Legalese — Basic Probate FAQ

Because of what I do for a living, I am often one of the first people to know when someone has died.  The questions people ask me in the wake of the death of a loved one all tend to be similar, so I thought I’d take this time to answer some of the most frequently asked questions.

Q:           My father passed away yesterday.  What do I need to do now?

A:            Nothing except grieve.  There is no rush.  In fact, there isn’t much you can do until you have a death certificate.  Here in Georgia, you won’t have a death certificate until about two weeks after the person dies.  The law, actually, allows you a good bit of time to get off the stick and do something.  So don’t do anything except deal with the grieving process.  The estate can wait.

Q:           I had a power of attorney for my mother.  Can I still use it?

A:            No.  A power of attorney automatically ceases to be effective once the person who granted the power of attorney dies.  This is true even if you are using the money or the power to do things for the person who died.  For example, unless your name is on your mother’s bank account, you can’t use that bank account to pay for the funeral right away.

Q:           My name was on my mother’s bank account.  Can I use that money? Does it matter if I’m using it for my mother’s bills or for my own use?

A:            The answer here is “It depends.”  There are two ways that your name can be on your mother’s account.  You could be a signator, which means that you had the authority to sign checks on your mother’s account.  Or, you could be a co-owner, which means that you owned the money along with your mother.  Most people don’t have any idea which one they are, but a simple phone call to the bank can tell you.  If you were an owner of the account, any money left in the account is yours.  It doesn’t have to go through probate to become yours.  It became yours the moment that your mother passed, and, as the owner of the money, you can use it for whatever you want.  If you were a signator, then you don’t own the money, and it can’t be used in any fashion until the duly appointed executor or administrator of the estate says it can be used.

Q:           My husband’s will named me as executor.  Why can’t I just go and get the title changed on his car?

A:            In some counties, if you bring a copy of the will naming you as executor and the person who gets the car in the end, and a copy of the death certificate, you can change over the title.  In some you can’t.  The reason why you can’t is because the car, being solely in your husband’s name, is part of your husband’s estate.  No assets can be transferred out of the estate except by the executor.  Even though the will names you as executor, you aren’t officially the executor until the Probate Court says you are.  This is because it may be that someone challenges the will or your ability to be the executor.

Q:           My father’s pension fund says they won’t talk to me without “Letters Testamentary.”  What are those?

A:            Letters Testamentary (or Letters of Administration, which is what you get when there is no will) is the official piece of paper you get from the Probate Court which says that you are officially the executor of the estate, and gives you the legal power to do whatever you need to do on behalf of the estate.  It is an actual letter with a gold seal on it.

Q:           My wife died without a will.  Does that mean the government will take half of her estate?  Why does it matter, anyway?  I’m her husband, don’t I get everything?

A:            In Georgia, the government does not take any more of the estate without a will than with one.  The reason why you want a will is because you don’t want the law deciding who gets your estate.  For example, let’s say your house was in your wife’s name only because she owned it before you got married.  You might think that it would just go to you, and it might, but you might also find yourself owning your house along with your wife’s children from her previous marriage, including that no-good step-son who will use the deed to get out of jail and then skip bail.

Do you have any other basic probate questions?  Ask them in the comments below and I will compile the answers in a new post.