If you recently lost a loved one, you are likely going through a period of grieving and heightened emotions. Thinking about the legal ramifications of your loved one’s death is probably not something you want to do; however, someone must initiate the probate process. If you were appointed to do so, or you are the logical choice, it helps to have an idea of what to expect when probating an estate. With that in mind, the probate attorneys at Legacy Care Law Firm created a self-help guide for death and probate in Massachusetts.
What Is Probate?
Following the loss of a loved one, we tend to focus on the emotional impact of their death. Probate is the process that focuses on the legal steps involved in administering a decedent’s estate following their death. Your loved one left behind an estate that may include things such as real property, bank accounts, insurance policies, securities, and personal items. Your loved one may also have bills that remained unpaid at the time of his/her death. Probate provides the legal structure and rules necessary to make sure that creditors are paid and assets from your loved one’s estate are passed down to the right people or entities.
Is Probate Always Necessary?
The first thing you need to do after the passing of a loved one is to figure out if the decedent’s estate requires probate. It is always best to consult with an experienced probate attorney to make sure you understand whether the estate requires probate and, if so, which type of probate process can be used. One thing you can look at initially, however, is how assets are held and what estate planning mechanism is in place to distribute assets. This is helpful because certain types of jointly held assets do not go through probate. Instead, they are automatically transferred to a co-owner or named beneficiary. Likewise, assets gifted in a Will must first go through probate whereas assets gifted in a trust bypass probate.
Who Is Responsible for Probating an Estate?
If your loved one left behind a Last Will and Testament, the person appointed to be the Executor of the estate is the individual that the decedent chose to be responsible for overseeing probate. If the decedent did not have a Will or the person named as Executor in a Will is unavailable, a judge will appoint someone to be the personal representative of the estate.
Are There Different Options for Probate in Massachusetts?
While most estates require some type of probate, not all require formal probate. Formal probate is required if the estate is involved in litigation and may also be necessary for larger or more complex estates. Formal probate can take months, even years, to get through. The good news is that Massachusetts offers alternatives to formal probate for estates that qualify, including:
- Informal probate. Informal probate is an administrative proceeding handled by a magistrate instead of a judge. It is simpler and quicker than formal probate. For an estate to qualify for informal probate there cannot be an order for supervised probate in place and you need:
- The original will.
- The official death certificate.
- The location and identity of all heirs and devisees.
- Voluntary administration. If the estate has no real property (real estate) and minimal assets it might qualify for voluntary administration. To use voluntary administration:
- The decedent must have been a resident of Massachusetts.
- The estate can only have personal assets valued at less than $25,000.
- 30 must have passed since the decedent’s death.
- Both estates with a Will and without a Will can qualify.
How Do I Start Probate in Massachusetts?
What you need to do to get probate started in Massachusetts depends on what type of probate is required. If the estate requires formal probate a petition must be filed with the appropriate probate court. Along with the petition you will need to file an original copy of the Will and a certified death certificate along with several other required forms. The same basic process applies to initiating informal probate. For a voluntary administration, you file a Voluntary Administration Statement. Again, to make sure you are following the correct procedures, check with an experienced probate attorney.
What Happens After I Start the Probate Process?
Certain people and/or entities are legally required to be given notice of probate. How you provide notice and to whom will depend on the type of probate used and the unique facts of the estate being probated. In any type of probate, however, creditors of the estate are entitled to make claims against the estate and may take priority (depending on the type of creditor) when it comes time to distribute estate assets. If someone wants to challenge the decedent’s Will, that challenge must be litigated before anything else happens.
When Are the Estate Assets Passed Down?
Some assets are not required to go through probate and can be passed down to a designated beneficiary shortly after the death of the owner. For assets that are part of the probate process, however, the beneficiaries and/or legal heirs must usually wait until the end of probate to receive an inheritance.
Do I Need an Attorney for Probate in Massachusetts?
It is always advisable to consult with an experienced estate planning or probate attorney when a loved one passes away to ensure that you understand what legal steps need to be taken. It is possible to get through probate without the assistance of an attorney if the estate is modest, there are no complex assets or creditors, and no one challenges the Will. For more complicated estates or when litigation is likely, however, it is best to have an experienced probate attorney on your side.
Contact Our Probate Attorneys
For more information on death and probate in Massachusetts, please join us for an upcoming FREE seminar. If you have additional questions about death and probate in Massachusetts, contact our probate attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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