Probate Administration and Litigation

Probate Administration and Litigation

Probate is the legal process by which property owned by a decedent (a person who has passed away) is distributed to his or her heirs after death. To make the process easier for you and your loved ones, our attorneys can guide you through the probate process and ease the burden of being named the personal representative or executor of a loved one’s estate. In Massachusetts there are three options for probate: voluntary administration, informal probate and formal probate. If a probate must occur, the court allows three years from the decedent’s date of the death to finalize the probate administration.

Voluntary Administration

Voluntary administration is a simplified probate process and is available whether or not the decedent left a will.  To be eligible for voluntary administration, the decedent must have been a resident of Massachusetts and left an estate consisting entirely of personal property valued at $25,000.00 or less (excluding the value of a car) and thirty (30) days or more must have passed from the date of the decedent’s death.

Informal Probate Administration

Informal probate administration is a less formal administrative proceeding and is overseen by a Magistrate of the court instead of a court judge. Informal probate is a shortened process and can be completed more quickly after a decedent’s death. That is because there are no hearings or formal procedures involved and a judge does not have to review or sign an order.

Informal probate is available to an estate unless one of the following circumstances exist:

  • The original last will and testament cannot be found;
  • No official death certificate exists;
  • An heir cannot be found;
  • The person appointed as personal representative does not have priority;
  • There is a spouse, heir or devisee that is incapacitated;
  • Supervised administration is necessary;
  • A minor beneficiary is not represented by a conservator or a guardian; and/or
  • A judge must sign an order or final decree for any reason.

Notice of informal probate must be given to all beneficiaries or interested persons at least seven days prior to the submission of the petition. Publication notice is required within thirty (30) days after the magistrate has approved the petition.

Formal Probate Administration

Formal probate administration is frequently pursued in cases for one or more of the following reasons:

  • To object to an informal probate;
  • The last will and testament is a copy or has handwritten words added (interlineations) or crossed out (deletions);
  • The terms of the last will and testament are unclear;
  • Supervised administration is necessary;
  • A special personal representative needs to be appointed;
  • Interests of incapacitated or minor heirs or devisees need representation;
  • The personal representative does not have priority for appointment;
  • A creditor or public administrator is the petitioner;
  • Informal probate is unavailable for one of the above mentioned circumstances; and/or
  • A judge must sign an order or final decree for any reason.

Formal probate administration is just that, formal. It requires formal notice to be given to all beneficiaries (interested parties). The personal representative’s job is to inventory all of the assets of the estate, give notice to creditors and negotiate payment of the estate’s debt. To notify creditors, the personal representative publishes notice in the local newspaper giving creditors a certain time period to file claims against the estate. It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. Federal estate tax is not due unless the estate is valued at over five million (5.4 million as of 2016). However, in Massachusetts, there is estate tax on assets that are valued at over one million. It is therefore important to plan using trusts if your assets are likely to reach one million or more during your lifetime. Once taxes and debts are paid, the personal representative may distribute the remaining assets of the estate to the beneficiaries named in the last will and testament.

Probate Litigation

Probate litigation occurs inside formal probate administration and can arise for many reasons. The most common reasons for probate litigation are lack of capacity, undue duress or breach of fiduciary duties by a personal representative and/or trustee.

Undue duress occurs often with elderly person(s) and involves a position of trust. For instance, if a non-familial caregiver was named as the beneficiary of the estate a few days prior to that person’s death, family members could be suspicious of undue influence in the execution of the last will and testament. In other words, the caregiver may have taken advantage of the weakening health or dementia of the deceased person in order to infiltrate themselves(s) into a will to the detriment of the rightful heirs. Lack of capacity is often found where a decedent is suspected to not have had the capacity to execute a last will and testament or any subsequent modification of a last will and testament. Breach of fiduciary duty is known as any deliberate fraud or negligence in the accounting or the distribution of estate and/or trust assets and/or failure to safeguard estate assets reasonably and prudently.

Long Knight, P.C. can help you and your family in the probate of family assets or even in a probate litigation claim. If you believe that your loved one’s estate is not being handled properly, or you feel that there may have been undue duress or lack of capacity involved in the execution of the will, contact our attorneys for your complimentary consultation. Long, Knight, Huff-Harris & Hagan P.C. can advise you whether you have a cause of action for probate litigation as well as your rights and remedies. Don’t go through this process alone – call us today!