Massachusetts Probate Process

Helping You Understand This Essential Legal Step

Losing a loved one is difficult. There’s the emotional grief from suffering the loss and on top of that, there are the legal logistics of dealing with the deceased person’s estate. The probate process is a process that wills must go through before family members and other loved ones can receive their rightful assets. Navigating the probate process in Massachusetts so you can get the assets you deserve can be an overwhelming experience.

At the Heritage Law Center, we understand just how difficult losing a loved one can be. Working with our legal team will help you go through probate as quickly and efficiently as possible. We’re confident that with our years of experience in estate planning and probate court, we can help you through the probate process of even the most complicated of estates.

To learn more about our services and how we can help you, contact our law firm by calling (617) 765-9307.

What is the Probate Process?

Probate is a court-supervised legal process that a will goes through. The person who created the will designated a personal representative to settle and distribute the estate of the deceased person (decedent) according to the terms of their will. During probate, the following happens:

• The will is validated by the court.
• The court grants authority to the personal representative.
• The value of the decedent’s (deceased person’s) assets is determined.
• Creditors have a chance to seek the funds they’re due from the estate.
• The estate’s remaining assets will be distributed according to the will.

Creditors typically have one year after the date of a person’s death to come forward with claims against the decedent’s estate. Because of this, the probate process typically takes around a year. If the estate is large or complex, probate can take much longer.

If an individual dies without a will, the court will use probate to distribute assets according to Massachusetts intestate succession laws. That means the state of Massachusetts will decide how to distribute assets and property, typically between the surviving spouse and any children.

When is Probate Required?

In most cases, probate is required in three situations: to validate a deceased person’s will, to determine how to distribute a deceased person’s property when they didn’t have any estate planning, or to determine how to distribute specific assets if the deceased person
didn’t name a beneficiary for those assets. However, probate isn’t always required, as it’s possible to distribute assets and property without a will.

If any of the following is required, probate must happen:

• The estate must make payments to creditors.
• The will must be validated.
• The title (ownership) of real estate or personal property must be changed due to the fact that the asset was only in the decedent’s name without any right of survivorship.
• Medical records from the deceased must be obtained.
• Tax returns must be filed and paid by the estate.

When is Probate Not Required?

Assets that don’t need to go through probate include:

• Property held in the name of a trust. When assets are placed in a trust, they are distributed by a trustee (person named to manage the trust), who follows instructions written in the trust by the grantor (person who created the trust). Many individuals choose to leave assets in a trust rather than a will because they are trying to avoid probate. Avoiding probate can save your family time and money after you pass.
• Property held in joint tenancy with rights of survivorship. Upon the death of one owner, their interest in the property automatically transfers to the other owner(s).
• Bank and brokerage accounts held in joint name or with transfer on death or payable on death beneficiaries. When the account owner / joint owner passes away, the accounts automatically transfer to the other joint owner or the designated beneficiaries.
• Life insurance, brokerage accounts, and retirement accounts that list a beneficiary other than the deceased’s estate.

What Are the Different Types of Probate in Massachusetts?

There are three main types of probate in Massachusetts. There’s also a simplified procedure that some estates qualify for. Understanding the differences will help you feel comfortable with the probate court process.

The different types of probate include:

Informal Probate

Informal probate is an administrative probate process held by a Massachusetts Uniform Probate Code Magistrate. There’s no court involvement and no formal court hearings in this process. Informal probate differs depending on whether or not there’s a will involved.

Informal probate is only available if:

• The original will is located
• All the beneficiaries and heirs agree to the decedent’s division of assets or any other matter
• There’s an official death certificate
• The location and identity of all heirs and devisees (someone who receives real property) are known
• A judge doesn’t have to sign an order or final decree
• Any spouse, heir, or devisee who is incapacitated or a minor is represented by a conservator or guardian

Formal Probate

Formal probate is the most common type of probate. It requires the estate to be opened by filing a petition in the court and will likely include court involvement.

Formal probate is required under the following circumstances:

• The will is a copy or has words that are handwritten or crossed out.
• A creditor or public administrator is the petitioner (person requesting
  for the court to validate the will and formally appoint the personal
  representative).
• A judge must sign an order or final decree.
• The terms of the will aren’t clear.
• Interests of incapacitated or minor heirs or devisees need representation.
• A Special Personal Representative needs to be appointed.
• An interested party objects to the will or the appointment of the personal representative.

Late and Limited Formal Probate

If a person dies and no probate proceedings have been started within three years, late and limited formal probate proceedings happen. The court could grant a petition to admit the individual’s will into probate, or the court will determine heirs if no will exists.

The court can then appoint a personal representative to handle the estate. The representative can’t sell the decedent’s real estate, but they can confirm the title of estate assets.

Voluntary Administration

Voluntary administration can be used if the estate consists only of personal property and the total value of the estate is less than $25,000. Generally, voluntary administration is used for small, uncomplicated estates with few assets involved.

What is a Personal Representative?

The person who created the will designated a person in the will to be the personal representative—also known as the executor. In order to adequately protect a loved one’s estate, it’s critical that the personal representative understand the rules, processes, and procedures involved in this court-managed process. In general, the process includes locating and determining the value of the deceased’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries.

What Does the Personal Representative Do?

The individual will be tasked with:

• Filing a petition with the county probate court
• Petitioning to appoint a personal representative (if there’s a will) or administrator of the estate
• Sending out formal notices to heirs and beneficiaries to give them the opportunity to review, challenge, or contest the will
• Sending a notice to known creditors and posting a public notice to creditors to alert them to the situation so they can make their claims
• Gathering the deceased’s assets, inventorying them, and getting appraisals for them
• Selling estate assets
• Paying all remaining taxes and debts
• Transferring assets to the designated beneficiaries or as intestacy law dictates
• Keeping careful and complete records of how estate assets are distributed
• Keeping the assets of the estate safe

If you’re a personal representative and you need help with probate, contact our team for assistance. We’ve helped many personal representatives through the probate process, close the estate they are in charge of, and distribute assets and property according to directions in the will. Our team will walk you through probate to ensure you’re taking the right steps.  

Avoid These Probate Mistakes

If you’re a personal representative, you could be held personally liable for making mistakes when handling the estate. If you misrepresent the value of an asset, you could be held accountable by the IRS or by the beneficiaries. If the heirs prove that you’ve shortchanged them, you could have to reimburse them out of your own pocket. Other errors to avoid:

• Failing to notify heirs when required to do so
• Distributing money and other assets before paying all valid claims of creditors
• Missing deadlines
• Not following the terms of the will
• Failing to file tax returns on behalf of the decedent and estate

How We Can Help with Probate

Probate can feel like an overwhelming process. Our skilled probate attorney and team will be there to guide you every step of the way and help 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 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

Contact the Heritage Law Center to Work with an Experienced Woburn Probate Attorney

There are frequently unexpected complexities to the probate process, which is why so many attorneys, like ours, work hard to help clients avoid the process. Nevertheless, we’re here to manage all legal complications in order to lighten the burden on you and your family during this difficult time. We’ll stand by you every step of the way, clarifying issues as we address them and offering you the compassion that is, for us, an integral part of our job.

Whether you want to avoid probate or you need a partner to work with you through the probate process, our team is here to help you. Working with a legal team is the best way to expedite the probate process. Contact the Heritage Law Center at (617) 765-9307 for a probate consultation.