Probate is a court-supervised proceeding where a will is verified and assets still titled in the name of a decedent (person who has died) are distributed according to the will or the law of intestacy if there was no will. The assets involved in this process are referred to as probate assets because they require a probate court order to pass title from the decedent to the beneficiaries.
People often want to avoid probate because it can be very time consuming and expensive with executor’s fees, accounting fees, court fees, attorney’s fees, appraisal costs, and surety bonds.
The probate process can take about 12-18 months. Per Massachusetts law, “an estate must be probated within three years.”
Many factors can delay the probate process. As a Massachusetts probate lawyer, I can help work to avoid the delays and ensure that any complications that occur are resolved quickly.
Steps in the Probate Process
The probate process in Massachusetts includes many steps.
1. Open Probate
The estate files the will along with a petition to the county probate court requesting that the will be accepted as authentic. It can take several weeks for the court to approve or deny the will.
Once the court accepts the will as authentic, the executor (person mentioned in the will to manage and distribute the estate) is now legally authorized to start probating the estate. Notices need to be sent to all the beneficiaries mentioned in the will. If the deceased didn’t have a will, notices will also have to be sent to any heirs who may have inheritance rights. This process can take up to two months.
2. Notify Creditors and Pay Debts
The decedent’s creditors have to be notified that the decedent has passed away and that the probate process for the estate has begun. In Massachusetts, creditors have up to 12 months to make claims against the estate to get payment for the debt. The executor reviews these claims and pays the legitimate ones from the estate’s assets. If the executor decides that a claim is illegitimate, creditors have another year to file a lawsuit against the estate in an attempt to get paid. The estate’s assets can’t be distributed to beneficiaries until these lawsuits are resolved.
3. Filing Tax Returns
Federal and Massachusetts tax returns must be filed for any income the estate earns during the probate process as well as any income earned by the deceased during their last year of life.
Once the IRS receives the tax return, it will issue a closing letter, so the executor can finalize the probate. This could take four to twelve months. The longer timeframe would be due to the IRS choosing to do an audit based on the tax return.
Other Factors that Could Delay Probate
- If there was no will, it could take months to determine who the heirs are and locate them.
- If errors are made in the process of filing tax returns when probating a will
- If beneficiaries named in the will can’t be located, have passed away, or have become disabled, the probate process pauses until they are located, their own estate is opened, or their guardians are appointed
- When it’s not clear what property the decedent owned, the executor will have to search for proof of the decedent’s ownership of property/assets
- If beneficiaries inherit an asset but can’t agree on what to do with the asset. For example, if two beneficiaries inherit a home, they could sell it, rent it, or one person could buy the other out and then live in the home. If they don’t agree on what to do, that could delay probate.
- If there is a disagreement over whether the will is valid or not
How We Can Help
As a knowledgeable Massachusetts probate lawyer, I can help you navigate through the probate process, help you avoid delays, and ensure that the estate is administered appropriately. Contact us today to schedule a confidential, no-cost consultation to discuss how we can help you.