What To Do When a Loved One Dies in Massachusetts: The Legal Landscape
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There are so many things to take care of when a loved one dies, on top of the grieving process. Among these are the financial and legal affairs of the deceased. You may not have to deal with all of these things immediately, but it is important to understand the basics about how you can access assets, who has authority to do what, and what steps you can take to ease the process.
Financial Affairs of the Deceased: Who Has Authority to Handle?When someone dies, it is important for the family to understand the different kinds of assets they have left behind, and what you need to do to get access to and manage those assets.
If you held the power of attorney for your family member during their lifetime, you need to know that the power of attorney is no longer valid after death. That means that you should identify those assets that automatically pass upon death, and those that will have to go through Probate Court. For anything that has to go through Probate Court, you must get court approval as a personal representative, or executor of the estate, before you can complete any transactions relating to those assets. Non-Probate Assets: What Passes AutomaticallyNon-probate assets, or assets that transfer automatically upon death, generally fall into two categories: (i) jointly-owned property or accounts; and (ii) accounts and other assets that have beneficiary designations.
Jointly Owned Assets or AccountsMost commonly, these are real estate jointly owned by spouses, and joint bank accounts.
For a joint bank account, you should be able to update the signatories and begin accessing the funds by presenting a death certificate to the bank and proving your own identity. For jointly owned real estate, you can submit an original of the death certificate to the registry of deeds for the county where the property is located. You do not need to create a new deed, or take the deceased's name off of the deed. The registry will link the death certificate to the existing deed, and this establishes the ownership chain. Accounts With Beneficiary Designations |
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Life insurance policies and brokerage accounts are the most common assets with preexisting beneficiary designations. You should also check all bank accounts, however, as some banks allow people to fill out a "transfer on death" form that operates like a beneficiary designation.
Locating these assets is more than half the battle. Once you know what they are, all you need to do is provide the insurance company, bank, or brokerage house with the death certificate and the addresses of the listed beneficiaries. If there are any forms that need to be updated, they should be able to walk you through those. |
Assets That Require Probate Court Approval
Everything else will require approval of the Probate Court before it can be distributed. For most families, this category includes vehicles, real estate if only owned by one person, individual bank accounts, and personal property.
Assets may be sold by the estate before the probate process is complete, but only by a personal representative (executor) authorized by the court, and the funds from the sale must be held by the estate until final distribution is approved.
Assets may be sold by the estate before the probate process is complete, but only by a personal representative (executor) authorized by the court, and the funds from the sale must be held by the estate until final distribution is approved.
Death of a Loved One: First Steps
As soon as you are ready to tackle the financial matters of your loved one, here are the things you should do to start:
- Locate any estate planning documents they may have left. The will is critical in the early days because that will identify the person who is to serve as the personal representative. Remember getting someone appointed is a requirement for dealing with any probate assets.
- Do an informal inventory of bank accounts, insurance policies, and investment accounts, so that the appropriate person can access any that have joint ownership or beneficiary designations.
- Collect as many of the deceased's recurring and outstanding bills as you can find, so that you can prioritize what must be paid right away and what could wait until the probate process has begun.
- Obtain multiple originals of the death certificate. These are available at the city or town clerk's office in the place where the death occurred. It is a good idea to get at least as many as there are joint accounts or accounts with beneficiaries, plus one to file with he Probate Court.
- Notify any life insurance carrier of the death and the current addresses of any listed beneficiaries.
- Notify any banks or investment firms holding jointly-owned funds.
- Begin the process of getting the appropriate person appointed as personal representative.
The Probate Process: How to Begin
Massachusetts has two options for administration of an estate: informal and formal administration. Informal administration is generally available if you have the original will available and intact (i.e., no handwritten notations or additions) and if the location of all heirs is known. If there is no will at all, you may still be able to use the informal proceedings to appoint a personal representative, if you follow the required notice procedures and there is no objection by other heirs.
The first step is to determine which kind of proceeding applies in your situation. This will include identifying all of the heirs either named in the will or who will inherit under Massachusetts intestacy laws, and making sure you know where they are located. Notice to these individuals will be required as part of the filing process. You will also need an original of the will (if there is one) and an original death certificate.
For most families, the informal proceedings are available. This can be done with or without an attorney, and the state has provided online instructions for probating an estate. However, missing a step in the process will only lengthen the amount of time that it takes to settle the estate and release assets to the heirs.
The first step is to determine which kind of proceeding applies in your situation. This will include identifying all of the heirs either named in the will or who will inherit under Massachusetts intestacy laws, and making sure you know where they are located. Notice to these individuals will be required as part of the filing process. You will also need an original of the will (if there is one) and an original death certificate.
For most families, the informal proceedings are available. This can be done with or without an attorney, and the state has provided online instructions for probating an estate. However, missing a step in the process will only lengthen the amount of time that it takes to settle the estate and release assets to the heirs.
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Jenna Ordway
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