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Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

Probate

Ugly Sweater Contest Results and Probate Court Delays Persist

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The recent increase in positive COVID-19 cases in the Commonwealth of Massachusetts due to the significantly contagious nature of the latest variant and other factors have led to a reduction of in-person staff at the trial courts, including the probate courts. As ordered by the Chief Justice of the Trial Court, the probate courts have decreased the in-person staff to fifty percent (50%) or less of the total number of staff, and placed staff members on teams that rotate between working remotely and in-person at the office for the health and safety of staff and visitors.  This Order is in effect from January 3, 2022, until further notice. The courts remain open to the public for in-person visits unless they are temporarily closed, which closures are noted on this Massachusetts government website, and this Twitter account.

Why Does This Matter to You?

If you are already experiencing holdups in the progress of a probate matter, please be aware that there may be further delays. Likewise, if you are about to file pleadings (the documents that are filed with the Court asking the Court to take some action) in an ongoing matter with the probate court, it may take much longer than usual to receive the response or documentation requested.  In our experience, where the initial appointment of a Personal Representative of an estate may have taken 3 to 4 months in the past, we are now waiting up to 6 months or longer for this to occur.

What Are We Doing About It?

Once we submit pleadings to the probate court, we track the progress of your case electronically. We also contact the probate court representatives regularly by telephone, video conference and in-person when possible to be proactive in the event there is an issue that may be easily resolved, and to gently but firmly encourage forward movement on your behalf.

What Can You Do About It?

Have patience.  The courts are aware of the frustration and impact caused by the delays as they struggle to address the backlog of cases and meet increased demand while keeping their staff and visitors healthy and safe. 

Also, seriously consider completing your own estate plan that avoids probate by creating and funding one or more Trusts, which will allow your estate to bypass the probate court at your death. 

Now more than ever is a good time to include a Trust as part of your estate plan.  At Samuel, Sayward & Baler LLC, a knowledgeable attorney will explain how a Trust works and the steps you need to take in order to ensure your estate avoids probate at your death.  If probate is necessary, Samuel, Sayward & Baler LLC will diligently work with the probate court to advance your probate case through the administration process as quickly as possible.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement and elder law matters. She is an active member and current President Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA).  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020. 

January, 2022

© 2022 Samuel, Sayward & Baler LLC

Better Late than Never: What Happens When You Wait More than 3 Years to Administer an Estate

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Dealing with the death of a loved one is often a stressful, emotionally draining experience. In the midst of grieving the loss, going through the steps necessary to clear title on Aunt Jenny’s house or ensure that dad’s checking account is taken out of his name is often the last thing a person wants to deal with. Frequently, once the grief is less acute, loved ones will circle back and take the necessary estate settlement steps to ensure that everything is out of the decedent’s individual name, but occasionally this does not happen and assets are instead allowed to linger on in the decedent’s name.

In such situations, there is usually a “triggering event” that causes someone to realize that no action was taken. Maybe everyone was content to let cousin Becky live in grandpa’s house (which he held in his individual name) for a while after his death, but now that she’s moved out everyone agrees it’s time to sell, or maybe Mark decided to check the state’s unclaimed property site (www.FindMassMoney.com, FYI) and on a lark entered mom’s information only to discover mom had a bank account in her individual name that everyone forgot about. Whatever the reason, it’s now been several years since the person died and the question on the table is “What can be done to get access to this asset?”

If the loved one died prior to March 31, 2012, then the answer is likely simple: file for a standard probate proceeding just as would be done if the death occurred yesterday. This is because under the law in effect through March 30, 2012, probate proceedings could be initiated in Massachusetts up to 50 years after a person died. However, on March 31, 2012, the Massachusetts Uniform Probate Code went into effect, substantially overhauling the laws governing probate proceedings in Massachusetts. Among the changes was a drastic shortening of the time limit to initiate standard probate proceedings for those who die on or after that date – from 50 years after death to just three years after death.

Fortunately, this 3-year deadline does not mean that grandpa’s house is destined to stay in his name forevermore, unable to be sold or conveyed ever again. Nor does this deadline mean that the state gets a windfall in the form of mom’s unclaimed checking account. Although the deadline to file standard probate proceedings is three years after death, the law permits a special type of probate proceeding, known as a “late and limited” proceeding, to be filed more than three years after death.

As can be gleaned from its name, a late and limited probate proceeding is, well, limited in its scope. Unlike a standard probate proceeding, where the Personal Representative (formerly known as the Executor) has broad authority to deal with the decedent’s probate assets, including taking possession of them and, in some circumstances, selling them, a Personal Representative in a late and limited proceeding only has the authority necessary to confirm that the assets held in the probate estate are now owned by the decedent’s heirs (if the decedent died without a will) or devisees (if the decedent died with a will).

