My spouse died and everything goes to me. Do I need to probate the estate?
That depends on what is in the probate estate. The probate estate consists of any assets in the decedent’s name alone that do not pass automatically (outside of probate) to a beneficiary. Examples of assets that pass outside of probate are jointly held real estate, life insurance proceeds, retirement accounts (unless the estate is the beneficiary), and assets contained in trusts. If your spouse had any real property or accounts in his or her name alone, you will have to open a probate administration, but depending on the value, it may not have to be a complex one.
My mother died without a will. Does that mean I must probate her estate?
Most likely, yes. Unless all of her assets are held jointly or pass outside of probate, you will have to open probate to access and distribute any accounts titled in her name only.
Can I use estate assets to pay for the probate fees?
Yes. Probate, including attorney fees, is an allowable expense of the estate.
How do I know what kind of probate I need?
That depends on several factors, such as what assets are in the estate, whether all the heirs can be found, if there is registered land involved (as opposed to recorded land), and if the court will need to supervise the probate. Massachusetts has three different types of probate: an involuntary administration, informal probate, and formal probate. An involuntary probate is for estates worth less than $25,000 (not including one car). An informal probate is usually what most probate cases fall into; it is appropriate when there is an original will, which names a personal representative (“PR”), and there is no objection to that person’s appointment; there is an official death certificate; and all heirs and persons inheriting under the will are locatable. It is a fairly straightforward process. A formal probate is required (among other reasons) if the original will is missing, there is no death certificate, or a person not having priority for appointment wishes to be the PR. If there is real estate involved that is registered land (as opposed to just recorded land), that will also require a formal probate.
New Hampshire, on the other hand, has just two types of probate: regular administration and waiver of full administration. The New Hampshire process is longer and more expensive than in Massachusetts. Most cases will require a regular (full) administration, as the waiver of administration is allowed only when there is only one beneficiary and he or she is the administrator of the estate. (It applies whether there is a will or not.) A regular administration must be used in all other cases.
How much does probate cost?
Probate administration can cost anywhere from several hundred dollars to a few thousand if the estate is complex.
For more answers to questions regarding the probate process, see the services page here.