What is Probate?

"Probate" is a shorthand term for the legal process that takes place in Probate Court to "allow" the Last Will and Testament of a deceased individual. When a Will is allowed, a Probate Court Judge will issue a decree confirming that the Will is valid and the person or persons named as Personal Representative of the estate are officially appointed to serve. Under the new Massachusetts Uniform Probate Code, the term "Personal Representative" has taken the place of the terms "Executor", "Executrix","Administrator" and "Administratrix".

The process begins with the filing of the original Last Will and Testament, a certified death certificate, a Petition for Probate, the Personal Representative 's Bond, and several other documents, including Assent forms signed by the beneficiaries of the estate. If you can't locate the original Will, evidence must be presented to convince the Probate Court Judge that the copy of the Will should be allowed. For that reason, it is important that you store your original Will in a safe or safe deposit box and make sure that your family members know where it is. The Court in which the Will and Petition must be filed is based on the legal residence of the decedent at the time of death. If the decedent owns real estate in more than one State, the Will must be offered for allowance in all States in which the real estate is located.

Example: George lives in his Peabody, Massachusetts home for about eight months each year. He spends the winter in his Florida home. After his death, his Will must be filed for allowance in the Essex County Probate Court, located in Salem, Massachusetts. It doesn't matter if he was living in his Florida home at the time of his death. His primary residence, as reported on his death certificate, determines where his Will must be offered for Probate. Because he owns real estate in Florida, his Will must also be offered for probate in Florida after his Will has been allowed in Massachusetts. The proceedings in Florida are referred to as "ancillary proceedings". George's children cannot sell the Florida home until George's Will has been allowed in Massachusetts and Florida. George's children must hire a Massachusetts attorney and a Florida attorney. Needless to say, the legal fees, Probate Court filing fees, and publication fees are high, and there are time delays before the real estate can be sold. This situation could have been avoided if George had established a Trust prior to his death and transferred title to both properties and his other assets to the Trust. See the Trust page and the article titled What Kind of Trust is Right For Me? for more information about Trusts and probate avoidance.

The Will, Petition, Bond, and other documents are filed by the Personal Representative (s) named in the Will. On the Petition, the person named as Personal Representative in the Will must list his or her address and the names and addresses of the Will beneficiaries and the decedent's heirsat- law. If there is no Will, one or more family members must petition the Court to be appointed as Personal Representative(s). On their petition, they must include their home address, and the names and addresses of the "heirs-at-law", who will inherit the estate. The heirs-at-law are determined by State law. In both cases, the process can be expedited if all of the beneficiaries and heirs-at-law assent to the allowance of the Will or the Petition for Administration. If everyone assents and there are no disagreements or Will contests, the process is known as "Informal Probate". If there are any problems, such as a missing Will, a Will contest, or disagreements about who should be appointed as Personal Representative, the process becomes "Formal Probate" and a Probate Court Judge becomes involved to resolve the problems.

The new Probate Code was enacted to streamline the probate process. So far, this hasn't happened. It still takes eight to ten weeks for a Petition for Informal Probate to be approved. Formal Probate will take even longer, while the Probate Court Judge deals with disputes and Will contests. After a Petition for Informal Probate has been filed and approved, a Magistrate will issue a Letters of Authority or decree. The decree will confirm that the Will has been allowed and the Personal Representative (s) named in the Will has been appointed. When there is no Will, the appointment of the Personal Representative(s) will be approved and the heirs-atlaw, as listed on the Petition for Informal Probate, will become the beneficiaries of the estate. With the decree, the Personal Representative can access the decedent's bank accounts and investments to pay funeral and burial expenses, final bills, put real estate up for sale, manage the decedent's investments, and take other required actions outlined below. Until the Representative has the decree issued by the Probate Court, he or she cannot access the decedent's bank and investment accounts to pay bills. In many cases, family members must lend money to the estate to pay funeral and burial expenses and bills, if no other funds are available.

