The loss of a loved one is typically followed by a grieving period that is full of heightened emotions ranging from denial to anger to depression. If you are currently grieving the loss of a loved one, the last thing on your mind is probably the practical and legal ramifications of your loved one’s death. Someone, however, must be in charge of overseeing the probate of the individual’s estate. If you were named as the Executor (also referred to as the Personal Representative) of the estate in the decedent’s Last Will and Testament, your loved one has put you in charge of the administration of his/her estate. Retaining the services of an experienced estate planning attorney to assist you throughout the probate of the estate is certainly advisable. To get you started, however, the estate planning attorneys at Legacy Care Law Firm have compiled some commonly used probate resources for the North Andover, Massachusetts area.
Probate Basics for the Beginner
Probate is the legal process that is typically required after someone dies. Probate serves several important functions, including providing a legal framework within which the decedent’s assets are transferred to the new owners as well as ensuring that all creditors of the estate, including tax authorities, are paid. The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the “Personal Representative(PR) and oversee the probate of the estate. For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. In addition, the Massachusetts government’s official website offers information relating to probate on their “Probate of Wills and Estates” section.
Probate is typically opened in the county in which the decedent was a resident at the time of death. If the decedent lived in North Andover that will likely mean probate will take place in the Essex Probate and Family Court. Most Personal Representatives (PRs) retain the services of an experienced estate planning attorney to assist during the probate process, particularly if the estate does not qualify for a small estate alternative to formal probate. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the Essex County Rules of Court as well as the applicable laws. Many of the forms needed to probate an estate can also be found on the website; however, keep in mind that court staff cannot help you fill out the forms nor can they provide you with legal advice.
Finding the Right Attorney
If your loved one’s estate requires formal probate, or you are unsure how to proceed with the probate process, retaining the services of an experienced estate planning attorney is your best option. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. In addition, the MassBar Association’s Lawyer Referral Service may be able to hep you find the right attorney to help you probate your loved one’s estate.
Personal Representative Resources
As the Personal Representative of the estate you will have numerous duties and responsibilities throughout the probate process. To get the probate process started you will need to file the appropriate petition with the Essex Probate and Family Court. When you file the petition you will need the original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the Massachusetts Vital Records Agency. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. A good place to start is the Essex County Tax Board website where you can conduct a search of the county property records. As the PR you will also be responsible for notifying all creditors of the estate that probate is underway. Know creditors may be notified individually; however, for unknown creditors you must publish a notice in a local newspaper.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turn out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate.
If you have additional questions or concerns regarding the probate of an estate, please feel free to contact the experienced Massachusetts probate attorneys at Legacy Care Law Firm by calling (978) 969-0331 to schedule your free consultation.