Law Offices of Jameson & Cooper 8 Grove Street, Suite 205 Wellesley, Massachusetts 02482 Telephone: (781) 237-7766 Email:hwc@jamesoncooper.com |
When someone dies, it is usually necessary to "probate" the decedent's estate. Probating the estate involves clearing up ownership of a decedent's assets, paying any outstanding debts, funeral and burial expenses, and paying the expenses of administering the estate. If the decedent owned real estate in Massachusetts, a Massachusetts estate tax return will have to filed in order to obtain a release of the automatic estate tax lien on the real estate, even though no estate tax may be due.
Non-Probate Assets
Some assets may not pass according to will. Assets which are jointly titled, or held in common with others, or subject to a "pay on death" or beneficiary provision, including Life Insurance and Individual Retirement Accounts, do not generally pass through probate, though they can affect the amount, if any, of estate taxes due. Assets held in a trust with a survivorship or beneficiary provision prior to death may also avoid the probate process. However, in some circumstances, such property may be subject to administration in the decedent's estate.
Probate of an Estate
If the decedent left a will, the will is filed with the court, normally within 30 days of death. If there are assets remaining in the decedent's name, the assets will be distributed according to the instructions in the will, after payment of the administration expenses, funeral expenses, and debts of the decedent, including last medical expenses. The assents of the next of kin will be sought to expedite the appointment of the Executor named in the will. A notice of the petition for probate will be published in the newspaper, to give creditors and anyone who might object to the will notice of the initiation of the probate process. Notice is also given to the Department of Medical Assistance for recovery of Medicaid and to the Attorney General's office if there is a charitable bequest in the will. After an intervening period for any objections to the will or named executor, and assuming no objections have been filed, the Executor is appointed and may commence administering the assets of the estate. He gives notice of his appointment to the beneficiaries named in the will. The Executor takes control of the assets of the estate, pays debts of the decedent and pays the funeral expenses and any outstanding taxes and administration expenses. Creditors of the decedent must file any claims they have within a timely period (6 mos. - up to a year, depending upon the situation). After all the claims and expenses against the estate have been paid, the Executor distributes the assets according to the terms of the will. Upon completion of his duties, the Executor prepares and files his account with the court for allowance, usually with assents from each beneficiary. After publication of notice, and if there are no objections, the court will allow the account and discharge the Executor.
For small estates, Voluntary Probate may be possible. This is a streamlined procedure for simple, solvent estates under $15,000 in value. It is generally more rapid than normal probate.
Administration of an Estate
If the decedent left assets in his or her name, but died without executing a valid will, the estate will be administered according to the laws of intestacy in Massachusetts or where the property is located. It is similar to the situation described above, but statutory law determines how the remaining assets are distributed after all debts of the decedent and claims against the estate have been paid.
For smaller estates where the decedent died without leaving a will, Voluntary Administration may be possible. It is similar to Voluntary Probate but distributions are made according to law in the absence of a will.
Please contact our office at (781) 237-7766 or send an email inquiry to hwc@jamesoncooper.com if you would like to discuss any of the topics listed above.
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