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IS IT ALWAYS NECESSARY TO
PROBATE AN ESTATE WHEN SOMEONE DIES?
When a
person dies, unless all of his or her property passes directly to
others, such as jointly owned real property, joint bank accounts, and
life insurance that is payable to a named beneficiary, his or her
estate is subject to probate under the Massachusetts state
laws. Any proceedings related to a decedent's estate would take
place in the Probate & Family Court in the county in which the
decedent lived at the time of his or her death.
It is necessary to probate an estate in order to collect the decedent's
probatable assets, protect and preserve the assets, pay all of the
decedent's debts and taxes, determine who is entitled to such assets,
and distribute the property to them.
If the decedent had a will, the original will, and a certified death
certificate, must be filed in the Probate Court within thirty (30)
days of the date of death. It is the responsibility of the
person who has custody and/or possession of this will to insure that
the will is filed in a timely manner. In the event that all of
the decedent's assets are owned jointly with another, such as a
surviving spouse, a probate of the decedent's estate will not be
necessary, as all of the assets are held jointly. Nonetheless,
the will and death certificate must be filed with the court. If
the decedent's probatable assets, that is any assets that are in his
or her name only, exceed $15,000 in value, then a Petition to Probate
the Will must accompany the filing of the original will and the death
certificate. This petition is a formal request to have the
Court allow the will, and appoint the executor/executrix named in the
Will. If the decedent's estate is small, that is, it does not
exceed $15,000, a Petition for Voluntary Executor may be filed along
with the death certificate and will.
If a person dies without leaving a will, he or she dies
intestate. However, an estate may still need to be
probated. In the event the decedent's assets exceed $15,000
and/or there are assets involving real property, a Petition for
Administration, requesting the appointment of an Administrator, must
be filed within thirty (30) days of the date of death, accompanied by
an original death certificate. A Voluntary Administration is
available for a small estate in which there is less than $15,000.
A certified death certificate must also be filed with the Petition
for Voluntary Administration. Occasionally, there are cases
whereby there are no probatable assets, but there may be a need to
obtain documents, transfer stock ownership, and/or to otherwise handle
the affairs of the deceased. If there is such need, despite the
fact that there are no assets, it may be necessary to file some type
of action in the Probate Court, in order to obtain court permission
to be named the representative of the estate.
While not directly related to the probate of an estate, there are
some caveats for anyone who is named as either an executor,
administrator, or someone may be in possession of either the will
and/or the property of the deceased. Anyone who dies in Massachusetts
and owns an interest in real property should be aware that there is
an automatic lien against the property on behalf of the Department of
Revenue. Although this lien is not actually filed in the
Registry of Deeds, it may cause problems in the future. This
"lien" remains on the real property for ten (10) years, and
is removed only by filing an affidavit by the Executor,
Administrator, or person holding the property indicating that there
are no state or federal taxes due on the decedent's estate.
Additionally, if there are or were taxes that were incurred by the
estate, once those have been paid to the Department of Revenue and/or
the IRS, a release will be forthcoming and may be filed at the
Registry of Deeds.
It is important to determine early on what procedures and/or filings
need to be completed following someone's death. Occasionally,
there are emergency situations that need to be addressed to secure
the assets. A consultation with an attorney is highly
recommended, to obtain advice and assistance to insure that the
personal representative, that is the Executor or Administrator,
follow and comply with all applicable Probate Court Rules.
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