Massachusetts Probate Lawyer
Probate is the administration of your Massachusetts estate following your death. If you have a will—or if you die without a will—your estate will be probated by the state of Massachusetts. If you die without a will or any other type of estate plan, the state will determine how your assets will be distributed according to intestate laws in Massachusetts. Whether you are having an estate plan prepared and are deciding whether you want to avoid probate for your family members, or you are left to deal with the probate for a loved one, you may have many questions about the process. Attorney James A. Miller can answer all your questions, assisting you in probate planning or probate administration. The Law Offices of James A. Miller, P.C., have been helping people just like you in the state of Massachusetts in all areas of probate, as well as with other estate issues.
What is Probate?
The court-supervised process by which a Last Will and Testament (if the decedent had one) are authenticated is known as probate. During probate, the assets which belonged to the decedent will be located, creditors will be paid, taxes will be taken care of, and the remainder of the estate will be distributed to the rightful beneficiaries. Each state has its own process in place, which determines what is required to probate an estate. When a person dies without a will, there are laws known as intestate succession to determine how the assets will be distributed. In other words, probate is necessary when a will exists as well as when there is no will. The person who is in possession of the decedent’s will is required to file the will with the probate court as soon as it is reasonably possible. A death certificate may be required, along with the will and a petition to open probate.
What is the Massachusetts Probate Process?
The process of probate in the state of Massachusetts generally takes at least a year, because creditors are allowed a full year following the death in which to come forward with a claim against the estate. If there are contests to the will, or unusual assets or debts, Massachusetts probate can take significantly longer than a year. Not all assets are required to go through Massachusetts probate.
If there were assets owned in joint tenancy with others, those assets automatically pass to the surviving owners. Assets such as retirement accounts or payable-on-death accounts in which a beneficiary is named outside a will do not have to go through probate, and neither do the proceeds of a life insurance policy. Assets held in a revocable living trust or assets owned by the decedent with a spouse in tenancy by the entirety do not have to go through probate.
Massachusetts offers two different types of simplified probate, which can be used under certain circumstances. If there is no real estate left by the decedent, and all the property in the estate is worth less than $25,000 (not counting the cost of a vehicle), then any interested person is allowed to serve as a personal representative. He or she will gather property, pay debts on behalf of the decedent, notify the Massachusetts Division of Medical Assistance of the death, then distribute any remaining property to the decedent’s heirs. This is known as Voluntary Administration.
A second type of simplified probate can be used when the total value of the estate—minus any encumbrances and liens—does not exceed the combined value of exempt property (property creditors cannot take, even if the estate is unable to pay the debt), along with the family allowances, probate costs, expenses for the final illness and funeral expenses. A personal representative will be appointed by the court, then that personal representative is allowed to immediately distribute estate assets, filing a closing statement with the court.
If the simplified probate process is not applicable, either the person named in the will as the personal representative will begin the probate process or if there is no will, the court will appoint a personal representative. If there is a will, the probate judge will confirm its validity. When a personal representative is appointed by the court, he or she will be issued a document known as “Letters,” which essentially grants the personal representative the legal authority to manage the estate. Personal representatives may collect a reasonable fee for work performed, although if the personal representative also inherits from the estate, they may waive the fee because it is considered taxable income.
Under the Massachusetts Uniform Probate Code, the personal representative is able to collect assets, pay debts, and distribute property with little to no court supervision. The personal representative is required to inventor all the assets belonging to the decedent, estimate the value of the assets—or have them appraised—always keeping careful records of how estate assets are handled and distributed. Quite often, the personal representative will open a special checking account for the estate, so there is no question as to whether the decedent’s assets are all accounted for.
In many states, the personal representative is required to individually notify creditors regarding the probate proceedings. In the state of Massachusetts, the creditors do not have to be individually notified, although notification must be published in a local newspaper. The estate can be closed via a sworn statement, which asserts all debts and taxes have been paid, and the assets properly distributed to the decedent’s heirs (either as directed under the will, or absent a will, under Massachusetts intestate laws). Any time a dispute arises among the beneficiaries, formal probate is required. In almost all cases, probate must begin no longer than three years following the death.
Why Would I Want to Avoid Probate?
There are essentially three reasons you might want to avoid probate. The first is the time involved. As noted above, probate can reasonably be expected to take a year, and many take much more time. The second reason to avoid probate is cost—in some cases, probate can be expensive. Finally, probate is a public process. Any person with an interest in knowing what is contained in the decedent’s will has access to that information during probate.
How the Law Offices of James A. Miller, P.C., Can Help You with Massachusetts Probate
Whether you require assistance probating the estate of a loved one, or you are contemplating your own estate plan—which might include probate—Attorney James Miller can help you through the process. At the Law Offices of James A. Miller, P.C., our goal is always to make sure all your questions regarding probate or other estate or elder issues are thoroughly addressed. We have the experience, knowledge, and skills required to make probate as simple as possible for you or your loved ones, advising you on all aspects of a comprehensive estate plan. Contact the Law Offices of James A. Miller, P.C. today.