Ensuring A Smooth Sailing Through The Probate Process
Probate is the formal legal process of settling a person’s estate after they pass away. If the person left a will, the court ensures their assets go to the people they named. If there is no will, the court steps in to ensure a personal representative is appointed to distribute the assets to the person’s next of kin based on Massachusetts law.
At Curley Law Firm LLP, our Certified Elder Law Attorneys have decades of experience assisting families and personal representatives through the complexities of this process. Our team also frequently assists out-of-state clients who are responsible for settling a loved one’s estate in Massachusetts, providing clear communication every step of the way.
Testate Versus 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 if the will is allowed and found valid by the court.
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
Probate assets are those assets titled in the name of the decedent alone and do not list a beneficiary. Probate assets must be probated through the probate court in order for those assets to pass to beneficiaries.
Nonprobate Assets
These are typically assets that name a specific beneficiary who will receive them upon death, such as life insurance benefits, annuities, retirement accounts, and bank or investment accounts with a beneficiary designation. Nonprobate assets also include assets that the decedent owned jointly with rights of survivorship with another individual.
In many cases, if the decedent owned one of these types of assets but failed to list a beneficiary or if the beneficiary or joint owner is already deceased, then the asset is a probate asset and must pass through the probate process.
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. A will without court authority does not allow a personal representative to take action.
Creditor Claims
Creditors have one year from the date of death to make claims against the estate. As such, personal representatives typically do not make final distributions until at least 12 months have passed since the date of death.
MassHealth Liens
At the time one files the probate petition, they may also need to provide notice to MassHealth (Medicaid) so that it 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 or pursue one or more of the available waivers against the MassHealth claim.
Inventory
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.
Final Account
After one year has passed from the date of death, a personal representative must file an account with the estate beneficiaries unless they agree to waive it and 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. If none is filed, the probate remains open.
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 so they can sell without estate involvement.
Formal Versus 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 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, our attorneys 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, our lawyers can help you move through probate as quickly and efficiently as possible so that you can be protected against possible claims from any beneficiaries.
If you are concerned about your parents or grandparents, it’s advisable to have them contact our office for a consultation with a qualified elder law attorney. Our team can help them secure the peace of mind they deserve for their sake and yours.
Answering Your Probate Administration Questions
When a loved one passes away, families often have many questions about what happens next. Here are some of the most common ones our team receives:
When is probate required, and how long does the process typically take?
Probate is required in Massachusetts when a person passes away owning probate assets. These are assets titled in their name alone, without a beneficiary designation. Probate can also be required to pursue or defend certain lawsuits or obtain medical or other records.
The timeline can vary per case, but the process has a firm minimum length. As mentioned above, creditors have one year from the date of death to file claims against the estate. Personal representatives are often advised not to make final distributions until after this year passes to avoid personal liability for unknown debts.
What are the personal representative’s responsibilities and potential liabilities?
As a fiduciary, the personal representative is legally required to manage the estate’s affairs in a way that serves its best interests. Their responsibilities include:
- Gathering and inventorying all probate assets
- Notifying all legal heirs, beneficiaries and known creditors
- Paying valid debts, final expenses and taxes from the estate
- Filing the decedent’s final income tax returns
- Distributing the remaining assets to the beneficiaries as directed by the will or state law
A personal representative can be held personally liable for financial harm caused by mistakes, such as paying heirs before valid creditors (such as MassHealth) or mismanaging estate funds.
How are creditors notified and claims resolved during probate?
The personal representative is legally required to provide notice to creditors. This is usually done by the personal representative publishing a notice in a local newspaper to alert any creditors. As stated, these creditors have one year from the decedent’s death to file and perfect a claim. For some special types of creditors like MassHealth, and, if involved, the VA, the personal representative may be required to give more specific notice.
The personal representative is responsible for:
- Reviewing these claims
- Determining if they are valid
- Paying them from the estate’s assets before beneficiaries receive their inheritance
Can small estates or jointly titled assets avoid formal probate?
It depends on how the assets are titled and their total value. Property owned as joint tenants with rights of survivorship can pass outside probate and go directly to the surviving owner. Massachusetts also offers a simplified small estate procedure called voluntary administration, which can have less paperwork and court supervision than formal probate.
This applies to estates with probate assets that have a total value of $25,000 or less, plus one motor vehicle of any value. Take note that this estate cannot include any real estate. Our lawyers can assess your situation to see if you qualify for this or if probate can be avoided altogether.
Let Us Guide You Through Probate
If someone has passed away and you are named as a personal representative, our lawyers can help you move through probate efficiently and protect you from liability. Contact us at Curley Law Firm LLP today by calling 866-406-8582 or reaching us via email. We serve clients in Wakefield, and throughout Essex, Suffolk and Middlesex counties.