Probate & Estate Administration

Let’s begin with What is probate? Probate is the process by which someone’s Last Will and Testament makes its way through the Probate Court  so that the assets – the “estate” – of the person who died – the “decedent” – will be distributed to those individuals or charities that he or she wanted to benefit. In your will you have to name a person to be your “personal representative”  – this person used to be called your “executor”. You also need to name an alternate in case the first person you name is not available to serve.

Your Probate Estate is made up only of property you owned in your name alone when you died. In other words, if you owned property jointly with another – like real estate or bank account – or you designated a beneficiary on a retirement account or life insurance policy, those accounts would not be distributed according to your Last Will and Testament, they would go directly to the joint owner or designated beneficiary.

Your Taxable Estate is the total value of what you own, either individually or jointly with another, when you die. If you own a house with a spouse, one-half of the fair market value will be includible in your taxable estate. If you have an IRA with your son as beneficiary, the entire amount is included in your taxable estate. If you own a life insurance policy and your daughter is named as beneficiary, the death benefit is included in your taxable estate. In Massachusetts, if you taxable estate exceeds $1million dollars, the estate will have to pay an estate tax to Massachusetts. The estate tax return must be filed within 9 months of death. If your estate tax exceeds $5 million, then you will have federal estate and gift tax issues.

The probate process begins with your named personal representative petitioning the Probate Court to be officially appointed to that position. The Court then issues a notice called a “Citation” that must be published in a local newspaper. This is to give anyone who wishes to object to the appointment time to write down the objections and submit them to the Court. If no one objects, the Court then appoints the Personal Representative.

All of the final debts of the decedent must be paid before anything is distributed out to beneficiaries. The job of the Personal Representative is to gather all of the decedents assets – real property, bank or investment accounts, and personal items and make sure that debts are paid and that the beneficiaries receive what they are suppose to. Creditors of an estate have one year from the date of death to file a claim against the estate. If they miss the deadline, the Personal Representative is not obliged to pay them. Once all of the debts have been paid and the distributions have been made, the Personal Representative must wrap up the process by submitting an accounting of everything that went into the probate estate and everything that went out.

The personal representative is a Fiduciary – that is a person who is in a position of trust and who has the power and obligation to act for another under circumstances that require total trust, good faith and honest – and he or she is personally responsible to make sure that everything is done properly or they may find themselves liable for any mistakes. It is important to consult with an attorney to ensure no mistakes are made.

The probate rules in Massachusetts underwent a major overhaul in 2012. No major changes had occurred since the process was put in place back before the Revolution. In an effort to simplify the process a two-tiered system was put in place – Supervised and Unsupervised Probate. The problem is that sometimes it is difficult to determine which route to take and, if in mid-stream you need to change direction. As with all new things, it will take a while before it is all sorted out.

Contact Attorney Margot Birke for More Information

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