Legal Question in Wills and Trusts in New Jersey
Do I have to have a will probated?
A few years before Mom passed away her elder law attorney had my sister and I put what ever money Mom had in a savings account and a checking account in my sister and my name. The savings account was in trust for Mom with my sisters social security number.The checking acc. was a non intrest account and in all three of our names, with Mom's social security number, as her SS checks were direct deposit.
This was done to keep Mom from being medicare poor.
There was a will sayiny that my sister and I shared equal in what ever Mom had. She had no property or anything else.
My question is. Do we still have to have the will probated?
Or can we just with with-draw all the funds? it's all in out name any how.
Thank you.
Anie
2 Answers from Attorneys
Re: Do I have to have a will probated?
If that is the only asset in the estate, then probably there is no need to probate the will. However, it will have to be probated if you are going to be doing anything on behalf of the estate (tax returns?).
Re: Do I have to have a will probated?
If ALL her property was jointly owned, then it would all pass to the surviving joint owner outside probate (i.e. outside the Will). If that is the case, you may not need to probate the Will.
Question: are you and your sister going to divide all the property equally between you as the Will says?
If not, the person receiving less may complain that your mother's intent was to divide everything equally and that may be a problem.
Also, I often probate the Will in these situations (it's not expensive to do so) because in the future, you may need someone to act on behalf of the estate (e.g. file tax return, cash refund check or bring/defend a lawsuit)...you never know what might be out there.
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