If your loved one passes away without a particular kind of estate plan, things can get messy.
You may be looking at a lengthy legal process known as probate or estate administration. This is a court-managed process through which the deceased’s assets are managed and distributed. Even if your loved one had a Last Will and Testament, you will likely still have to go through the probate process. Problems can arise during probate and you do not want to risk losing the assets your loved one wanted you to have. Probate attorney Michael Monteforte can represent you during this process to ensure that your loved one’s intentions are honored and that your interests are considered.
When Does an Estate Have to Go Through Probate?
Depending on how your loved one’s assets and property are titled at the time of their death, some or all of their estate may have to go through probate. If the assets are jointly held and there is a right of survivorship, such as with joint bank accounts or the family home, they will pass directly to the joint owner. The same is true for any assets with a named beneficiary, such as a life insurance policy or retirement account. However, a simple Last Will and Testament will have to go through probate to determine if it is valid.
You will also have to probate the deceased’s estate if you need to:
- Pay creditors
- Get medical records
- File tax returns and pay taxes
Finally, any property that is held only in the deceased’s name without named beneficiaries will have to be probated, even if the assets are included in a valid Will.
How the Probate Process Works
Every personal estate is unique, the probate process will differ slightly from one person to another. In general, however, the process in Massachusetts is as follows:
- A petition is filed with the proper probate court.
- A notice is issued to heirs named in the will or to statutory heirs if no Will exists.
- A petition is filed for the court to appoint the executor named in the Will or an administrator for the estate if no will exists.
- The executor or estate administrator conducts an inventory and appraisal of estate assets.
- Any debts held by the estate are paid to rightful creditors.
- Estate assets are sold, if necessary.
- Estate taxes, if applicable, are paid.
- Assets are distributed to heirs.
In most cases, the estate must be probated within three years of your loved one’s death. It can take anywhere from a few months to over a year to probate a simple estate, but complications can arise. It is not uncommon for someone to object to the Will at some point during the probate process, which can mean lengthy and expensive litigation. If several versions of a will exist or family members dispute their share of an inheritance, the probate process will become much more complicated.
How to Avoid Probate
Once your loved one is gone, there is no way to avoid probate. However, working with an experienced probate attorney can take a lot of the hassle off your plate so you can grieve and support your family at this difficult time.
If you have not yet lost your spouse, or you do not have a living trust for your own assets, you can take action now to prevent your family from having to go through probate later on. A well-drafted and properly funded living trust can avoid probate altogether for your beneficiaries. If you work with estate planning attorney Michael Monteforte, Jr., now, you can protect your assets and save your heirs from the probate process.
Allow Us to Help You at This Difficult Time
If you have just lost a spouse or parent, you have a lot to cope with. If that person had no estate plan, or just had a simple Will, you are also facing probate. Do not go through that alone.
We are here to meet all of your elder care, estate planning, and probate needs.