QUESTION
Can I cash a check made to the estate if there are no probatable assets.
Asked on Mar 09th, 2012 on Wills and Probate - Florida
3 ANSWERS
4 Awards
You should consult with an attorney who practices in the field of probate. Depending on the amount of the check, the attorney can advise you on how to proceed. It may not be worth opening probate proceedings.
Answered on Nov 07th, 2012 at 9:07 AM
Only the personal representative of the probate estate can negotiate a check payable to an estate. It would be inappropriate for the personal representative to "cash" such a check, but should deposit the check into the estate's bank account.
If the check is less than $75,000 and there are no other probatable assets, you can use an alternative form of probate called "summary administration." In a summary administration, there must be no known or reasonably ascertainable creditors of the estate and the total non-exempt assets must not exceed $75,000. If you are the sole heir of the estate, you do not need the assistance of a probate attorney to file the petition for summary administration. If you are not the sole heir of the estate, then it will be necessary for you to retain a probate attorney to assist you with the filing of the petition for summary administration.
The petition for summary administration asks the probate judge to enter a court order directing the maker of the check payable to the estate to cancel the existing check and provide a new check payable directly to the benefactrices of the estate. Upon the entry by the probate court of the Order of Summary administration, the check should be replaced by a check payable to the beneficiaries.
You can find more information about probate in Florida at our website: http://www.thecolemanlawfirm.net/Florida_Probate_Law.html
C. Randolph Coleman
Answered on Apr 01st, 2012 at 11:57 AM
Dear Anonymous,
Where I practice (in the State of Illinois), if the check and all other assets in the estate do not exceed $100,000.00-excluding real estate, you would most likely be able to use a vehicle called a Small Estate Affidavit to accomplish negotiation of the check. To use this vehicle the affiant states on oath that probate administration is not contemplated, that there are no unpaid/outstanding creditors or contested claims, all the funeral expenses have been paid or such are listed by the amount of any such unpaid expenses along w/the person's name entitled to such payment and a list of all of decedent's heirs are included and included also is an acknowledgement of whether or not the decedent left a will. This affidavit can be taken to the bank with check in hand to negotiate the check. HOWEVER, it is the bank's prerogative as to whether or not the small estate affidavit is sufficient and acceptable. In my practice, it is usually accepted, but I have encountered instances where a bank required someone to obtain letters of office (this is what's given to executor/administrator by the court to handle the business of the estate). What you cannot do is to try to put the check in your own personal bank account neither endorse it over to yourself. Also, do consider if taxes will need to be paid on the check proceeds as well. I recommend you consult a probate attorney in Florida to inquire if the small estate affidavit is utilized there. Best wishes to you and I hope this helped.
Answered on Mar 10th, 2012 at 6:47 PM