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The loss of a close family member can be an overwhelming experience. There are emotions of sadness and grief to process, while at the same time, financial and legal issues arise. Often, clients come in to see me for a consultation with just one question: “Where do I start?” Following is my “Top Five” list for demystifying the process:
- Determine whether the deceased had a will. Hopefully, this information will have been shared with family members prior to death. If not, then it is necessary to search the decedent’s home. Information such as bank account statements or letters from an attorney can help locate the will if it cannot be found in the home.
- If a will is found, be certain it is the original and not a photocopy. This is important because the more streamlined probate proceeding, called an “informal” probate, is not available with a photocopy of a will. A formal probate proceeding involving a judge is necessary with a photocopied will, as well as an Affidavit stating that the original will is lost.
- Even if the will is located, a probate proceeding may not be necessary. This is true because the following assets do not pass through probate:
- Jointly owned assets, such as a bank account or a home owned either as joint tenants or as tenants by the entirety (not as tenants in common, however, which requires probate). Such jointly owned assets automatically become the sole property of the survivor upon the death of the first owner.
- Any asset with a named beneficiary, such as a life insurance policy or an IRA. These assets will pass directly to the beneficiary and do not need to go through probate.
- Assets held in a trust.
- Gather a list of assets of the deceased. Probate is only necessary if there are assets held in the sole name of the deceased as of the date of death. Often, with a married couple, all assets are either jointly owned or designate the surviving spouse as the beneficiary. In such cases, a probate proceeding is unnecessary as there are no assets in the decedent’s sole name. However, if the decedent left a will, the Personal Representative named in the will still has a duty to file the will at the Probate Court, even though no action will be taken.
- If there is a will and there are assets in the decedent’s sole name, it is the duty of the person named as the Personal Representative in the will to begin probate by filing the will along with the appropriate petition for either a formal or an informal probate (a previous blog post discussed a third type of proceeding called a Voluntary Administration, which is available for small estates of $25,000 or less). If there is no will, then either the surviving spouse or other close family member will seek appointment as the Personal Representative of the estate by filing the appropriate petition and the estate will be distributed according to Massachusetts intestacy laws.
For help navigating this process, please call our office at (978) 637-2048 or email us at