Fedele and Murray, P.C.

17 Walpole Street, Norwood, MA 02062-3318 - (781) 551-5900

Probating An Estate

The process of "probating" an estate refers to the filing of those forms as are required by the Probate Court to secure the appointment of the appropriate fiduciary. Probating an estate is required whenever the decedent died owning assets in his individual name and/or owned certain assets without proper beneficiary designations in place. (For example, a person could have an Individual Retirement Account which normally would pass automatically to the named beneficiary without any probate being required. If no beneficiary designation was completed, or if the named beneficiary predeceased the decedent, that asset will become a "probate" asset and cannot be disposed of without the authority of the probate court.) And, despite what some people think, having a Last Will and Testament in place will not eliminate the need to probate an estate. While the Will may specifically direct to whom the property will pass, that property cannot be passed until the probate process is completed.

As alluded to above, there are generally two types of probate administrations. The first is when the decedent had a valid Last Will and Testament in which case the decedent is deemed to have a "testate" estate. The second is when the decedent had no Will and an "intestate" administration must be filed. In the intestate situation the decedent’s assets are ultimately disposed of according to the statutory laws of "descent and distribution." Generally, this means that the assets will pass to the decedent’s nearest relatives as set forth by statute. In many respects, there two types of procedures are very similar, but there are some important differences between the two.

Under Massachusetts law, there is also available an "informal" or voluntary probate administration that may be used in either the testate or intestate situation. This informal process is only available, however, if the total value of the assets in the decedent’s individual name (exclusive of any automobile) is less than $25,000. In this case, there is a simple petition that is completed and filed with the Probate Court. There is a one-time filing fee and the petition is generally "allowed" by the Probate Court almost immediately. A certified copy of that petition as allowed by the Court will then authorize the named Personal Representative to dispose of the assets in the decedent’s name, e.g., to sell any automobile, close out small bank accounts, etc. Nothing further is thereafter required to be filed with the Probate Court.

If the decedent owned by than $25,000 worth of assets in his name, then a "regular" probate administration will be required. If the decedent had a will, then the person or persons named in the will to be the "Personal Representative" of the estate file a petition to have the will allowed by the Court and for that named Personal Representative to be appointed. If the decedent had no will, then a petition is brought to have an "Personal Representative" appointed. Typically, this would be family members or other close relatives, although it can be anyone who is "interested" in the estate.

Under the Massachusetts Uniform Probate Code, there are now two types of “regular” probate administration available. One is an “Informal” and the other a “Formal” proceeding. As the names imply, the Informal proceeding is a bit less complicated and the appointment of the Personal Representative can generally be allowed by a clerk magistrate. The Informal process requires that notice of the filing be given to all interested parties at least seven (7) days prior to actually filing the petition with the Court. An additional notice must also be published after the allowance of the petition. In the event that any of the interested persons cannot be located, the Informal probate is not available and a Formal probate must be filed. Generally, the “interested persons” include any heirs at law as well as anyone receiving property under the decedent's Will.

A Formal proceeding is commenced in basically the same fashion as the Informal proceeding and is used if there is any question about the validity of the decedent's Will, any question about the proper heirs-at-law are, or any other dispute relating to the appointment of the Personal Representative. A Formal proceeding is also generally required when any of the heirs-at-law are minors.

In either of the "regular" probate situations, the whole process is begun by filing the appropriate petition (for the appointment of the Personal Representative). This petition will set forth pertinent facts about the decedent (date of death, domicile, name and address of the person filing the petition) and must also include a listing of the "heirs-at-law." This latter terms refers to those persons who are the decedent’s closest relatives as set forth in the applicable statutes. This would include any surviving spouse, and any children (including the descendants of any deceased child). If there are no children (nor any descendants of a deceased child), the next closest blood relatives are listed, e.g., parents, if any, otherwise siblings and their descendants, etc.

In addition to the probate petition, the fiduciary must also file a bond with the Court. The bond is essentially the fiduciary’s certification that he will faithfully complete his duties as Personal Representative. The form of the bond can vary depending upon the circumstances of each case. The bond is filed either with or without "sureties." The term "sureties" refers to either two individuals (who must be inhabitants of Massachusetts) who will stand bound to guarantee the proper performance of the petitioner’s duties as Personal Representative or to a surety company. A surety company is essentially an insurance company which, for a premium, will insure against the fiduciary’s failure to complete his duties properly. A bond can be filed "without sureties" if the decedent’s will states that either no bond is required or that the sureties are to be waived. It is also possible to file a bond "without sureties" if all the heirs-at-law assent to the petition.

Once all the basic forms are completed, everything is filed with the Probate Court for the county in which the decedent was domiciled at the time of his death. An original death certificate must also be filed, together with any Last Will and Testament (including any codicils thereto). Of course, there is also a filing fee to be paid at this time. In a Formal proceeding, the Court issues an order directing that all interested parties be given notice of the filing of the petition. Generally, notice must then be mailed to all the heirs-at-law. The Court also requires that a copy of the notice be published in a local newspaper (which the Court will specify). Even if everyone has assented to the petition, this notice must still be published in the local newspaper. The notice will specify a date by which any one who wishes to object to the filing of the petition must file such an objection. This latter date is referred to as the "return day." Typically, the date is about three weeks from the date of filing. If no one files an objection by the return day, the petition can be allowed and the named fiduciary appointed. Practice varies from county to county as to how quickly this is actually done, but once the return day has passed if everything has been properly filed, the Court will then issue a Certificate of appointment showing that the Personal Representative has now been officially appointed by the Court. In most cases, the whole process can be done through the mails without the need for any personal appearance before the Court. If, however, someone objects to the petition, a hearing will be required.

Objections are filed to either contest the allowance of a proposed will and/or to contest the appointment of the petitioner as Personal Representative. Someone may contest a will on any number of grounds. They may dispute the validity on the will on grounds that the decedent was not legally competent at the time he executed the will, that someone may have used "undue influence" to convince the decedent to execute the will, or that the will may have been superceded by a later will. There may also be a contest over the appointment of the named Personal Representative. Generally, someone objecting must allege that the person seeking to be appointed is somehow not qualified to serve, e.g., that there is some conflict of interest in having this person named. Needless to say, the filing of any objection can delay the appointment of the appropriate fiduciary for some time and drag out the entire probate process. In some cases, a temporary fiduciary may be appointed to take care of any matters that might need prompt attention.

Assuming no objections are filed and using the "regular" probate administration, it generally takes from four to six weeks before a Personal Representative is finally appointed. If there is any urgency to secure a temporary appointment before that time (e.g., it is necessary for someone to be appointed to sell or dispose of assets, to run the decedent’s business, or for any other urgent matter), some form of temporary appointment can usually be obtained. This process, however, will require the appearance of counsel in the Probate Court and can add to the expenses involved.

Once the Personal Representative is appointed, a Certificate of his appointment will then enable him to collect and dispose of any assets in the decedent’s name. This would include the ability to close out bank accounts, sell stocks, sell any real estate, etc.

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