A SYNOPSIS OF THE PROBATE PROCESS

A Synopsis of the Probate Process

Probate is the legal process by which a deceased person’s property, known as the “estate,” is passed to his or her heirs and/or legatees (people named in the will) after his or her death.  Property which the decedent owned individually, items payable to the decedent or to his or her estate, or items held for convenience only in joint accounts must pass through probate for ownership to pass to the heirs. Jointly owned property, property held in trust, transfer on death accounts, and the proceeds of life insurance, retirement accounts, and annuities pass to the surviving joint owner or named beneficiaries without the necessity of probate.

The Probate Court for the appropriate county must appoint a personal representative to handle the decedent’s assets after death, otherwise no one has legal authority to pay bills or deal with the decedent’s property.  If the decedent’s probate estate is below $15,000 (not including the value of a car), a shortened procedure called a Voluntary Administration or appointment of a Voluntary Executor may appropriate.

If the decedent’s estate is in excess of $15,000, an “Executor” is appointed by the Probate Court if you have a Will.  The Executor is required to distribute your personal property in accordance with your Will.    In the absence of a Will, an “Administrator” is appointed by the Court and is required to distribute your personal property according to state law.

The probate of an estate commences with the filing of a Petition, a copy of the Will (if any), a certified copy of the decedent’s Death Certificate, a Military Affidavit indicating whether or not any of the decedent’s heirs are in the military service and a Fiduciary Bond, for the faithful performance of duties by the Executor or the Administrator. At the time of filing, a filing fee must be paid to the Probate Court.  In addition, a copy of the petition and the death certificate must be mailed to the Department of Medical Assistance in Massachusetts.  MassHealth may have a claim against the estate if the person received MassHealth while they were alive.

About four to six weeks after the Petition and other documents are filed, the court issues a Citation. This is the Court’s order to the proposed Executor or Administrator to provide notice to all of the decedent’s heirs, legatees and devisees under the Will that a Petition for Probate has been filed and to publish a notice in the newspaper serving the locality in which the decedent lived.  If charities are involved, a notice must also be sent to the Attorney General.  The notice alerts creditors of the decedent’s death and states that interested parties who wish to object to the appointment of the Executor or Administrator have an opportunity to do so by filing a notice with the court by a certain date chosen by the court. If no objections are filed, the Executor or Administrator will be appointed.  This process usually takes eight to twelve weeks from the date the petition has been filed with the Probate Court, although it can take longer.

If appointment of an Executor or Administrator is needed sooner than eight to twelve weeks, the Probate Court can be asked for a temporary appointment pending the permanent order. Generally, this is done if there is an immediate need to preserve and manage the assets of the estate, such as running a business. The proceeding requires a personal appearance at the Probate Court, involves additional fees, and the powers of a temporary are more limited than a permanent appointment.

Three months after the Executor or Administrator is appointed by the Court, Massachusetts requires the filing of an Inventory showing all of decedent’s individually owned assets held at date of death.  This property should be appraised and listed on the Inventory at the date of death valuation.  The Inventory is signed by the Executor or Administrator and filed with the Court.  There is no sanction for not filing the Inventory within this period, and, in some cases, the Executor may wish to wait until he or she determines whether Massachusetts and Federal estate tax returns must be filed before completing and filing the Inventory in final form.  If the decedent’s gross estate exceeds certain limits, federal and/or Massachusetts estate tax returns may be required.  Estate tax returns must be filed within nine months of the date of death.  If this deadline is missed and the estate is taxable, severe penalties and interest may apply.  However, an extension may be filed so long as the estimated estate taxes are paid within the deadline.   A final income tax return for the decedent must also be filed.

Once the Inventory and, if required, estate tax returns are completed and filed, and the claims of creditors have been considered, the Executor may proceed to make partial distributions to the decedent’s heirs pursuant to the terms of the Will or, if there is no Will, pursuant to the Massachusetts statute governing the succession of property.  Sometimes, this may entail liquidating assets. The Executor has the power to sell personal property without court approval. Real property may only be sold without court approval if it is authorized in the Will.

However, the probate estate generally should not be fully distributed before one year from date of death because creditors may file claims against the estate up to one year.  Distribution to the beneficiaries of the residue of the estate typically occurs after both the Internal Revenue Service and the Commonwealth of Massachusetts (or other state) have issued estate tax closing letters accepting the estate tax returns. Depending on the situation, this can be anywhere from one to three years after the estate tax returns have been filed.

During administration of the estate, the Executor or Administrator must keep detailed records of all income received, interest earned, fees and expenses paid and distributions made since the date of death. These records are necessary for preparation of any fiduciary income tax returns which may be required to be filed and for preparation of accountings to be filed with the court.  If the estate earns interest or dividends on any probate assets during the administration process, the estate needs to obtain its own tax identification number and a fiduciary income tax return must be filed for the estate.

Accounts are filed, along with a filing fee, with the Court and generally the Executor or Administrator requests the allowance of the account(s).  Notice must be given to all interested parties and they are given an opportunity to object.  When the final account is allowed, the Executor or Administrator can make final distributions as reflected in the account and the estate can be closed.  In most instances, the Executor or Administrator’s liability for the estate also closes when the Court approves the final account.

Tags: elder law, estate planning, probate law