As an example, a standard Personal Representative generally has the authority to unilaterally sell real estate without the consent of the estate’s beneficiaries. A late and limited Personal Representative, on the other hand, generally cannot sell real estate. Instead, the late and limited Personal Representative would confirm that the real estate is now owned by the beneficiary(ies) of the estate, and the beneficiary(ies) would then have to sell the property.

Of course, the best option is to establish an estate plan ahead of time that avoids probate and having the deceased’s estate go through the probate process at all. If that has not been done, and the deceased owned assets in his or her individual name at the time of death, it is generally better to initiate probate proceedings within three years of death. If that’s not possible, worry not, late and limited proceedings are still available to gain access to assets when necessary.

Francis R. Mulé is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. He is an active member and the Chair-Elect of the Massachusetts Bar Association’s Young Lawyers Division. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020. 

October, 2021

© 2021 Samuel, Sayward & Baler LLC

Probate Administration: It’s a Marathon, Not a Sprint

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“We will be done with all of this soon, right?” That’s the question I often hear when working with a client who has been appointed as the Personal Representative (PR) of the estate of a loved one who has recently passed away. My answer is to view the administration of an estate as a marathon, not as a sprint. You will reach the finish line so long as you put one foot in front of the other, but it may take some time and there will be periods when more of your energy is required depending on the obstacles in front of you during the probate process.

The administration of an estate in Massachusetts typically takes a year or more.  One reason is that under Massachusetts law, creditors have one year from the deceased’s date of death to file a claim against the deceased’s estate for the payment of a debt owed to the creditor, such as an outstanding balance on a credit card. This often means that as PR you will need to carefully manage and hold the majority of the estate assets for at least a year before final distributions can be made to the estate beneficiaries (those inheriting money from the estate).

It will feel like much of your energy will be expended during the first few months of the estate administration when you are marshalling the assets of the deceased. While it may seem tedious and difficult to methodically discover, document, consolidate, and manage the assets of the estate,  you will be fulfilling your fiduciary obligations, and avoid liability to the beneficiaries and creditors of the estate for mismanagement. Your careful approach will benefit you later on when you easily handle other PR responsibilities, such as filing final personal income tax returns, estate tax returns, and fiduciary income tax returns.

All your hard work will pay off at the end of the estate administration process when you account to the beneficiaries by documenting the amounts received by the estate and the expenditures of the estate under your management, and the beneficiaries happily receive distribution of their inheritances from the estate.

Everyone tackles marathons differently, however, in all cases it is beneficial to have support and guidance; training is essential, too. At Samuel, Sayward & Baler LLC we are happy to run the marathon with you, providing support and guidance every step of the way through the probate process. Read more of our articles, attend our seminars, and do not hesitate to contact us when it is necessary for you to embark on the probate administration journey – it will seem like you are crossing the finish line in no time at all.

November, 2018

© 2018 Samuel, Sayward & Baler LLC

Ask SSB

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Q:       My mom passed away a few months ago.  She had a will that leaves everything to me and my sister equally.  That means we don’t have to go through probate, right?

A:        I wish I could get a hold of the person who started this tale: “If you have a will, you do not need to go through probate.”  This is one of the most common misconceptions among our clients.  I am happy to dispel this rumor once and for all!

The concept of ‘going through probate’ actually has nothing at all to do with whether or not you have a will.  A will is simply a document that outlines who you would like to receive your assets when you pass away.  A will states who you would like to serve as your personal representative (formerly known as executor), whether you have specific instructions about the distribution of certain assets and if you have minor children, who you would like to serve as guardian for those children.  If you do not have a will, the Commonwealth of Massachusetts has one for you.  This is called the intestacy statute.  However, you may not agree with what the intestacy statute says—sometimes its terms are surprising.  Having a will overrides the intestacy law and allows you to state clearly what your wishes are once you pass away.  It can also make the probate process run more smoothly as it allows you to make certain elections in the document (such as a waiver of surety on a bond or license to sell real estate) which can often expedite the whole process.

The answer to your question lies not in the having or not having of a will but rather what assets a will controls and what processes you have to go through to gain access to certain assets when a person passes away.  This is where probate comes in.  A will only has control over probate assets—these are assets that are held in the deceased person’s sole name with no joint owners and no named beneficiaries.  Most IRAs, 401Ks, life insurance policies and investment accounts give the owner the ability to name a beneficiary.  This beneficiary designation takes priority over the terms of the will with respect to that particular asset.  Even better, the beneficiary often has immediate access to the asset upon providing a death certificate.  Likewise, assets titled in the name of a trust are non-probate assets which pass according to the terms of the trust and not the decedent’s will.  Therefore, these assets are not subject to the probate process either.

