Understanding probate in Massachusetts – along with the benefits and drawbacks – can help shed light on the entire estate planning process. While it’s used in several contexts, the most common reference is simply presenting your will to the court when the time comes. There’s a bit more to it though; in fact, it’s more accurately defined as the method that the estate as a whole is legally administered after your death.
Like most legal proceedings, it’s a process that focuses on documentation, accuracy and ethics in the sense that every move is transparent. Your debts and taxes being paid prior to any beneficiaries receiving what you’ve provided in the form of an inheritance is just one of those transparent processes.
It’s important to understand, too, that probate usually occurs regardless of the presence of a will. A will, while always recommended is an option; probate, however, is mandatory.
State Laws
The presence of a valid will ensures your estate is doled out based on your wishes while you’re still living and if there does not exist a will at the time of your death – also known as “dying intestate” – the laws of your state determine who gets what in terms of the assets and material possessions. Remember – the laws may not match your final wishes, so in order to ensure you define who gets what, it’s crucial a current will is properly filed and part of your estate plan.
As mentioned, probate ensures a number of things happen. Its first goal is to make sure the estate has no debts. This happens in a state courtroom, so that means the laws may differ from one state to the next. You’ll need to speak with your estate planning lawyer to be sure you’re up to date on what those laws mean for you.
Stages of Probate in Massachusetts
Your representative is also named in these early stages of probate – again, if you’ve left a complete will, you will have named that person. Once that’s complete, your heirs and creditors are then notified. Your property and assets are inventoried and at that point, provided there are no creditors who say your estate owes them money, your estate is then distributed to your heirs. The one you named in your will to oversee this process will also provide the courts with a final accounting of how your estate was distributed.
If for whatever reason that person is unable to fulfill those duties, a family member may be able to request that the courts name him as the representative.
Again, remember that your state laws determine this process. Some states will require a public notice, usually via a small classified ad in your local newspaper. This notice is to allow creditors the opportunity to file any claim against your estate if they feel it’s owed.
So what happens if there are not enough assets to cover both your debts and distribution to your beneficiaries? It happens more than you might think. In those instances, abatement statutes usually kick in. That simply means your beneficiaries will receive less than you had laid aside for them. In some instances, they may receive nothing at all.
The administration costs associated with fulfilling the final wishes are deducted from the estate as well and this is usually done before beneficiaries receive their inheritances. Unless there are prepaid funeral arrangements that have been made while you were still living, your funeral costs are deducted as well.
It’s not the most exciting aspect of life, but it is an important one – and it’s the responsible thing to do. Many feel as though they have an obligation to their loved ones to cover these bases so that they’re not overwhelmed during their time of grief. Meeting with an experienced estate planning lawyer can provide a solid foundation for you to move forward with confidence.
Daniel DeBruyckere
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