When a loved one passes away in Massachusetts and has left a will, their estate must go through a court-managed proceeding called probate where the will is verified, a Personal Representative is appointed, and the assets are recorded and then distributed according to the will. The purpose of probate is to prevent fraud after someone’s death and also to give creditors an opportunity to make claims against the estate. If there’s no will or other estate planning documents, the assets will be distributed according to the law of intestacy, which also requires a probate proceeding.
Some assets, like life insurance and retirement accounts, will pass directly to the named beneficiary so they don’t go through probate. Other kinds of assets, like those held in joint tenancy, will pass directly to the other joint tenant. Assets held soley in one person’s name however, always require probate. The important thing to remember is that all of these assets are counted as “part of the estate” for purposes of calculating whether taxes are due.
No two probate proceedings are ever the same, but most involve the following steps:
- Filing of a petition with the county probate court
- Sending a notice to beneficiaries under the will and heirs at law allowing them the opportunity to review the will and make any appropriate challenges or contests
- Petitioning to appoint a Personal Representative (if there’s a will) or administrator of the estate
- Taking inventory and getting appraisals of estate assets
- Paying estate debts to creditors
- Selling estate assets
- Paying estate taxes, if applicable
- Distributing assets to heirs
The cost and duration of probate depend on many factors, but typically most estates are settled within 12 to 18 months if there is no litigation involved. Probate expenses include executor’s fees, attorney’s fees, accounting fees, court fees, appraisal costs, and surety bonds.
While our estate planning practice focuses on helping our clients avoid the expenses and time of the probate process by utilizing estate planning tools such as living trusts, we’re often asked to help guide families through this process on behalf of a loved one’s estate. We’ll take you through the entire probate process from start to finish by helping with items like:
- Locating and securing probate assets and non-probate assets
- Obtaining date of death values and appraisals of the decedent’s property
- Preparing and filing documents required by the probate court in a timely manner
- Collecting life insurance proceeds
- Rolling over and making appropriate elections with regard to retirement plans, including IRAs and 401(k)s
- Advising on the payment of the decedent’s final bills and outstanding debts
- Keeping track of the estate ‘s checking account
- Determining if any federal or state estate taxes and/or inheritance taxes will be due, and if so, then figuring out where the cash will come from to pay the taxes
- Addressing income tax issues
- Settling disputes among personal representatives and beneficiaries
- Assisting with the sale of estate property
- Requesting court permission for different actions as required by state probate laws
- Retitling the real estate into the names of the estate beneficiaries if it’s not being sold
- Distributing the remaining estate assets to the beneficiaries after bills and taxes are paid
We can provide you with the legal advice you need because we’re familiar with both the state law and how the probate court works. We can help you navigate this process and reduce the time, expense, and frustration associated with probate as much as possible. If a loved one has recently passed away and you would like a no-cost, confidential consultation to discuss the next steps, call us at (619) 765-9307 or send an email to mkarr@maheritagelawcenter.com.
