THERE IS A WILL: SO WHY DO I NEED A PROBATE

At Jet Probate we take many calls a day regarding Probate. The most common question by far is: My Dad died, but he had a Will. Yet, the bank, real estate agent, or life insurance company is telling me, that the Will must go through Probate. The caller seems to believe that when Dad died with a Will, all that needs to happen is that the heirs show the Will to the Banker, and he will turn the money over to the Executor. The misconception is that the Will, in and of itself is like a Power of Attorney. Show up, produce a document, and walk out with the Bank Account. Unfortunately, it doesn’t work that way.

The word Probate really means “to prove a Will”. The Will describes the person that the Decedent wanted to take charge to collect the assets, namely the Executor or the Personal Representative. It describes who is entitled to receive and benefit from the Estate Assets as the named beneficiaries. It describes the “powers” that the Executor has. But, in and of itself, it doesn’t “grant the power to act for the Decedent”. Only the Probate Court can grant that power.

Put yourself in the Banker’s shoes; if you walk in and produce a death certificate and a Will and you demand to close out all of the accounts and walk out with a wheelbarrow full of cash, how would the Banker know if that Will was in fact duly executed by a person of sound mind? How would he know if that was the most recent Will and not a Will that had been revoked by a subsequent Will? How would he know whether the decedent had any creditors, owed money to the IRS, etc.? No Banker would want to make all of those assumptions and give the money to a person that they had never seen before and have the risk that later on the “real Will” is produced by a Probate Court and the Banker gave the money to a person who was not duly appointed by the Probate Court to be the Executor.

That is why we say that Probate is a “process”. It is the process of proving the Will. Once the Will has been “proven”, then the Probate Court will grant authority to the Executor to collect the assets. So now that same person shows up to the Bank but doesn’t produce the Will. That person instead produces the document from the Probate Court that “granted the authority”. That document is commonly called “Letters Testamentary”. Once that document has been produced, along with a Death Certificate, the Banker must load up the wheelbarrow with a pile of money. And, the Banker is released from any liability for following that Court Order.

Once the Letters have been issued, it is as if that document serves as a Power of Attorney for the Decedent. But wait, why couldn’t I just produce a Power of Attorney for the Decedent to the Banker and avoid all of that Court stuff. Well, simple answer. A Power of Attorney grants authority to a person to act for another person who is still alive. A Power of Attorney’s power to act dies with the Decedent. Powers of Attorney have no power or authority at Death. It is only the Letters Testamentary that grants power and authority on behalf of a person who is deceased. Makes sense? That’s why a person needs to have a Will and a Power of Attorney.

Now that the Executor has been “appointed” by the Probate Court, it begins to fulfill his or her “fiduciary duties” to administer the Estate and collect the assets. To see the steps involved in that process read the Article on the Jet Probate website titled “Probate is a Process”.