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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 38167
Experience:  16 yrs estate law, real estate. Wills/Trusts/Probate
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My mother died last month. I am her executrix of her will

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My mother died last month. I am her executrix of her will and the trustee for her revocable living trust. She lived in Florida and owned a house. I filed her will at circuit court and I filled a quit claim deed as well (property equally divided between my brother and me). I was told that I need to open an estate account in her name (I already have a checking account where I am joint with her). But I was told I need a letter of testamentary in order to do that. How can I get this letter (with the living trust I was told I don't need to go thru probate) in order to open the estate account. I was told my the surrogate court in NY (where I live) that I would have to get a letter from Florida first and then get an ancillary letter for NY in order to open her estate account in NY.
JA: Since laws vary from place to place, what state is this in?
Customer: The state is Florida. I live in NY.
JA: Have you talked to a lawyer yet?
Customer: No, my mother had a lawyer that prepared all the documents but when I tried to talk to her she sent me a letter saying she wouldn't talk to me without paying her money up front. Which is what I had intended to do ... But the letter put me off ... And since then I've found out she was not recommended.
JA: Anything else you think the lawyer should know?
Customer: There is no contention about the distributions to the beneficiaries of the will ... I'm just trying to get thru the process. We had thought having the living trust and all the paperwork would make this easier. Doesn't seem so.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Did mother have any assets in New York or is everything in Florida?

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Did she execute the quitclaim deed prior to her passing, you just recorded it after she passed?

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Does she have any assets outside the trust that are solely in her name?

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I am trying to determine if probate is even necessary here...

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thanks

Barrister

Customer: replied 1 year ago.
All my mother's assets are in Florida.
- I recorded the quitclaim deed after she passed.
- The other assets in her name are a brokerage account and an annuity. I provided the brokerage firm with the death certificate. I am the trustee for the living trust and have handled my mother's accounts for the last ten years or so (she was 95 when she passed and was no longer capable of handling her accounts). The brokerage firm has already split the annuity between my brother and myself. All forms for this have been signed and an EIN was obtained.
- I didn't think probate was necessary since we had the will and the revocable living trust but I don't know how to convince the bank to open the estate account when I showed them all the paperwork (will, living trust, and death certificate) and they said they needed the letter of testamentary in order to open the account,Thank you for your assistance.

Ok, if she was a resident of FL, then that is where you would have to file any formal probate case. You would only file an ancillary probate case in NY if she had physical assets there in the state. So I see no reason for an ancillary probate case in NY if all her assets were in FL.

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As for FL, if there are no financial accounts or other assets (like vehicles) solely in her name without beneficiaries named, and the house has been transferred, then I really don't see any reason to open a probate case at all because anything in the trust gets disbursed outside probate directly to the beneficiaries.

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The only reason you would need an estate account would be to deposit money in that has to go through probate to pay bills/debts and then be disbursed to the heirs.. And if one was needed, it would be in FL where the primary probate case would be filed.

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thanks

Barrister

Customer: replied 1 year ago.
I am concerned that the bank may not accept a check written out specifically to her estate. I do have a joint account with her but I have not notified them of her death. I do have the death certificstes but they refused to open an estate account for her unless I went to court. And I didn't think I had to go to court, or needed to go thru probate for her estate. Should I just deposit the check in that joint account and cross my fingers?

Ok, that is what I was asking about when I asked about assets strictly in her sole name...

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You didn't mention any check... Is there some type of check made out to her or to her estate that needs to be cashed?

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If so, how much is it?

Customer: replied 1 year ago.
It's a check from the assisted living facility where she was living. It's a refund for the remainder of the month after she passed. It's about $3000 and it will be made out to her estate.

Ok, then to be honest, it will likely cost you that much to hire an attorney in FL to open a probate estate. FL is one of the few states where it is mandatory to hire an attorney.

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So I would try to deposit it in the joint account and see if it goes through, if not then you will have to see if you can get a FL attorney to open a probate case for a reasonable amount or if you are the only heir, you can file your own case as long as there aren't other "interested parties" like other heirs or creditors.

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thanks

Barrister

Customer: replied 1 year ago.
The check will be made out to "estate of My.Mother's.Name". ... Normally, if I had an account for her I would endorse the check as: "Estate of My.Mother's.Name, deceased, My.Name, executrix, trustee of My.Mother's.Name revocable living trust" but that may set off alarm bells with them ... But as far as I can tell there's really no other way to endorse it. Do you agree?

Yes, that would be the only way you could endorse it and then deposit it and see if the teller catches that it isn't going into an account that is specifically identified as an estate account.

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Otherwise, if this is the only asset that is in her sole name, it may be more trouble than it is worth to open a probate estate in FL because that money will be eaten up in filing fees and attorney costs almost instantly leaving nothing left but you would still have to administer the whole estate, publish notices, file inventory and accounting, file taxes, etc. up until you close the estate.

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If you ignored it for a few years then they would have to turn that money over to the state unclaimed property office and then you could simply claim it by proving your identity.

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thanks

Barrister

Barrister and other Estate Law Specialists are ready to help you

Thanks very much for the positive rating and generous bonus, it is greatly appreciated!

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It was my pleasure to work with you and help with your question. If you ever need me in the future, you can post a new question with "For Barrister" in the caption and the JustAnswer employees will get it to me.

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Barrister