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The Peaks and Valleys of Probate

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.

commerce-acts-books-477966-mMassachusetts underwent big changes in probate law in 2012, adopting the Massachusetts Uniform Probate Code (MUPC). Mass. Gen. Laws c. 190B.  Before, the appointed representative of a “testate” estate was identified as an executor/executrix and the representative of an intestate estate was called an administrator/administratrix.  Now, whether an estate is testate or intestate, the representative is referred to as the “Personal Representative”.  Mass. Gen. Laws c. 190B.

Typically a Will names the executor or co-executor of the estate.  If there is no Will, the court will appoint a personal representative.  The MUPC in Massachusetts establishes the priority among persons seeking appointment as a personal representative.  Mass. Gen. Laws c. 190B 3-203.  Certain parties are favored over others when seeking to be appointed. For example: a person named as an executor in a Will has priority over a spouse or an heir of the deceased.  Also an heir that has a beneficial interest in the estate has priority over an heir or relative who does not.

Executor/Administrator/Personal Representative

The personal representative of a probate estate approved by the Court has a “fiduciary” obligation to the beneficiaries of the estate.   The fiduciary must act in the best interest of the heirs and beneficiaries of the estate and “has the responsibility of administering the assets in order that all debts and obligations are paid, and all heirs, distributes and beneficiaries receive their just and proper benefits from the estate in an orderly and expeditious manner.” Mass. Practice Series, Vol. 21, Probate Law and Practice, s. 9.3.  If you are an heir or beneficiary of an estate and believe that a personal representative has violated or breached the fiduciary duty to you, you will have a short window of time to challenge and protect your interests. This is among the peaks and valleys of probate.

Probate Litigation

From opening a probate to collecting and managing assets to distributing assets, administering an estate can be time consuming and expensive.  The significant revisions to the probate laws and procedures under the MUPC adopted in Massachusetts can add layers of confusion and hard-to-figure-out forms.  Family discord and in-fighting can lead to a host of conflicts. Examples include Will challenges based on duress or the lack of mental capacity of the Will-maker, obstructionist heirs and beneficiaries, disputes over gifts in the Will and the deceased’s intentions, and fights over who should handle the estate.  Litigation over a Will or the assets of a deceased can be expensive, but sometimes issues among family, friends and other loved ones becomes so contentious that it is necessary to ask the Court to step in and resolve the parties’ differences.  Emotions can run high but the MUPC, experienced probate attorneys and thoughtful Probate Court judges can generally sort things out.

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