General Estate Planning Concerns – Part 3 – Probate proceedings for an estate of a decedent

By : Stephen Manning | Category: Estate Planning | No Comments
24th Jul 2014
signing—Attorney in Longmeadow, MA

Probate proceedings for an estate of a decedent in Massachusetts

In the event a loved one is deceased and leaves real or personal property in his or her name, without any joint owner, transfer on death designation or named beneficiary, if applicable, it will be necessary to file a Petition in Probate Court for allowance of a Will, if there is one. If there is no Will, a Petition to Adjudicate Intestacy and Determine heirs may be required, or other petition to appoint a personal representative.
It has been just over two years since the new Uniform Probate Code was implemented in Massachusetts. It is important for members of families of recently deceased loved ones to consider engaging qualified counsel to provide appropriate advice and services to properly file any required probate petitions to administer the estates of those recently deceased.

1. There are several options:

A. An Informal Petition may be filed, but prior to doing so, a 7 day notice must be delivered to all heirs and/or devisees. The Informal Petition may probate a Will, and appoint a Personal Representative, formerly known as an Executor. If there is no Will, the Informal Petition would simply request appointment of a Personal Representative. If the decedent left a Will, typically the Will nominates and appoints a Personal Representative, however, if there is no Will, a legal heir may request appointment. The Informal Petition, if in order, will be allowed by a Magistrate of the Probate Court in a timely manner, and once allowed the Personal Representative must publish a notice of the appointment in a local newspaper or other approved publication.

B. A Formal Petition may also be appropriate to probate a Will, and appoint a Personal Representative. In addition, the Formal Petition may also adjudicate Intestacy (when the decedent dies without a Will) and determine the heirs. This may be appropriate when the only asset of the estate is real estate.

C. There is also a proceeding that may be filed with the Court if the decedent had no real estate and had personal property having a value of $25,000.00, or less, exclusive of one motor vehicle. In such a case, once 30 days have elapsed from date of death, a Voluntary Administration proceeding may be filed with the Probate Court, specifically identifying the property, including the value of such property, for appointment of a Voluntary Personal Representative. This proceeding does not require any publication, nor any accounting or further filings with the Court.

2. Creditors of the estate, if any, must file claims and initiate action within one year after the date of decedent's death. Accordingly, it is prudent for the Personal Representative to retain funds in the estate until the expiration of the one year period and not make any final distributions to heirs or devisees until such time has expired.

3. The Personal Representative is required within 90 days of appointment to either file an Inventory of the assets of the estate and estimated values, or provide a copy to the devisees (if a Will) or the heirs (if intestacy), or both.

4. Real estate owned by the decedent may be sold by the Personal Representative without authority of the Court only if there is a Will, and the Will provides for a power of sale. If there is no power of sale contained in the Will, or if there is no Will, and the Personal Representative wishes to sell the real estate,, a Petition for License to Sell the Real Estate must be filed with the Probate Court for approval by the Court. Generally personal property of the estate such as a motor vehicle may be sold by the Personal Representative without a license.

5. Once the year from date of death has expired, any estate tax filings and fiduciary income tax returns, if any required, are filed, the estate may be closed and final distributions made to heirs and/or devisees. Additionally, the Personal Representative may also close the estate either formally by filing an account or providing a copy to the devisees or heirs, and file a Petition for Final Settlement of the Estate, or informally by simply filing a closing statement. If the Personal Representative chooses the informal closing, he or she must still provide an accounting to the devisees or heirs.

The above is a simple outline of some of the options and proceedings that are available to complete probate proceedings of a decedent's estate, in order that the personal representative and/or heirs of the decedent has the ability to collect the decedent's assets and distribute in accordance with a Will, if any, and if none, according to the legal heirs according to the laws of intestacy. It is the best practice to seek and engage qualified counsel to assist the personal representative in advising and attending to the appropriate procedures required by the law.
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