they told him that he had to file a will probate is this correct and if so how long and how much would this cost us
The bank is correct. The money in the bank is a probate estate asset. If your father had a will, it must be filed in the court and the terms of the will control how the money (and other assets) are distributed - after the payment of creditors. If your father had no will, the estate will be called an intestate estate and, after the payment of creditors and costs of administration, the assets will be distributed to heirs at law - I assume under the State of New York law, since that is where your question comes from. The law that governs is where your father lived at the time of his death or where the property is located. You should consult an estate administration / probate attorney and provide all of the details you know re your father's assets for the appropriate procedure to follow and the costs involved.
Once the proper Petition is presented to the Surrogate's Court, it shouldn't take long at all to have letters issued appointing someone as Fiduciary of your Father's estate. The first question is what is the value of the estate. If it doesn't exceed $30,000 then an affidavit can be filed for a small estate administration. If the estate is over $30,000 or contains real property, the if your Dad had a Will the nominated Executor would file a Petition for Probate. Without a Will, you'd be filing an Administration Petition. There is a fair amount of paperwork and specific procedure to follow, so you might want to consider consulting with an attorney. The court costs depend on the size of the estate, and attorney's fees usually depend on how much work is involved. Most attorneys, including myself, offer a free consultation.
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If your brother had power of attorney that just means that your brother can use your father's money for YOUR FATHERS benefit during his LIFE. Now that he has passed if the account was just in your father's name alone it is a probate asset - which means that where the assets go is determined by his will (if he had one), or by law (called the law of intestacy) which normally provides some amount to spouse/children depending on the family situation. How long it will take and how much it will cost depends on many factors such as the overall size of the estate, debt, family harmony, etc. You would be wise to visit with an estate administration attorney in your area.
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. Visit Steve Zelinger's website: http://www.stevenzelinger.com/
Contracts / Agreements Lawyer
I agree with counsel, it is best to soon consult with an attorney in a confidential setting in order to fully evaluate all of your options.
I am sorry for your loss. The power of attorney terminated at death. You, or your attorney, will have to go to Surrogates Court in the county where your father was domiciled to file a petition. I would advise you to contact an estate attorney to help you deal with the process.
Roman Aminov, Esq.
Law Offices of Roman Aminov
Estate Planning - Elder Law - Probate - Real Estate
147-17 Union Turnpike | Flushing, New York 11367
P: 347.766.2685 | F: 347.474.7344
Roman@AminovLaw.com | www.AminovLaw.com
This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.
It looks like there was no proper beneficiary designation on the account. The power of attorney dies with the account holder.
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