After a person passes away, his or her estate will go through a court-supervised probate process. The probate process can be confusing and complicated, especially if you are unfamiliar with it. If you’ve been named as the personal representative in a friend or family member’s will, you have a legal duty to manage your loved one’s assets properly. As a personal representative, you’ll need to notify the estate beneficiaries, pay debts, and oversee the administration of the process.
Whether you are a personal representative or you’re the beneficiary of your loved one’s estate, the skilled estate planning lawyers at Surprenant & Beneski, PC are here to help. Our legal team has a deep understanding of the Massachusetts probate process. We routinely guide clients through the process in Southeastern Massachusetts, Cape Cod, and the Islands. We have a well-earned reputation in local probate courts for skillfully representing personal representatives and beneficiaries when they need it most.
The Role of a Personal Representative in Massachusetts
If you’ve been appointed as a loved one’s personal representative, also called an executor, you will have certain responsibilities. First, you’ll need to petition the probate court to be appointed. Typically individuals will appoint a personal representative in their will. If you’ve been named in your loved one’s will, you can petition a probate court to issue a “Letters Testamentary” which authorizes you to act as the personal representative.
Once you are appointed as a personal representative, you have a fiduciary duty to ethically carry out your duties. As a personal representative, you can be held liable for mistakes or misconduct related to administering your loved one’s estate. You will need to notify beneficiaries named in the will and create an inventory of all estate-owned assets. You will also need to pay the decedent’s debts and file his or her final income and estate taxes. Finally, you’ll be responsible for distributing the remaining estate assets to the heirs of the estate.
The Duration of the Massachusetts Process
Due to Covid-19 impact on court operations, please note that we are experiencing delays related to Estate Administration processing. How the COVID-19 pandemic is delaying estate administration: Massachusetts probate and estate administration is slow at the best of times, with a typical case taking 12 to 14 months or more. Pandemic-related court closures are adding many months to the process. Courts are slowly reopening but dealing with a significant backlog of filings.
When Is It Necessary in Massachusetts?
After the court validates the deceased person’s will, they will enter the will into probate and begin the process. When the decedent doesn’t have a will, Massachusetts’ intestacy laws will govern which heirs will inherit the estate. Whether or not probate is necessary depends on the type and value of estate assets.
When a deceased individual leaves no real estate or the value of the estate assets does not exceed $25,000, any interested person can act as a voluntary personal representative who can engage in a voluntary administration, which is a simplified process. During the process, the only probate assets will pass on to the beneficiaries named in the decedent’s will, or to heirs under intestacy laws. The court will determine which assets are probate assets, which include the following:
Real estate owned solely by the decedent
An interest in real estate that the decedent owned as a tenant in common
Any life insurance policies that name the decedent or his or her estate as the beneficiary
Personal property such as furniture and collector items
Bank accounts owned exclusively by the decedent
Motor vehicles, including boats owned exclusively by the decedent
An interest in a corporation, partnership, or LLC in the decedent’s name
Intellectual property owned solely by the decedent
Non-Probate Assets Transfer Outside of the Probate Court
Certain property is exempt from the process. Non-probate assets pass outside of the probate process and are not subject to the court. They pass to beneficiaries outside the court process and automatically transfer to the beneficiary. Beneficiaries of non-probate assets inherit them directly without needing to wait for the court to distribute the assets. Commonly owned non-probate assets include the following:
Real estate owned in joint tenancy or with rights of survivorship
Bank accounts or brokerage accounts held jointly or payout on death (POD)
Bank accounts owned jointly with a transfer on death (TOD) designation
Any other property owned jointly with a right of survivorship
Motor vehicles held jointly with a right of survivorship
Retirement accounts that name a beneficiary other than the decedent
Property owned by a trust
The Benefits of Leaving Non-Probate Assets to Beneficiaries
The probate process can be long and complicated. One of the best estate planning strategies involves leaving beneficiaries non-probate assets. Avoiding the often lengthy probate process can help an individual’s loved ones access the estate assets immediately after their death. Avoiding probate can be incredibly helpful for a surviving spouse who needs access to cash as soon as possible to pay for funeral and accumulated medical expenses. A surviving spouse may need to sell the property soon after their spouse’s death, or they may need to sell some personal property to pay creditors. Some non-probate assets are protected from creditors, allowing the surviving beneficiaries a more generous amount of assets. Keep in mind that a beneficiary may need to pay taxes on non-probate assets they’ve received.
Contact Our Experienced Probate Lawyers
Whether you’ve been appointed as a personal representative and need legal help while fulfilling your duties or interested in establishing your own estate plan, Surprenant & Beneski, PC, is here to help. We have the legal experience and an extensive network of other professionals who can assist you in administering your loved one’s estate. Our estate planning team understands the probate process, and we help clients throughout Southeastern Massachusetts create estate plans tailored to their needs and goals. Contact our law firm today to schedule your initial consultation.
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