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Probate FAQ

Many people do not think about probate until someone has passed away. Probating of an estate, while not a common event that people encounter, is an important aspect of making sure that a decedent’s last will and testament is properly followed. Lake Shore Legal is here to offer assistance to those needing to file a probate, distribute assets, determine heirs, and file the necessary probate documents at the local probate and family court.

The information below briefly explains the general aspects of probate and addresses some of the more common questions we encounter concerning the probate process. For more detailed information and a fuller explanation of the probate process contact an attorney at Lake Shore Legal.

FAQ

What is probate?

-Probate encompasses the formal court proceeding in Massachusetts in order to legally determine who is entitled to the probate assets of the decedent. Probate will determine the validity of the decedent’s will, appoint a personal representative, and in some cases the probate court will supervise the administration of the probate estate.

What is the probate estate?

-The probate estate is comprised of the decedent’s assets that did not pass by operation of law. Therefore, a probate asset is an asset that is still owned by the decedent (decedent’s estate) after the decedent’s death.

Many decedents, even those with large estates, will leave very few probate assets. This is because there are ways to pass assets to individuals without the need for probate. Some examples include a retirement account that names a beneficiary. Upon the decedent’s death, the assets of the retirement account will pass to the beneficiary outside of probate (unless the decedent named the decedent’s estate as the beneficiary). Another common example is a piece of property owned by a decedent and spouse as joint tenants. Upon death, the decedent’s share in the property shall pass by law to the surviving spouse.

Why do people try to avoid probate?

-The most common reason a decedent will try to have assets pass prior to death or pass by operation of law rather than through probate is publicity. By publicity, I mean that the probate of an estate is a court proceeding. Therefore, the probate estate, probate assets, and probate distributions are public records that can be obtained from the probate court. Many people try to avoid probating certain assets because they do not want a public record of the size of their estate, or how the decedent chose to pass assets along following death.

What if the Decedent died without a will?

-In the event that the decedent dies without a valid will, then the estate assets will be distributed in accordance with the intestacy laws of the Commonwealth of Massachusetts. The intestacy laws will determine who inherits the estate and the percentage of the estate that an individual is entitled to. The intestacy laws normally distribute assets to the descendants and family of the decedent.

If the decedent leaves an invalid will, the decedent will be treated as though he passed without a will, and therefore will be subject to the intestacy laws. Lake Shore Legal can assist you in drafting a proper and valid estate plan so that your wishes will be followed following your passing.

Are there different types of probate?

-Yes, in Massachusetts there are three main types of probate proceedings. These are a voluntary administration, informal probate, and formal probate.

A voluntary administration can occur when certain criteria are satisfied. The decedent must have lived in Massachusetts at the time of death, decedent cannot have owned any real estate, that the personal property of the decedent is not worth more than $25,000, and that no other probate proceeding was initiated. A voluntary administration is the fastest and simplest form of probate administration. It allows for the administration of an estate with minimal assets to occur without the normal costs of probate.

An informal probate proceeding is a more official form of probate but is still quicker and in most cases cheaper than a formal probate. An informal probate can also be reviewed and determined by a Clerk Magistrate rather than a judge. For an informal probate to occur the decedent’s will must be valid, all heirs of the decedent must be identifiable, and there cannot be any conflict by the heirs concerning the will and its distribution.

Formal probates are lengthier and require a judge to sign off on certain probate matters. A formal probate can be either supervised or unsupervised. A supervised probate necessitates court approval for any asset distribution by the personal representative. During an unsupervised formal probate, the personal representative can distribute assets without initial court approval but will need a judge to review the probate estate and distributions prior to closing the probate. Formal probates are more common when an estate is extremely large or there appears to be conflict between the heirs concerning distribution of the estate.

What is the deadline to probate an estate?

-Generally, an estate must be probated within three years of the decedent’s date of death.

How long will the probate process take?

-It depends. For an informal probate, a magistrate can appoint a personal representative after 7 days from the decedent’s date of death. In a voluntary administration the proceeding cannot be filed until 30 days from the date of death have passed.

However, the biggest factor to consider is the size and complexity of the estate. Bigger estates normally will take longer to probate. There can be federal or state estate tax returns that must be prepared. Assets must be gathered, heirs determined, heirs contacted, potential conflicts and will challenges handled and approval of distributions sought and granted.

Routinely an informal or formal probate will take at least one year. This is due to the fact that a creditor has one year from the date of the decedent’s death to file a creditor claim against the estate.  A personal representative should wait this year period prior to distribution of the estate assets and closing the estate. If a creditor claim is validly filed within the year term, yet the personal representative has distributed the estate assets, the personal representative could be personally liable to the creditor.

What happens to an asset’s basis if it is probated?

-The analysis of an asset’s basis is not determined by whether the asset was subject to probate or passed outside of probate. The analysis is whether the asset was considered an estate asset of the decedent at the time of death, or whether the decedent gave up the incidents of ownership in the asset prior to death (most commonly by gifting an asset away). If the asset is considered part of the decedent’s estate upon death, the asset will get a stepped-up basis to the value of the asset at the date of death. If the asset was gifted prior to death the asset will retain a carry over basis to the donee.

LAKE SHORE LEGAL, LLC

Attorneys at Lake Shore Legal are familiar with the probate process and well versed with the Massachusetts Uniform Probate Code. Our attorneys can assist you by navigating you through the probate process whether it be by a voluntary administration, informal probate, or a formal probate. Our attorneys will explain which method of probate best suits your individual situation and will assist in compiling all probate documents so that the probate estate can be distributed properly and in accordance with the decedent’s wishes. Contact Lake Shore Legal today and allow us to assist you during the probate process. info@lakeshorelegalsolutions.com; (508) 943-7800

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