When a Massachusetts resident dies, their estate must go through probate before assets can be distributed to heirs. Probate is the court-supervised process of administering and distributing the deceased’s estate. Here is a basic overview of how probate works in Massachusetts.
There are a variety of types of Probate in Massachusetts and the proper type of probate for a decedent (the individual who passed away) will depend on:
- The decedent’s estate plan (and whether they have one)
- The decedent’s assets at death and how they are titled.
- The decedent’s residency or domicile at death.
- The value of the decedent’s probate estate.
In Massachusetts, the four main types of estate administration are:
- Formal probate proceeding (formal probate). This is the most complex form of administration and is avoided if possible. (M.G.L. c. 190B, §§ 3-401 to 3-414).
- Informal probate administration (informal probate) (M.G.L. c. 190B, §§ 3-301 to 3-311).
- Voluntary administration for small estates (M.G.L. c. 190B, § 3-1201).
- Ancillary administration (M.G.L. c. 190B, §§ 4-101 to 4-401).
Probate vs. Non-Probate Assets:
Probate assets are those that pass through the probate process after someone dies. Probate is the legal process of distributing a deceased person’s property and settling their estate. Probate assets include solely owned real estate, bank accounts, vehicles, and other personal property titled only in the deceased’s name. These assets must go through probate court to be distributed to heirs or beneficiaries named in the will or by state law if there is no will. Contact: Biedak & Finlay Law
On the other hand, non-probate assets avoid the probate process because their ownership passes to a new owner upon death outside of probate court. Examples of non-probate assets include:
– Assets owned jointly with rights of survivorship – These include joint bank accounts, retirement accounts, real estate held as joint tenants with rights of survivorship, etc. Upon the first owner’s death, ownership passes directly to the surviving co-owner.
– Payable-on-death accounts – Bank accounts or securities that name a beneficiary who will automatically inherit the asset upon the original owner’s death.
– Assets held in a living trust – Property transferred into a revocable living trust during life avoids probate. The trust becomes irrevocable upon death and distributes assets to beneficiaries per the trust terms.
– Life insurance and retirement accounts – Proceeds from life insurance policies or IRAs with adequately designated beneficiaries go directly to those beneficiaries and sidestep probate.
In summary, probate assets must go through the potentially time-consuming and costly probate process. In contrast, non-probate assets transfer automatically to new owners upon death outside of probate court in Massachusetts. Proper estate planning ensures one’s assets pass as intended upon death.
The first step is to file a petition with the probate court in the county where the deceased resided. The petition is typically filed by the executor named in the will or, if there is no will, by the prospective administrator of the estate. The court will then appoint an executor or administrator to oversee the probate process.
Types of Information required over the course of an estate administration include:
- The decedent’s place of residence at death.
- The date and place of the decedent’s death.
- Names and addresses of the decedent’s beneficiaries and heirs at law, including trustees of any beneficiary trusts.
- Dates of birth for any minor beneficiaries.
- Name and contact information for the petitioner and petitioner’s attorney.
- An inventory of all the decedent’s assets.
- The approximate value of the decedent’s probate assets.
- Any outstanding debts of the decedent.
(M.G.L. c. 190B, §§ 3-301 and 3-402).
Noticing Heirs & Beneficiaries
Notice must be given to all interested parties, including heirs, beneficiaries named in the will, and creditors. This gives them a chance to contest the will if they wish. Notices are sent by certified mail and also published in a local newspaper.
The executor or administrator must file a detailed inventory of the estate’s assets and debts with the court. This inventory includes real estate, financial accounts, stocks, personal property, and debts the estate owes.
Paying Debts & Taxes
The estate’s debts and taxes must be paid before distributions to heirs. Medical bills, credit card debt, funeral costs, taxes, and other debts are paid out of liquid assets.
Once all debts and taxes are paid, the remaining assets are distributed to heirs as directed by the will or, if no will, according to state inheritance laws. For probate estates, Massachusetts requires a waiting period of at least six months after the appointment of the executor before distributions can be made.
Once everything is distributed, the executor or administrator must prepare a final accounting for the court showing all assets, payments, and distributions. The probate court then declares the estate closed.
In Massachusetts, probate can take 9-12 months to complete for a routine estate. The process is overseen by the probate court in each county to ensure proper administration. Consulting with a local probate attorney is highly recommended for anyone named executor or administrator of an estate.
Recently, a registry clerk informed me that about 50% of probate petitions get rejected and sent back to the petitioner. Overcoming these rejects is time-consuming and complicated. The court will reject anything that might be wrong with your application. A very deep level of scrutiny goes into this, and there are hundreds of reasons why they might reject it. Having a lawyer can only help you with this process as it is overly complicated and every stage is lengthy. However, I have come across quite simple estates with only one asset, which might only require an informal probate petition. These are easier in nature but still require a heavy amount of know-how and legal oversight. Still, I have seen some non-lawyers make their way through it but never without a struggle at some point.