Articles Posted in Probate Estate

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Under Massachusetts law, MassHealth has an interest in the estate of a decedent that received recoverable benefits during his/her lifetime.

commerce-acts-books-477966-mAny time you petition to probate the estate of a deceased family member, loved one, or friend in Massachusetts, you must send a copy of the petition to the Massachusetts Division of Medical Assistance (“DMA”).  If you hire a probate lawyer to help, the attorney will file a petition and take care of this detail but if you choose to probate an estate without legal counsel, notice to the DMA is required.   The Petition for the estate must be filed in the county where the decedent resided at the date of death (Essex County, Middlesex County, etc.).  The petition must include a sworn statement that copies of the petition and death certificate have been sent to the DMA by certified mailM.G.L. c. 118E, s. 32.  The purpose for the notice is to allow MassHealth its right to pursue recovery of any medical assistance or benefits the decedent received from MassHealth.  If benefits were provided to a decedent while alive for which the DMA is authorized to recover, it can (and likely will) pursue recovery from the Estate.

A copy of the petition and a death certificate of the decedent must be sent to the DMA, for both formal or informal probate, by certified mail M.G.L. c. 190B s. 3-403(g).  In a formal probate, the petitioner must give notice by certified mail along with a copy of the petition and death certificate.  In an informal probate, M.G.L. c. 190B s. 3-306(g) requires the petitioner to give written notice 7 days prior to filing the petition.

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Planning for the future, after you are gone, is hard and can be unpleasant.  People rationalize putting off estate planning by thinking “I’m going to live forever” or, “I’m healthy, it won’t happen to me”, or “I don’t want to think about it”.  The problem is, you never know and can’t predict when an accident will happen or possible serious illness will strike.  Speaking with an experienced North Shore attorney about estate planning can put your mind at ease and help you understand your options.

Whether you are single, living with a significant other, newly commerce-acts-books-477966-mmarried, or have been married for 30+ years or have a blended family, estate planning is important.  A basic Estate Plan may include a Will, Health Care Proxy, Living Will and perhaps also a Power of Attorney and a Trust, depending upon your circumstances.

As we mature and take on more adult responsibilities, have relationships, start families, try hang gliding (ha!), it makes sense to think through what happens to your stuff if the unexpected occurs.  Preparing an Estate Plan can also help if you are seriously injured in a car accident.

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To begin probate, first determine if there is an original signed Will.  If so, the Will should be filed in the probate court in the County where the deceased lived at the time of his or her demise.  In Massachusetts you should include a certified copy of the death certificate when the Will is filed with the court. MGL Ch. 190B

commerce-acts-books-477966-mThe next step is for the probate court to assign a docket number to the Estate.  This will trigger certain legal requirements which may include notice to all potential heirs, notice to creditors and notice to all persons or parties named in the Will.  The purpose of this notice is to allow any interested party an opportunity to become involved in the probate.  It also allows interested parties to question the Will, contest the Will or be more actively involved as a Fiduciary or Personal Representative of the Estate.

After a Will is filed for probate in Massachusetts, regardless of the county (could be in Middlesex, Essex, Suffolk, or any other county) the probate court will issue a Citation.  The Citation is the legal notice that is to be served upon all heirs at law and those named in the Will and is also to be published in a newspaper that is locally distributed in the area where the deceased last lived.  The Citation will contain information about the deceased and include a return date or the deadline by which an objection to the Will must be filed.  Anyone who has an objection to the Will and who does not appear and raise the objection before the return date, will be deemed to have waived their rights.

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The best and the worst in families often come out when a patriarch or matriarch passes away.  The loss of a family member can bring unexpected understanding and compassion from some relatives.  It can also bring out the worst from others.  Probate is the process by which a deceased person’s property is organized and then distributed to the heirs.  Property and assets must be identified, collected, and managed by someone appointed by the Court to “administer” the estate.  The estate property is first used to pay debts, liens and taxes owed by the estate.  Then after Court approval, the remaining property is distributed to the rightful heirs.

Administration of an Estate

If the deceased had a Will, it is a “testate” estate and the assets of the estate should be distributed (gifted) in accordance with the terms of the Will.  If there is no Will, the deceased’s estate is “intestate” and the property will be distributed under the laws of intestacy.  Intestacy Laws in Massachusetts dictate who has an interest in the estate assets and the amount or percentage of each such interest when there is no Will. Mass. Gen. Laws c. 190B 2-101 to 2-114.

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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?

commerce-acts-books-477966-m“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: