Not long after my mom died, I promised to write down some of what I learned in the process of dealing with her estate. Here’s the first part of that, in which I talk just a little bit about wills, personal representatives, and getting a bank account for the estate.
Proving the will. Ideally, the will is witnessed and notarized, with a notarial seal and all. If so, it is “self-proving”, and there shouldn’t be any issues with it being accepted by the court, no matter how old it is or whether or not the witnesses are still alive (provided of course that someone else doesn’t have a newer will which supersedes the one you have … but that level of drama is waaay beyond the scope of this article).
There’s a few potential complications here. If the copy of the will you’re presenting to the court isn’t properly notarized, but it was witnessed with signatures, then you need to get the witnesses to state for the court that yes, that’s the will they witnessed and that’s really their signatures. And of course, if the will is old enough, the witnesses may be dead themselves, and then you lose.
If you can’t produce a notarized will or get notarized affidavits from the witnesses, the person is intestate (that is, they died without a valid will). That basically means their family will get their stuff in a manner divided by law. It’s complicated (a surviving spouse gets it all if there are no kids; they share it a bit if there are; if there are no kids or spouse but surviving parents they get it … etc.)
In short: Make sure your will is notarized.
Holographic (handwritten) wills. In some states (such as Pennsylvania), a handwritten will is legal even if not notarized. (Sorry, sci-fi fans; “holographic” means “[in your] own writing”.) However, there’s a lot of little legal requirements (you have to write it entirely by hand, and cannot type/print the text and then just sign by hand), and every jurisdiction has slightly different requirements about witnessing them, and some states don’t accept them at all, and some states do accept them but only if they were drafted while in a state where they are legal, in which case how do you prove that it was written in that other state …
In short: I would not rely upon a handwritten, un-notarized will. Get it drafted properly, witnessed properly, and notarized.
Is the will a matter of public record? Certainly not during the person’s lifetime, and not immediately afterwards, but eventually, by the time the probate process is complete, they become part of public record. (That doesn’t mean they’re easy to get a hold of; there will be some paperwork and fees, varying with locality.)
Personal representative. If the person has a will, they should nominate an executor in it. If the are intestate, or if the named executor is dead or for some reason legally ineligible to serve, then the Registrar of Wills will appoint an “administrator” of the estate, and the law provides an order of precedence for that, like it provides an order of inheritance. (Since my mom was divorced and I was her only child, if she died intestate, I would be the administrator.) In either case, the executor or administrator is the estate’s Personal Representative.
Executor bond. The will may specify that the executor can serve “without bond”. Executor bond is a form of insurance for the estate; it protects the estate (and thus the heirs) from any fraud on the part of the executor. This sounds like a good thing; however, the executor generally has to submit to a credit check, have an application approved, and all sorts of other hassle. In the case of my mom’s estate, I was both representative and sole heir, and thus it would have been dumb for me to be bonded (why would I defraud myself?). If your family doesn’t have a ton of drama in it, and the executor is family, then bond is probably not worth it, but consult your lawyer when you write your will.
Opening the estate. You (the personal representative) and your lawyer will present the will to legal clerks who work for the Registrar of Wills. Once they accept the will, you will be sworn in as the estate’s representative. You have to show up in person to be sworn in.
Estate bank account. Shortly after the estate is opened, you can receive a “short certificate”: a document which says “this guy Shawn is the representative of Nancy’s estate.” You will also get an Employer Identification Number (EIN) for the estate from the IRS, which enables the estate to have a bank account of its own. Then you go to your bank with the EIN and short certificate and get a checking account opened for the estate. Any money which the estate brings in through sale of property will get deposited there, as will any checks made out to the deceased after their death. And the account will be used to pay the estate’s debts. More on all that in later installments of this series.
Disclaimer: I AM NOT A LAWYER. NONE OF WHAT I SAY HERE SHOULD BE CONSTRUED AS LEGAL ADVICE. A LICENSED LAWYER SHOULD BE CONSULTED ON ALL LEGAL MATTERS PERTAINING TO ESTATES. The purpose of this article is to tell you some things I learned in the process of dealing with my mom’s estate, which you may want to think about in planning your own estate or dealing with a loved one’s estate. Furthermore, details of some of these matters differ from state to state, so if you’re not in Pennsylvania, things may be different. Consult your lawyer on all matters.