The point of probate is to establish the veracity of legal documents – your will is not your will until and unless it is presented to the public as a whole. This is done to prove whether it was signed the right way, you were mentally competent when you signed it and meets other formalities. By law, and mainly because the law dates back several hundred years to England, probate in Massachusetts lasts for at least one year from the date of death and often much longer because of various administrative tasks required of an executor in Massachusetts.
What does a probate executor do anyways? I like to say that the business of being an executor is the only business where you are successful if you go OUT of business. The role of executor is to gather the decedent’s personal property (the probate estate) and to distribute either according to the decedent’s will or by operation of the Massachusetts intestacy laws. Intestacy laws in Massachusetts apply when there is no will and the executor in that case is technically called the administrator of the estate, but it’s really the same thing for all practical purposes before the Massachusetts Probate Court. The executor is sort of the bus driver for the whole probate estate – abiding road signs and bringing the passengers (money) to their appropriate destinations. The executor needs to gather assets, pay the taxes, divide things up that are hard to divide up (like a porcelain doll or a Chris Craft boat), pay taxes and other bills and lastly distribute funds to the legatees under the will or to the heirs in intestacy. In some states it can be a reasonably well paying proposition. For the most part in Massachusetts probate, being an executor is a very responsible and only modestly compensated role. Admittedly, legal fees for probate can add up do to the procedural and practical steps necessary to properly settle an estate in Massachusetts.
If you do even a little planning probate is entirely avoidable. But that little planning is not getting your will done. In fact, a will is noting but a ticket to the Massachusetts Probate Court. Without probate there is no will as it is your last will that counts. Remember we call it your LAST Will and Testament, it’s the latest date that matters for the probate court in Massachusetts.
An old time Boston lawyer told me the story of a Boston Brahman woman who lived on Beacon Hill. She would come into his downtown Boston law firm each Friday at 10 in the morning for the sole reason of updating her will. Each week she would have a new codicil to her will drawn up and then executed in full few of her lawyer as notary public, two legal assistants as witnesses and her two caregivers. She would make a point of reading aloud the codicil to her will in the presence of these persons. "I, Mary So-So, being of sound mind, blah, blah, blah…..leave my nurse Mary 68% of the funds set aside for my caregivers for exceptional service in the past week and to my nurse Eloise 32% of the funds set aside for my caregivers due to her tardiness in preparing my evening bath."
And apparently this went on for many years as the old dame received excellent care. Her late will was the one that mattered.