Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone, usually the surviving spouse or other close family member, authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Conducting a probate in Massachusetts usually takes a year or so, because creditors have a year (after the death) in which to come forward with claims. It can take much longer there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets can probably be transferred to their new owners without probate.
Examples of common assets that do not need to go through probate include:
Massachusetts makes two kinds of simplified probate available in certain circumstances.
First, if the deceased person left no real estate and all the property in the estate is worth no more than $25,000, any interested person may offer to serve as voluntary personal representative (executor). The personal representative, when authorized by the court, gathers property, pays debts, notifies the Massachusetts Division of Medical Assistance of the death, and eventually distributes the remaining property.
Second, a simple process is also available if the value of entire estate, less liens and encumbrances, does not exceed the combined value of exempt property (property that a creditor couldn't take even if there were a debt the estate couldn't pay), the family allowance, and the costs of probate, funeral expenses, and last illness. The court appoints a personal representative, who may immediately distribute estate assets and file a closing statement with the court.
For more information, see Probate Shortcuts in Massachusetts.
If probate is necessary, the person named in the will to serve as personal representative (executor) will start the process in the Probate and Family Court Department of the Trial Court in the county where the deceased person lived. The prospective personal representative files the will, if any, with a death certificate and a document called a Petition, which contains a request to be formally appointed as personal representative. If there is no will, or the person named in the will isn’t available or willing to serve, the surviving spouse has first priority to be appointed as personal representative.
When the probate court appoints a personal representative, it issues a document called “Letters.” This document is proof of the personal representative’s legal authority to collect and manage estate property.
The personal representative is entitled to collect a fee for the work performed for the estate. If the will includes directions for how to calculate the fee, they must be followed. If the will doesn’t mention fees—and most don’t—the fee must be reasonable. Many personal representatives who inherit money from the estate choose not to take a fee, in part because the fee is taxable income.
Massachusetts has adopted a set of laws called the Uniform Probate Code, designed to make probate simpler and less expensive. Under the UPC, there are informal and formal probate procedures.
Most estates use the informal procedure, which is conducted by a court official called a magistrate. The personal representative is free to collect assets and pay debts, and distribute property with virtually no supervision by the court. The personal representative can close the estate by filing a sworn statement, which says that debts, taxes, and other expenses have been paid and that the estate assets have been transferred to the people entitled to inherit them.
Formal probate is necessary if there’s a dispute among beneficiaries; the proceedings are conducted by a judge. The judge approves actions of the personal representative (for example, selling an estate asset), and interested persons must be given notice of proposed actions.
Either kind of probate must begin, in most cases, no more than three years after the death.
In broad overview, the personal representative’s job is to:
The personal representative should inventory estate assets, estimate their value, and keep careful records (for example, receipts, bills and bank statements) of how estate assets are handled and distributed.
Usually, the personal representative opens a checking account for the estate, and uses it for amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments), and to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
The personal representative has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
If the deceased person owned real estate in another state, the personal representative may need to conduct a second probate proceeding, in that state. That’s called an ancillary probate.
In Massachusetts, the personal representative does not have to individually notify creditors about the probate proceeding. In formal probate, however, the personal representative must publish notice of the proceeding in a local newspaper. No matter what kind of probate proceeding is used, the personal representative has the obligation to pay valid debts with estate assets.
It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
A federal estate tax return will be required only if the deceased person’s taxable estate is very large—for deaths in 2016, more than $5.45 million. More than 99.7% of all estates do not owe federal estate tax.
Massachusetts imposes its own estate tax, in addition to the federal tax, on estates worth more than $1 million.
The personal representative can distribute estate assets to inheritors only after debts and taxes are paid. The personal representative follows the instructions in the will, or if there is no will, turns to state “intestate succession” law to determine who inherits.
Unless the probate is formal and court-supervised, closing the probate court proceeding is done informally. The personal representative files a statement, stating that: