What is probate?

• Probate is the court supervised process that takes place after someone dies to settle his or her estate.The two main functions of probate are:
  • legally transfer title of certain assets to the appropriate beneficiaries
  • to determine who will oversee the distribution of the assets. When a person has completed a will, his or her assets are distributed according to the terms stated within the will.

  Probate generally occurs in the state where the decedent lived at the time of death, even if he or she has only lived there a short time. One exception is for real estate, which is always probated in the state in which it is located.

What assets are not subject to the probate process?

• Property that is not subject to the probate process is called nonprobate property. Nonprobate property includes assets that are held in a way that the very terms of ownership dictates where the property will go after you die. In other words, the document that establishes ownership includes a provision that designates who will receive the property after the owner’s death. Examples include:
  • Life insurance policies
  • Retirement accounts
  • Assets held in joint tenancy with survivorship rights
  • Assets with transfer on death (TOD) designations
  • Assets with payment on death (POD) designations
  • Interests in trusts

If someone dies without a will, what happens?

• When a person dies without a will, the Probate court must decide how his or her assets are to be distributed. The distribution of property is governed by Massachusetts law, under which the decedent’s next of kin usually inherit the property. The major pitfalls of dying without a will are:
  • the decedent’s personal wishes regarding who receives particular property may not be fulfilled
  • the decedent did not take maximum advantage of tax-saving mechanisms.

  The same results can apply when someone has left an invalid will. In order to probate the estate of a relative who died intestate, you must generally obtain authority from the Probate Court to distribute the decedent’s property, depending on the type of property left in the estate.

Who is responsible for probating an estate?

• If there is a will, the executor, named by the decedent in the will, is responsible for probating the estate. If there is no will, or the will fails to name an executor, the probate court will appoint someone (known as the administrator) to handle the process. The administrator is usually the closest adult relative.

What assets are subject to the probate process?

• Property that is subject to the probate process is called probate property. Probate property includes assets that the deceased owned individually at death and that have no expressly named beneficiaries.Examples include:
  • Stocks
  • Personal property held individually, such as an automobile
  • Cash

Do all assets go through probate?

• No. Certain property is held in a way that the very terms of ownership control where the property will go after you die. Such property is called nonprobate property. An example of nonprobate property is a life insurance policy; you specifically state in the policy who will be paid after your death, so it is not controlled by your will.

What do I do if I’m named as an executor in someone’s will?

• If you are named as an executor, it is your choice to serve or decline to serve. If you decline to serve and there is no alternative executors named in the will, the court will appoint someone else. If you choose to serve, you should contact an attorney, who can help you file the appropriate petition papers in Probate Court. You will then have to wait until you are approved by the Probate Court before you can officially act as executor.

What is a breach of fiduciary duty?

• A fiduciary duty refers to the obligation of individuals in certain capacities to treat others equitably and honestly, and to act in their best interest. Such a duty is imposed on individuals such as: trustees, executors or administrators of an estate, and guardians. A number of different acts can be considered a breach a fiduciary duty, including: negligence, fraud, or failure to perform.

On what grounds can a will be challenged?

• There are five grounds that a will can be held invalid on:
  • Undue influence – this ground asserts that a third party coerced the testator into creating the challenged will
  • Mental Incapacity – this ground asserts that the testator was mentally incapable of understanding the significance of creating the challenged will
  • Will formalities were not followed – this ground asserts that the challenged will was not executed in compliance with the law, perhaps due to the fact there were no witnesses, or that the testator did not actually sign the will
  • Subsequent Revocation – this ground asserts that the challenged will was revoked, either by a more recent will or by operation of law (for instance: a subsequent marriage makes any prior will null and void)
  • Fraud or Mistake – this ground asserts that the testator was deceived by a third party by a misrepresentation, and the challenged will would never have been created but for that misrepresentation.

What are the types of probate?

• There are two types of probate: small/informal and large/formal. The type of probate is determined by the size of the estate. A large estate requires inventory, accounting and court petition to sell the property, where a small estate does not.

What assets are subject to creditors’ claims against the decedent?

• Generally, assets the decedent owned individually at death are subject to creditors’ claims

Can I challenge a will if I think it is invalid?

• If you think someone’s will is invalid, you may have the right to challenge the will. In order to challenge a will, you must have “standing.” To have standing, you must have a legal interest in the will being probated; individuals such as spouses, parents, children and other family members have standing in a person’s will. If you have standing, you should seek out the advice of an attorney with litigation experience to help you assert your rights.

How can I defend a will that someone else thinks is invalid if I think it is valid?

• If someone challenges a will being probated, you may have the right to defend the will. In order to defend a will, you must have “standing.” To have standing, you must have a legal interest in the will being probated. If you have standing, you should seek out the advice of an attorney with litigation experience to help you assert your rights.