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.