Probate is always difficult. You’re grieving the person who has passed while navigating a complex court process to determine how your loved one’s property will be distributed.
Typically, one of the largest assets in anyone’s estate is their home—and the valuables in it. Dealing with their house and personal property can be a very emotionally taxing process. Thinking about removing personal property from the house before probating the estate is understandable, and many like to go through these steps as quickly as possible as a way to find closure regarding the passing.
But can you empty a house before probate? The simple answer is that you should avoid doing that because a judge may have to approve the distribution of assets during the probate process.
Below, we discuss what probate looks like and how a Massachusetts probate lawyer can help. We’ll also cover issues involving the person’s house throughout the probate process and options for the home once the owner is deceased.
What Is Probate?
Probate is a legal process that might be required after a person passes away. The court validates the will and estate preferences of the decedent and supervises the estate’s executor in the fair distribution of the assets.
Probate is designed to protect the assets and interests of the decedent and make sure that any outstanding debts are resolved through the individual’s estate. While there are some instances in which this isn’t possible, it is the overall end goal of the probate process in Massachusetts.
Why Do You Have to Probate When Someone Dies in Massachusetts?
You have to undergo the probate process when someone dies without naming any beneficiaries for the estate. Probate helps to legally validate the will and make sure that what’s happening with the estate is in line with the wishes of the decedent. It also ensures that any outstanding creditors are paid in a timely manner out of the estate.
What Are the Steps Involved in Probate in Massachusetts?
There are three main steps involved in the Massachusetts probate process:
The first step is to file with the probate court. The petition solidifies the executor as the legal distributor of the estate. The court can then notify the families and parties involved. After the filing process has begun, the court can begin to assign value to the estate, whereby all of the assets will be totaled and assigned a total value/cost. Things that could be counted as estate assets may include:
- Real estate
- Intellectual property
After the total value of the estate has been determined, the repayment process begins. A list of creditors and any outstanding debt amounts will be made, and the value from the estate will be used to pay off as many creditors as possible. If the value of what is owed exceeds the amount that the estate has to use for repayment, it may be declared insolvent, and the court will need to get involved in determining a fair repayment scheme. Other family members or the executor may be named to help reduce the total amount of debt.
The distribution of assets is the final step in the Massachusetts probate process. This can often take the longest, as there may be formal processes to transfer certain types of assets. Depending on how the will is laid out, the executor may have to open a trust to house the assets or work to distribute the assets in alignment with the court’s ruling, depending on the situation and the context of the case.
What Happens to the Contents of the Deceased’s House in Massachusetts?
So, can you empty a house before probate? If the person dies and the house goes into probate, what happens with the contents is determined by whether there are listed beneficiaries.
Traditionally, the items would be distributed in alignment with the decedent’s last wishes to the beneficiaries of the estate. If there are none named, the court may choose to hold a probate sale.
How to Clean a House After Probate
Cleaning a house after probate can be overwhelming. It is best to approach it methodically and with the help of anyone available to help to get it done more quickly. A few key steps to keep in mind include:
- Finding documents: Keeping track of important documents can help you get through the probate process more efficiently. You can file these in separate folders or storage to protect the decedent’s privacy and to ensure you have them handy if you need them.
- Fix anything that’s broken: Fixing any obvious needs for repair can help you sell the home more quickly when the time comes, if it isn’t distributed. It can also help you preserve any relationships that may be strained due to the passing of the decedent.
- Hire a cleaning service: You may want to save time after securing any needed assets for dispersal by hiring an experienced cleaning company to help you get the job done.
What Happens to the House When it Enters Probate?
If there are no heirs or beneficiaries, then the home is sold with the supervision of the probate court. The executor will likely be the one to begin the sale process with the court. Otherwise, if there are beneficiaries, the home would be distributed to the listed beneficiaries.
What Are the Options for a House Once the Owner Has Deceased?
