The death of a family member or loved one is typically followed by a period of grief and mourning. If you were named as the Executor in the decedent’s Last Will and Testament, however, it also means navigating Massachusetts probate. If this is your first time serving as the Executor of an estate (also referred to as a “Personal Representative”), you are likely feeling a bit overwhelmed at the prospect. The best decisions you can make right now is to consult with an experienced Massachusetts estate planning attorney about the need for legal representation throughout the probate process. It may also help, however, to learn more about the Massachusetts probate process in general.
Why Is Probate Required?
Probate is the legal process that is required following the death of an individual. The goals of probate include:
- Authenticating the Will submitted to the court (if a Will was located)
- Identifying, locating, and valuing estate assets
- Notifying creditors and reviewing creditor claims
- Ensuring that taxes owned by the decedent and/or the estate are paid
- Facilitating the transfer of the remaining estate assets to the intended beneficiaries and/or heirs of the estate.
Are All Assets Part of the Probate Process?
No. There are some assets that are not required to go through the probate process. Instead, these assets transfer to the new owners outside of the probate process. Common examples of non-probate assets include:
- Assets held in a trust
- Assets held in an account designated as “Payable on death (POD)” or “Transfer on death (TOD).” Financial accounts are the most likely to be POD or TOD accounts; although, investment accounts and even vehicles are sometimes also allowed to have the POD or TOD designation.
- Certain types of jointly held property
- Proceeds of life insurance policies
- Certain retirement accounts
Will Formal Probate Be Required?
Formal probate can be a very lengthy and costly endeavor. In fact, if the estate requires formal probate you can count on it taking at least one year to finish. The reason for this is that Massachusetts allows creditors up to a year to file claims against the estate. As such, the estate must remain open at least that long. Fortunately, Massachusetts offers an alternative to formal probate for smaller estates that qualify.
If the decedent left no real estate and the estate assets do not exceed $25,000 in value, the estate may qualify for voluntary administration. This alternative can be used if the decedent left behind a Will and if no Will was left behind. If voluntary administration is used, the Executor (or Personal Representative if no Will was left behind) has the authority to secure estate property, pays debts, and distribute the remaining property.
Navigating Massachusetts Probate When Formal Probate Is Required
When formal probate is required, it is truly in an Executor’s best interest to retain the assistance of an experienced Massachusetts estate planning attorney to help. As the Executor, you will be required to identify and locate all estate assets and then secure and manage those assets until the probate of the estate is finished. You will also have to notify all creditors and review all claims filed against the estate. Paying the debts of the estate will also be part of your job as the Executor. This includes calculating and paying both federal gift and estate taxes and estate taxes due to the Commonwealth of Massachusetts. If the estate lacks sufficient liquid assets to cover all debts of the estate, you will have to decide which assets to sell in order to raise the necessary funds.
Making a mistake during the probate of the estate can cost the estate money and the beneficiaries of the estate time which is why it is always best to work closely with an experienced attorney.
If you have additional questions or concerns regarding navigating Massachusetts probate, or if you were named as the Executor of an estate and would like help during the probate process, contact the experienced Massachusetts estate planning attorneys at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
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