Who are the Heirs-at-Law? The identity of heirs-at-law are determined by the laws of the State in which the decedent resided at the time of death. In Massachusetts, the heirs-at-law are the following:

  • the surviving spouse and children
  • if the spouse is deceased, the children are the heirs-at-law
  • if there are no children, the surviving spouse is the heir-at-law
  • if the decedent was in the process of divorcing, his or her spouse is still an heir-atlaw until the divorce decree is final
  • if there is no surviving spouse or children, the surviving parents or parent are the heirs-at-law
  • if there are no surviving parents, the heirs-at-law are the decedent's siblings
  • if a sibling has died first and has children, those children are heirs-at-law
  • if there are no surviving parents and siblings, the heirs-at-law are aunts and uncles and/or cousins

When the Personal Representative is not sure who the heirs-at-law are, or is unable to locate an heir-at-law, it is necessary to hire a genealogist and/or detective agency to identify and track down the heirs-at-law, which greatly increases the cost of probating the estate.

Who Can Contest a Will? Both the beneficiaries named in the Will and the decedent's heirsat- law have the right to contest the Will filed with the Probate Court, if they have reason to believe that the Will is not valid, or if they believe that a later Will exists that was intended to replace the Will filed with the Probate Court. A beneficiary of a prior Will who has been left out of a new Will has standing to contest the validity of the new Will. If you wish to contest a Will, you must have sufficient grounds to do so, and you must state your grounds, in writing. You have a limited time to contest the Will, so you should find out when the Will has been filed for allowance, and file your objections as soon as possible. Grounds for contesting a Will include the following: 1) the decedent lacked mental capacity to execute the Will; 2) the Will was executed as a result of undue influence exerted by a family member or Will beneficiary; 3) the Will was executed as a result of fraud or deceit; 4) a later Will was destroyed, so an older Will could be allowed; 5) a later Will exists; 6) the Will has "interlineations", which means that parts of the Will have been crossed out or changed by handwriting; or 7) there are problems with the way in which the Will was executed, so that the Will does not meet the requirements of State law. If someone has been diagnosed with dementia or Alzheimers Disease, or has some other medical condition that makes them unable to understand the contents of the Will, they lack the mental capacity to execute the Will.

Lack of mental capacity must be proved by the testimony of the decedent's treating physician, although some Judges may find the testimony of the individuals present at the signing to be sufficient. Physical incapacity does not make a Will invalid. A blind person may execute a Will, if the appropriate safeguards are taken. The Will must be read, in its entirety, to the person signing the Will, in the presence of the two witnesses and notary public. If an individual is physically unable to sign the Will, he or she may make a mark on the Will. As long as this is done in the presence of two witnesses and a notary public, the Will is considered to be valid. Undue influence and fraud are both difficult to prove. In both cases, the best evidence would be the testimony of the decedent, and that evidence is not available. If a witness to the Will overheard a family member or beneficiary threatening the decedent or telling the decedent that they were signing something other than a Will, it might be possible to contest the Will, particularly if the new Will makes significant changes to prior Wills. A beneficiary who is merely unhappy with the terms of a valid Will executed by an individual with the requisite mental capacity has no grounds to contest the Will.

What If there is No Will? If the decedent leaves no valid Will, his or her estate is known as an intestate estate. In this case, one or more immediate family members must file a Petition for Informal Probate, if everyone assents to the appointment of a Personal Representative who files the Petition, or a Petition for Formal Probate, if there are family disagreements. If there is a surviving spouse, he or she has priority to serve as Personal Representative of the estate. If there is no surviving spouse, the children have priority. Otherwise, the parents or siblings of the decedent may petition the Court to be appointed as Personal Representative. On the Petition, the names and addresses of all heirs-at-law are listed. The heirs-at-law will become the beneficiaries of the estate after the Petition is allowed. The heirs-at-law may object to the appointment of the Personal Representative, but as long as the person or persons who have applied have precedence under State law, he or she will be appointed. The only exception is a Personal Representative who is clearly unfit for the job, such as someone with a criminal record or who has dementia. Once appointed, the Personal Representative of an intestate estate has the same responsibilities and powers as the Personal Representative of a Will.

