We have a spouse that has qualified as executor on her deceased husbands's assets. The husband had 1 account with us that was held solely in his name. She does not want to open an estate account and wants the funds issued directly to her since the will "states she gets it all".

We are stating that we can only disburse the funds into an estate account or issue a check payable to the estate. Her attorney told her that she did not have to have an estate account.

How could we legally disburse the funds to anything other than the estate? Thoughts??????

Does your state have laws permitting payments from the decedent’s account to a surviving family member? Some states allow payments to a surviving spouse if under a certain amount (complete an affidavit, provide proof of death, etc.) Just a thought.....

Typically we only do that if it is a small estate (<$50,000) where they provided the small estate affidavit and waited 60 days.

She might not have to have an estate account, but I would disburse any funds in the name of the estate, noting her as personal representative. She can then do what she wants with the check.

Most people would like to avoid the probate process. Unfortunately it's not exactly a cafeteria style enterprise where people get to pick what they want.

Estates generally owe bills. They can be expenses from a final illness, burial expenses, loans, etc. The probate process is intended to make certain those bills get paid then to verify that the property is delivered to the person actually named in a will which has been properly filed with the court.

As she has a court order naming her as the personal representative, you would issue a check payable to the estate and hand it to her. However, you are not going to cash it or accept it for deposit to an account in any other name. Any bank that does would have notice of the breach of fiduciary duty; they would and should be liable.

Any mechanism that bypasses that process is one set out in state statute; e.g. the small estate affidavit you mentioned. The amounts and formalities vary from state to state, but some states do not allow it at all.

"My attorney said..." doesn't mean anything unless the quote incorporates a citation to a state statute.

The state laws permitting the use of a small estate affidavit, etc., often are contingent on the lack of an appearance by a personal representative. In some states, once the probate process has begun, the PR designated by the court, and the PR makes an appearance at the bank, the course of events is determined, and the the small estate route or payout to next of kin is no longer an option. Because state laws vary so much in this regard, it's really critical that you understand what can and cannot be done in your state.