Why Do I need Probate?

[Donna Holdmeier]

My husband died a little over 2 weeks ago, suddenly from a heart attack at age 53 and we didn't have a will. I received his last paycheck from his company made out to the estate of my husband and I can't put it into the bank because of the amount. I was told to go to the courthouse and talk to the probate clerk and request a refusal of administration so I could put this check in the bank. I was denied and was bombarded with all kinds of questions about what I was expecting to receive from my husband's death. Why after being married for 32 years and planning on retiring together in just 2 more years does my husband's money have to put into an estate? Why did this clerk include the proceeds from my husband's life insurance, which I am the beneficiary, into the amount of his estate? I got so upset and frustrated that I decided to let a lawyer take care of this whole mess. Why does the legal system expect to have their share of my husband's hard earned money that he worked so hard for all his life and died for? Will they also include everything that we owned together as part of his estate, too? I'm ready to give up and now I don't trust anyone. I'm from Missouri.

 

[ALawyer]

My condolences on your loss.

THE PROBLEM MAY NOT BE THE LAW ITSELF BUT THE FOLKS INVOLVED.

Most states have simplified processes to handle small estates and why they would not let you use it is beyond me. BUT I DO NOT KNOW ALL THE FACTS. IF you are his named beneficiary the life insurance should come to you directly and never go thru probate. Ditto any 401K, IRAs, etc. If the title to the house was in joint name it too passes to you by operation of law.

BUT if there is other property, such as investment accounts, a business, other real estate, etc. it has to go thru the probate process to provide good title and to make sure any others involved -- creditors, kids, etc. get what they may be legally entitled to.

 

[advisor10]

JUNE 11, 2001

DEAR DONNA:

You have no reason not to trust people anymore. EVERYONE has to go through the probate process (there is no escaping "death and taxes" as the old saying goes), and it is NOT the legal system that is trying to get a share of your husband's estate. Rather, probate is needed so that the STATE AND FEDERAL GOVERNMENT can get their fair share of taxes, which any American citizen should be glad to pay as part of the price to liv in the greatest country on earth.

I'm sorry that things didn't turn out exactly the way you expected them to, and I do understand how frustrating it can be. You could have politely declined to answer all of the questions that the probate clerk asked (by pretending ignorance or claiming that you were grieving), but you probably didn't know this at that time. You did the right thing by contacting an attorney who can guide you through this process at such a difficult time.

Please INSIST that your attorney have the life insurance proceeds subtracted from the value of the estate, since it is common knowledge (even the probate clerk should have known this), that life insurance is not a part of probate.

EXECUTOR FEES IN MARYLAND:
5% of the first $5,000., plus
4% of the next $20,000., plus
3% of the next $75,000., plus
2.75% of the next $300,000.

Be positive, since things eventually will get better for you. The check for the life insurance should be coming directly to you, shortly, if you haven't already received it by now. As the widow, you will be getting the largest portion of his assets.

SINCERELY,

[email protected]

 

[advisor10]

JUNE 11, 2001

DEAR DONNA:

I mistakenly gave you incorrect figures for executor fees in my previous posting. Here are the correct figures:

EXECUTOR FEES IN MARYLAND

10% of the first $20,000., plus
$2,000 plus 4% of any amount over $20,000.

A limit of 10% of any real estate sold by the executor.

SINCERELY,

[email protected]

 

[advisor10]

JUNE 11, 2001

DEAR DONNA:

My apologies again! The last posting is incorrect. My original posting is correct that showed 5% of the first $5,000, etc.

I have been having a rough day and my vision is getting fuzzy!

SINCERELY,

[email protected]