So, the act of going through probate is only required if the deceased person has probate assets (remember—assets with no joint owner, named beneficiary and not held in a trust).  The will is the roadmap that determines how the probate process will play out but having a will, in and of itself, does not avoid probate.  There you go—this myth is BUSTED!

A Panoramic Primer on Probate: Part One

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In 2012, the Commonwealth of Massachusetts adopted the Massachusetts Uniform Probate Code which outlines the laws and procedures for probate proceedings for deceased residents of the Commonwealth.  “Probate” is the administrative process by which assets of a deceased person’s estate are accessed and transferred to the recipients of those assets specified in the deceased’s Will, or if there is no Will, to the heirs of the deceased as determined by law. The person with authority to access and transfer the deceased’s assets is an appointed “administrator” of the estate called the Personal Representative, formerly known as the Executor.  Probate administration includes identifying all the decedent’s probate assets (known as “marshalling the assets”) and debts, filing taxes and paying estate expenses, and ultimately distributing the estate assets.

Probate typically takes at least one (1) year from the deceased’s date of death because creditors have that amount of time to file claims against the estate to collect on the deceased’s debt. Additionally, the complexity of the estate assets, expenses, and relationships between the surviving loved ones can lengthen the time it takes to completely administer an estate. Probate can be avoided through the preparation of an estate plan that best fits your needs and goals.

In general, probate assets are any assets (checking accounts, savings accounts, investment accounts, stock, savings bonds, tangible personal property such as furniture, jewelry or a vehicle, and real estate) owned in the decedent’s individual name which do not designate a beneficiary or co-owner.  In Massachusetts, the types of estate assets, their values, and the family dynamics inform which one of the three main avenues of probate are appropriate.

  • Voluntary Administration:

Voluntary Administration is the simplest, quickest, and least expensive probate process. If a decedent’s estate consists of a vehicle and other tangible personal property and financial accounts valued at no more than $25,000.00 (in addition to the value of the vehicle), and all of the decedent’s loved ones are competent, reasonable, and communicative adults, then a voluntary administration is the favored option.  The appointed Voluntary Personal Representative has limited authority to receive payments of debts due the estate, access and receive the identified tangible personal property and financial accounts, and sell or distribute those estate assets after the payment of outstanding estate expenses and debts. A Voluntary Personal Representative does not have authority to administer real estate property. There is a filing fee of $115.00 to file the Voluntary Administration Statement with the Court.

  • Informal Probate:

Informal Probate is the amenable “middle child” of probate and accommodates a wide variety of situations.  If the decedent’s estate is over $25,000.00 in value, the probate options are immediately narrowed to informal and formal probate.  Informal Probate is commonly a good choice if all of the decedent’s loved ones have those qualities mentioned above, the estate has a number or variety of financial accounts or similar assets, and when the estate owns real estate.  The appointed Personal Representative of an informal probate has full authority to take action in accordance with the laws of Massachusetts, which includes selling real estate. There is a filing fee of $390.00 to file the initial Petition for Informal Probate pleadings with the Court and obtain “Letters of Authority” appointing the Personal Representative.  Note that there are additional fees to publish notice of the pleadings in the decedent’s local newspaper as required under the laws of Massachusetts.

  • Formal Probate:

Formal Probate is the most expensive process and takes the most time relative to the previous options. Formal probate is required if the estate owns real estate that is “registered land,” if an heir’s residence is unknown, or has since died or is incapacitated due to physical or mental disability. It may be warranted when the decedent’s loved ones have poor to nonexistent relationships, or in the event there are numerous or unusual estate assets to probate. The appointed Personal Representative has full authority to take action in accordance with the laws of Massachusetts, which includes selling real estate. There is a filing fee of $405.00 to file the initial Petition for Formal Probate pleadings with the Court and obtain “Letters of Authority” appointing the Personal Representative. Notice of the pleadings must be published in the newspaper at additional cost.

Note that the above filing fees do not include the fees to provide associated legal advice and preparation of the required probate pleadings.

If you are the loved one of a family member who recently passed away, it is important to carefully consider your family member’s assets and your family’s dynamics to determine the best avenue to properly probate the estate. Working together with a knowledgeable attorney to select the most beneficial option and navigate the probate process will ensure the process goes as smoothly, quickly, and cost-efficiently as possible.

November 2017

© 2017 Samuel, Sayward & Baler LLC

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

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