Not uncommonly, we have clients come into the office after a loved one has died and ask for some assistance. Their request is often simple...for example: "How do I access Mom's bank account now that she's gone? Her Will says I'm supposed to get it. Can I take the Will to the bank and get it transferred over to my name?" Unfortunately, it's not that simple.
Usually the first question we address is whether the account had a joint owner--if so, then the account usually goes to the survivor. All that has to be done is to take a death certificate to the bank and fill out some paperwork. If there's no co-owner, the next question is whether there is a beneficiary or POD ("pay-on-death") designation. If there is a beneficiary, that person would take a death certificate to the bank and fill out some paperwork. In either of those cases, the transfer could happen without probate. If these do not apply, then the bank will require a probate court order to access the account.
In most instances, the bank will ask for "Letters of Administration" (these are also sometimes called "Letters Testamentary." These are not just something written up by a lawyer; they are issued by a probate court. [In some instances, if the value of the estate is less than $75,000 and if other criteria apply, a summary probate can be filed. In this type of probate, the court issues an order directing the bank to transfer the funds to the proper person. In the case of a summary probate, there are no Letters of Administration issued and no Personal Representative appointed]. But in Florida, regardless of whether a formal or a summary probate are filed, it requires opening a probate.
An example might help: Assume that Mom owned the account only in her name and she had no beneficiary or POD designation. Now that Mom is gone, she cannot transfer the account--she's gone! Even if Mom had given a Power of Attorney to someone, that person cannot use the Power of Attorney after Mom has died. So the fact is, after Mom's death, no one has the power to access the account. It can only be done with the appropriate order from the probate court.
In order to get a court order requires more just appearing at the Clerk's office requesting "Letters of Administration." It typically means hiring a lawyer who prepares the initial probate documents, files them, and then begins the probate process. Eventually, if a formal probate is filed, the Court appoints a Personal Representative (Executor) and issues Letters of Administration to that person. The Personal Representative can then access the account. If a summary probate administration is filed, the Court will issue an order directing the payment of the account.
Understanding what is involved in having to open a probate just to access a bank account should be a good motivator to complete one's estate planning. With good advice from an estate planning attorney, a probate might have been avoided.