Probate Court Process in Massachusetts
When someone dies, anything they own that does not pass automatically (such as jointly owned property or property in a trust) has to be distributed through the probate court process. If there are minor children involved, and there is no surviving parent, this is also the process through which a guardian will be appointed.
The Probate Process: How to BeginThe first thing to do is determine if the deceased had a will. The will should name someone as personal representative (or executor if the will is older). This is the individual who needs to file papers with the Probate Court seeking to be formally appointed.
If there is no will, or if the person who was named is no longer alive or otherwise unable to serve, someone will have to seek appointment from the court. Though this is usually a family member, it does not have to be. The second is to determine which court to file in. The probate court for the county where the deceased lived when they died is the proper court. It does not matter where they actually died, but where their primary residence was. You can look up Massachusetts probate courts by county here. The Probate Process: Formal vs. Informal ProceedingsMassachusetts 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.
In either kind of proceeding, there will still need to be an appointed personal representative, and the final distribution of the estate will require the court's approval. You also still have to wait a year before fully distributing assets, in order for creditors to make claims against the estate if they have any. The informal proceeding simply involves fewer steps and less active court supervision. What Assets Can You Distribute Without the Court's Approval?Some things can be distributed immediately, because they are automatically transferred. Life insurance proceeds, for example, go directly to the beneficiaries upon proof of death. Jointly held property (real property or bank accounts) immediately become the property of the surviving owner. These are called non-probate assets, and the most you should have to do to demonstrate ownership and get access is to provide your identification and a death certificate.
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Probate: Can You Do it Yourself?
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. You may also be trying to manage this process at the same time you are grieving the loss of your loved one and taking care of many other things.
An attorney can help you navigate this process, identify the right kind of proceedings, and make sure the right papers are filed. You may also consider enlisting an accountant to help with final tax returns and the estate accounting, if this is not something you feel confident about or have the time to do. In most cases the expenses for professional help can be paid from the estate itself, or reimbursed to you from the estate if you pay for them initially.
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. You may also be trying to manage this process at the same time you are grieving the loss of your loved one and taking care of many other things.
An attorney can help you navigate this process, identify the right kind of proceedings, and make sure the right papers are filed. You may also consider enlisting an accountant to help with final tax returns and the estate accounting, if this is not something you feel confident about or have the time to do. In most cases the expenses for professional help can be paid from the estate itself, or reimbursed to you from the estate if you pay for them initially.
How We Can Help
Whether you are considering how to avoid or minimize probate court for your own estate, or trying to figure out how to begin with the estate of a loved one, we can help. It starts with an initial consultation, which is absolutely free. You can use the button below to schedule your consultation, or simply give us a call at 781-784-2322, or fill out our web form.
