What is Probate?

Massachusetts Probate administration involves distributing assets owned by an individual after their death. It only applies to assets that the decedent owned individually, it does not apply to assets owned jointly with others or assets owned in trust. Furthermore, it does not encompass assets which have beneficiary designations, pay on death designations or transfer on death designations. Essentially, it applies to assets which do not have their own specific direction regarding inheritance upon the decedent’s death.

Probate applies regardless of whether the decedent had executed a valid written Last Will & Testament before their death. While petitioning the court to approve of the validity of the proposed Last Will & Testament can be a fundamental part of some probated estates, if the decedent died without a Last Will & Testament then their estate will still need to be probated. Indeed, often times these cases can make for the largest headaches because the estate will pass via the statutory laws of intestacy. Validating all parties and ensuring nothing has been overlooked leads to additional paperwork.

Massachusetts Probate

In Massachusetts, there are three main types of probate; Voluntary Administration, Informal, and Formal. Voluntary Administration is by far the simplest form of probate. It applies to estates which are worth less than $25,000 in total assets excluding one vehicle. Informal probate tends to be the most common form. It is less invasive than formal probate and is available to any estate. Formal probate is the most intricate of the three main types. People only use it when the other options are inappropriate or unavailable. Examples range from when the decedent owned registered land or was receiving Medicaid (MassHealth) benefits before death.

Role of the Fiduciary

Massachusetts has replaced the term executor/trix with the term personal representative. The personal representative is the person in charge of the probate administration. They ensure all debts, taxes, and expenses are paid, all assets are accounted for, and that all assets are distributed. When they fail to fulfill their probate duties, they can incur personal liability for damages. Typically, the Last Will & Testament appoints this role. However, if the decedent failed to execute one before death, there is a priority for appointment for who will get to serve in the role. If an individual with priority for appointment doesn’t wish to serve, they will have to waive their priority and give their assent to whoever will take on the job. Moreover, in the case where all parties have equal priority it can become cumbersome determining which child will serve. 

Fees

The fees associated with hiring a lawyer and filing paperwork make avoiding probate a priority for every estate in Massachusetts. Therefore, it’s important to discuss with us how you can use a Revocable Living Trust to make sure that your family can avoid the probate process. Alternatively, if you have recently lost a loved one and need help navigating through the probate court during this difficult time, we can provide services throughout Massachusetts at an affordable rate. Please reach out to us for a free consultation to find out how we can help.