Melrose, Massachusetts Real Estate Attorney Serving Clients in Middlesex County, Essex County
Prudent Guidance for Settling a Loved One’s Estate
Probate is the legal process of distributing the assets of an estate in accordance with the wishes of the deceased, through a will or through State succession laws if there is no will. If you have been named personal representative, executor, or administrator of a loved one’s estate or if you are concerned about your rights as a beneficiary, John Tramontozzi and the team at the Tramontozzi Law Offices are available to guide you through the process. We can assist you in ensuring that your loved one’s wishes in his or her’s last will and testament are carried out fully and in accordance with his or her wishes. In addition, if a dispute concerning the will arises during the probate process, we can represent you in the Massachusetts probate court.
Is Probate Necessary?
Probate may be necessary if someone dies owning personal or real estate in his or her name. This is what is called “Probate Property”.
Property that passes by form of ownership, such as jointly owned property with right of survivorship or retirement accounts, annuities or life insurance policies that pass by beneficiary designation does not pass through Probate. This type of property is called “Non-Probate Property”.
The purpose of probate (Pursuant to the Massachusetts Uniform Probate Code (MUPC) Sections 1-102(a)(2) and (3) is: “to discover and make effective the intent of a decedent in distribution of the decedent’s property and to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors.”
How long is the Massachusetts probate process? Are there alternatives to probate?
In Massachusetts, the probate process typically takes anywhere from four months to a year, though it can take much longer if there is a contest over the distribution of assets under the will. Creditors have one (1) year after the death to bring claims against the estate. The probate process can be avoided altogether if the decedent executed a trust as an estate planning instrument during his or her lifetime.
Who Serves as Personal Representative?
If probate is necessary, the person named in the will to serve as personal representative (executor) will start the process in the Probate and Family Court Department in the county where the deceased person lived. The prospective personal representative must file the will, if any, with a death certificate and a document called a Petition, which contains a request to be formally appointed as personal representative.
If there is no will, or the person named in the will (or any successor representative named in the will) isn’t available or willing to serve, the surviving spouse has first priority to be appointed as personal representative.
When the probate court appoints a personal representative, it issues a document called “Letters of Authority.” This document is proof of the personal representative’s legal authority to collect and manage estate property.
The personal representative is entitled to collect a fee for the work performed for the estate. If the will includes directions for how to calculate the fee, they must be followed. If the will doesn’t mention fees (and most don’t) the fee must be reasonable. Many personal representatives who inherit money from the estate choose not to take a fee, in part because the fee is taxable income.
Legal representation for Massachusetts executors and personal representatives
The Team at Tramontozzi Law can provide the following services to individuals serving as executors or personal representatives in Massachusetts:
- Carrying out the terms of the decedent’s will
- Distributing assets through intestate succession
- Identifying and collecting assets subject to probate
- Paying debts, administration expenses, and taxes
- Terminating joint tenancies
- Handling widow/widower allowances
- Accounting for asset distributions to help avoid disputes
The new MUPC created two probate procedures: Informal and Formal probate.
Informal: Most estates can use the informal procedure procedure if:
- The decedent died domiciled in Massachusetts;
- Not more than three (3) years have passed from the date of the decedent’s death;
- No court has appointed a personal representative and no appointment proceedings are pending;
- No interested person objects to the informal petition; and
- If there is a will, it does not specifically request a formal administration
The informal procedure does not require the involvement of a Judge. Once filed, no further court action is necessary unless requested by the personal representative. Notice of at least seven days prior to submission of the petition is required to be given to all interested persons and publication of notice is required after the petition has been approved.
Formal Probate proceedings can be used when someone objects to the terms of distribution and:
- Three (3) years or less must have passed from the date of the decedent’s death; or
- The petition is to contest the appointment of an informal personal representative, one year or less than after the appointment of the informal personal representative (even if that would result in a formal petition filed more than three years after death).
The court issues a citation that must be served on all interested persons as well as published in the newspaper prior to a return date. A return of service is required. If no objections have been filed by the return date and there are no matters that require adjudication, the formal probate petition may be approved by the Court Magistrate. Otherwise, a hearing before a judge on the formal probate petition is required.
Formal proceedings must be used if voluntary administration or informal probate administration requirements are not met. For example, formal administration must be used if:
- There are minors or incapacitated heirs or devisees that are not represented by a legal guardian or conservator other than the petitioner; or
- If supervised administration is requested; or
- If an interested person contests the will.
What is a Probate Inventory
A probate inventory is a listing of all of the property included in the probate estate. The inventory is required to be prepared within three months of the appointment of the personal representative.
What is a Probate Accounting
A probate accounting is a report showing all receipts and disbursements relating to an estate. You can use a prescribed form provided by the Court when the personal representative files the accounting with the court.
Dealing with Debts and Taxes
In Massachusetts, the personal representative does not have to individually notify creditors about the probate proceeding. In formal probate, however, the personal representative must publish notice of the proceeding in a local newspaper. No matter what kind of probate proceeding is used, the personal representative has the obligation to pay valid debts with estate assets.
It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
Distributing Property and Closing the Estate
The personal representative can distribute estate assets to heirs only after debts and taxes are paid. The personal representative follows the instructions in the will, or if there is no will, turns to state “intestate succession” law to determine who inherits.
Unless the probate is formal and court-supervised, closing the probate court proceeding is done informally. The personal representative files a statement, stating that:
- The time for creditor to make their claims (generally, one year) has passed;
- Estate assets have been distributed;
- A copy of the statement has been sent to people who received estate property and known creditors; and
- A written accounting (showing how assets were gathered and distributed) has been sent to the persons who received assets.
Widow/widower allowance and homestead rights; right to family assets
If you have recently lost your spouse, you may be wondering what is going to happen to your home and how you are going to care for yourself while the probate process runs its course. Massachusetts probate law provides surviving spouses with the right to continue to occupy their primary residence and also provides for an allowance to support the spouse and the couple’s children regardless of the terms of the decedent’s will.
Massachusetts probate law also grants surviving spouses and children the right to exclude family photos, burial lots, household and kitchen furniture, and certain other personal and necessary assets from the decedent’s administered estate, again, regardless of the terms of the will.
Dealing with the probate and estate administration process can be trying and uncomfortable, especially in the wake of the loss of a loved one. In these times your focus should be on navigating through your experience of the loss of loved one or family member. This is a time when you can benefit most from caring and clear support from an experienced attorney who knows and understands probate law and lessen the burden placed on you and or the executor. John Tramontozzi and the team at Tramontozzi Law have these qualities and can give you the guidance you need