By: Sandra MacGregor O’Brien, Esq.

If you have not established a Trust as a part of your estate plan, you may find yourself dealing with the Probate Court when a loved one dies.

Probate is a legal process initiated in the Probate Court that may be required after someone dies if proper estate planning is not done beforehand. It is not required if assets are held in a Trust, whether jointly or with a designated beneficiary. This includes life insurance, pension benefits or other retirement accounts where there is a designated beneficiary. If there is no designated beneficiary and assets are held in the name of the deceased person alone, then the estate is the beneficiary and probate will be necessary. Probate may be required whether there is a written Will or not. A Will typically appoints someone to be the “Personal Representative” the new term for Executor. However, a person designated in a Will, to be the Personal Representative, still has no power to act on behalf of the estate until they are appointed by the Probate Court. Without a Will, typically a spouse, child or family member will step forward and act as the Personal Representative. Other heirs must assent to that nomination and in some cases renounce their right to serve as the Personal Representative.

The purpose of probate is to gather the assets of the deceased, pay debts and taxes (both personal, fiduciary, and Massachusetts Estate Tax if the estate has assets over $1 million) and to eventually distribute the assets to those people who are to inherit. If there is a Will, the Will governs how the assets will be distributed. If there is no Will, Massachusetts’ law will determine the heirs who will inherit according to the laws of intestacy. This may mean that your assets do not always go where you would have wanted them to go. For example, if you die without a spouse and children but with living parents, the assets will go to your parents even if you would have preferred them to go to your brothers and sisters.

The probate process begins with the filing of a petition to probate your estate in the Probate Court of the county where you resided or owned property. The petition also seeks the appointment of a Personal Representative. About three weeks after the filing of the petition the court will issue a citation, which must be sent to all heirs and published in the local paper. The citation has a return date of approximately a month or so after it is issued. If anyone wishes to object to the petition or the appointment, they must – at the minimum – file an appearance and then provide an “Affidavit of Objection” within 30 days of the return date. If no objection is filed, the Personal Representative will be appointed and “Letters of Authority” issued. This is the official appointment by the court. This can be a time-consuming process as the Letters of Authority are typically not issued until a month and a half or two months after the petition is originally filed. Once the Letters of Authority are issued, the process of closing bank accounts, liquidating assets, selling property, selling stock etc. can take place. Depending on the complexity of the assets this can also take several months.

There are two types of probate filings under the Uniform Probate Code; informal and formal. Informal proceedings do not require the supervision of the court whereas formal probate requires court supervision. Formal probate is often a good choice where there may be disputes among beneficiaries, disagreements as to the liquidation of assets, where a guardian ad litem (GAL) may be needed to be appointed for a minor heir or where a “License to Sell” is required.

There is also a simplified probate process if the assets of the estate are no more than $25,000. This “voluntary administration” is a relatively short, streamlined process and the Personal Representative is appointed fairly quickly. Obviously, this is not applicable to many estates due to the limited amount of assets that are allowed.

It is easy to hope that the probate process will unfold as expected, but this does not always happen. For example, problems often come to light when creditors come out of nowhere in an attempt to obtain payment. The same holds true for family members who may not be happy with the way the situation is being handled. In this situation a “Will Contest” could come into play. Simply put, this means that a person is challenging the Will, arguing for example that the deceased was unfairly influenced into leaving property to someone else.

While it may not be easy to deal with the probate process after the death of a loved one, if you are the Personal Representative of the Will you need to know what is expected of you and then move forward in the appropriate manner. Our experienced probate attorneys appreciate the stress and responsibility that is placed on you and we work diligently to expedite the process and serve as the line of communication between yourself and the heirs through each step.

At our firm, we know that the estate administration process is full of twists and turns that can be difficult to navigate, especially at a time when you are dealing with a personal loss. The attorneys at Casey & Lundregan, P.C. have specialized knowledge of the probate process and can guide you through this process to a timely and cost-efficient conclusion.