What the Personal Representative or Personal Representative Should Do Before the Petition for Probate is Allowed. Before the Petition is allowed, there are many things that the Personal Representative should do to safeguard the decedent's assets and start the administration of the Estate. The following list is not exhaustive. Depending on the size and complexity of the estate, there may be additional responsibilities. For this reason, the Personal Representative should ask family members for help and retain the appropriate professionals for assistance.

First a warning about identity theft. After an individual's death, there is a lot of personal information made public, in the obituary and the death certificate. The same is true if the decedent has a Facebook or Linked In page, or other online accounts or pages. The death certificate is a public record - anyone can obtain a death certificate from the Town or City Clerk for a $5 or $10 fee. In the obituary, there are the names of the spouse, children, grandchildren and parents (and in some cases, pets), the decedent' residence and vacation home, hobbies, veteran status, hobbies and other personal information. The death certificate has the decedent's date and place of birth, his or her residential address, the parent's names, place of birth, date of marriage, and the mother's maiden name. Facebook and Linked In pages have detailed personal information. With this personal information, a clever identity thief can access the decedent's online accounts, create new bank accounts and obtain new credit cards in the decedent's name, and obtain loans in the name of the decedent. The first thing you should do is close all credit card accounts, notify all bank and investments companies so the decedent' bank and investment accounts can be "frozen" until the Personal Representative is appointed, and to the extent possible, close down and cancel all online banking and investment accounts, and social websites. Carefully review all mail and bills (particularly credit card bills) to make sure that no fraud has taken place. If the decedent had an Equifax or similar account that monitors all financial activity, keep these sites open and monitor them daily.

Other critical actions:

  • Find out who has a key to the house and if necessary, change the locks. If the house will be vacant for prolonged time periods, installing an alarm is advisable.
  • Remove all valuable personal items, such as jewelry, and store them in a safe or safe deposit box.
  • Call the insurance agent to make sure that the homeowners policy is in effect and to notify the insurance company of the decedent's death. If the policy is in effect, the insurance company will not cancel it, as long as the family is taking appropriate steps to safeguard the house. This is particularly important if the house will be vacant. The same steps should be taken for a vacation home, or rental property.
  • Make sure all utilities bills are paid. You don't want the fuel oil to run out in the winter and have the pipes freeze.
  • Check the status of property tax payments and keep them up to date. Do the same if there is a mortgage on the property.
  • Make sure the car insurance policy and registration are up to date. Immediate family members may use the decedent's car for up to six months before the title and registration must be changed or the car is sold.
  • Cancel all credit cards and carefully review all credit card statements.
  • Retain an attorney. If possible, bring a certified death certificate, the original Will, copies of any Trusts, a list of the names and addresses of family members and Will beneficiaries, and whatever information you have about the decedent's assets to the meeting. If you bring all of these documents and information to the first meeting, the attorney can immediately start the probate process.
  • Meet with the decedent's accountant, to find out when tax returns are due and if estimated taxes must be paid.
  • Compile a list of the banks and investment accounts and notify each bank and investment companies of the decedent's death. Although you can't access the accounts until you are appointed as Personal Representative, the accounts should be "frozen" to prevent identity thieves from accessing the accounts.
  • If you don't know where the accounts are, check the mail every day for bank and investment statements. You can also check "Schedule B" of the decedent's most recent income tax return, as well as the Form 1099's filed with it. They will list the banks and investment companies that paid interest and dividend income. The form 1099's usually have account numbers.
  • Unless there is a family dispute, personal items in the decedent's home may be distributed to family members, following the instructions in the Will.
  • Start keeping records of all amounts paid for funeral and burial expenses, the decedent's bills, utility bills, property taxes, mortgage payments, insurance, the costs of distributing personal items and securing the home and other properties. If no funds are available, family members will have to lend money to the estate to pay these expenses until the Personal Representative is appointed and can access the decedent's bank accounts. For that reason, many parents keep a joint bank account with one or more children's names on it, to be used for this purpose. If funds are held in a Trust, the Trustees may immediately use the trust funds to pay these expenses until the Personal Representative is appointed.
  • If the home or other real estate is going to be sold, start working with a real estate broker and make recommended repairs and maintenance to get the property ready to sell.
  • If the decedent owned a business, work with key employees to keep it running.
  • Locate all insurance policies and assist the beneficiaries in applying for death benefits.

