My mother had a small IRA at a local bank when she passed away in 2009. We found out that she still had my dad as the account benefiiciary (my dad died in 2003). We did not probate a will because there were so few assets remaining after the cost of her care, but now we can't get to the IRA. Is there a "modified" probate version, or any other way we could get this paid out to her "estate" like the bank is requiring? Not that much money, but I know how my mother would feel about leaving it at the bank. Thanks
Guardianship Law Attorney
I assume the IRA is valued at less than $25,000. If so, you should be able to file a "Voluntary Administration Statement" with the probate court, which will permit you to act as Voluntary Personal Representative of your mother's estate. However, because she passed away in 2009, you would have to file as though she died intestate (without a will), as there is now a 3-year statute of limitations on probating wills (unless title to land is at issue). As Voluntary Personal Representative, you would be required to pay the assets equally among your mother's children, or their children, if a child of your mother's has died.
You should file the Voluntary Statement, with a certified copy of her death certificate, at the Probate Court in the county where she lived. There is a filing fee of $115 for this form.
The Voluntary Statement form can be found at:
Good luck -
Please note: The above is for general information purposes only. It is not intended to establish and does not establish any attorney-client relationship.
4 lawyers agree
Estate Planning Attorney
I would take Ms. Harvey's advice because she has shown herself to be a good lawyer here on AVVO. I would note however that you need to make sure of the debt situation (you mentioned debts and I'm not clear if they were all paid off or not) because if there are debts remaining and there is going to be a probate asset the debt should be paid.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature.
3 lawyers agree
Elder Law Attorney
With your father having predeceased your mother, unless there were contingent beneficiaries listed on the IRA, the only way to access the money in the IRA is for the account to hold the estate as the beneficiary. You indicate that your mother's estate was depleted as a result of her health care costs. If she was a beneficiary of MassHealth, or some other state plan, there could be a lien placed on the assets of the estate. This lien could be negotiated with the state, or at a minimum, the probate process could allow for expenses to be paid. However, if you do an informal probate as has been recommended, please be aware that the personal representative is not permitted to be compensated.
So while this seems as a simple process, it may not be. I would suggest that you consult with a probate attorney so that you can respect your mother’s wishes to the extent you are permitted to do so. Good Luck!
*** LEGAL DISCLAIMER I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Reading. My practice is focused in the areas of elder law, estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
2 lawyers agree