[kennethv]

Hi there,

My father passed away recently in New Mexico. He left a will, but it turned out that the only portion of his estate that required a personal representative be appointed was a deposit refund from the retirement community he was living at. According to New Mexico law, small estates (< $30k) can avoid probate and get a legal affidavit to administer the estate instead of going through probate. My brother and I, the sole beneficiaries, retained a lawyer in New Mexico and had the necessary affidavit prepared for us. The retirement community accepted the affidavit and issued a check. The problem is that the check was issued to the "Estate of (deceased)" c/o myself. My bank won't cash the check, even with the affidavit, without opening an official estate account.

So, with that background, I have two questions.

1) Wasn't the point of the affidavit to avoid having to open an estate account? Should I try to apply legal pressure to the retirement community to reissue the check directly to my brother and I?

2) Failing that, what are the ramifications of getting an estate account? I know we have to get an EIN number. Could we open this account, cash the check, transfer the money to a personal account, close the estate account, and done? Do we have to file special tax paperwork just because of the estate account, even if there was no interest earned?

Thanks in advance for any advice proffered.

-Ken

[AK lawyer]

1) Wasn't the point of the affidavit to avoid having to open an estate account? Should I try to apply legal pressure to the retirement community to reissue the check directly to my brother and I?

Well, not "legal pressure", but perhaps courteously expain to them that there isn't an estate accunt and that, as you say, avoiding those complications is the whole point of the small estate provisions.

2) Failing that, what are the ramifications of getting an estate account? I know we have to get an EIN number. Could we open this account, cash the check, transfer the money to a personal account, close the estate account, and done? Do we have to file special tax paperwork just because of the estate account, even if there was no interest earned?

Are you sure you need an EIN? In any event, yes, do that if you have to. You shouldn't have to file any tax paperwork if the "estate" has no income, and there are no death tax consequences (which there aren't for a small estate like this).

[Fr_Chuck]

As for as I know for an estate account they want a EIN number for the "estate" account, this creates it as a separate tax identity.

But personally you check out another bank