Probate is a judicial process in which a last will and testament is established as the valid representation of a deceased individual’s final wishes as to his or her estate. Also known as “proving the will,” probate is required for most estates. Probate can be costly and time-consuming, and personal representatives (also known as executors) are often overwhelmed by their responsibilities. Regardless of what your estate administration needs are, you have a trusted legal ally in SederLaw.
The Basics of Probate
After the passing of an individual who executed a last will and testament, that instrument must usually undergo a process known as probate. The ultimate objective of probate is to transfer the title to money, property, and other assets from the estate of the deceased individual (decedent) to the individuals or organizations who will inherit it. But this can only be done if the will is valid, which is where probate comes in.
Whether an estate must be probated depends on how the assets are titled, or owned, at the time of the decedent’s death. Not all property is part of the probate estate and therefore passes by other means to heirs. Some examples are:
- Jointly held property with a right of survivorship (in which the surviving joint owner automatically has a right to the property)
- Life insurance, retirement, and bank account proceeds with a named beneficiary
- Property that was held in a trust by the decedent
Probate will typically be required to accomplish the following:
- Determine whether the will is valid
- Change title to any real and personal property – including homes, land, vehicles, bank accounts, stocks, and bonds – that was held only in the decedent’s name with no right of survivorship
- Pay the decedent’s final medical expenses and other debts
- Obtain copies of the decedent’s medical records
- File the decedent’s final tax returns and pay taxes owed
Probate Process for a Person Who Died with a Will
If an individual dies with a valid will (also known as dying testate), then that instrument will have named a personal representative to dispose of the decedent’s property. The personal representative will file a copy of the will with the Massachusetts Probate Court. A Notice of Probate will be published in a local newspaper so creditors can make their claims against the estate. Creditors will notify the estate of their claims and work with the personal representative to settle them.
During this process, which can last several months, the personal representative will be responsible for the following responsibilities, among others:
- Being appointed by the probate court as the true representative
- Tracking down certain documents, such as bank statements and insurance policies
- Gathering and safeguarding the decedent’s possessions
- Making an inventory of all estate assets
- Establishing and transferring assets into an estate bank account
- Liquefying estate assets and transferring their proceeds into the estate bank account
- Conducting appraisals of property to determine its value
- Obtaining a tax identification number for the decedent’s estate
- Keeping track of all accounts and ensuring there are no unauthorized transactions or access
- Paying the bills and debts of the estate
- Distributing remaining property and assets to heirs, as provided for in the will
At the conclusion of probate, certain documents have to be filed. One of those is the Final Account of the estate that is provided to the probate court. Once this document is accepted, and all other responsibilities are completed, probate is closed.
All of this must be done in accordance with the law and with the personal representative’s fiduciary duties in mind. One of those duties is that of loyalty, meaning the representative must act in the interests of the estate’s heirs (also known as beneficiaries), showing partiality to none. An attorney can explain more about these fiduciary obligations.
What if the Decedent Died Without a Will?
Dying without a will is known as dying intestate, and certain rules of intestate succession will apply. Estate property will pass to heirs in accordance with Massachusetts intestate succession laws. There are numerous individuals who may lay claim to this property, starting with immediate family members. The probate court will appoint an administrator to handle the estate. The process works in a similar manner as when a person dies with a will.
Informal Probate and Voluntary Administration
Informal probate is an administrative process that is overseen by a magistrate instead of a judge. The procedure is much faster than formal probate, but is only available if:
- The original will is available
- There is an official death certificate for the decedent
- The identities and locations of the heirs are known
- The individual desiring to be appointed as personal representative has priority under the law
- A conservator or guardian has been appointed for any heir or spouse who is a minor or incapacitated
- Supervised administration (which is rare) has not been required
- A judge will not be required to sign any final order or decree
Voluntary administration is a simplified procedure available for estates with few personal assets and no real property. It is an option whether or not the decedent left a will, provided the following criteria are met:
- The decedent was a resident of Massachusetts
- The decedent’s estate consists of only personal property (no real property) valued at $25,000 or less, excluding the value of an automobile
- At least 30 days have passed since the decedent’s death
- The petitioner requesting the voluntary administration is an “interested person” in the estate (but not a creditor)
- No other probate proceeding is pending
Contact Our Worcester Probate Attorney
Most individuals who are named as a personal representative or estate administrator are unsure what they need to do to complete probate. At the same time, they have to be mindful of both their legal and fiduciary responsibilities. SederLaw is ready to assist you with what can sometimes be the complicated process of probate. To get started, connect with our Probate team today.