Who Is Eligible For a Simplified Probate in Massachusetts?
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Who Is Eligible For a Simplified Probate in Massachusetts?
When someone dies in Massachusetts, any assets that the deceased owns must be distributed according to the wishes of that person. If there is a will, then the assets are eventually distributed according to the instructions in the will, minus debts owed to creditors, the cost of funeral expenses, medical treatment prior to death etc. There may also be shared assets which must be calculated before the net value of the deceased’s share is determined for distribution.
Death without a will (referred to as ‘dying intestate’) is more complicated, as then intestacy rules come into play. Massachusetts intestacy rules are similar to many other states and place all potential beneficiaries into a hierarchy which then determines how eligible assets are distributed.
Much of the work needed to be done after a death is the responsibility of the personal representative (also known as the executor). This may be someone named in the will before death, appointed by a probate court if there was no will, or may be a decision by someone who was related to the deceased after his/her death in a simplified probate process as described in more detail below. If a person dies intestate, the surviving spouse typically becomes first choice as executor, while any surviving child may be appointed if the spouse has also died or the deceased was no longer married.
The purpose of probate
One important process that all personal representatives must deal with is probate. This is basically a waiting period used to ensure that all potential creditors or beneficiaries get a chance to make a claim on the deceased’s assets, even if they are not mentioned in the deceased’s will or there is any record of a debt. Probate must be publicly announced so that interested parties are informed. Massachusetts law insists that probate should be completed within three years of a person’s death, although typically probate is completed within 9 months to a year of death. In some cases, a much more simplified probate process can take place which makes it easier for small estates to be distributed to creditors and beneficiaries. The following is a description of eligibility for a simplified probate process in Massachusetts.
The simplified probate process
Simplified probate is available for small estates. The definition of what a small estate is as follows.
- a) where the deceased had no assets in real estate such as a home or share of a home and all other remaining assets, apart from the value of a single motor vehicle, amounted to no more than $25,000.
- b) when the combined value of the deceased’s assets (including real estate) minus debts (legally termed ‘liens and encumbrances’) is no more than the total value of property determined to be exempt from a claim by creditors), plus expenses due to the funeral, medical treatment prior to death and the cost of probate administration.
In most cases, a personal representative who files for simplified probate will be able to distribute the eligible assets much more quickly than would be the case if the normal probate process was necessary.
Who is the personal representative in simplified probate?
For situations in the first category any person who has had a strong relationship with the deceased, typically a spouse or other family member, but not restricted to these categories, may file for simplified probate through the court and offer to be appointed as personal representative.
In the second category, the court will appoint a personal representative. This may still be the surviving spouse or other family member or another person. This representative can immediately go about paying any debts and distributing assets to beneficiaries according to the will, if there is one, or according to intestacy rules.
The tasks of the personal representative in simplified probate
The tasks of the personal representative depend on the relevant category for which simplified probate is sought.
In the first category, an affidavit or sworn statement is filed with the court. A copy of the death certificate and the will (if any) is also attached. The affidavit includes the following information about the representative, the deceased and assets to be distributed.
- the name and address of the personal representative;
- the date of birth of the deceased;
- the name and address of the deceased;
- the relationship between the deceased and the personal representative;
- details of anyone who shared assets with the deceased, including their names and addresses;
- names and addresses of beneficiaries as stated in the will (if any);
- a full list of assets and their value;
- a statement confirming that the personal representative will act according to state laws and act as the personal representative.
Once a copy of the affidavit has been issued by the court this serves as proof of responsibility for administering the estate. The personal representative then pays any debts, including any funeral expenses, medical treatment prior to death, etc. and distributes the remaining assets to the beneficiaries in accordance with the will or intestacy rules.
For the second category, a sworn statement must also be provided by the personal representative. This is less detailed than that for the first category as in most cases debts and asset distribution can occur almost immediately after a personal representative has been appointed. The statement must include the following information:
- confirmation that the assets to be distributed are less than the value as described above;
- confirmation that debts have been paid;
- confirmation that assets have been distributed according to the will or intestacy rules;
- confirmation that the closing statement has been sent to all known creditors and beneficiaries.
Should you have any questions, please contact the Law Offices of Richard Mucci for a free initial legal consultation.