Probating an estate is the process by which a person's Will is delivered to the Court, allowed by the court, an executor is appointed, and the person's property is distributed according to their Will. If the person has no Will, the process, called estate administration, is similar and the property is distributed according to state law.
People often talk about wanting "to avoid probate." They have an image of estates that remain open for years, with property languishing and heirs in a never ending battle. While this can happen, it is not typical, and can be prevented with proper planning.
Below are some of the general steps involved in probating an estate in Massachusetts:
- The original will is filed with the probate court, along with a petition, bond and death certificate. A copy of the petition and death certificate are sent to the Office of Medicaid (Medicaid may have a claim against the estate if the person received Medicaid, or MassHealth, while they were alive.
- Heirs and "interested parties" are notified. Interested parties are those people named in the will, and may be the Attorney General if there are charities named in the Will or if there are no known heirs at law.
- The Court will issue a citation, which needs to be published in the newspaper and sent to interested parties. This citation lists the date (called the "return day") by which people can object to the appointment of the executor or administrator. The citation will contain very specific instructions which must be followed.
- File a military affidavit with the court if all heirs have not assented.
- Once the will has been approved and the executor appointed, the executor should begin to gather the assets, review the debts, obtain a tax id number for the estate and open an estate bank account.
- The executor will need to file an inventory with the court, outlining all of the property that is in the estate.
- The debts of the estate, such as funeral debts, should be paid, if the estate is solvent. Be aware of Medicaid estate recovery debts. Creditors have a year to come forward and make claims against the estate.
- Determine, perhaps with assistance of an accountant, the best way to start making distributions from the estate. If there is real estate, that may need to be sold and may be subject to Title V (septic tank) regulations, which can be costly if repairs or replacement are needed.
- When the estate is closed, an account will need to be filed with the court which lays out what was in the estate when the person died, what came into the estate and what went out of the estate and where it went (usually distributed to heirs or to pay debts.)
There are tax matters that need attention, so you'll want to make sure to have an accountant you can consult with. And things that can hold up the process are waiting many years to open an estate, heirs who are missing, heirs who object to the appointment of the executor or the provisions of the will or anything else they can think to object to, real estate which has title problems or needs extensive septic work done, abandoned property (especially stocks if the stock certificates have been lost).
This is not a comprehensive list, but it will give you some idea of what the executor will need to do, and where some of the bottle necks can occur.
If you are responsible for probating someone's estate in Massachusetts and need legal assistance, or you want to talk to someone about structuring your own estate plan to prevent bottlenecks, please call me at 781-749-2284.