Ensuring A Smooth Sailing Through The Probate Process
Probate is the court process through which a decedent’s assets pass to the decedent’s beneficiaries named in a will or, in cases without a will, to the decedent’s heirs at law under the Massachusetts laws of intestacy.
As of March 31, 2012, Massachusetts probate laws have changed dramatically.
Testate Vs. Intestate
When a decedent dies with a valid will, they are said to have died testate. The decedent’s probate assets will be distributed according to the terms of his or her will.
In contrast, when a decedent dies without a will, they are said to have died intestate. The decedent’s probate assets will be distributed according to the laws of intestacy as amended from time to time by the Massachusetts legislature. Intestacy laws have changed as of March 31, 2012. That means the rules are different for people who passed away before March 31, 2012, even if the estate does not go to probate until after that date.
Probate assets are those assets titled in the name of the decedent alone and which do not list a beneficiary. Probate assets must be probated through the probate court in order for those assets to pass to beneficiaries.
Non-probate assets are outside the jurisdiction of the probate court. Non-probate assets include assets that specifically name beneficiaries on death, including life insurance benefits, annuity benefits, bank accounts listing beneficiaries, investment accounts and retirement accounts. Of course, if the decedent owned one of these types of assets but failed to list a beneficiary or if the beneficiary is deceased, then the asset is a probate asset and must pass through the probate process. Non-probate assets also include assets that the decedent owned jointly with rights of survivorship with another individual.
Allowance Of Will And Appointment Of Personal Representative
A will does not take legal effect until the will is allowed by the relevant probate court. In other words, the will must go through probate to become effective. Likewise, a personal representative (formerly an “executor or executrix”) named in a will has no formal authority until the court issues a certified appointment of personal representative.
Creditors have one year from the date of death to make claims against the estate. As a result, a probate cannot be closed until at least 12 months have passed since the date of death.
At the time we file the probate petition, we must provide notice to MassHealth (Medicaid) so that MassHealth can confirm whether it has any claims against the decedent for any MassHealth benefits paid to the decedent. If MassHealth has a claim, the estate will have to resolve that claim before distributions are made to beneficiaries. A skilled qualified elder law attorney may be able to negotiate the MassHealth claim down.
The personal representative must complete an inventory with the date-of-death values of all the decedent’s probate assets. The personal representative is no longer required to file this inventory with the court except under special circumstances, but they must provide all the information in the inventory to all beneficiaries of the estate.
After one year has passed from the date of death, a personal representative may file a final account with the probate court. The account reflects the beginning balance contained in the inventory, the itemization of all income received and expenses paid by the estate, the distributions from the estate, and the balance of assets left to distribute (if any). A final account always reflects a zero balance of remaining assets. Once the court allows the final account and a petition for complete settlement, the probate is closed.
Although a personal representative is not legally obligated to file a final account, it protects them from most ongoing liability. A final account may also be necessary to pass title to real estate from the estate to one of the heirs.
Formal Vs. Informal Probate
One of the most important changes in the law is the introduction of informal probate, a simplified and streamlined form of probate where the court’s involvement is significantly reduced.
Informal probate can be used in straightforward situations where all the heirs are known, legal adults are not incapacitated and are in agreement as to how things should be done. Informal probates cannot be used if there are any issues that must be reviewed by a judge, no matter how small the value of the estate or simple it may seem.
What Does The Change In The Law Mean For You?
If you have a will (but no trust) or you have no estate plan at all, we advise that you contact us so that we can review your options to avoid probate entirely, protect your financial privacy from predators, preserve and protect assets against nursing home risks, and protect inheritances against the risk of your estate beneficiaries divorcing or being sued by creditors.
If someone has already passed away and you are named as an executor or personal representative, contact us so that we can help you move through probate as quickly and efficiently as possible and so that you can be protected against possible claims from any beneficiaries.
If you are concerned about your parents or grandparents, encourage them to secure the peace of mind they deserve for their sake . . . and your sake. Have them contact our office for a consultation with a qualified elder law attorney.