As mentioned above, once the loved one dies, their house is at the discretion of the Massachusetts probate court if the estate enters probate. There are two main options for the home:
Conveyance to Survivors
Conveyance to survivors would mean that the home is passed down to the beneficiaries, heirs, or a surviving spouse or partner. The probate court would oversee the conveyance.
Probate Home Sale
If there are no named beneficiaries and there is no spouse or partner to receive the home through conveyance, the court would assist the executor in a probate home sale process.
How to Settle the Estate in Massachusetts
Settling an estate in Massachusetts has several moving parts to consider. That is why it is so important to partner with an executor who is competent and capable of seeing the probate process through to the end. Below are two of the ways they can settle the estate:
If There’s a Will
If there’s a will, the executor will distribute the estate in accordance with the decedent’s instructions in his or her will. The executor would still file the will with the local probate court and let any necessary third party know, such as banks or creditors. After this step is done, the executor can value the assets for distribution.
If There’s Not a Will
If a person dies without a will in Massachusetts, the property will be distributed under the “intestate succession” laws. Generally, the assets will go to the decedent’s closest family members. The decedent’s spouse, children, or parents may have rights to the property in the estate.
In rare cases, a person may die leaving no family members at all behind. In this case, the property in the estate would go to the state. Because the law of “intestate succession” is complex, it is critical that you consult with an experienced probate attorney to determine who is entitled to the decedent’s property when he or she dies without a will.
What Not to Do With a House in Probate
There are several things you should not do with a house in probate:
- You should not delay in starting the probate process. Executors should file as soon as possible for probate, allowing the court to oversee the next correct steps in managing the estate. Not doing this could complicate the legal process later on.
- Avoid removing other house guests. There may have been other roommates living in the decedent’s house. Until a formalized court ruling is made, don’t remove roommates or you may complicate the probate process.
- You should not avoid paying property taxes. Even though the homeowner is now deceased, the city where the property is will continue to assess and expect payment of property taxes. Failure to pay the taxes could result in a lien against the property, and possible loss of the property.
- You should not avoid making mortgage payments. Like property taxes, the death of the homeowner will not excuse the payment of any mortgage that may be on the property. Failure to make mortgage payments could result in a foreclosure on the home.
- You should not avoid maintaining the homeowner’s insurance policy. If an insurance company that insures the home does not receive the premium payments required under the policy, they could cancel the insurance policy. The property would then be exposed to loss through a fire or some other hazard.
Can You Live in the House Before Probate in Massachusetts?
If you’re living in a home and the homeowner passes away, you might be able to continue living there, but you may have to pay rent to the estate. This can be a very complex situation, because you might have certain rights under a lease agreement with the decedent.
However, having someone occupy the house may benefit the estate because it could deter squatters and ensure that the house is being maintained until the probate process is completed.
Are There Any Exceptions to the Probate Process?
Even if an estate has to go through the probate process, there may be some types of property that do not need to go through. For example:
- Real property owned by a husband and wife “by the entirety” doesn’t need to go through probate when one of the spouses passes away. Property like this would go automatically to the surviving spouse.
- If the decedent had a life insurance policy, the proceeds from that insurance policy goes automatically to the person named beneficiary
- Other property the decedent owned with another person as “joint tenants” might not have to go through the probate process
- Real property that the decedent transferred to a living trust
- Payable-on-death bank accounts
There may be other types of property that don’t need to be transferred through the probate process. This is why it is so important to consult with an experienced probate attorney.
Navigate the Probate Process with Confidence in Massachusetts
Navigating the probate process can be difficult. However, our probate attorneys at BK Law are here to help you navigate the probate process during an emotionally difficult time. We’re a highly-respected firm with a reputation for providing excellent client service.
There’s too much at stake to risk going with a less competent law firm.
With decades of combined experience dealing with probate and estate planning cases, our attorneys have successfully assisted clients in probating their loved ones’ estates, and we’re fully prepared to help you through yours. Rest assured knowing your case is in trusted hands.
Give our Boston law offices a call to learn more about the probate process and how BK Law can help make things easier for you.