When an individual passes away, they leave behind property (houses, cars, bank accounts, retirement accounts, etc.) that will need to be distributed to family, friends, and creditors. Fortunately, property distribution isn’t a chaotic and unorganized affair. In fact, there is a legal process for administering property of a deceased divided amongst heirs, designated beneficiaries (“devisees”), and any creditors or debtors that haven’t been paid. Probate property is distributed according to the decedent’s Last Will and Testament, if a will exists. If not according to state intestacy laws.
When is it Necessary to Probate An Estate?
Probate may not always be necessary. It is possible for property to be distributed outside of the probate process. As a general rule, a decedent's estate will need to be probated if:
● Any real estate or personal property (bonds, stocks, bank accounts, etc.) is held in the decedent's sole name without any joint ownership or right of survivorship
● The decedent has creditors that demand to be paid under a lawsuit
● The decedent’s medical records need to be retrieved
● The will needs to be established as a valid will
Types of Probate In Massachusetts
There are ultimately three types of probate in Massachusetts, as well as, a simplified procedure known as voluntary administration.
1. Informal probate: Informal probate occurs without the presence of a judge. There are no hearings and the process can be expedited if the estate or will isn’t in violation of any laws or objected to by an interested party. Informal probate is not available if:
■ The original will can’t be located
■ An official death certificate does not exist
■ The location or identity of heirs and devisees are unknown
■ A judge must sign an order or final decree
■ There is a spouse, heir, or devisee that is incapacitated or a minor not represented by a conservator or guardian
2. Formal probate: Unlike informal probate, formal probate typically occurs in the presence of a judge and may take place over the course of one or more hearings, although typically no court appearances are required. Formal probate may be required in situations where:
■ The will is a copy or has words that are handwritten or crossed out
■ A creditor or public administrator is the petitioner
■ A judge must sign an order or final decree
■ The terms of the will aren’t clear
■ A special personal representative needs to be appointed
■ Interests of incapacitated or minor heirs or devisees need representation
■ An interested party objects to the will or the appointment of the Personal Representative
3. Late & Limited Formal Probate: Late and limited formal probate occurs when an individual has died and no estate proceedings have occurred within three years after death. The court may accept a petition to admit the individual’s will to formally probate or verify that no will exists and determine the heirs. The court can then appoint a personal representative to administer the estate. The personal representative can only confirm title to estate assets and cannot sell real estate assets of the decedent.
4. Voluntary Administration: Voluntary administration is a simplified process that can be utilized when an estate is comprised of personal property with a combined total value of $25,000 or less (excluding the value of a car). The estate will be distributed according to the decedent’s will or Massachusetts law by the Personal Representative.
Probate is often feared as a daunting affair, but the process is actually fairly simple if the decedent had all of their affairs in order before passing away. However, the process can be slow, as it takes a full year to fully administer most estates.
First, an individual is appointed by the court to administer the estate and the probate property (the “Personal Representative”, formerly known as executor). If there is a will, the Personal Representative is typically nominated under the will. However, if a will does not exist, the court will appoint a Personal Representative who has priority under the law.
All of the decedent’s property will be identified and inventoried by the Personal Representative. The assets will be appraised and debts or taxes owed will be paid. Once debts are paid, the remaining property will be distributed to the devisees as outlined in the will. If no will exists, the property will be distributed according to the laws of intestacy to the heirs.
Probate may be a well-established process for property distribution after death, but there are many reasons to desire avoiding it. A portion of your estate may be lost to probate fees and the process is a very public process and you may not want your plan to become a public affair. Thus, reducing or eliminating the role of probate court can save your heirs time, money, and privacy.
There are many ways to reduce or eliminate the role of probate court. Options include creating a living trust, naming beneficiaries on your retirement and bank accounts, and holding real estate jointly. An estate planning attorney can help you craft a plan that makes sense for your individual goals and circumstances.
Take Control of Your Estate Plan
.f you fail to put together a plan, your property may not be distributed to the family and friends you desire in the most efficient or cost-effective manner. Moreover, if you draft a plan without consulting an estate attorney, you may not be fully protecting your assets and minimizing or eliminating estate taxes for your estate.