Written by Attorney Brandon C. Walecka, Esq., LLM in Elder Law
So, you have been named as the Personal Presentative (Executor) of a deceased person’s estate. The responsibility is not one to be taken lightly. It is encouraged to seek advice from a qualified probate attorney. This article will provide a basic explanation of the probate process and the role and responsibilities of the position.
What is Probate and what goes through Probate?
Probate is a legal, court-supervised process that takes place when someone dies. “Probate assets” are those assets which are owned individually in the deceased person’s name alone. Jointly owned property, trust assets or assets passing to a designated beneficiary are considered “non-probate assets.” Non-probate assets often immediately and privately become the property of the surviving owner or designated beneficiary and are not required to follow the probate process.
What is a Personal Representative/Executor?
A Personal Representative (the “PR”, formerly known as an Executor/trix) is a person designated to carry out the wishes of a deceased person.
Four stages of Probate
The probate process typically takes between 12 to 14 months to complete in Massachusetts, although it can take longer. This process consists of the following four stages, which a probate attorney will guide the PR through:
· Opening the probate and obtaining court authority
· Organizing and inventorying of the assets
· Filing taxes and payment of debts and bills
· Closing the estate and making final distributions
Opening the probate and obtaining court authority
You will need to prepare and sign several court forms, provide written notice to certain interested persons and entities and publish in the newspaper. If no one objects, the court will allow your petition and will grant you authority to handle the deceased person’s assets.
Organizing and inventorying of the assets and liabilities
You should begin searching through records for information on the deceased – statements, policies, past income tax returns, debts, liabilities, deeds, etc.
Once appointed by the court, you will open an “estate” account and begin transferring ownership and depositing proceeds into the estate’s name. You will be required to provide an inventory (and possibly an accounting) of the assets you discover to those interested persons.
Filing taxes and payment of debts and bills
You will be responsible for filing the decedent’s final income tax return and possibly an estate tax return. You should contact the decedent’s accountant or CPA as soon as possible.
Gather all bills, request itemization and details, determine legitimacy of debt and pay as needed. A creditor must follow prescribed steps to successfully enforce a claim against an estate. For most, general creditors, Massachusetts has one-year statute of limitations for asserting claims against a decedent’s estate.
Sometimes upon a person’s passing there is a lien due to Medicaid (called MassHealth in Massachusetts) or another government agency for services provided to that person during their lifetime.
If you fail to handle and pay creditors properly, you may be personally liable to the estate for the debt, so it is important to seek counsel to ensure you fully comply with required procedures.
Closing the estate and making final distributions
Probate estates are generally not closed until the expiration of the period for filing creditors’ claims (generally one year from date of death, but could be longer). Once all of the decedent’s assets have been transferred to the estate, all bills have been paid then the final distributions of assets can be made and the probate case can be closed with the court.
Factors that cause delay in the Probate
Quite a few factors can cause delay in probating a will and distributing assets:
- Massachusetts law gives general creditors a year to make a claim against the estate regarding the payment of the debt.
- If some beneficiaries and heirs named in the estate plan cannot be located, passed away, or became disabled, the probate process stalls until they are located, their own estate is opened, or their guardians are appointed.
- When it is not immediately clear what property was owned by the decedent, the PR of the estate will have to look for stock certificates and other documents proving the decedent’s ownership of a property or asset in Massachusetts and other states or countries.
- When the beneficiaries named in the will cannot come to an agreement regarding what to do with the inherited asset, the process will be delayed until the consensus is reached.
- Any disputes about who should serve as the PR of the estate can also put the probate process on pause until the issue is resolved.
- Disagreements over the validity of the will can also throw a monkey wrench into probating a will.
- If the decedent did not leave a will, it could take months to determine and locate the heirs.
Is there a way to speed up the Probate process?
Massachusetts law allows small estates to complete probate within two months. However, not all “small estates” are eligible to be probated in a simplified process.
The simplified probate applies when the total value of the deceased’s assets or those that do not pass directly to a beneficiary, including but not limited to real estate held jointly with a spouse, are worth less than $25,000 plus one automobile,
How can a Massachusetts Probate lawyer help?
All participants involved in the probate process can benefit from seeking help from a skilled probate lawyer in Massachusetts:
- The PR should get legal guidance to ensure that they fulfill their obligations and responsibilities in accordance with Massachusetts law;
- The beneficiaries and heirs mentioned in the will need help from an attorney to ensure that the executor fulfills his or her obligations properly to protect their inheritance rights; and
- Individuals looking to contest a will and prove that the will is not legally valid can also benefit from hiring a lawyer, as they need to gather compelling evidence in order to convince the court not to probate a will.
Let our Massachusetts probate lawyers help you steer through the myriad of probate laws, protect your rights, and ensure that the estate is administered and probated appropriately.
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article. DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.