way to insure a legal notification to the Executor, something that triggers a death certificate being mailed to the Executor to alert them to get probate opened, there really is no surefire way to make sure the Executor knows about the death, as far as I can determine so far. And if they don't know, and they fail to file the will within the appropriate timeframe, the will could be invalid. There doesn't seem to be a good way to handle it. Probably the main reason that an Executor would "keep track" of the testator is if there is a enough inheritance or other compensation involved somewhere down the line in the future.

 

[army judge]

. Probably the main reason that an Executor would "keep track" of the testator is if there is a enough inheritance or other compensation involved somewhere down the line in the future.

BINGO JINGLE JANGLE CHA CHING, you just hit the jackpot, MONEY makes people stay on top of their game.
In your scenario, the executor won't hit the death jackpot as the executor until he or she learns that their client has kicked the bucket.

I suspect that is why any executor in waiting would gave in place mechanisms to receive information about any of their clients' demise.

 

[bluebutterfly]

BINGO JINGLE JANGLE CHA CHING, you just hit the jackpot, MONEY makes people stay on top of their game.
In your scenario, the executor won't hit the death jackpot as the executor until he or she learns that their client has kicked the bucket.

I suspect that is why any executor in waiting would gave in place mechanisms to receive information about any of their clients' demise.

In general, this is certainly correct. If large sums are at stake, I agree that an Executor will stay on top of the game and make it their business to know the whereabouts and health status of the client, and whether the client is living or not. However, in the specific scenario, the Executor really doesn't stand to inherit much from the estate for various personal reasons. Therefore, there isn't a huge motivation for them, and I was just wondering what other mechanism might be available to make sure that the Will gets into probate. If it all depends on whether the Executor stands to inherit "enough" to make it worth their while, that makes it a rather "iffy" proposition. If there's no other entity serving as a type of watchdog or trigger mechanism upon the client's demise, then there is a question as to whether the Executor would get that piece of paper (i.e. the Will), where it needs to go so that the main beneficiary (a charity), can get their funds in a proper, timely manner. I've heard of various cases of Wills never being probated because the Executor didn't stand to inherit enough to make it worth their time or aggravation. Seems to me there should be some way to oversee this process so that such a thing can't happen. And that's what I was wondering about in my initial question about all this. In all fairness, I suppose one could say, "well, if the Executor is that type of person who may behave in this manner, perhaps that Executor is the wrong person to be in that position". True enough. Unfortunately, many people don't have a variety of other relatives or options or individuals to appoint as Executors so they have to take their chances.

 

[army judge]

In general, this is certainly correct. If large sums are at stake, I agree that an Executor will stay on top of the game and make it their business to know the whereabouts and health status of the client, and whether the client is living or not. However, in the specific scenario, the Executor really doesn't stand to inherit much from the estate for various personal reasons. Therefore, there isn't a huge motivation for them, and I was just wondering what other mechanism might be available to make sure that the Will gets into probate. If it all depends on whether the Executor stands to inherit "enough" to make it worth their while, that makes it a rather "iffy" proposition. If there's no other entity serving as a type of watchdog or trigger mechanism upon the client's demise, then there is a question as to whether the Executor would get that piece of paper (i.e. the Will), where it needs to go so that the main beneficiary (a charity), can get their funds in a proper, timely manner. I've heard of various cases of Wills never being probated because the Executor didn't stand to inherit enough to make it worth their time or aggravation. Seems to me there should be some way to oversee this process so that such a thing can't happen. And that's what I was wondering about in my initial question about all this. In all fairness, I suppose one could say, "well, if the Executor is that type of person who may behave in this manner, perhaps that Executor is the wrong person to be in that position". True enough. Unfortunately, many people don't have a variety of other relatives or options or individuals to appoint as Executors so they have to take their chances.

You could always write to your elected state and federal officials and relate your concerns.
Be advised, if there's no money in it, they probably won't be interested.

If a person has insignificant possessions, he or she can GIFT their junk before they die.
If the assets of a deceased person are below certain thresholds, their estates need not be probated.
In other cases, some states have "mini" or "quick" probate for smaller estates.
Bear in mind probate serves the state, as they tax upon your death what you've already been taxed for, the state's cut to pass it along to your heirs.
Probate is another state sponsored scam.

 

[bluebutterfly]

You could always write to your elected state and federal officials and relate your concerns.
Be advised, if there's no money in it, they probably won't be interested.

If a person has insignificant possessions, he or she can GIFT their junk before they die.
If the assets of a deceased person are below certain thresholds, their estates need not be probated.
In other cases, some states have "mini" or "quick" probate for smaller estates.
Bear in mind probate serves the state, as they tax upon your death what you've already been taxed for, the state's cut to pass it along to your heirs.
Probate is another state sponsored scam.

