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Massachusetts Probate & Estate Administration frequently asked questions answered by Attorney Stephanie Konarski What happens if I die without a will? What property is subject to the probate process? What property is not subject to the probate process? What are the types of Probate? How is the probate process started? Should I try to avoid Probate? What is an Executor or an Administrator? Who should I appoint as Executor of my estate? What does the Executor or Administrator do? How long does the probate process take? Will my assets be tied up in court? What is a breach of fiduciary duty? What do I do if I am named as an Executor of someone's will? Can my Executor act during my life? What assets are subject to creditors' claims against the decedent? On what grounds can a will be challenged?
What is Probate?Probate is the judicial process of proving the validity of a will and ensuring that the debts of the estate are paid and final distributions are made to the heirs. It generally takes at least one year to probate a will. Probate can be avoided by having your property held in a form that will pass title to others after your death by operation of law. Your property should be held in a trust or a joint account to avoid probate. However, avoiding probate should not be the only factor to consider in developing an estate plan. There are other factors which might affect how you hold your property. Nevertheless, regardless of whether you are planning to avoid probate you should have a will.
What happens if I die without a will? If you fail to plan your estate and die without a will, the laws of the Commonwealth of Massachusetts will create an estate plan for you. This is known as "intestate" succession and is delineated by statute. The law prescribes both the persons to whom your property will pass and the division of your estate among those persons. The distributions provided by law are inflexible and may not satisfy your desires as to distribution of your estate. If you die without a will and you are survived by your spouse and children, one half of your probate assets will pass to your surviving spouse and the remaining half of your probate assets will pass to your children. If you die without a will and are survived by your spouse alone, leaving no children, the statute dictates that part of your estate will pass to your parents. Again, such a division of your property may not accurately reflect your wishes. If you die and are survived by your children alone with no surviving spouse, then your entire estate will pass to your children. If your children are minors, a guardianship will be necessary to manage their property.
What property is subject to the probate process? The probate estate includes all property owned individually at death in the decedent's name and that have no expressly named beneficiaries. Examples include:
What property is not subject to the probate process? Property that is not subject to the probate process is called nonprobate property. Nonprobate property includes assets that are held in a way that the very terms of ownership dictates where the property will go after you die. In other words, the document that establishes ownership includes a provision that designates who will receive the property after the owner's death. Examples include:
What are the types of Probate? There are two types of probate: small/informal and large/formal. The type of probate is determined by the size of the estate. For estates consisting entirely of personal property of a total value of less than $15,000, together with a motor vehicle, an informal proceeding may be used instead of a formal one. An informal probate proceeding does not require notice, inventory or accounting where a formal proceeding does.
How is the probate process started? First, a petition for probate of the will must be filed with the probate court, along with the original will and a certified copy of the death certificate. If there is no will, a petition for administration must be filed with the probate court along with a certified copy of the death certificate. Notice must be mailed to all of the decedent's heirs at law (usually the surviving spouse, children and children of any deceased children), to those named as beneficiaries in the will, and, if a charity is involved or there are no heirs at law, to the Attorney General. Notice must be also published in a local newspaper. If no one objects by a deadline set by the court, the executor named in the will or the administrator is appointed by the court.
Should I try to avoid Probate? Probate is simply a means to transfer ownership of property upon death. Massachusetts' system of probate proceedings for decedent's estates is quite efficient compared to many other states. However, there are four reasons to avoid probate:
What is an Executor or an Administrator? An "executor" is appointed by the probate court if you have a will. An "administrator" is appointed by the court if you do not have a will. Your executor or administrator serves as the primary representative of your estate.
Who should I appoint as Executor of my estate? People usually choose to appoint a spouse, a trusted family member or a close friend as their executor. If you have a particularly complex estate, you may want to choose a professional, such as a bank or an attorney. Either way, you should choose someone who is trustworthy and competent.
What does the Executor or Administrator do? The executor or administrator is responsible for collecting the probate property and for paying any debts of the estate. The executor/administrator must file with the probate court an itemized list, known as an "inventory," of the probate property, including the value of each item. The executor/administrator must file an estate tax return within nine months of the date of death. This is true even if no estate tax is owed, if the decedent owned real estate or the executor wants his or her final accounting allowed by the probate court. Creditors of the estate have one year to bring claims against the estate. Executors/administrators generally wait until this claim period has expired to complete distribution of the estate according to the terms of the will. As his or her final responsibility, the executor/administrator must file an accounting with the probate court showing the income and expenditures of the estate administration.
Who pays for probate? The decedent's estate pays for probate administration. The fees and costs associated with probate administration must be paid before any property is distributed to heirs.
How long does the probate process take? Probate proceedings typically take at least one year to complete, although some cases are open for much longer. However, most of this time is spent waiting for creditors to make claims against the estate. Creditors have one year from the date of death to make claims. Nevertheless, some property may be available for distribution to heirs prior to the end of the period for creditors to make claims. This is determined by the personal representative on a case-by-case basis.
Will my assets be tied up in court? Probate proceedings typically take at least one year to complete. However, some property may be available for distribution to heirs before the proceedings are complete. This is determined by the personal representative on a case-by-case basis.
What is a breach of fiduciary duty? A fiduciary duty refers to the obligation of individuals in certain capacities to treat others equitably and honestly and to act in their best interest. Such a duty is imposed on individuals such as trustees, executors or administrators of an estate, and guardians. A number of different acts can be considered a breach of fiduciary duty, including negligence, fraud, or failure to perform.
What do I do if I am named as an Executor of someone's will? If you are named as an executor, it is your choice to serve or decline to serve. If you decline to serve and there is no alternative executors named in the will, the court will appoint an executor. If you choose to serve, you should contact an attorney who can help you file the appropriate documents in the Probate Court. You will then have to wait until you are approved by the Probate Court before you can officially act as executor.
Can my Executor act during my life? No. An Executor is only authorized to act after you have died and after the court has authorized the Executor to act, by issuing a certificate of appointment. A durable power of attorney allows you to authorize someone to act on your behalf while you are living.
What assets are subject to creditors' claims against the decedent? Generally, assets the decedent owned individually at death are subject to creditors' claims.
On what grounds can a will be challenged? There are five grounds that a will can be held invalid:
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