(Halloween) Trick of the Trade: Accessing a Decedent’s Bank Account Without Probate

An acquaintance of mine recently reached out because his mother passed away with a bank account held in her individual name.  Typically, probate is necessary to give a Personal Representative (Executor) the legal authority via the court to access, manage and distribute the assets titled in the individual name of a decedent at the time of death. However, there is a little-known statute in Massachusetts that permits a surviving spouse or next of kin to withdraw the funds from a decedent’s individual bank account without going through probate.

Massachusetts General Law Chapter 167D, Section 12 (M.G.L.c.167D, §12) states that a bank, at its discretion, may pay to the decedent’s surviving spouse or next of kin, the funds in the decedent’s bank account if the amount is under $10,000 and it has been thirty (30) days or more since the decedent’s date of death. A death certificate must be provided to the bank.  Practically, the bank may choose to decline to pay out the funds in the account, and require a person to be appointed as Personal Representative.  If the bank chooses to proceed with paying the funds to the surviving spouse or next of kin according to the statute, it is released from liability.  It is important to note that the statute is only an option where there is a surviving spouse or clear next of kin, such as children who are all from the marriage of the decedent and surviving spouse.

Unfortunately, the funds in the mother’s account of my acquaintance were a few thousand dollars more than the statutory amount and a voluntary probate will be necessary to access the bank account. If his mother had spoken with an estate planning attorney prior to her passing, the attorney could have advised her on ways to avoid the need for probate by creating a Trust or designating beneficiaries on the account, to name a couple.

At Samuel, Sayward and Baler LLC, we comprehensively educate and advise you about your assets and your options to make it as easy as possible for your family to take action with your assets at your death.  And if no planning is done, or an unknown asset is discovered, we guide your family through the best choices available to access, manage and distribute your assets after your death.

Attorney Abigail V. Poole is a senior associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement and elder law matters. She is an active member and current President Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA).  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020. 

October, 2022

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