Beyond The Will, Client Compass

What You Need to Know About the Initial Probate Process

December 5, 2019


When a close family member dies, the thought of serving as a fiduciary in order to administer an estate is often the last thing an individual would like to do during the grieving process.  The idea of having to gather the relevant information and complete the applicable paperwork can be emotional and overwhelming.  That is why it is important to engage an experienced attorney to assist with the probate process.

Generally, once engaged, an attorney for the decedent’s estate will request a number of items from the decedent’s surviving spouse or other family member who will ultimately be appointed Personal Representative of the decedent’s estate.  For example, the attorney will need to know whether or not the decedent died with a Will and will need the original Will, if applicable.  The attorney will also require the decedent’s city or town of residence in Massachusetts in order to determine the proper Probate Court in which to file.  A certified copy of the decedent’s death certificate will also be required.

In Massachusetts, there are a number of forms to be completed and signed in order to probate a Will and/or appoint a Personal Representative, whether formally or informally.

For example, a Petition (for Formal or Informal) Probate of a Will and/or appointment of Personal Representative will need to be filed with the Probate Court, requesting that the Will be admitted to probate and/or that an interested party be appointed Personal Representative.  The Petition requests information relative to the decedent and the Petitioner (who is typically the individual seeking to be appointed Personal Representative).

If the decedent left a Will, the attorney will review the Will to determine the devisees (meaning the beneficiaries under the Will). A devisee may be an individual, a trust, or a charitable organization. Information relative to a devisee, including name, address and relationship to the decedent must be reported on the appropriate form.  The name and date of death of any predeceased devisee is also required.  In addition, information pertaining to a devisee who is under legal disability must also be provided.  Note that the legal disability of a devisee may impact whether a formal or informal probate petition may be filed.

In addition to devisees (if the decedent left a Will) information relative to the decedent’s heirs-at-law including name, address and relationship to the decedent must be provided, regardless of whether the decedent left a Will.  A decedent’s heirs-at-law are determined by the Massachusetts Uniform Probate Code and may include a decedent’s spouse, children, parents or other more remote relatives.  If the decedent is survived by a spouse and children, the attorney will need to know whether all of the children of the decedent are also children of the surviving spouse.  The attorney will also need to know whether the surviving spouse has children who are not children of the decedent.  The legal disability of an heir-at-law may impact whether a formal or informal probate petition may be filed.

The attorney for the estate will also need an estimated value of the decedent’s probate assets, including both personal and real property.  Further, the attorney will need to know whether any interested parties are serving in the military.

Depending on the circumstances, the attorney may recommend obtaining assents and waivers of notice to the Petition from interested parties including devisees or heirs-at-law.  Alternatively, notice of the probate filing may be provided to interested parties as part of the informal or formal probate proceeding.

Once the applicable probate forms have been prepared either for an informal or formal process, the Petitioner and attorney for the estate will need to sign these forms.  The manner in which the Petitioner is filing, whether formally or informally, will dictate the process of notifying interested parties moving forward.

A comprehensive discussion of the process of notifying interested parties of the Petition under both the informal and formal process will follow in my next blog post.

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