Certainly the probate process can be frustrating and move slowly, but it does serve a number of important functions when someone dies. This article will provide a basic introduction to the probate process in Massachusetts.
What is Probate?
Probate is a court-supervised legal process that may or may not be required after someone dies. An important part of the probate process is to give someone else, such as a spouse or family member, the power to handle the deceased person's (the decedent) affairs such as paying debts and taxes, protecting the decedent's assets, and eventually completing the transfer of assets per a will, trust, or Massachusetts law if no will exists.
Is Probate Always Required?
Going through probate is not always necessary. In the most simple of terms, if someone died without any assets, probate would be unnecessary.
Many assets can be transferred outside of the probate process. For example, when a married couple owns real estate together as tenants by the entirety, then the real estate passes automatically to the surviving spouse.
Other assets that have a named beneficiary, such as retirement accounts, life insurance, or a bank account titled as payable on death to another transfer outside of probate. Jointly titled assets will also pass to the other owner, such as a joint bank account. Finally, assets held in certain trusts, such as a revocable living trust, are not subject to probate.
What is the Massachusetts Uniform Probate Code (MUPC)?
The Massachusetts Uniform Probate Code was a major overhaul to probate law and procedures in the Commonwealth, going into effect in 2012 after numerous delays. The MUPC is designed to simplify the probate process and lower administration expenses in many cases.
As anticipated with major changes, there have been a few bumps in the road along the way. Under the Massachusetts Uniform Probate Code, oftentimes just referred to the UPC, there are two paths for probate matters, informal and formal. Although some estates are handled through the informal procedure, but there are still plenty of forms and rules to follow. Under the informal process, a court official known as a magistrate oversees the process instead of a judge.
Once appointed, the Personal Representative (formerly known as the executor or executrix) will gather assets, pay debts, and distribute probate assets with minimal supervision from the court. Other circumstances will require the formal probate process, and are supervised by a judge at the probate and family courts throughout the different counties, based upon the decedent's address at the time of death.
Either process must be initiated within three years of the date of death per statute, but most often the process begins shortly after a person passes away.
How Long Does Probate Take?
There are many variables in the probate process, depending on the size and complexity of the estate, the number of heirs, and if there are any disagreements between potential heirs. After a person dies, creditors have one year to move forward with any claims, so the probate process usually takes a year, but if disputes arise the process can take longer, especially if litigation is necessary.
The Personal Representative
Assuming probate is required, the personal representative is normally identified in the will. The will may also use the term “executor” and usually names an alternate personal representative.
But what if there is no will? Then a person, such as a spouse or adult child, must petition the court to be appointed as the Personal Representative. By default, a spouse has priority to be appointed as Personal Representative, but there could reasons why someone else is a better choice. Once appointed, the Probate and Family Court will provide a document that serves as proof of the personal representative's legal authority to manage estate assets and debts.
What are the Primary Responsibilities of the Personal Representative?
There are a number of responsibilities that fall upon the personal representative, and they may seem overwhelming. It is important to remember that a personal representative may hire a probate attorney to help him or her through the entire process, and most people do use the services of a Massachusetts probate lawyer during what is oftentimes an emotional time.
A personal representative must act reasonably, and should first attempt to protect all estate property. People, even other relatives, may try to grab certain items from the decedent's home that they were “promised” so protecting property is an important consideration. If there is a will, it needs to be located and then filed with the correct court.
Oftentimes the probate attorney takes care of that on your behalf. A somewhat lengthy form must also be filed with the court, a petition, that serves to get someone appointed as the Personal Representative. Death certificates must be obtained and also filed with the court and the Massachusetts Department of Medical Assistance.
Once appointed, the Personal Representative has the power to collect and inventory all estate property, pay valid debts, file taxes that become due, and distribute remaining property per the will, or as state law directs if there was no will. Normally, the personal representative will open up a new checking account for the state, but a taxpayer identification number must be obtained first.
What Estates Qualify for the Informal Probate Process?
Under the UPC, if the deceased did not leave any real estate and the other property in the estate is not worth more than $25,000, any interested person may file with the court to be appointed as the personal representative. A second way to qualify for the informal probate process may be available if the estate value, less any liabilities such as a mortgage or other lien, does not exceed the combined value of exempt property, the family allowance, and the expenses for the funeral, probate, and last illness.
The court would next appoint a personal representative, who may immediately distribute the estate assets followed by the filing of a closing statement with the Massachusetts Probate and Family Court. Exempt property is property that a creditor could not take even if there was a debt the estate couldn't pay.
Need Help with the Probate Process?
The probate process involves numerous procedures, and a personal representative (executor) has important and varied responsibilities. Completing all of the probate forms and knowing which forms are required by the court, is not a simple process.
If you find yourself in the position of having lost someone close to you, you should contact a qualified Massachusetts Probate Attorney for assistance.