The estate is actually rather significant, but the Executor is only being given a modest "bequest", and has been told that they can also collect a fee of between 2-4% of the total value of the estate if they carry out the role of Executor. A charity is receiving the bulk of the estate. Due to the size of the estate, it will definitely have to be probated in a full probate proceeding. It's not a complex estate....but it is fairly sizeable. The client is not interested in a Trust type of set-up, mainly because probate forces some accountability and court oversight of what's going on. Therefore, probate in this particular situation is the best option. But again, the question will be: will the Executor be motivated enough to carry out their role properly even though their share will be quite modest compared to the overall size of the estate. It seems that throwing money at the proposed Executor may be the only way to guarantee a satisfactory outcome, but that option seems a sad one, especially among family. Family shouldn't have to be "paid off" to do the right thing. Anyway, it seems there is no way for a deceased person to guarantee that an Executor will even FILE the Will at all. So, perhaps it may be wise to put more of the bank accounts in POD set-ups, directly to the charity in question. However, the financial institution states in their TOD/POD paperwork that they (the bank/brokerage) are not responsible for hunting down beneficiaries, etc. That's not their job or their obligation.

I feel that if an individual accepts the job of Executor, the law should require them to file a document stating that it's their intent to take on that role, and if that intent changes, they will be contacted by the court when a death certificate triggers off the probate proceedings. It seems like too much is left to chance or assumption, thus we hear about Wills that are never filed at all (because the "cut" of the proceedings isn't big enough to satisfy the Executor, so they don't even bother, out of revenge and bad feelings). Wills don't have two legs and don't walk over to the courthouse and file themselves. SOMEONE has to do it. And I guess that's my hang up about all this....I don't see where the safeguards are. The potential Executor can say, "sure, I'll be your Executor"....maybe even knowing that they have no intention of doing it, and rather than see to it that a court appoints an Administrator when the time comes, they just "forget about" the Will, and no one even knows. The Will - a mere piece of paper - could sit at a courthouse or in someone's desk drawer for months or years, and no one is the wiser.

 

[jjohndoe]

Anyone can start a probate, on anyone deceased. You need not be the executor or a friend or relative.
I could open his probate simply by filing.

As you stated earlier, some creditor is likely going to start it if no one else does.

 

[bluebutterfly]

Anyone can start a probate, on anyone deceased. You need not be the executor or a friend or relative.
I could open his probate simply by filing.

As you stated earlier, some creditor is likely going to start it if no one else does.

yes, I suppose eventually some entity or other would start looking into things and get a death certificate and start some type of proceeding. The question is, how long would it take before that happened, and if it too much time elapsed, would things end up in a mess because nothing had been done for a period of time beyond which the monies in the estate wouldn't be distributed properly to the charity indicated in the Will. It's a pity that some clients unfortunately don't have very close/reliable family members to be able to count on in these situations and have to worry about various types of scenarios Perhaps a good strategy is to have a number of official entities in possession of the Will to increase the number of people in the loop, although that seems a bit scary from a privacy/invasive sort of aspect. Not too sure about doing that.....

 

[jjohndoe]

It could start anytime at all. You might consider opening a probate to get it started.
As far as POD, the ownership of any POD account changes upon his last breath. Take ID and certified dearth cert to the financial institution.
As much as people try to make it easy on surviving loved ones, it can be a mess.

 

[bluebutterfly]

It could start anytime at all. You might consider opening a probate to get it started.
As far as POD, the ownership of any POD account changes upon his last breath. Take ID and certified dearth cert to the financial institution.
As much as people try to make it easy on surviving loved ones, it can be a mess.

I realize that a testator can deposit their own Will in the court for safekeeping, but until the testator is deceased, probate will not commence. Therefore, unless the Executor or a friend or someone who has knowledge that the testator has died files it,(and also knows that the will is at the court), the will could still conceivably sit in a file at the court with no action being taken. I certainly do encourage people to deposit their wills at the courthouse before they die so that at least some official entity such as a bank, creditor or other person can have a starting point to look for a will, just in case the Executor has bailed out on their duties or an alternate Executor can't be found or isn't cooperative. The point remains, however, that someone must take action to get the actual probate process going by filing a petition to open probate and unless that is done, there might be a delay which could invalidate the will or create other problems. As you say, no matter how hard someone tries to protect their assets and see to it that things go properly, there's often outside problems that are "wild cards" in the deck which can cause trouble.

 

[army judge]

I realize that a testator can deposit their own Will in the court for safekeeping, but until the testator is deceased, probate will not commence. Therefore, unless the Executor or a friend or someone who has knowledge that the testator has died files it,(and also knows that the will is at the court), the will could still conceivably sit in a file at the court with no action being taken. I certainly do encourage people to deposit their wills at the courthouse before they die so that at least some official entity such as a bank, creditor or other person can have a starting point to look for a will, just in case the Executor has bailed out on their duties or an alternate Executor can't be found or isn't cooperative. The point remains, however, that someone must take action to get the actual probate process going by filing a petition to open probate and unless that is done, there might be a delay which could invalidate the will or create other problems. As you say, no matter how hard someone tries to protect their assets and see to it that things go properly, there's often outside problems that are "wild cards" in the deck which can cause trouble.

Once someone files a motion to open probate, the proceeding commences.
It stops, however, if its determined that Jerry Moonshine is still alive.