The process of distributing the assets of a person who has died
Probate is the legal process where the assets of a person who has died (referred to as the decedent) are distributed to the decedent’s heirs. If the decedent had a will, it is formally filed with the court and the property will pass as the will directs. If the decedent died without a will, or has an invalid will, the assets are distributed and debts paid according to Massachusetts law. Whether the person died with a valid will (known as “testacy”) or died without one (known as “intestacy”), the process is still supervised by the probate court. The will and accompanying documents are filed with the probate court in the county where the person who died (known as the “decedent”) was domiciled within 30 days from notice of death. If the decedent did not have a will, then a petition to appoint an administrator must be filed. The administrator is usually the surviving spouse or a relative. Once an executor or administrator is appointed, he or she must collect the assets of the estate. The Executor or administrator then notifies the decedent’s creditors and pays the decedent’s debts. The executor or administrator also files the decedent’s last income tax return and estate tax return (if applicable). Finally, he or she will distribute the remaining assets under the terms of the will or by law (where there was no will). Non-probate assets can be distributed to the beneficiary without going through probate. Non-probate assets are assets that are held jointly, in trust, or have a contractual beneficiary (e.g. life insurance policy, IRA). Typical examples include life insurance, jointly held property, annuities, and trust assets.
In order to carry out the decedent’s intent, a typical probate case will involve many or all of the following:
- preparing an inventory of assets
- appraising assets, often a home
- accounting and distribution of the decedent’s assets
- preparing estate tax returns
- paying the decedent’s debts
Probate for Out of State Heirs
We are available to handle probate matters that involve assets in Massachusetts, but the heirs of the decedent live out of state. Please contact us to see if we may be able to assist you.