Serving as an Personal Representative, particularly in the first few months, can be a full time job. A Personal Representative is entitled to reasonable compensation for his or her services, and reimbursement for his or her expenses. If you intend to charge a Personal Representative 's fee, keep time records for everything that you do. If you, or a family member, use your own funds to pay expenses, keep records of these payments so that you can be reimbursed when funds are available.

What Happens After the Petition for Probate is Allowed. The Personal Representative should work with the attorney to locate and value all of the assets in the decedent's estate. When appropriate, professional appraisers should be retained. In other cases, the balances shown on bank accounts and investment statements should be sufficient. This information is needed to prepare the Inventory that must be filed with the Probate Court and made available to the Will beneficiaries. At the beginning of the probate process, both the heirs-at-law and the Will beneficiaries are entitled to see copies of the Will and other documents filed with the Probate Court. After the Will is allowed, only the Will beneficiaries are entitled to information about the estate assets and expenses. When there is no Will, the heirs-at-law are entitled to this information. The Personal Representative can start this work by reviewing the bank and investment statements that arrive in the mail and going through the decedent's income tax returns and other financial records. If there is life insurance, the Personal Representative should determine who the beneficiaries are and make sure that they receive the forms to claim benefits. When the Personal Representative has a supply of certified death certificates (usually the funeral director orders them), he or she can close the decedent's bank and investment accounts and consolidate the funds and investments into one or more estate accounts. As soon as estate funds are available, outstanding bills should be paid. If anyone lent funds to the estate, they should be repaid. The Personal Representative must locate and value all assets owned by the decedent at the time of death, whether or not they passed under the Will, to determine if estate tax returns must be filed. Under current laws, a Massachusetts estate tax return must be filed if the taxable estate exceeds $1,000,000. If the decedent owned real estate in another State, estate taxes may be due to that State. If the value of the assets exceeds $5,340,000, a federal estate tax return must be filed. If all of the assets pass to the surviving spouse, no estate taxes will be due, but an informational return must be filed if the estate exceeds the applicable estate tax exemptions in effect on the date of the decedent's death. This is critical if the surviving spouse intends to take advantage of the new federal estate tax "portability provisions". Estate tax returns must be filed and estate taxes paid nine months from the date of death, so the Personal Representative should start gathering information as soon as possible. See the Estate and Gift Tax page for more information about estate taxes. The Personal Representative is responsible for preparing and filing the decedent's final income tax returns. In some cases, if the decedent died at the beginning of the year, before filing income tax returns for the prior tax year, tax returns for the prior year and the year in which the decedent died must be filed and taxes paid. Taxes on income generated by the estate, referred to as "fiduciary tax returns" must be filed and the taxes paid. Unless the Personal Representative is a tax professional, he or she should retain an accountant to prepare the required tax returns.

Distributions to Beneficiaries. If there are bequests and devises under the Will or Trust, the Personal Representative should distribute them. This should not be done until the Personal Representative has paid all bills, income taxes, estate taxes, legal fees, and accountants fees, or has set aside sufficient funds to pay these expenses. In Massachusetts, there is a one year Statute of Limitations to make claims against an estate. Distributions can be made before the one year lapses, if the Personal Representative is confident that there are sufficient assets to pay all estate liabilities, including income and estate taxes. However, this should be done only with the advice of the attorney representing the estate. It is very difficult to recover a distribution to pay a tax bill or a creditor if the Personal Representative has made distributions before all liabilities have been paid. Final distributions to the beneficiaries of the estate typically occur after both the Internal Revenue Service and the Commonwealth of Massachusetts have issued estate tax closing letters accepting the estate tax returns. When there is no Will, the heirs-at-law share the remaining estate assets, according to State law. If there is a Will, difficulties can arise if there are not sufficient assets to make the distributions listed in the Will. The decedent may have over-estimated the size of his or her estate, may have sold an asset and failed to update the Will, or the decedent may not have realized how much had to be paid to creditors or for income and estate taxes. If there is not enough money to make all of the distributions, the specific monetary bequests are paid first and the remaining assets are distributed according to each beneficiary's share of the estate.

