Q: Parents passed. No assets. Checking account only. There are 4 sisters, one who is poa. There was a living trust and will
All agree to equal distribution as will directs. About $400k. Do we need to go through probate? Or can we just divide funds. Poa was on checking account. Mom had dementia and passed last. So actually we thought she could just write each sibling their share and close checking account. Thankyou
A:
Dear Atascadero:
Unfortunately, you will need to go to probate because the estate is worth over $150,000, unless beneficiaries are designated on the account. The power of attorney will not help, as all powers of attorney become invalid once the principal (person who grants the power) dies.
An exception would be of the account is a joint account in names of the Decedent and another person not designated as a power of attorney. So long as it was not a tenancy-in-common account, the remaining account holder can "write each sibling their share" and then close the account.
That being said, Probate is not such a bad thing as it will provide a platform to resolve any creditor issues. Without probate, each of your Mother's children is liable to any of you Mother's creditor up to the amount of property they receive. Plus probate will help shield the power of attorney holder from later claims of mismanagement of funds.
Most people worry about probate due to the cost, primarily the statutory attorney and executor fee. (For a $400,000 estate, the statutory fee is $11,000 each.) However, if this is a simple estate, and attorney may agree to take on the matter for a lower fee, or as a limited scope representation. (This is where the attorney does parts, for example drafts the pleadings, and you do the rest of the work on your own.)
I would take the time to seek a consultation from an attorney who can go over the details of the particular estate with you. If you don't know where to find an attorney, you may try your local county bar association. Most county bar associations provide a lawyer referral service where, for a small or no fee, you receive a consultation with a qualified attorney.
Best of luck.
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