One of the most common goals of people as they grow older and build their assets is to avoid the probate process. Although it is not necessary a horrendous ordeal, it does have drawbacks, which include costs, its public nature, and the unavailability of assets for significant periods of time. Many people consider it preferable to avoid the probate process altogether.
To Probate or not to Probate Your Will
Probate is the court's supervision of the process that transfers the legal title of property from your estate when you die to your beneficiaries. In short, the probate process proves the validity of your will.
Any property that passes outside of your will or is held in trust or in joint names is considered non-probate property. In addition, property passing by beneficiary designations to anyone other than your estate, such as transfer on death accounts, payable on death accounts, life insurance, annuities, retirement, and pension accounts are non-probate property.
The Probate of Your Will
To commence a probate action in Massachusetts, a petition to the probate court asking for the allowance of your will and the appointment of its executor are required. In the event that you did not have a will, it will be necessary to appoint an administrator with power to handle your property.
An executor or administrator typically engages an attorney to prepare and file the corresponding legal documents. Then the probate court will issue a formal notice that alerts any creditors and other interested parties that your will has been offered for probate. If no one objects, the attorney requests the allowance of the will, for a judge to sign the fiduciary bond, and the appointment of the nominated executor or administrator.
Three months after the judge signs the fiduciary bond and the executor or administrator is appointed by the court, Massachusetts requires the filing of an inventory showing the probate estate held at the date your death.
Massachusetts also requires an accounting at the end of administration of an estate providing all probate estate items received and distributed during the administration, income earned, and fees and expenses paid. Typically, once the court allows the account, the executor's liability for the estate closes.
The probate process is complicated, and it would behoove a petitioner to engage an attorney experienced in the field of Massachusetts probate law to facilitate the administration of the estate. The assistance of an attorney will help ensure that your own or a loved one’s estate is handled in a proper and legal manner.
Todd C. Ratner, Esq.
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