When a Massachusetts resident passes away, loved ones have more than emotions to process. Legal concerns, such as probate, must be addressed after they say their final goodbyes.
The deceased commonly leave behind debts that creditors will undoubtedly want to be paid. Massachusetts law gives unsecured creditors one year after the debtor’s death to make a claim against the estate. For this reason, any probated estate must remain open for one year.
Probate can usually be concluded within 18 months but can take longer if the estate is particularly complicated or if there is litigation over the will. Our attorneys with deep experience in probate law can help families meet the legal requirements of the process.
Assets that Must Be Probated
Probate is a legal process that gives one person the authority to handle the affairs of the deceased. This person is charged with gathering, inventorying, and distributing assets as well as paying taxes and debts. The individual handling probate is typically either named in the will (executor) or appointed by the court (personal representative). Probate validates the will that is filed by the executor.
For estates valued at $25,000 or less, any interested person may offer to serve as a voluntary personal representative.
Any property or asset held solely in the name of the deceased generally is probated. In addition, property that is bequeathed to someone in the will must also go through the process. Life insurance payable to the estate, not a named individual, is subject to probate. Assets without named beneficiaries go through probate.
Assets Not Subject to Probate
With effective estate planning, many assets will be saved from probate requirements.
Common assets that do not go through probate include the following:
- Property owned in joint tenancy with others will automatically pass to the other owners.
- Beneficiaries of life insurance policies will automatically receive their proceeds.
- Beneficiaries named on retirement accounts do receive the proceeds without probate.
- Beneficiaries named on payable-on-death bank accounts are given access to the accounts.
- Assets owned by a revocable living trust do not need to go through probate.
Informal vs. Formal Probate in Massachusetts
Massachusetts’ Uniform Probate Code aims to make probate less onerous for surviving family members. Informal probate is overseen by a magistrate instead of a judge. This less-cumbersome probate is only available if all heirs and those named to receive real property have been identified and located. There can be no need for court supervision, hearings, orders, or final decrees from a judge.
As the name suggests, formal probate is more complex. This process is overseen by a judge and is required if the original will is not located or if there is confusion over its provisions. Formal probate is also needed if the court must name a special personal representative, if incapacitated persons or minor heirs need representation, and if a judge must sign an order or decree are all reasons an estate must go through formal probate.
Probate Litigation Keeps the Estate Open
The executor or personal representative evaluates each claim a creditor makes against the estate. The executor pays claims determined to be legitimate. If a claim is not paid, creditors have another year to file a lawsuit against the estate in an effort to be paid.
Heir, beneficiaries, and other interested persons may have the standing to contest a will in the following circumstances:
- The deceased person was incapacitated when they wrote the will.
- The deceased person wrote the will under duress.
- Another valid will is discovered.
- Some of the will’s provisions are unclear.
The estate’s assets are not distributed until these lawsuits are resolved.
Legal Counsel to Streamline the Probate Process
At Percy Law Group, PC, our legal team helps families and individuals streamline the probate process and better protect assets.
We help individuals prepare for the eventuality of their death through effective estate planning that reduces tax burdens before and after their death and limits disputes among heirs. We also shoulder many of the tremendous legal and fiduciary responsibilities assigned to executors and personal representatives.
Whether you need a tailored estate plan, to contest a will, or support for your executor responsibilities, we can help. Contact Percy Law Group, PC online, or call (508) 206-9900 to schedule a consultation.