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Probate in Massachusetts – When Should You Probate an Estate?

muccilegal August 6, 2019

Losing a loved is a traumatizing and life-changing event. Not only should you deal with unbearable grief and sadness, but also handle the legal aspects pertaining to transferring property and ownership after the death of your loved one (unless you are represented by a lawyer who will handle these legal aspects on your behalf).

Being represented by a Massachusetts probate lawyer ensures that all the necessary actions have been taken to help you receive the authority to gather the decedent’s assets, pay debts and taxes, and transfer assets to the family members who inherit them.

However, if you’re still hesitant to hire a probate attorney, we asked Richard Mucci, a seasoned trial attorney skilled in both civil and criminal matters, from The Law Offices of Richard Mucci to answer several questions about Massachusetts probate of wills and estates to make it less complicated and more digestible for someone who doesn’t have a law degree.

‘When Is It Necessary to Probate an Estate in Massachusetts?’

Multiple factors affect whether or not an estate has to be probated after the death of your family member. One of these factors includes how the decedent’s property is titled at the time of death.

For example, certain types of the decedent’s property – such as those where there is a right of survivorship, the proceeds from a bank or retirement account that specify a beneficiary, or property held in a trust – should not be included in the probate estate because there is a pre-specified person(s) who are entitled to the property by law.

Our Massachusetts probate attorney from The Law Offices of Richard Mucci explains that it would be necessary to probate the decedent’s estate in the following situations:

  • The surviving family members want to determine whether the decedent’s will is valid;
  • The title (ownership) to personal property or real estate needs to be changed because it was held only in the decedent’s name with no right of survivorship;
  • The decedent’s creditors must be paid;
  • The surviving family members need access to the decedent’s medical records, especially when filing a wrongful death claim; and
  • The decedent’s tax returns must be filed, or taxes need to be paid.

‘Who is Appointed as the Personal Representative of an Estate in Massachusetts?’

In Massachusetts, the court will appoint a qualified person with legal priority to serve as the personal representative of an estate unless the personal representative was named in the decedent’s will, according to Mass.gov.

The personal representative has the right to initiate the process in the Probate and Family Court Department to collect, manage, and transfer estate property to the heirs. Prior to appointing a person to be the personal representative of the estate from the will, the court will determine if that will is valid.

In other words, if the decedent died with a will, the person named in the will can be appointed as the executor of the estate, while in situations where there is no will, the court usually appoints the surviving spouse or others heirs.

The personal representative’s job is to:

  • pay debts and taxes;
  • collect and ensure the safety of the decedent’s assets;
  • distribute the property as specified in the will or Massachusetts state law; and
  • keep records such as receipts, bills, statements from the bank of how estate assets and property are distributed in the probate.

‘How Much Time Do I Have to Probate an Estate?’

Generally, the deadline to probate an estate in the state of Massachusetts is three years from the date of the decedent’s death. That deadline does not apply to a voluntary administration and any additional probate proceedings.

If the decedent’s family passed the deadline, and it is too late to probate an estate, the family members may still be able to file a late and limited formal probate. In that case, seeking help from a Massachusetts probate lawyer is of critical importance. In our state, a typical case related to probating a will is completed within nine months. However, in some instances, the process can take up to two years.

‘What’s Massachusetts Uniform Probate Code?’

You have probably heard about the mysterious “Massachusetts Uniform Probate Code.” What is it how does it affect your attempts to probate an estate in the state of Massachusetts?

The main purpose of the Uniform Probate Code – or UPC – is to make probate less complicated and less expensive. The UPC is basically a set of laws that establish both informal and formal probate procedures that must be followed by the executor and other interested parties.

Most estates use the informal probate procedure, which involves a magistrate (court official). In this probate procedure, the personal representative of the estate has the right to collect assets, pay debts, as well as distribute property without any strict supervision by the Massachusetts court.

The personal representative can also terminate the estate by filing a statement concluding that all the taxes, debts, and all other expenses have been paid in full, while the estate assets have been transferred to the people who were entitled to inherit these assets.

The formal probate procedure, meanwhile, is necessary when the estate’s beneficiaries and heirs cannot agree on the issue of distributing property, paying taxes or debts, or any other matter. This procedure is conducted and overseen by a judge, who must approve actions taken by the personal representative of the estate, while any beneficiaries involved must be given notice of any proposed actions such as selling an estate asset or transferring it to a specific heir.

Both the formal and informal probate procedure must be initiated no more than three years after the decedent’s death to be valid.

Probating an estate without a lawyer can be somewhat tricky, especially if you have been appointed to be the executor of the estate unless the estate qualifies for simple “small estate” procedures, all of the property can be transferred without probate, and none of the beneficiaries and heirs is planning to contest the will.

Otherwise, it is critical to contact a probate attorney and speak about your options ASAP. Contact our law firm to determine your best course of action and learn more about Massachusetts probate laws. Call at 781-729-3999 to receive a free consultation.

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