Handling the Estate of a Loved One
Overview of The Probate Administration Process
When a loved one dies, those left behind are often left to not only cope with the loss of a loved one, but also to administer their loved one’s estate. Assets not held in a trust--or held in the decedent's name alone--must be distributed through the court process called probate. The county where the decedent was domiciled has jurisdiction of the probate administration.
The probate process involves the court appointment of a personal representative ("PR") to handle the decedent’s estate administration. In Massachusetts, this role used to be known as "executor." In New Hampshire, it is still called an executor (or "administrator"). This is done through a petition. If the decedent had a will, there will be a PR named in it. But oftentimes, as we are seeing more and more with COVID deaths, there is no will. In that case, anyone can petition the court to be named PR/executor, but there is a hierarchical order to who has priority. Along with the petition for appointment, the petitioner must file the original will, death certificate, a list of heirs (and devisees if there is a will), bond, and a military affidavit, among other forms. The petitioner must provide notice to all interested parties and the Medicaid Estate Recovery Unit. Once appointed, the PR is responsible for paying estate expenses; satisfying debts to creditors (or resolve disputed claims); protecting estate assets; and distributing assets. (Depending on the type of probate process, the PR may also be required to file an inventory and accounting and close the estate.) Occasionally, this process is straightforward, but more often there are complicated issues that must be resolved, such as determining which creditors are entitled to priority of payment when limited funds are available, or determining which beneficiaries are entitled to specific distributions through a will.
Massachusetts follows the Uniform Probate Code, but New Hampshire does not.
What are the different types of 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 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 Long Does Probate Take?
The length of probate depends on the type of administration necessary. It can last a couple of months to more than a year. Contested administrations (either with the appointment of the PR/executor or the distribution of assets) will necessarily take longer. And in all cases, creditors have one year to file any claims against the estate.
Do I Need A Probate Lawyer?
No. Anyone can file probate documents, as long as you know which ones to file or the type of probate required. At Holly Lynch Law, we can do it for you or guide you through the process so that you can do it yourself.
Which Assets are Included in a Probate Estate?
Anything owned in the decedent’s name alone at the time of death becomes part of the probate estate. Assets held in trust pass outside of probate and go directly to the beneficiaries of them. Joint bank accounts pass outside of probate, as do retirement accounts that have named beneficiaries. Jointly held real estate passes outside of probate.
How Long Do I Have to Open Probate Administration?
The general rule is that probate administration must be started no later than three years after the date of death (but not sooner than 7 days). However, there are exceptions as provided in the Massachusetts Probate Code, Section 3-108. In New Hampshire, however, probate must be filed within 30 days of the decedent's death.