Probate of Estates
Probate of an Estate is necessary when a person dies owning property in his or her own name alone or as a tenant in common. When property is held jointly with a right of survivorship, that property is not probate property. That jointly owned property passes to the survivor(s) upon the death of the joint tenant. Jointly owned property might include real estate, or bank accounts. Also, all property naming a beneficiary (other than the estate of the decedent) will not be probate property because it passes directly to that beneficiary, e.g., life insurance policies, retirement accounts, etc.
Reasons to probate an estate include the following:
- to establish the validity of the document purported to be the Last Will and Testament of a decedent;
- to pay decedent's creditors;
- to obtain the decedent's medical records;
- to gather decedent's individually owned assets for distribution either under a valid Last Will and Testament or the Laws of Intestacy;
- to file income and/or estate tax returns on behalf of the decedent or decedent's estate.
Time restraint for the Probate of an Estate generally speaking the estate of a decedent must be probated within three years of the date of death.
Personal Representative has the job of administering the estate of the decedent. The Personal Representative has either been named in the Last Will and Testament of the decedent. In an intestate situation a Personal Representative has priority by statute, beginning with a surviving spouse if the decedent was married.
Filing Options for the Probate of an Estate are the same options whether a person died testate or intestate (with a will or without a will, respectively).
- Informal Probate is an option to use when all the heirs get along well with one another. With the informal probate process the estate does not actually come before the Court (before a Judge). The proceeding is handled/decided by a Magistrate. It is possible using this option that a Magistrate will issue an Order of Informal Probate of Will and/or Appointment of Personal Representative within 7 days after the decedent's death.
This Informal Probate option may not be used if:
- An original Will cannot be found;
- There is not an original death certificate;
- The identity or whereabouts of an heir is unknown;
- The person petitioning for appointment does not have priority for appointment;
- Any interested party is incapacitated or a minor who is not represented by a conservator or guardian (who cannot be the petitioner);
- Formal Probate is an option to use under the following circumstances:
- One wishes to object to an informal probate petition;
- The Last Will and Testament is not an original; or it is an original but it has been written on by the addition or deletion of words;
- The statements made in the Last Will and Testament are unclear or ambiguous;
- One or more of the heirs are minors or incapacitated;
- The petitioner is a creditor of the decedent;
- The Petitioner is a public administrator appointed by the Court.
- Voluntary Administration is available where the decedent dies a resident of Massachusetts, decedent's estate does not include an ownership interest in real estate, the value of the personal property of decedent does not exceed $25,000, exclusive of the value of an automobile. Filing may not occur until 30 days after date of death of decedent.
Contact Attorney Mary K. Eaton