When a person passes away, the Personal Representative (PR) must administer the estate and eventually distribute the decedent’s assets to the beneficiaries. The court process known as “probate” is necessary when the decedent left real or personal property in his or her name individually or as a tenant-in-common. Any property that was transferred into a trust during the decedent’s lifetime will pass to the beneficiaries without the need for probate.
If the decedent left a will then it must be filed and allowed by the probate court, before the estate can proceed. The PR must properly notify the beneficiaries and heirs of the probate, giving them the opportunity to file an objection. The PR will inventory and value the decedent’s property, pay certain debts and expenses with legal priority, file tax returns, file accounting with the court, distribute the remaining assets to the estate beneficiaries and close the estate with the court. The PR is under a fiduciary duty to administer an estate properly for the beneficiaries and should seek the advice of a probate attorney to guide the PR through the process.
A Voluntary Administration can be filed when the decedent did not own any real property and has probate assets under $25,000.00 and all heir and/or beneficiary assent to the process. The Voluntary Administration is an expedited process that can only be used in limited circumstances.
An Informal Probate can be filed if the decedent had a will that is not likely to be contested, or did not have a will at all, and all heirs assent to the appointment of the personal representative. The Personal Representative will be appointed and can administer the estate in an informal manner without the reporting requirements of a formal probate.
A Formal Probate is necessary in certain situations where there are issues that are in need of the court’s oversight. In a Formal Probate, the court will oversee the administration of the estate and the PR is required to file an inventory and periodic accountings with the court.
A petition for complete settlement must be filed and allowed by the court to close the estate.
Situations requiring a formal probate include:
If a beneficiary or their contests the decedent’s Last Will and Testament
If the will contains a mistake or error
If a beneficiary or their contests the appointment of the proposed personal representative
If the decedent left real property that is registered with the land court, a formal probate will need to be filed for the land court to issue a new certificate of title in the name of the heirs.
Once a trust becomes irrevocable (either after the donor dies or upon other terms), the Trustee has several duties that may include investing and managing trust property for a period of time. The trustee will need to follow the terms of the trust, file tax returns, manage the trust property, make periodic distributions to beneficiaries, and provide the beneficiaries with accountings and reports. Depending on the type and value of the trust assets, it may be advisable for the trustee to engage the services of a trust and asset management company. Our law office in Barnstable County can provide a trustee with direction and guidance as to the proper management of the trust.