It’s difficult enough to lose a loved one without the added stress of finding out that you now need to probate their estate. Many issues arise at the start of estate administration and throughout, such as paying bills, determining who will inherit, and how to gain access to the estate holder’s accounts.
If you are the executor or personal representative of the deceased person’s (decedent) will, it is essential to understand how the probate process works in Massachusetts. Since the probate process can be lengthy and confusing, you need an experienced probate attorney from The Law Offices of Kimberly Butler Rainen at your side. We can assist you with filing the petition to appoint the personal representative, marshaling the property, settling the estate’s debts, preparing estate tax returns, distributing inheritance to heirs, presenting the accounts to the court, and closing the estate. Read on as we discuss the probate process in Massachusetts.
What Is Probate?
Probate is the legal process of validating a will, determining the decedent’s assets, and distributing those assets according to state law to heirs, creditors, and the government in the case of taxes. Since creditors have a year (after the death) to come forward with claims, probate in Massachusetts usually takes a year or so. If there is a court battle over the will (which is uncommon), or if there are unusual assets or debts, it can take much longer. If there is no will, Massachusetts law dictates the distribution of probate property.
When Is Probate Required for an Estate?
Probate may not always be required. It is possible to distribute property outside of the probate process. As a general rule, if any of the following is required, the decedent’s estate must be probated.
- Determine the validity of the decedent’s will.
- Change the title of real estate or personal property solely in the decedent’s name, such as bank accounts, stocks, or bonds, with no right of survivorship.
- Make payments to the decedent’s creditors.
- Obtain the medical records of the deceased.
- File and pay the decedent’s tax returns.
Types of Probate in Massachusetts
In Massachusetts, there are three types of probate, and a simplified procedure known as voluntary administration.
1. Informal Probate
Informal probate is an administrative probate proceeding processed by a Massachusetts Uniform Probate Code Magistrate instead of a judge without any court involvement and no court hearings. You’ll need to file different forms depending on whether or not the decedent died with a will. A probate lawyer can assist you with any filings and answer any questions you may have. Informal probate is not available if any of the following conditions apply:
- The original will cannot be found.
- There is no official death certificate.
- The whereabouts and identities of heirs and devisees are unknown.
- A judge must sign an order or final decree.
- There is an incapacitated spouse, heir, or devisee, or a minor who does not have a conservator or guardian to represent them.
2. Formal Probate
Formal probate requires the estate to be opened by filing a petition for a hearing before the probate court and may entail continued court involvement. The following circumstances may require formal probate:
- The will is a copy or has handwritten or crossed-out words.
- The petitioner is a creditor or a public administrator.
- A judge must sign an order or final decree.
- The terms of the will are unclear.
- It is necessary to appoint a special personal representative.
- Legal representation is required to protect the interests of incapacitated or minor heirs or devisees.
- There is an objection to the will or the personal representative’s appointment by an interested party.
3. Late and Limited Formal Probate
When a person dies, and no formal probate proceedings have taken place within three years of their death, late and limited formal probate occurs. The court may grant a petition to admit the individual’s will to formal probate or determine the heirs if no will exists. After that, the court can appoint a personal representative to handle the estate’s administration. The personal representative can only confirm title to estate assets but cannot sell the decedent’s real estate.
Voluntary Administration
Voluntary administration is a process that can be used if “the probate estate consists entirely of personal property and the total value of all personal property owned by the decedent and subject to disposition by will or intestate succession at the time of the decedent’s death does not exceed $25,000.00, exclusive of one motor vehicle.”
Probate Process
If an estate must go through the formal probate process, the following are typical steps:
- Opening the probate of the estate by filing a petition in the appropriate court, along with an official death certificate
- Notifying the estate’s creditors that probate is underway
- Identifying, locating, and notifying the estate’s beneficiaries and/or heirs that the estate is being probated
- Identifying, locating, and valuing all estate assets
- Examining and approving or rejecting creditor claims
- Prioritizing claims and paying once they have been approved
- Selling assets, if necessary, to pay creditors
- Defending any challenges to the will or litigating any denied creditor claims
- Calculating any federal (and state, if applicable) gift and estate taxes to be paid
- Executing the legal transfer of the estate’s remaining assets to the named beneficiaries and/or legal heirs
- Distributing remaining assets and closing the estate
During probate, executors and personal representatives have the most significant responsibilities. They must understand exactly what they are responsible for regarding filings with the court, providing the required notice, and caring for the deceased’s assets. As a result, those responsible for these tasks should seek legal advice from an experienced probate attorney throughout the Massachusetts probate process.
Avoiding Probate
Although probate is a well-established process for distributing property after death, there are numerous reasons to avoid it. Probate fees can eat up a significant portion of your estate, and the process is very public, so you may not want your plan to become a public spectacle. As a result, reducing or eliminating the role of probate court can save time, money, and privacy for your heirs.
The role of probate court can be reduced or eliminated in various ways. Creating a living trust, naming beneficiaries on your retirement and bank accounts, and jointly owning real estate are viable options. A probate attorney can assist you in developing a strategy tailored to your specific goals and circumstances.
The Law Offices of Kimberly Butler Rainen: Your Probate Lawyer in Andover, Massachusetts
If you are looking for a “probate lawyer near me,” look no further. The Law Offices of Kimberly Butler Rainen can help you with probate administration whether you need us to handle everything from start to finish or just need some advice.
Take the first step to secure your future today and get the help you need with the probate process. To book a consultation, call us at The Law Offices of Kimberly Butler Rainen in Andover, Massachusetts, at (978) 409-1928, or fill out our contact form here.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
The Law Offices of Kimberly Butler Rainen
23 Central St.,
Andover, MA 01810
(978) 409-1928