“Probate.”
You’ve heard the term. Usually, it’s uttered with the phrase “avoiding probate” or “dealing with probate.” No one ever wants to talk about probate. Except maybe probate and estate planning attorneys.
Here are the 6 most frequently asked questions I get about probate in Massachusetts.
As a preliminary matter, Massachusetts no longer uses the term “executor.” They replaced it with the gender-neutral term “personal representative.” (did you know that a female executor is an “executrix”?) I’ll use “PR” for short.
How do you pay for the funeral?
In the immediate aftermath of the death of a loved one, it’s best to understand that funeral expenses should be paid by the estate. That is, they should be paid out of the deceased person’s assets. Similarly, any expenses directly related to tying up loose financial ends, transferring property, and attorneys’ fees and probate costs, can and should be paid by the estate. If there are beneficiaries, they will receive their portion after the estate has paid its creditors and its costs of administration.
What does an Executor / PR do?
The executor / PR administers the estate. They have a job to do: They gather information about all the debts the deceased owed and all the assets the deceased owned. Over the next year or so, the executor / PR pays off all of the valid debts of the deceased and distributes all of the assets to the beneficiaries.
To do this, the executor steps into the shoes of the deceased person. They typically open a bank account to hold assets until they’re distributed and write checks to pay off debts and the expenses of administering the estate. The executor / PR may need to sell real estate, transfer investments, sell vehicles and clean out the deceased person’s home. They file income taxes and, if necessary, estate taxes for the decedent. They do everything that needs to be done to take all assets out of the deceased’s name and distribute them to the beneficiaries.
Does an executor / PR inherit anything?
Not necessarily. By definition, the executor / PR does not inherit. In fact, being an executor means that you have a job to do. A beneficiary, by contrast, doesn’t have to figure out who gets what; they just have to cooperate with the executor so they can receive their inheritance. Frequently, however, the executor / PR is a person the deceased trusted and valued, so they are also frequently named as beneficiaries as well.
Does the Executor / PR have to file something with Probate?
Not necessarily. There are many assets that can be transferred at death without involving the probate court. For those assets that are not automatically transferred, the Probate Court needs to issue an official document to the executor / PR, which the bank or other administrator of the asset uses to verify that the executor / PR is the appropriate person to make those decisions.
What assets are transferred outside of probate?
Probate does not need to get involved in order to transfer funds in a jointly owned bank account to the surviving joint owner, retirement accounts and life insurance proceeds to named beneficiaries, trust funds to beneficiaries named in the trust, or funds in “transfer on death” (or, “TOD”) accounts. These are all payable to the beneficiaries named on the instrument. Similarly, when real estate is jointly owned by a married couple, the surviving spouse should file some documentation with the Registry of Deeds, but there is no need to file in Probate Court to transfer real estate to a joint owner.
What needs to be filed with the Probate Court?
An executor / PR can open one of four types of proceedings in Probate Court: Voluntary Administration, Informal Probate, Formal Probate, and Late and Limited Formal Probate.
The amount at issue, whether the deceased had a will, how long since the decedent died, and whether there are any people who object to the distribution of the estate, are some of the factors that determine which probate track the executor must choose. There is information on the Mass.gov website to guide people, but if you have any doubts, it’s best to speak to a probate attorney.
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