Brother passed in GA, no will and little assets

[cptlo306]

What is the name of your state (only U.S. law)? Georgia

Hi,
My brother just passed away a few days ago. His only assets are a 401K ($15,000) and a bank checking account ($700). He does have a small ($2,000) life insurance policy. He didn't own any real estate or other substantial property (just clothes and similar stuff). He had no will. I believe the 401K has my mother (still living) as a beneficiary (should be able to verify in the next day or so).

We'd rather not hire an attorney if we don't have to considering the estate is pretty small and we'd prefer to save the money if possible. I've done a little online research but have a couple questions:

1. Assuming the 401K and life insurance policy has my mother as a beneficiary, will these need to go through probate?
2. If the answer to #1 is no, and assuming he had no outstanding debts, do we need to do anything at all.
3. Can my mother transfer the $700 from his checking account into hers now or should this wait until probate has concluded (assuming probate is necessary)?

Thanks in advance!
-Thomas

[anteater]

If the 401(k) and life insurance have designated beneficiaries, the funds would not need to be probated.

If your mother is the rightful successor for the checking account, she can use an affidavit to obtain the funds:

O.C.G.A. § 7-1-239 (2009)
§ 7-1-239. Payment of large deposits of deceased intestate depositors; deposit of sums held for deceased intestate residents; affidavit included with application for deposit.

(a) Except as provided in subsection (b) of this Code section and in Article 8 of this chapter, whenever any person dies intestate having a deposit of not more than $10,000.00 in a financial institution, such financial institution shall be authorized to pay the proceeds of such deposit directly to the following persons:

(1) To the surviving spouse;

(2) If no surviving spouse, to the children pro rata;

(3) If no children or surviving spouse, to the father and mother pro rata; or

(4) If none of the above, then to the brothers and sisters of the decedent pro rata.

(b) Except as provided in Article 8 of this chapter, if no application for the deposit is made by any person named in subsection (a) of this Code section within 90 days from the death of the intestate depositor, the financial institution shall be authorized to apply not more than $10,000.00 of the deposit of such deceased depositor in payment of the funeral expenses and expenses of the last illness of such deceased depositor upon the receipt of itemized statements of such expenses and the affidavit of the providers of such services that the itemized statements are true and correct and have not been paid. The financial institution shall pay such expenses in the order received after the death of the depositor....

(g) Application by any claimant or claimants entitled in this Code section to receive deposits at a financial institution shall include an affidavit by the claimant or claimants which states that they qualify as the proper relation to the decedent as specified in this Code section and that the claimant or claimants know of no other corresponding claimant or claimants to such deposit. The financial institution may rely on a properly executed affidavit in disbursing the funds according to this Code section.

[JETX]

Originally Posted by cptlo306

Assuming the 401K and life insurance policy has my mother as a beneficiary, will these need to go through probate?

No.

If the answer to #1 is no, and assuming he had no outstanding debts, do we need to do anything at all.

Depends on what you mean by 'anything'. If your only concern is the insurance and 401k, then yes, the family doesn't have to do anything else and can simply 'walk away'.

Can my mother transfer the $700 from his checking account into hers now or should this wait until probate has concluded (assuming probate is necessary)?

Unless her name is on the account, she (nor anyone else) can access his bank account without a court order. Also, since those funds are a part of his estate, creditors have a right to claim against it.

Georgia has a 'small estate' process that would likely apply in this case. It is covered under Ga Code § 7-1-239 and § 53-2-4 and essentially allows a simplified probate process for estates that are:
1) Maximum Small Estate Value, less than $10,000
2) Summary Administration - no limit if no will and heirs agree
3) Affidavit Option for family members only, petitioning a financial institution, if the decedent\'s account does not exceed $10,000.

There are several online sources (fee based) to download the forms needed.... or you can get a book 'Guiding those left Behind in Georgia', possibly from your local library.
* Pub. Date: October 2004
* Publisher: Eagle Publishing Company FL
* Format: Paperback, 280pp
* ISBN-13: 9781892407856
* ISBN: 189240785X
* Edition Number: 3