Probate: HANDLING ALL PROBATE MATTERS, ADVISING PERSONAL REPRESENTATIVES

There is a strong possibility that at some point in your lifetime you will be involved in a probate case, either serving as a personal representative or as a beneficiary.  Statistics show that the number of probate cases is rising.  Currently, over two million new probate cases open every year across America.  Some 90% of all probate cases involve distribution of property owned by individuals over the age of 60.  The Baby Boomers have started to retire in droves, leading to a projected 38% increase in the plus 60 population in the next 20 years.  Accordingly, as the U.S. population continues to age, probate cases are expected to increase significantly.

Probate is the process through which the estate of the deceased individual, known as the decedent, is distributed through the legal system.  Probate is conducted entirely within the court system and will be overseen by the Massachusetts Probate and Family Court.  The existence of a will does not impact whether or not property will go through probate.  Rather, it is how assets are titled that matters.  All assets titled in the name of the decedent alone will go through probate, regardless of the existence of a will.  Property that is in the name of the decedent’s Revocable Living Trust will avoid probate altogether.  In addition, property that is jointly owned, such as a bank account, and property that has a beneficiary designation, like a life insurance policy, will avoid probate but raise additional issues that would warrant a discussion such as a lack of inheritance protection for the beneficiaries.

Guiding Personal Representatives Through the Probate Process

Under the new Massachusetts Uniform Probate Code, the probate process, whether it involves a will or not, is overseen by a personal representative. The task of a personal representative is a grueling one, involving payment of debts, transfer of assets, and strict adherence to court procedures.  Accordingly, most personal representatives obtain the assistance of a qualified estate planning attorney to guide them through the complex probate process.

Selecting a Personal Representative

Generally, if the will nominates a personal representative, that person will be appointed.  If there is no will, or if the nominated individual is unwilling or unable to serve, preference is first given to the surviving spouse of the decedent.  Priority continues down to devisees of the will, then heirs of the decedent, and finally, if no known spouse or next of kin exists, a public administrator is appointed.  All individuals must be over the age of 18 to serve as personal representative and can be disqualified if the court finds the individuals would not serve the best interests of the estate.

A Look at The Probate Process

The purpose of probate is twofold: first, to pay all debts and obligations incurred by the decedent; second, to distribute assets to the beneficiaries.  Under the new Massachusetts Uniform Probate Code, probate can precede either formally or informally.  The informal process is available where no disputes are anticipated.  By electing this route, families will experience reduced filings, less judicial involvement, and fewer notice requirements.  On the other hand, for estates which require more extensive court intervention, or when conflicts are anticipated, interested individuals may petition for formal proceedings.

There are several important differences between the formal and informal probate processes.  For one, informal probate can be reopened for up to three years, whereas formal probate closes the estate after one year.  Further, informal probate allows for the use of pre-printed court forms for filing notices, whereas formal does not.  Formal probate can streamline real estate transfers, whereas informal probate may actually slow the process.  Given the significant differences between the two processes, it is best to consult with a knowledgeable estate planning attorney before proceeding to ensure you select the procedure that will best serve you and your family.

Payment of Estate Debts

Creditors, generally, are entitled to payment for their claims before assets are distributed to beneficiaries.  It is crucial that a personal representative determine whether claimed debts are in fact valid.  Often, following the death of the decedent, out-of-state creditors may prey upon the estate and seek collection for unperfected or invalid debts.   For this reason, it is critical that you consult with a skilled estate planning attorney who can ensure you pay only those debts you are required to.  Often, this means waiting to pay off any debts for a period of several months following the decedent’s death.

Some debts that must be paid before distribution include: probate administration costs, family allowances, funeral expenses, taxes, secured debts, and unsecured debts.

BK Estate Planning Attorneys, Offers Expert Assistance to Personal Representatives

Personal representatives are charged with an important task—they must protect their loved one’s legacy.  Personal representatives are required to comply with numerous court filings and deadlines, make an accounting of assets, pay final debts, and distribute assets in accordance with a will or intestacy laws, all while grieving the loss of their loved one.  This seems a daunting prospect to nearly anyone confronted with it, but the good news is you do not have to face this challenge alone.

BK Estate Planning Attorneys can guide you through each step of the probate process, ensuring your understanding of local law and strict compliance.  BK Estate Planning Attorneys has provided exemplary legal service to all of its client’s and personal representatives can be rest assured they are in the best of hands with BK Estate Planning Attorneys.

Florida residents trust the attorneys at BK Estate Planning Attorneys to handle all of their probate matters.