Beyond The Will

Is There A Will? There Is A Way

October 17, 2019


When an individual (a “decedent”) dies, one of the first questions to ask is whether or not he or she left a Will.  The answer to this question will direct the probate process and administration of a decedent’s estate.

Probate is the process used to appoint a person to administer an estate, known in Massachusetts as a Personal Representative.  The Personal Representative is responsible for determining and gathering a decedent’s probate assets, distributing them to beneficiaries and accounting to the beneficiaries and probate court, as necessary.  A Personal Representative may also be responsible for preparing and filing final individual income tax returns for a decedent, estate income tax returns, and estate tax returns, if applicable.

The first step to having a Personal Representative appointed is for an interested person to file a petition in the Probate and Family Court.  Interested persons are those who have a financial interest in the estate and may include a surviving spouse, children, other family members, beneficiaries named in a decedent’s Will, heirs-at-law, and creditors of an estate.  If a decedent left a Will, a Personal Representative will likely be named in the document.  If a decedent did not leave a Will, a Personal Representative may be nominated by interested persons.  If a decedent dies without a Will, the priority of appointment of a personal representative is determined by statute and may include a surviving spouse, followed by other heirs of a decedent (children, parents, siblings, etc.).

In order to serve as Personal Representative, an individual must be 18 years of age and fully competent.

In Massachusetts, there are primarily two processes through which a Personal Representative may be appointed: informal probate and formal probate.  Informal probate is an administrative proceeding through which a court magistrate (not a judge) appoints a Personal Representative.  Informal probate may be used where there is an original Will, official death certificate, and the location and identity of all heirs-at-law and beneficiaries are known.  Generally, informal probate is quicker and can be less costly than formal probate.

Alternatively, formal probate is a proceeding where a judge makes a ruling on the validity of the Will, determines the heirs of the decedent, and appoints a Personal Representative.  Formal probate is  required where the decedent’s original Will cannot be found, there is no official death certificate, the location or identity of any heir-at-law or beneficiary is unknown, or there is a spouse, heir, or devisee who is incapacitated or a minor.  Formal probate may also be recommended where there are family dynamics which may make the administration of a decedent’s estate volatile or contentious.  For example, if there is a dispute over the validity of the Will, a judge in a formal probate proceeding will have the authority to rule on a Will’s validity.

As an alternative to the informal probate and formal probate processes, if a Massachusetts resident dies with an estate consisting entirely of personal property (meaning no real estate) valued at $25,000 or less, an individual may petition for voluntary administration of the decedent’s estate.  This is the fastest and most simple method of administering a decedent’s estate. You should always consult with an attorney before filing a petition for probate of a Will and appointment of a Personal Representative.

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