Ask the Probate Judge—Will & Beneficiary Questions
Rudd, appeared July 8, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: If I am included in my father's will, am I entitled to a copy of the will, or do I just have to take the word of the executrix as to what it says? Anonymous
It depends on whether your father is living or deceased. If living, no one other than the testator (maker of the will) is entitled to a copy of the will. It is a private document that may be shared or not shared at the discretion of the testator.
Giving a copy to the personal representative (New Mexico law uses this term rather than "executrix") named in the will may be a good idea, but is not required. A testator should at least tell the personal representative where the original will is located and how to access it.
If your father has died and a probate case has been started, then the will becomes part of the public court record. If you are named as a devisee in the will, the law requires that you receive notice of the probate proceeding. You can ask the personal representative or attorney for the estate for a copy. Often the attorney or personal representative routinely sends a copy of the will, along with other probate papers, to all persons with an interest in the estate.
In my experience, fewer problems arise when the personal representative and attorney establish open and prompt communication with the heirs and devisees of an estate.
Even if you are not named in the will, if a probate case was opened, you can obtain a copy of the will from the court where the case was filed.
Q: Many years ago I was advised by a lawyer after making our wills that we should keep everything we own in joint tenancy to avoid probate, which we have done. However, I am very concerned about my IRA, which I was told could not be jointly held. My wife is my beneficiary, but when I die, will a probate be required just for this one asset? J.W.
As you have stated, individual retirement accounts (IRAs) have beneficiary designations. Suppose you name X as the beneficiary of your IRA. If you die before X, then X receives your IRA without any probate proceeding. If X dies before you, then you should update your IRA's beneficiary designation.
I can think of two ways an IRA could be subject to probate. One way is if your IRA beneficiary pre-deceased you and no alternate beneficiary was named. A second way is if you named your estate, rather than an individual, as the beneficiary of the IRA. I am not even sure whether one is allowed to name an estate as an IRA beneficiary, however.
You should periodically review all beneficiary designations on IRAs, CDs, annuities, and other assets to make sure they are current and correct. If one of your beneficiaries dies before you, you might need to sign a new beneficiary designation form.
Most beneficiary designation forms allow you to name a first choice beneficiary and an alternate beneficiary. If the first beneficiary dies before you, then the alternate will receive the asset upon your death.
My next column will address the downsides of joint tenancies.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved