What is probate?
Strictly speaking, probate refers to a legal proceeding to determine the validity of a last will and testament. In a broader sense, however, it refers to the legal process for transferring the ownership of property after someone has died. This may involve inventorying a deceased person’s assets, re-titling certain assets such as real estate, paying creditors, and transferring property to a deceased person’s heirs.
When is it necessary to probate an estate?
In Massachusetts, the probate of a last will and testament falls under the jurisdiction of the Probate and Family Court, but it is not always necessary to involve the court when a person dies. If a deceased person’s assets pass to others outside the probate process court intervention may be unnecessary or minimized. This may happen in a number of ways, such as when a decedent’s property is held jointly with another who has a right of survivorship, or the decedent has made beneficiary designations with their financial providers, such as naming beneficiaries on life insurance, retirement, and bank accounts. Probate may also be avoided or minimized through the use of trust planning. Assets placed into a trust before death usually bypass the need for court administration.
A court administered probate proceeding is frequently needed when real estate and other assets must be transferred to a legal heir, when it is necessary for the decedent’s estate to file and pay taxes, or the demands of creditors must be satisfied.
More Information About Probate / Estate Administration
How do I probate an estate?
First, the court must appoint someone to serve as Personal Representative (formerly known as an executor or executrix) of the estate. If the deceased person died with a valid will (i.e. died “testate”), the Personal Representative will be the person named in the document. If the deceased person died without a valid will (i.e. died “intestate”), the person with legal priority is the surviving spouse. If unmarried, the deceased person’s heirs then have priority.
What options are there for probating an estate?
There are four methods for probating an estate in Massachusetts. The best approach to take will depend on the circumstances. First, there is a simplified process known as “voluntary administration” for very small estates. For other estates, an “informal” or “formal” probate will be necessary. The differences between these two types of probate proceedings are complicated and an attorney should be consulted before choosing which path to take. Lastly, there is a “late and limited” procedure available when the normal deadline to probate an estate has passed (3 years) and it is necessary to obtain a legal determination of heirs to a deceased person’s property.
I was appointed as a trustee. How do I administer a trust?
Acting as a trustee of a trust can be complicated. Frequently, a person can be thrust into the role without any preparation or guidance as to how to act other than the trust itself, with its unhelpful legalese. A probate attorney can help you interpret your obligations to manage the trust property and make distributions according to the trust terms so that you are protected against claims of mismanagement and the trust beneficiaries receive the distributions to which they are entitled.
How do I protect my rights as a beneficiary?
As a beneficiary of a probate estate, you have the right to receive your legally designated portion less certain estate expenses and debts. Similarly, as a beneficiary of a trust, you are entitled to the trust assets subject to the terms of the instrument. Our office can help protect your rights and make sure you receive that to which you are entitled.
Probate / Estate Administration FAQs
Probate is a court proceeding that transfers ownership of property from a person who has died to estate creditors and the lawful beneficiaries or beneficiaries of a will, or if there is no will, statutory beneficiaries. In most cases, the court appoints a Personal Representative (formerly referred to as an Executor or Executrix) to collect, manage, and transfer estate property.
No. Typically, it is not necessary to probate an estate where the decedent’s property passed to beneficiaries by other means, such as through account beneficiary designations, rights of survivorship on jointly held property, or by living trust.
There is a relatively speedy process (called “voluntary administration”) for estates consisting entirely of personal property valued at $25,000 or less, excluding the value of any vehicle. Barring this expedited process, the probate of a will takes approximately 1 to 2 years.
Request a Free Consultation
Our office offers a complementary 30 minute consultation to determine if we can help you with your litigation matter.