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 Executor of the estate are officially appointed to serve. The process begins with the filing of the original Last Will and Testament, a certified death certificate, a Petition for Probate of Will, an Executor's Bond, and other documents required by the local Probate Court. Failure to locate an original Will leads to major time delays, while evidence is presented to convince the Probate Court Judge that the copy of the Will should be allowed. The evidence must show that the Will was in effect at the time of the decedent's death, was not destroyed prior to the decedent's death, and was not replaced by a later Will. Testimony from the attorney who prepared the Last Will and Testament and immediate family members may be sufficient to convince the Judge, as long as there is no evidence to the contrary. If that attorney is deceased or cannot be found, the Court may not accept a copy of the Will. 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: The Will of a decedent with a primary residence in Essex County, Massachusetts must be offered for probate in the Essex County Probate Court, which is located in Salem, Massachusetts. It doesn't matter if the individual was living in his Florida home at the time of his death. The individual's primary residence, as reported on his death certificate, determines where the Will must be offered for Probate. Because the individual owns real estate in Florida, his Will must also be offered for probate in Florida after the Will has been allowed in Massachusetts. The proceedings in Florida are referred to as "ancillary proceedings". The beneficiaries of the Will cannot sell the Florida home until the Will has been allowed in Massachusetts and Florida. Needless to say, the legal fees and time delays will be considerable. This situation could have been avoided if the decedent 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 Executor(s) named in the Will. The Petition must list the names and home addresses of the beneficiaries named in the Will, as well as the decedent's heirs-at-law. After the Will, Petition, and other documents are filed, the Court issues a citation, which must be served on the Will beneficiaries and the heirs-at-law. The citation contains basic information about the decedent, the Will, and the named Executor(s), as well as the right to contest the Will. The citation contains a "return date", which is a date about five weeks after the citation is issued. The citation must also be published in a local newspaper. If an heir-at-law or beneficiary wishes to contest the Will, he or she must do so before the return date, stating in writing the legal grounds for contesting the Will. The Executor must file a Bond with the Court before the Will can be allowed. The Bond is the Executor's promise to carry out the terms of the Will and administer the estate in compliance with State law. In some cases, a surety on the Bond may be required. The surety is an insurance policy that will reimburse the beneficiaries of the estate for losses based on the Executor's negligent or illegal actions, such as embezzling from the estate. Assuming that no one contests the Will, the Probate Court will issue a decree after the return date, confirming that the Will has been allowed and the Executor(s) has been appointed. With the decree, the Executor can access the decedent's bank accounts and investments to pay funeral and burial expenses and the decedent's final bills, put real estate up for sale, manage the decedent's investments, and take other required actions outlined below. With the reduced staff in Massachusetts Probate Courts, it can take up to six months to obtain a certified decree confirming that the Will has been allowed. In the meantime, 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 of a married decedent are the surviving spouse and children, and if the spouse is deceased, the children are the heirs-at-law. If there are no children, the heir-at-law is the surviving spouse. If the decedent was in the process of divorcing, his or her spouse is still an heir-at-law until the divorce decree is final. If there is no surviving spouse or children, the surviving parents or parent are the heirs-at-law, and if there are no surviving parents, the heirs-at-law are the decedent's siblings. If there are no surviving parents and siblings, the heirs-at-law are aunts and uncles and/or cousins. When the Executor 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.

Who Can Contest a Will? Both the beneficiaries named in the Will and the decedent's heirs-at-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, before the return date. 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; or 6) 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, 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 Administration with the Probate Court. If there is a surviving spouse, he or she has priority to serve as Administrator 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 Administrator. 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 for Administration is allowed. State law determines who will inherit the decedent's assets. The process for approving the Petition for Administration is the same as the allowance of a Will. After the paperwork is filed, a citation is issued, published in the local newspaper, and served on the heirs-at-law. The heirs-at-law may object to the appointment of the Administrator, but as long as the person or persons who have applied have precedence under State law, they will be appointed. The only exception is an Administrator who is clearly unfit for the job, such as someone with a criminal record. Once appointed, the Administrator has the same responsibilities and powers as the Executor of a Will.

What the Executor or Administrator Should Do Before the Will is Allowed. Before the Will is allowed, there are many things that the Executor or Administrator 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 Executor should ask family members for help and retain the appropriate professionals for assistance.

• Unless you know everyone who has a key to the house, 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 care for 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.
• 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 the appropriate individuals of the decedent's death. If you don't know where the accounts are, check the mail every day for bank and investment statements.
• 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. 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. Funds held in a Trust may be used to pay these expenses before the Will is allowed.
• 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 Executor, particularly in the first few months, can be a full time job. An Executor is entitled to reasonable compensation for his or her services, and reimbursement for his or her expenses. If you intend to charge an Executor's fee, keep time records for everything that you do.

What Happens After the Will or Petition for Administration is Allowed. The Executor or Administrator 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 Executor can start this work by reviewing the bank and investment statements that arrive in the mail and going through the decedent's records and file cabinets. If there is life insurance, the Executor should determine who the beneficiaries are and make sure that they receive the forms to claim benefits. When the Executor has a supply of certified decrees, he or she can close the decedent's bank and investment accounts and place them into one or more estate accounts. As soon as estate funds are available, outstanding bills should be paid and if anyone lent funds to the estate, they should be repaid. The Executor 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 $5,000,000, 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. Estate tax returns must be filed and estate taxes paid nine months from the date of death, so the Executor should start gathering information as soon as possible. See the Estate and Gift Tax page for more information about estate taxes. The Executor 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 Executor 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 Executor should arrange to distribute them. A "bequest" traditionally refers to a specific amount of money or a specific asset, such as stock, that is left to a beneficiary in a Will. A "devise" usually refers to a gift of real estate. Generally, these distributions are not made until the time for creditors to bring claims against the estate has lapsed. In Massachusetts, this is one year after the date of death. Distributions can be made before the one year lapses, if the Executor 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 Executor 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 taxable 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 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, the decedent directed his Executor 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 $600,000 to make these distributions, so he believed that each child would each receive $100,000 after his death. However, 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 Executor distributed $20,000 to each grandchild, only $200,000 remained, leaving only $50,000 for each of the decedent's children.

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 children. In that case, the Executor 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 Executor to distribute your estate in terms of fractions or percentages. Following are some examples.

Example. In his Will, the decedent directed his Executor 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. However, a two year stay in a nursing home reduced his estate. After the payment of administration expenses his estate was reduced to $400,000. The Executor 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 Executor was required to obtain the Probate Court's permission.

Example. In his Will, the decedent directed his Executor 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, no matter what size the estate is at the time of death. In that case, the Executor will calculate each beneficiary's share of the estate, without having to obtain the Probate Court's permission to make the distributions.

After the debts, expenses, and taxes are paid, and the distributions are made, the Executor must prepare and file an Account with the Probate Court. The beneficiaries of the Will and the heirs-at-law of an intestate estate 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. When the Account is allowed by the Probate Court, the administration of the estate is complete.

Conclusion. Attorney Roberta A. Schreiber has more than thirty years of experience in administering estates, representing Executors, Administrators, Will beneficiaries and heirs-at law. If you need assistance in administering an estate or believe that you have not received your fair share of an estate, please contact us for legal representation.