The loss of a family member or loved one, whether from long-term illness or un-expectedly, is upsetting and often a difficult burden. First dealing with grief, loss, and family issues – then notifying family and friends, funeral arrangements and helping the bereaved. At some point later come the difficult, practical aspects of preserving and disbursing assets. Is there a Will? What do I do with it? Do I have to do a “probate”? Where do I file – Essex County, Middlesex County? Can I do this myself? Who has to handle the financial affairs?
WHAT IS PROBATE?
“Probate” generally refers to the legal process where the estate of a decedent is administered. Black’s Law Dictionary, Sixth Ed. 1990. The Massachusetts legislature has a fancy way of describing probate:
Upon the death of a person, the decedent’s real and personal property devolves to the persons to whom it is devised by the decedent’s last will or … in the absence of testamentary disposition, to the decedent’s heirs, … subject to allowances and exempt property, to rights of creditors, elective share of the surviving spouse, and to administration. Mass Gen. Laws C. 190B, s. 3-101.
To say it another way: property owned by the deceased at the time he or she died that is not otherwise disposed of or transferred during life, is part of his/her “estate”.
The probate process is meant to identify the property of the estate; who has an interest in the property; debts of the estate; and then distribute the property to the right recipient(s). Since 2012 probate law in Massachusetts is governed primarily by a uniform code known as the Massachusetts Uniform Probate Code, or “MUPC”, which can be found at Mass. Gen. Laws. C. 190B. To complicate things, probate actions are also governed by the Massachusetts Supplemental Rules of Probate and Family Court.
IS PROBATE NECESSARY? IS IT EXPENSIVE?
Whether or not probating an estate in Massachusetts is necessary depends on what property the deceased owned at the date of death, how it was owned; and its value. Some property owned by a decedent may pass “outside” of probate, or pass directly to a survivor without the need for probate – some examples may be life insurance, individual retirement accounts, and real estate that is owned jointly with right of survivorship.
Property that cannot pass “outside” of probate becomes part of the probate estate and before clear ownership passes to the next person, a probate action will likely need to be filed in the county where the decedent resided at the date of death. Whether a probate is necessary or not, where and how to file for court approval, and if the probate will be simple or complex – is complicated.
IS THERE A WILL?
If a Will exists, the original, signed Will must be filed with the probate court in the county where the deceased lived in order to properly distribute assets of the estate. A Will should be:
(1) in writing;
(2) signed by the maker; and
(3) signed by at least 2 individuals, each of whom witnessed the signing of the Will by the maker.
Also, while not necessarily required, a notary’s acknowledgment to all signatures is strongly recommended.
If there was no Will the estate is “intestate”, meaning “without a Will”. If the estate or any portion of it is “intestate” it passes by what is called “intestate succession” to the decedent’s heirs as required under the MUPC, see Mass. Gen. Laws 190B s. 2-101 through 2-103. Massachusetts statutes dictate who the (legal) heirs are and what their share(s) under the probate estate are to be.
The probate process can be a challenge. For help with determining whether or not a probate must or should be filed; which forms or processes are appropriate for your situation, and how to get things done efficiently and cost-effectively, consult with a knowledgeable probate lawyer.