What is Probate?
The term "probating an estate" refers to the legal process of appointing someone to gather the deceased's assets, paying the final debts and distributing the remaining assets.
The process of probating an estate is set up to assist in the orderly transfer of a person's estate, regardless of whether a person dies testate (with a will) or intestate (without a will). The easiest way to understand the probate process is that it is designed to (1) ensure your final debts and expenses are paid and (2) transfer your assets to your beneficiaries. If there is a will, the court will first determine whether the will is valid, and if determined valid, the court will appoint the personal representative named in the will (in certain circumstances a different personal representative be appointed). Once appointed, the personal representative gathers the estate property, ensuring that there are sufficient assets to satisfy the final debts and expenses, and, once the debts are satisfied, distributes the probate property either according to the will or in the absence of a will, by the intestacy statutes. (One caveat: not all property passes through probate, some property - known as non-probate property - passes "by operation of law," i.e., by joint ownership).
Current law affects the requirements for wills, the ability to effectively disinherit children, and the calculation of intestate estates, it is the changes in the procedure for estate administration that are of most interest.
Under the current law, an estate may be opened either informally or formally. Estates that are relatively routine and involve no controversy will generally be administered through informal probate, which may be sought in both testate and intestate estates. In general, a person seeking informal probate must give at least seven days notice of the petition to the heirs and those named in the will. If the petition is satisfactory, then the informal probate and appointment will be granted. After the appointment, provided that no interested party requests intercession by the court, the personal representative will administer the estate virtually free of court supervision. Closing the estate can be accomplished by simply filing a sworn statement with the court that debts, expenses, and taxes have been paid and distributions have been made to the persons entitled to them.
Alternatively, where an estate is valued at $25,000 or less (excluding the value of a motor vehicle), and the decedent was a Massachusetts resident who owned no real property at the time of their death, an interested person may file a Voluntary Administration Statement.
Dying Intestate (without a will)
Prior to the enactment of the Massachusetts Uniform Probate Code ("MUPC"), distribution of a decedent's real property followed a different pattern than distribution of the decedent's personal property. Now, under the MUPC, any property (real or personal) not disposed of by an individual's will passes to the decedent's heirs in the same manner. The basic distribution schedule is as follows:
1. A surviving spouse receives the whole of the intestate estate, if the decedent left no surviving descendants and no parents or if the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has no descendants who are not descendants of the decedent.
2. The surviving spouse receives the first $200,000 plus three-fourths of the balance if the decedent left no surviving descendants but a surviving parent.
3. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent's surviving descendants are also descendants of the surviving spouse but the surviving spouse has one or more other descendants.
4. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent has one or more surviving descendants who are not descendants of the surviving spouse.
5. The intestate estate not passing to a surviving spouse passes to the decedent's surviving descendants by representation (per capita at each generation) or, if none, to the decedent's surviving parents or, if none, to the parents' surviving descendants or, if none, to the decedent's surviving next of kin.
Dying Testate (with a will)
There are many reasons why a person should create a will, including naming a personal representative (formerly known as an executor/executrix), ensuring that specific property is distributed to specific individuals, and ensuring that certain individuals do not receive any of the decedent's property.
The MUPC makes many changes to the judicial landscape in which wills are created. The most significant changes involve (1) memoranda (i.e., separate lists) directing the disposition of tangible personal property, (2) additions to a trust, (3) negative disinheritance, (4) omitted descendants and spouses, and (5) divorce. Additionally, the MUPC makes significant changes concerning the rules of construction for wills. Rules of construction are the processes by which the meaning of an ambiguous provision of a statute or written document is determined.