The term “probate” refers generically to the administration of an estate under the supervision of the Probate and Family Court. This is where most people contemplate getting legal help, and rightly so because the process is complex and full of pitfalls. Especially under the recently enacted Massachusetts Uniform Probate Code, there is very little room for error. Get it wrong, and you’re stuck.
The probate process is required with respect to one’s probate estate, which includes everything that has not passed to a survivor pursuant to joint ownership or a beneficiary or transfer-on-death designation. Thus, one spouse’s interest in a home held jointly with the other spouse will pass automatically to the surviving spouse apart from the deceased spouse’s probate estate, as will retirement account benefits and life insurance proceeds when the spouse is the named beneficiary. But when the decedent owned a house or account in his or her name alone, it is part of the decedent’s probate estate.
If you have been nominated in your loved one’s will to serve as the personal representative, or if you have otherwise been asked to serve, you will file a petition with the Probate and Family Court seeking two things. First, you will ask for allowance of the will (if there is one), which is basically the court’s approval establishing the will as genuine and the operative instructions for the administration and distribution of the decedent’s probate property. Second, you will ask that the court appoint you as personal representative. You will need to file several documents, including the petition, the original will, and a death certificate, along with the required filing fee. You will also need to provide proper notice to various interested persons and government agencies, including by publishing notice in a local newspaper.
Once the will has been allowed and you have been appointed, you will have the authority and the responsibility to marshal the estate assets, pay debts, and make distributions. You will need to provide notice to the appropriate persons and file an estate inventory that lists and values everything in the decedent’s probate estate. Perhaps at some points along the way, but definitely later, after paying all of the debts and making all of the distributions, you will file an account with the probate court. The account itemizes on three schedules the assets you started with (Schedule A), the payments and distributions you have made (Schedule B), and what you have left (Schedule C). In your final account, which needs to be approved by the court before your job is finished, the totals on Schedules A and B will be the same and the number on Schedule C will be zero (since you’re done, you have nothing left; or, rather, you have nothing left, so you’re done).
The probate process lasts at least a year from the date of the decedent’s death because that is how much time creditors have to make claims against the estate. The process often takes longer, however, because of difficulties and delays in identifying and valuing assets, filing tax returns, and making distributions. At least sixteen to eighteen months is typical, and a complex estate can take years to fully administer.
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