It is court action establishing the validity of a will, if there be one, or the administering of an estate through heirs-at-law if there is no will. It is the legal action(s) necessary to finalize the affairs of a decedent.
2. How long does it take during the probate process?
The lawyer’s answer is “it depends.” In Massachusetts, since 2012, there has been the adoption of the Uniform Probate Code. This was designed to streamline the probate process, allow many things to be done administratively, (without the need of a court appearance) and lessen certain requirements in the process of finalizing a person’s affairs (inventories, accountings, newspa-per notices, etc.).
In Massachusetts, there are informal and formal probates. Informal probates are done with heirs, or will recipients, assenting to the allowance of a will, or with someone as administrator if there be no will. Approval to start the process of collecting assets, facing debts, etc. can be done fairly quickly. This office focuses on good relations with the courts so that we can move to get papers validated quickly.
We’ve had estates that took weeks to get approved, sometimes months. Complications with the death certificate, heirs that can’t be found and other factors all make the process more time consuming.
An estate must be kept open for a year. Creditors have that long to file a claim. Depending on the type, detailed inventories and accountings must be provided.
Our office concentrates on the emotional impact on the passage of time throughout this process. Many are going through the grief cycle, others are now letting greed, envy and contention surface. It can be a trying time.
3. What must be done if there is no will?
If there is no will, probate administration is still necessary. It may be a voluntary administration (if the accounts involved are < $25,000 – typically done if the only thing involved is a car or a small bank account).
It may also involve a formal or informal probate. If you wait past 3 years to act when a person dies without a will, there are many complications, restrictions on the administrator, extra costs, etc.
If there is no will, the spouse or acting siblings needs to contact us as quickly as they can. We see more of those cases where the family does nothing for an extended period. Whoever will step forward to administrate the estate will certainly need legal assistance. (Although some come for a free consultation, decide they’ll do it themselves, and they only come back if there has been a mess up).
The key if someone has no will is to act quickly; and the person acting should be able to make a case that they should administrate. Cases without wills often involve sibling discord, or surviving parent-children discord. Our background allows us to be able to explain and help the client face and follow through with that dynamic.
4. Who inherits the property if there is no will?
It is governed exclusively by statute.
If you want to control the distribution of your estate it is extremely important that you have a valid will. If you die without a valid will, you are said to have died “intestate” and your property will be distributed by the courts accordingly to the Massachusetts intestacy laws.
In Massachusetts, if you die without a will the laws of intestacy distribute your assets as follows:
If you are survived by a spouse and children, your spouse takes your entire estate, if all of your children are of your surviving spouse.
If you are survived by a spouse and children but either you or your spouse also has children from another relationship, your spouse takes the first $100,000 plus ½ of any balance of the estate.
If you leave a spouse and a parent but no children, your spouse takes the first $200,000, and ¾ of the remainder of the estate. Your next of kin will split the balance.
If you are survived by a spouse only, with no children or other relatives, the surviving spouse takes all.
If you leave children but no spouse, the children will take the entire estate in shares divided equally among those in the same generation.
If you are survived by your parents, with no spouse or children, the parents take equal shares of the estate.
If you leave no spouse, children or parents shares of your estate then proceed to the brothers and sisters or descendants of deceased siblings divided equally among those in the same generation.
If you are survived by no one listed above, whoever is the next closest to you in kinship takes all.
If you are survived by none of these relations, the estate passes to the commonwealth.
5. How much does probate cost?
The cost to file papers is $390.00. Publication costs can be anywhere from $50-60 to $200. One reason why we preach “get a will” is you save the $500 filing fee for license to sell.
The costs vary from the complexity of what decedent left behind, to the degree of animosity and/or suspicion of the various heirs, if there is real estate, etc.
Our office asks for a retainer based on what would be necessary if all were to go smoothly (2500-3000), with an understanding that time would be charged for if situations require action above and beyond. They can run from $600-$6,000 or more, depending on the cooperation of parties and heirs, whether other counsel is involved, etc.
The fees are not as exorbitant as conventional wisdom, or most gossip would suggest. That doesn’t mean some matters aren’t knock-down fights with enough involved to justify the costs of litigation. This office has had great success in cases where the severity of the situation, the impecunity of the client, or other factors lead us to accept a contingent fee. (a % of what is recovered for client) These have been used by clients from Colorado who was omitted from a will, a California sister who had to deal with a sister who owed her half, but had done nothing for years, to cases involving heirs hoping to get their specific bequest.
6. What happens if someone objects to the will?
If someone objects to a will, it starts a procedure rolling.
An objection must be filed timely. Usually its incident to a petition for formal probate.
The objection then has to be followed up with a detailed affidavit of objections. There’s a pre-file conference before a judge. And the matter can go on all the way to trial. (I have). Or be settled (done that too).
If there be reason for someone to object to a will, this is again one of those matters where time is of the essence. Action and preparation must begin as soon as possible.
No one can realistically object to a will without an attorney, so please let us consult.
7. Do I need to hire a lawyer to probate a will?
In Florida you do. No one can file papers themselves.
In Massachusetts you can, and many do. We get some who’ve tried, had their papers rejected and don’t know now what to do.
If there’s a will, it was drafted by a lawyer. A lawyer should probably get involved. If no will, who in the family knows what needs be done. A free consultation should at a minimum be sought.
8. How do I know if I need a trust or a will?
A trust speaks from the moment it’s signed. A will speaks as of the time of a person’s death.
They are two different instruments done for different reasons. The keys are the amount of potential estate, tax consequences, the motives of the party, etc.
As much as any other, this question needs answers from experienced counsel served in both, and aware of the need to discover the intent of the party in recommending any course of action.