Probate and Estate Administration Information
“Probate” is a scary and mysterious word to many people. Our job is to demystify the probate process. We have been helping clients probate estates for more than three decades. A Personal Representative (formerly called an “executor” or “administrator”) is a significant responsibility so we are there to inform you, guide you, and assist you throughout the process. The following questions and answers will help you better understand the probate process.
What do I do after my family member or friend has died?
After an individual’s death, the decedent’s loved ones should focus first on making funeral arrangements and grieving the decedent. You should attempt to confirm whether the decedent has expressed any burial or funeral wishes in their Will or personal documents. No immediate legal action is required under the law.
The decedent’s loved ones should attempt to confirm whether the decedent died with a Will. If so, then the decedent is deemed to have died “testate”. The Will names an individual to be Personal Representative of the Estate (Wills drafted before 2012 will often call this individual an “Executor”). The Personal Representative should bring the original Will (or a copy if the original cannot be located) and a certified copy of the death certificate to our office.
If the decedent died without a Will, then the decedent is deemed to have died “intestate.” In this case, one of the decedent’s family members or friends may serve as the Personal Representative of the Estate. They will serve the same role as a Personal Representative appointed under a Will.
Regardless of whether a decedent dies testate or intestate, the Probate Court will appoint the Personal Representative to have legal authority over the administration of the Estate.
What is the probate process?
Probate is the process by which a decedent’s expenses and debts are paid, and his or her property, known as the “Estate,” passes to his or her legatees (people named in the Will to receive non-real estate assets) or devisees (people named in the Will to receive real estate assets) or heirs at law (closest living relatives as determined by statute).
How long does probate take to complete?
The laws of the Commonwealth of Massachusetts entitle the decedent’s creditors to file claims against the Estate for up to 12 months from the date of death. Thus, as a practical matter, the Personal Representative of the Estate cannot distribute the Estate assets until this statutory one-year period has lapsed. Under certain circumstances, partial distributions of the Estate can be made in the interim.
What property is subject to the probate process?
The probate Estate includes all property held in the decedent’s name alone or the decedent’s share of real estate owned with others as “tenants in common”. Certain kinds of property, such as property owned jointly by the decedent (but not as tenants in common), life insurance, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example, jointly owned bank accounts and real estate owned as “joint tenants with right of survivorship” or “tenants by the entireties” pass automatically and immediately to the surviving joint owner upon the death of a joint owner.
What if the decedent’s assets are of little value?
- The Probate Court may appoint a “Voluntary” Personal Representative if all of the following are true:
- The decedent was a Massachusetts resident at the time of death
- The decedent’s assets total less than $25,000 (not including the value of an automobile)
- At the time of death, the decedent owned no real estate (unless the real estate is outside the Probate Estate)
- Voluntary Probate is cheaper, quicker, and less time-consuming than a full probate. We can help you with securing a “Voluntary” appointment.
How is the probate process started?
First, we file with the Probate Court a Petition for Probate of the Will, along with the original Will (if any) and a certified copy of the death certificate. Notice must be mailed to all of the decedent’s heirs at law, to those named as beneficiaries in the Will, and, if a charity is involved or there are no known heirs at law, to the Attorney General. Notice also must be published in a local newspaper. If no one objects to the Petition by a deadline set by the Court, the Court will appoint a Personal Representative of the Estate.
What if the decedent’s family situation is very simple?
- In a very simple family situation where:
- All of the heirs are known and available;
- None of the heirs are minors;
- None of the heirs are legally incapacitated (unless they have a Court appointed Conservator);
- There are no disputes between the heirs;
- There is no real estate in the estate or else the family plans to sell (and not keep) any real estate during the probate process
- There are no problems with the Will or situations that require review from a Judge
- Then you may use a more streamlined form of Probate called “Informal Probate”
- Informal Probates still requires that all known beneficiaries in the Will and heirs-at-law receive notice, at least seven days before a Petition is filed and that notice be published in a local newspaper.
- Disgruntled heirs, creditors and others can object to Informal Probate by filing a Formal Probate. In many cases a Formal Probate must also be filed for procedural reasons. We can advise you if an “Informal” proceeding is possible in your situation and help you through the process.
What does the Personal Representative do?
The Personal Representative is responsible for marshalling and safeguarding the assets of the decedent, administering the Estate through the Probate Court, paying any debts of the decedent or the Estate, and distributing the remaining Estate assets according to the decedent’s wishes under their Will, or if there is no Will, then to the heirs at law.
The Personal Representative may file with the Probate Court an itemized list, known as an “Inventory,” of the probate assets, including the value of each asset. If they do not file an Inventory with the Court, they are required to provide the same information to each of the beneficiaries of the Estate. The Personal Representative must ensure that any necessary tax returns are filed and taxes paid (including Estate income tax returns and potential Estate tax returns). As his or her final responsibility, the Personal Representative may file an accounting with the Probate Court showing the assets and income of the Estate, and the expenditures and final distributions of the Estate. If the Personal Representative does not file an accounting with the Probate Court, they must provide the same information to each of the beneficiaries of the Estate,
What if the appointed Personal Representative has failed to fulfill their duties?
Sometimes, a Personal Representative fails to fairly, timely, or accurately perform their duties. In addition to causing tremendous stress, hurt feelings and anger, the Personal Representative may have breached their fiduciary duties and interested parties have a right to seek relief in the Probate Court. We can help you petition the Probate Court to remove the Personal Representative and, in some cases, seek reimbursement of costs and damages from the Personal Representative’s personal assets.