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What is Probate?

When a person dies, all property that is owned by the decedent is subjected to a legal proceeding called probate. Property that passes directly to others (such as jointly owned property and life insurance payable to a named beneficiary) is not probate property and is not subject to probate proceedings. Probate proceedings take place in the county probate court in which the decedent lived.

The probate procedure involves three major steps. First, the court will determine if the decedent left a valid will. Second, the court will appoint a personal representative (called the Executor or Executrix in the Commonwealth of Massachusetts), to administer the decedent's estate. Third, the court will supervise the administration of the probate estate by the personal representative.

More probate questions are answered below, including:

Why is Probate Necessary?

The purposes of the probate process are to:

  • collect the decedent's probate assets;
  • protect and preserve the property of the estate;
  • pay all debts and taxes;
  • determine who is entitled to the probate estate; and
  • distribute the property to them.

This probate process is designed to assure that:

  • all property of the decedent is accounted for;
  • all taxes are paid;
  • the person properly entitled to the property receives it; and
  • the personal representative receives the protection afforded by statute and by the court's approval of his actions.

There may be special circumstances where everyone interested in an estate, by common consent and after review with their attorney, conclude that formal probate proceedings are unnecessary. However, anyone who undertakes to deal with the property of the decedent without qualifying as an executor or administrator in this manner exposes him-self to personal liability for his conduct. Anyone so inclined should be fully advised by a lawyer before acting in this manner even in a case where it may be appropriate.

What is Involved in the Probate Process?

The person seeking appointment as a personal representative should retain a lawyer for advice on legal matters in connection with their appointment and the conduct of the probate proceedings, as there are many rules of law which govern both the procedural and substantive aspects of the probate process. Once the appointment has been made, the personal representative, under the guidance and direction of his attorney, generally will do the following:

  • take possession of and preserve the general property of the decedent;
  • collect all income such as rents, interest or dividends;
  • make demand and collect all notes due the decedent;
  • assist in determining the name, age, and residencies and degrees of relationships of all heirs of law and next of kin;
  • complete any pending lawsuits in which the decedent had an interest;
  • carry out all orders and judgments of the probate court;
  • complete any necessary tax returns and pay all federal and state taxes;
  • pay the valid claims of creditors of the decedent;
  • when necessary, sell property to raise funds to pay claims;
  • distribute the remaining assets to the proper people; and
  • make a final accounting to all interested parties and the probate court.

Probate proceedings in Massachusetts are not complicated. However, they require some experience to achieve the desired results. The proceedings must be handled with an understanding of the underlying legal principles. These proceedings require the preparation and filing of many legal documents, the publication of notice, the holding of one or more hearings in the Probate and Family Court, appraisals of property, and finally, the transfer of all assets and the completion of the probate proceedings by the preparation and allowance by the court of the accounts of the personal representative.

What is a Personal Representative?

If a decedent leaves a will, it will ordinarily name a personal representative who is usually referred to as the "Executor" or "Executrix". If the decedent does not leave a will, the personal representative would be referred to as the "Administrator." The laws of Massachusetts set forth priorities providing who should be appointed administrator. The personal representative, whether an executor or administrator, is personally responsible for the proper handling and settlement of the decedent's estate including timely payment of all taxes due by reason of the decedent's death.

What is the Role of the Court?

All probate proceedings are subject to the jurisdiction of the Probate and Family Court. However, the day-to-day work of the personal representative, such as paying bills, settling uncontested claims, liquidating estate assets where appropriate, preparing tax returns and paying taxes, is carried out without intervention by the court. When disputes arise, or uncertainty exists as to the proper meaning of a document or the identity of a person entitled to share in the estate, the personal representative will request the court to hear testimony and enter the appropriate judgment or order.

How Long Does Probate Take?

The initial steps of petitioning for the allowance of the will (or the administration of the estate) and appointment of a personal representative usually takes six to eight weeks from the date of the filing of the petition. The petition may be prepared and filed immediately following the death of the decedent. State and federal estate tax returns and payment of taxes are due nine months from the date of the decedent's death. Although partial distributions may be made prior to the final distribution of the estate, because of tax complexities, final distributions can take up to two and a half years. However, the vast majority of the work is completed in the first nine months following the death.

What About Taxes?

Every estate is subject to both state and federal estate taxes, which are based on the decedent's control over property at the time of death. Both the Massachusetts estate tax and the federal estate tax are graduated taxes that are levied on the net estate after allowing for certain deductions and exemptions. The obligation to prepare and file both federal and state estate tax returns can exist even if the decedent left no probate estate. This is due to the fact that jointly owned property, life insurance and certain types of transfers by the decedent prior to their death, while not subject to probate, are subject to taxation by the government. A personal representative should not attempt to complete the necessary returns, compute the taxes due or meet necessary filing requirements without the supervision and guidance of a lawyer or Certified Public Accountant.

What Does Probate Cost?

Generally, the personal representative may charge a reasonable fee for the value of the services actually rendered by the personal representative. The same general guideline exists for the lawyer in setting his fees for services rendered to the personal representative.

What About Small Estates?

According to Massachusetts laws, if a decedent leaves an estate, with or without a will, consisting entirely of personal property valued less than $15,000, (i.e., no real estate) together with a motor vehicle, a simplified proceeding may be used instead of the formal probate proceedings. If the decedent left a will, it is filed and the simplified proceeding may still be followed. Usually, a decision as to the availability of the informal proceeding can be made by the lawyer and the personal representative at the time of their initial meeting.

What Happens in the Case of Jointly Owned Property?

Joint Tenancy With Rights of Survivorship (JTWROS) is a form of co-ownership of property where two or more persons own the property together. On the death of one joint owner, the ownership of the property passes automatically to the surviving joint owner. Joint ownership should be used cautiously since the mere transfer into joint names may cause tax liability at the time of the transfer and unnecessary estate tax complications at the death of any one of the joint owners.

What is the Importance of Having a Will?

Experience has proven the wisdom of those who have prepared a carefully considered will. By doing so, they have insured that their property will go to the persons or charities they wish, and that those who will be faced with the settlement of the estate can do the job as efficiently as possible. If you do not make out a will, your probate property will be distributed according to the laws of intestate succession, which is an inflexible formula governing the distribution of one's property.

Anyone in possession of a will of a deceased person must file that will with the appropriate Probate and Family Court within 30 days of the death of the deceased person. Statutory penalties are provided for withholding or destroying a will.