When a loved one dies leaving a bank account, surviving kin might or might not have a legal right to the money, at least immediately. In many cases, the account becomes the property of the deceased’s estate, which means that it’s subject to probate. But there are a couple of exceptions to this rule.
Understand the Probate Process
Probate ensures that the deceased’s debts are paid from his estate before the balance of his property is transferred to his beneficiaries. To make this possible, one of the first things the executor of the estate must do is open a new bank account in the name of the estate. The account will hold any money that comes in after the deceased’s death, such as his final paycheck.
The executor typically closes any bank accounts the deceased held in his sole name and transfers the funds into this estate account. She might need court approval to do so, and she should notify survivors and tell them not to take any money from the accounts if they have access to a checkbook or a debit card.
If family members don’t open probate proceedings of any kind and the state cannot find any relatives, money held in the deceased’s bank accounts can potentially "escheat" to the state. This means the state can claim the funds, but usually only after a significant period of time has passed and no heirs have taken steps to open probate or otherwise claim the money. The process sometimes works differently, however, such as when the estate is particularly small. When the account is payable upon death, it does not go through probate at all.
Follow Rules for Smaller Estates
Smaller estates can avoid a full-blown, complicated probate process in many states. Depending on the value of the property the deceased owned, the estate might be eligible for a simplified probate procedure. In this case, immediate family members might be able to take a court-approved affidavit to the bank to claim the money in the account. Anyone in this position should speak with a local attorney to find out if his loved one’s estate is eligible for this kind of probate and what's involved with asking the court to approve such a transfer.
Know the Exceptions
Some people set up their bank accounts with special provisions so the money won’t get tangled up in probate. They create joint accounts with rights of survivorship or with payable-on-death designations. Creating such an account is usually a simple matter of filling out some extra paperwork with the bank.
With a payable-on-death designation, the money in the account goes directly to a named beneficiary when the primary account holder dies. The beneficiary has no access to the money until the death of the primary account holder.
Joint accounts, particularly those held by spouses, often transfer directly to the survivor, but this can vary by state law. In some states, this only happens if the account specifically carries a survivorship clause, stating that the money should go to the survivor if one owner dies. If such an account also names a payable-on-death beneficiary, the money doesn’t transfer to that person until the death of the second account holder. In either case, the account would bypass the probate process.
In the Case of Living Trusts
Estate planning offers several options that can help a bank account avoid probate. If the deceased formed a trust during his lifetime, he might have titled the account in the trust’s name. Because trusts don’t require probate, the account and its money would not be subject to court proceedings, but survivors still can’t legally access the money on their own. Such accounts are the property of the trust, so the funds would go to the beneficiaries named to receive the money in the trust documents.
In most cases, the bank account goes into probate through the estate. When the property gets divided according to the will, heirs will receive the money. However, a joint bank account may become property of the other account holder automatically.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.