Why Do You Need to Probate an Estate in Massachusetts

Understanding Why Probate is Necessary

People often ask why it is really necessary to probate an estate, especially if either the bulk of the assets have been transferred via trust or other document, or if there are not very many assets in the estate.

There are three main reasons:

Once a person has passed, nobody has the legal authority to do anything with whatever assets are in their estate. This includes re-titling a car, accepting and depositing checks that may continue to to come in after death, shutting of subscriptions and services, and many other ordinary things. Only the Probate Court can appoint someone with this authority.
Even identifying what assets should be in the estate often requires appointment by the court as Personal Representative. A power of attorney you may have held for your loved one during their lifetime has no effect after their death, and banks and other institutions may not even give you information about the existence of assets unless you have the piece of paper from the court.
If anything of value is transferred without probate, there will never be clarity about title and it may be subject to disputes in the future by other heirs and relatives who believe they have a claim to the asset, or to part of its value.

Who is the "Estate," Anyway?

An "estate" in probate is simply the legal stand-in for the deceased person. While alive, they had the legal authority to manage their assets, use them, sell them, or give them away.

Once they have passed, the law- and all of the people and institutions you deal with- have the right to know who they can deal with concerning that person's affairs and know that they are entering valid transactions.

This is why you may get turned away by a familiar local banker when you try to deposit a deceased parent's social security check in their bank account, or why the registry of motor vehicles likely will refuse to register a deceased relative's car in your name.

Why is the Probate Process Needed to Appoint a Representative?

It can seem absurd, especially when dealing with a relatively small amount of money, that a whole court process is needed to identify the representative. We are often asked why the power of attorney you were given while your loved one was alive is not enough.

The reason is that the court process provides a certain reliability that the power of attorney cannot. All that is needed to get a power of attorney is for the person to sign it in front of a notary public. Other relatives may have no idea this is even happening.

In probate, even in the simplest and most streamlined versions, there is some notice to heirs and the public about who is being appointed, and an opportunity to be heard with any objections. The -paperwork is signed under oath, and reviewed and approved by a judge. Your letter of appointment is certified by the court clerk. This is what allows the rest of the world to be comfortable relying on this document as proof that you have legal authority to act on behalf of the estate.

Does Probate Have to be Complicated and Expensive?

Though it may seem intimidating to have to seek court approval, the truth is there are multiple options, depending on the size and complexity of the estate. If the total estate is worth less than $25,000, for example there is a simplified process available. Even if the estate is worth more than that, the process can be fairly straightforward if there is a will and there are no disputes among the heirs.

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Meet Our Estate Planning and Probate Lawyers

Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year.

Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna wrote a book on estate planning: The Road to Peace of Mind: What You Need to Know About Estate Planning. Jenna has helped many individuals and families with planning to protect their legacies and loved ones, and planning for the future and succession of their businesses.

Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and earned her LLM in estate planning from Western New England Scool of Law in 2016. She has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped many clients with planning for their legacies and their future, and navigating the probate process in Massachusetts after the death of a loved one.

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If you have questions or need assistance with probate in Massachusetts, don't hesitate to reach out. Our dedicated team is here to provide you with expert guidance and support throughout the probate process. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.

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