Example. In his Will, William directed his Personal Representative to distribute $20,000 to each of his ten grandchildren and the balance of his estate to his four children, in equal shares. When he drafted his Will, he had a home valued at $250,000 and $350,000 in savings. He believed that each child would each receive $100,000 after his death. Unfortunately, a two year stay in a nursing home reduced his estate. After the payment of administration expenses his estate was reduced to $400,000. After the Personal Representative distributed $20,000 to each grandchild, only $200,000 remained for William's children. Each child received $50,000, rather than the $100,000 that William expected they would receive.

Because you don't know how much will be left in your estate to distribute, it may be better to leave specific monetary bequests to all of your beneficiaries. In that case, the Personal Representative will calculate each beneficiary's pro rata share of the estate assets if there are not sufficient funds to pay the bequests in full. Another option is to direct your Personal Representative to distribute your estate in terms of fractions or percentages. Following are some examples.

Example. In his Will, Robert directed his Personal Representative to distribute $20,000 to each of his ten grandchildren and $100,000 to each of his four children. When he drafted his Will, he had sufficient assets to make these distributions. After he drafted his Will, he was admitted to a nursing home, where he stayed for three years. After the payment of administration expenses his estate was reduced to $400,000. The Personal Representative calculated that each grandchild was entitled to 3.33% of the estate and each child was entitled to 16.66% of the estate. These percentages were applied to the $400,000. Each grandchild received $13,320 and each child received $66,640. Before making the distributions, the Personal Representative obtained the assent of each beneficiary, to make sure that no complaints would be filed with the Probate Court.

Example. In his Will, Paul directed his Personal Representative to distribute 3% of the estate assets to each of his ten grandchildren and 15% of the estate assets to each of his four children. These percentages will apply to determine what Paul's beneficiaries will receive, no matter what size his estate is at the time of death. In that case, the Personal Representative will calculate each beneficiary's share of the estate, without having to obtain the Probate Court's permission to make the distributions. Before making the distributions, the Personal Representative obtained the assent of each beneficiary, to make sure that no complaints would be filed with the Probate Court.

After the debts, expenses, and taxes are paid, and the distributions are made, the Personal Representative must prepare and file an Account. If this is Informal Probate, it is no longer necessary to file the Account with the Probate Court. The Account is prepared to show the beneficiaries of the Will and the heirs-at-law of an intestate estate what the expenses were, what remained for distribution, and what each beneficiary received. They are entitled to review the Account and contest it if they believe that they did not receive their fair share of the estate or if they believe that any of the estate expenses are inappropriate. If this if Formal Probate, the Account must be allowed by a Probate Court Judge. When all bills and expenses have been paid, and all distributions are made, the administration of the estate is complete.

Conclusion. Acting as a Personal Representative is not easy. Most people are surprised at the amount of work involved. Attorney Roberta A. Schreiber has more than thirty years of experience in administering estates, representing Personal Representatives, Will beneficiaries and heirs-at law. She can make the job easier by providing assistance when needed, completing and filing probate documents, dealing with the beneficiaries, assisting you with tax issues, preparing and filing estate tax returns, and referring you to other professionals for assistance with appraising and selling real estate and the contents of the home, getting the house ready to sell, filing income taxes, and managing the investments. She also helps Will beneficiaries and heirsat- law obtain their fair share of an estate and monitors the actions of the Personal Representatives when necessary. If you need assistance in administering an estate, if you wish to contest the Will or a Petition for Probate, or you believe that you have not received your fair share of an estate, please contact us for legal representation.

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Roberta A. Schreiber, P.C.
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North Reading, MA 01864-2153

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