1329 Highland Ave, Suite 1
Needham, MA 02492
Probate is a complicated process, and most people aren't really sure what it is – other than something to be avoided.
You might read online that probate is "bad news" and that it tends to be very expensive and time-consuming. It depends, but one thing is for sure: The probate process is a public process that can be avoided with proper planning in advance.
But if you are now in a situation where you must go through the probate process to administer the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly and with as little expense as possible.
What is Probate?
Probate is a process through the court system to ensure the legal transfer of assets from the deceased’s name to the names of the deceased’s legal heirs or beneficiaries.
Probate is generally also necessary to prove the validity of a will, appoint someone to manage the estate, inventory and appraise estate property, pay the deceased’s debts and taxes, and distribute the estate property as directed by the will (or by state law if there is no will).
State law designates who is entitled to begin the probate process. The person with highest priority is the person who is named in the deceased’s last will as the “executor” or “personal representative.”
If there is no will, then the law generally establishes a hierarchy of who is eligible in what order, normally starting with a surviving spouse, then surviving adult children, and so on. The individual who has priority would start the probate process by having an attorney prepare the legal documentation to initiate probate and by filing the original will with the probate court.
Depending on the circumstances of the estate and the family, sometimes probate can be opened without advance notice to interested parties; other times, advance notice to interested parties is required before probate is officially opened.
The best way to determine exactly what probate process applies to the estate is to meet with an attorney so they can review your particular circumstances and give you the best possible guidance.
How does the probate process work?
Each state has different regulations regarding the process, but most begin with finding someone to act as the person representative — the person tasked with administering the estate.
If there is a will involved in the estate, that person will be called an executor. If there is no will, the person will just be referred to as the personal representative.
If you are the personal representative, some steps you will be required to help with include:
First, the probate court will use those assets to pay any
outstanding debt or credit your loved one had. Then, what’s left over will be
distributed to their beneficiaries.
The probate court will also make sure that any will was not
signed under duress (forced to sign it on their deathbed, etc.), and if no will
is involved, the person who passed away will be labeled intestate.
Why should I hire a Massachusetts probate attorney?
While you’re still alive, a probate attorney can help you create an estate plan that will help you avoid the long, drawn-out process in Massachusetts probate court and allow your family to conduct the estate administration amongst yourselves.
However, if your loved one failed to create an estate plan, or chose to only create a will, a probate attorney can help you through this process and ensure that everything goes as smoothly as possible.
A probate attorney can help with any or all of the following:
Are you ready to begin the probate process?
It’s not easy — But with Aubrey Law by your side, you can rest assured the probate process will move ahead as quickly and efficiently as possible. Allow us to take on the stress and worry of handling the courts while you focus on taking care of yourself and your family.
We are here for you through one of the most challenging times in your life.
If you have recently lost a loved one and have questions about probate, please do not hesitate to reach out.
Frequently Asked Questions
In most cases if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate.
However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate.
Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated.
Time and again we have helped family members of a recently passed loved one who found out title and beneficiary designations were not proper, and then they face the frustration, expense and delay of a probate proceeding even though the person they loved had a trust.
You may be asking: Why is that?
Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.
As a general rule, assets owned solely in the name of the deceased person are subject to probate.
By contrast, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.
In some situations, however, assets that would otherwise pass by title or beneficiary designation to a specified person can be subject to the probate process. Please call us if you have questions about your specific situation.
When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law.
In other words, the state legislature has made their best guess as to who you would want to receive your assets.
The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.
Where it gets tricky is if your surviving spouse is not the parent of your surviving children; or if you have a surviving spouse, no children, and a living parent (some states dictate that your surviving spouse split your estate with your living parent in this scenario); or even if your surviving spouse has children who are not your children (some states have complicated formulas for who gets what in this case).
You can see how things can get complicated quickly when you rely on state law alone instead of doing your own planning upfront.
Probate proceedings typically take around 6-12 months if there are no snags whatsoever. Some probate cases linger for two or more years if beneficiaries are disputing or if the deceased left property in multiple states.
In terms of cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined pursuant to a statutory schedule.
The best way to ensure your probate proceeding is handled properly and quickly is to choose your attorney wisely.
Do not assume that all attorneys are the same.
Too many lawyers only “dabble” in probate or trusts. Do not choose a lawyer who does probate “on the side” – this exposes you to blunders throughout the process, causing problems for you that should have never come up and ultimately delaying the resolution of the probate proceeding.
Plus, please know you are not required to hire the attorney who drafted the will!
Just because a particular attorney drafted the will does not mean that attorney must handle the probate process, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.
If you put in the time and effort to find the right lawyer, you will be rewarded with a compassionate advisor who will help you navigate the probate process with minimum headache and hassle.
If the deceased person left a last will that is recognized as valid by the probate court, then the person named in the will as the executor or personal representative typically will be appointed, barring extraneous issues such as that person’s illness or old age.
If the person named in the last will is unable or unwilling to serve as executor, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or professional third party.
Being a personal representative is a big responsibility.
The probate code contains pages upon pages of complex legal rules and procedures that an executor must follow during the probate process. In addition, there are certain deadlines that an executor must meet in filing papers with the court and providing notice to interested parties.
If an executor does not comply with any of these rules, he or she can be held personally liable for any losses to the estate.