Probate Administration
Someone you love dearly has just died; you are grappling with your grief, exhausted emotionally and physically from the ordeal, and now, with no respite, you are confronted with a plethora of decisions, tasks and financial commitments to tackle on behalf of your departed loved one.
With the assistance of family, friends and funeral parlor professionals, you will be able to make the immediate decisions such as what to say in the obituary, which newspapers to forward it to, which people to notify and the type and timing of the funeral service and burial. But how do you pay for the obituary notice, the funeral service, the household, medical and other financial liabilities of the decedent? Even if you were in charge of the decedent’s financial transactions during their lifetime under a Durable Power of Attorney, that authorization terminates on the death of the principal. If you were not joint owner of those assets with decedent or Trustee of a Trust which owns the assets, how can you access the decedent’s assets in order to take care of those financial obligations on their behalf? In Massachusetts, the only way to obtain the authority to manage the decedent’s assets, absent a joint ownership or trust situation, is to file a petition with the Probate Court of the County in which the decedent resided. Whether your loved one died with a Last Will and Testament or without one; even if you were named by the decedent in their Will as the desired Executor [rix], until such time as a Petition for Probate has been duly filed with and approved by the Probate Court, no one is authorized to manage or control the decedent’s assets, even to pay bills on behalf of the decedent. And you should know that even if you are the one named in the Will as the Executor, your appointment may not be approved by the Court.
If the decedent had executed and funded a revocable trust, the successor trustee would have access to the Trust assets immediately to pay all the decedent’s financial obligations and distribute the remaining assets as soon thereafter as practicable and as mandated in the Trust; under the Probate process, it could take 6 weeks or longer [if no Will contest is involved] to obtain your appointment as Executor to manage the assets and, the legacy should technically not be distributed until the expiration of the one year creditor period and all the beneficiaries have signed General Assent and Release forms agreeing to the Account and distributions. If the decedent’s assets were owned by a revocable trust, all the asset and beneficiary information is completely private; under the probate process, you are required to publish in the local paper a notice informing the public of the Petition for Probate and then, the filing of the Estate Account. In addition, all probate records are public documents, completely open to the purview of the general public. If the decedent had executed and funded a revocable trust, the decedent may have had the opportunity to implement tax planning in the Trust to minimize and/or completely eliminate estate tax liability; with the probate process, no tax planning is involved except through lifetime gifting.
The Probate process in Massachusetts can be time consuming, expensive, a matter of public record and labor intensive. Therefore, careful consideration should be given during your lifetime to what kind of legacy you are really leaving to your loved ones; the ease and flexibility of a Trust or the frustration and expense of a Probate Estate, with or without a Will.
This article is for informational purposes only and does not constitute legal advice. An attorney client privilege can only be established upon meeting personally. After a discussion of the specific facts during the meeting and the payment and acceptance of a retainer, the attorney client privilege begins.
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