Preparing for Court: What You Need to Know About Probate

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Burns & Levinson LLP

Television shows and movies show a Will being read at a funeral, as if the Will is automatically valid and assets can be distributed immediately. Unfortunately, the probate process is more complex and time intensive. This blog post will explain the five important things you need to know about probating a Will in probate court.

  1. A Will Must Be Approved by the Probate Court

There is a process governed by a statute (the Massachusetts Uniform Probate Code) directing how to file a Will with the probate court after your loved one has died. The probate court must approve the Will before a nominated personal representative can distribute any assets from an estate to any beneficiary.

  1. The Court Process Can Be Long

One of the goals of the Massachusetts Uniform Probate Court was to streamline the allowance of a Will. Now, there are three different ways to probate a Will, in order of longest to shortest length of time: formal proceedings, informal proceedings, or voluntary administration.

For instance, the formal process involves the court issuing a Citation, which includes a return day approximately four to six weeks later. During that time, notice is given to interested parties, who could file an objection to the allowance of the Will, thereby slowing down the probate process. On the other hand, the informal process requires notice to the interested parties at least seven days before filing the petition with the court, with the requirement to publish in a newspaper within 30 days after the court has allowed the Will. Also, for small estates consisting entirely of personal property (no real estate) valued at less than $25,000 (excluding the value of a car), there is the quickest option available: the voluntary administration process. There are strategic reasons why you might decide on one process over another, such as the powers available to the appointed fiduciary and the dynamics of the family, that will be discussed in another post.

  1. The Court Process Allows Disgruntled Parties to Object

One of the most important things about the court process is to ensure that the decedent’s last Will and testament is allowed for probate, such that the decedent’s intentions are carried out. This can result, however, in competing Wills being filed with the court. Prior blogs posts have explained the grounds and process to object to a Will and to probate a different Will.

  1. The Probate Process Involves Fees

There are fees associated with filing most court forms, such as any petition to allow a Will; appoint a Special Personal Representative, Personal Representative, or Successor Personal Representative; issue a Citation; and file estate accounts. The Uniform Fee Schedule is available here. In addition, the appointed Special Personal Representative or Personal Representative is entitled to receive reasonable fees for their services to the estate.

  1. The Court Process Is Public

The probate file is publicly available, both in hard copy at the courthouse and online through masscourts.org. The only documents that are not scanned into the online docket are the death certificate and the Citation. Given the sensitive nature of the death certificate, it makes good sense to not be publicly available. If you call the court clerk, they will inform you over the phone of the “return date” listed on the Citation. Some clients are concerned about the public nature of the assets belonging to the estate that are revealed on an inventory and account. The best solution is to plan ahead to avoid probate by meeting with a skilled estate planning attorney to discuss an estate plan that fits for your assets and family.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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