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. It proves the validity of your will. This counters the erroneous, but widely held belief that if you have a valid will, you will avoid probate. However, not all estates need to go through the probate process.
Any property that passes outside of your will is considered non-probate property. Any property that is held in trust or in joint names is also 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. If any asset is owned by you alone, without a joint owner, beneficiary, or held in trust, that asset is considered a probate asset and must go through the probate process to reach its proper beneficiary.
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. Until then, he or she has no authority to pay bills or distribute your property.
An executor, or administrator, as the case may be, typically engages an attorney to prepare and file the corresponding legal documents. After the petition is filed, the probate court will issue a formal notice that needs to be published in a local newspaper and sent to all heirs at law, which 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 later 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 and an accounting at the end of administration of an estate. Accounts are either prepared annually, or one account is prepared at the end of the administration. Typically, once the court allows the account, the executor's liability for the estate closes.
In sum, during the probate process, the executor typically
performs the following tasks:
- Identifying and inventorying estate property;
- Paying estate debts, expenses of administration, and taxes;
- Distributing property as directed by a will or state law;
- Accounting to the probate court or beneficiaries for the collection and distribution of probate assets; and
- Preparing estate tax returns, if necessary.
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.
Todd C. Ratner, Esq.
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