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 $15,000. 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 Executor
or Administrator 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 $15,000 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 "Executor"
of the estate file a petition to have the will allowed by the Court and
for that named Executor to be appointed. If the decedent had no will,
then a petition is brought to have an "Administrator" appointed.
Typically, this would be family members or other close relatives,
although it can be anyone who is "interested" in the estate.
In either of
the "regular" probate situations, the whole process is begun by filing
the appropriate petition (for the appointment of either an Executor or
Administrator). 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 Executor or Administrator. 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 Executor or Administrator 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.
Massachusetts probate law also requires that any interested party in an
estate be made aware of his or her rights concerning the estate
administration process. This is done by completing a form entitled
"Information and Rights of Interested Parties" which sets forth certain
basic facts about the estate administration process. The fiduciary must
give this form (either by mailing or by delivery in hand) to each of the
heirs-at-law listed on the petition. The fiduciary then files the form
with the Probate Court attesting to the fact that copies have been given
to all the interested parties.
There may be
additional forms required in certain cases as well. For example, if the
named fiduciary is not a Massachusetts resident, then he must appoint a
resident agent to accept service or process or notice of any claims or
other legal proceedings involving the estate. In some cases, the
decedent may have a will but the person or persons named in his will to
serve as Executor are no longer living. If there is no alternate
Executor named (or if the alternate Executor is also deceased), a
petition for the administration of the estate "With the Will Annexed" is
filed.
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. Once filed, the
Court issues what is commonly referred to as a "citation." This is an
order by the Court 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 Executor or
Administrator 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 Executor or Administrator.
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 Executor or Administrator.
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 an Executor or
Administrator 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
Executor or Administrator 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.
The next
filing requirement for the Executor or Administrator is to file a
probate Inventory. This is a listing of all the decedent’s assets.
Technically, this Inventory is required to be filed with the Probate
Court within three months of the fiduciary’s appointment. Thereafter,
the fiduciary must also file annual accounts with the Probate Court.
These accounts track what the fiduciary has done with the decedent’s
assets, reporting all income received and expenses paid, as well as
distributions to the estate beneficiaries. Ultimately, when all matters
have been taken care of, the fiduciary will file a "Final" account which
shows that all assets have been distributed. This is generally the last
step in the probate process.
Return to Estate
Administration