The loss of a family member is one of the most difficult things we can encounter.
When a loved one passes away, their estate may need to be settled in a court process called probate.
During probate, a personal representative handles administration of the estate. The personal representative is responsible for communicating with heirs, paying outstanding debts and taxes, and then distributing what is left to the beneficiaries.
While this sounds straightforward, it rarely goes as planned. Administering a loved one’s estate often involves disputes between beneficiaries. The Massachusetts probate process is also known for expensive delays, conflict, and bureaucracy.
In Massachusetts, probate usually takes a year at minimum since creditors have one year from the date of the decedent’s death to file claims against the estate. More complex estates will take longer, and can get tied up in probate court for many years.
Probate is a lengthy, exhausting, stressful, and expensive process.
Probate expenses include court filing fees, notification fees, and fees of the executor and attorney. The average cost to probate an estate is around 5% of the estate’s value and takes a minimum of one year to settle.
For those reasons, our experienced Estate Planning Attorneys recommend creating a trust-based estate plan that meets your goals and avoids probate entirely. That way, your heirs can receive their inheritances much quicker and with far less cost.
If it’s too late for planning that would avoid probate, we can still help guide you through this difficult time. Our experienced probate attorneys walk alongside you through the probate court process including:
If you are asked to be a trustee, you should fully understand and know of your responsibilities. If the trust assets are improperly accounted for, you can be held personally liable.
Unfortunately, more often than not, families fight over who gets what and whether all laws have been followed. These fights can result in litigation, expensive lawyer fees, and devastating financial consequences for heirs and the trustee.
With the help of our experienced trust administration attorneys, we can resolve these issues efficiently and amicably. We can guide you through the process if you decide to serve, or recommend the appropriate person to serve on your behalf.
It’s never too late to protect your life’s work. When we sit down with you, we discuss your goals and look into the future to develop a complete plan that protects you for generations to come.
If you or an aging loved one have been putting off making a plan, take action now while you are alive and well, before your family is left behind to suffer the consequences.
At Patrick J. Kelleher & Associates, P.C., we assist seniors and their families in making the tough but necessary decisions regarding their wishes, goals, and being mindful of future long-term care needs.
We would be honored to help you and your loved ones. Click here to get started.
Probate is a legal proceeding that determines how a person’s heirs will receive assets once that person is deceased, either with or without a Will. It will also determine whether the deceased person has outstanding debts or taxes and how they will be handled and paid.
It will essentially resolve any issues that need to be determined when a person dies. It is potentially a lengthy and intense court-involved process. However, suppose you have to handle the estate of someone you loved who passed away. In that case, we are ready to walk alongside you and help you navigate this complicated process.
A personal representative is responsible for communicating with heirs, paying the debts, and distributing what is left. Another name you may hear for this position is executor.
However, the layman’s terminology is simply that this is your helper for your estate.
Your estate may have to go through probate if you have a Will-based plan.
Please know that the size of your estate will affect how that looks for your family. If you do not own a home or any other sizable asset, probate may not be necessary.
However, it is still typically advised to take steps to make sure probate court is avoided due to the messes and stresses that could be involved. Further, the costs of hiring a probate attorney can cause even more financial headaches for your family.
We suggest having a Trust-centered plan instead of a will to ensure that your estate will not have to go through probate.
Typically, the probate process can take a year to a year and a half.
The process usually begins with filing a petition, notifying heirs, and petitioning to appoint an executor if one is not listed in a will.
Then, an inventory needs to be created, and an appraisal for estate assets needs to be done. It also includes settling any estate debt with creditors, paying estate taxes (and filing tax returns), and distributing the remaining assets to the heirs.
Due to the various steps to probate, it is recommended that you have an experienced Elder Law Probate attorney by your side.
We’d love to meet you at one of our live educational workshop or if you need help immediately, contact our office.
Trying to determine the cost of probate is hard to do without knowing what is involved in the estate.
Factors to consider range from the size of the estate to whether issues arise during the probate process. There are also court filing fees and attorney fees that will be assessed. A Probate attorney typically charges by the hour.
It is estimated that the average cost of probate will be approximately 5% of the estate’s value.
First, administrative expenses and tax payments will need to be paid. Next, funeral expenses, medical costs from the last illness that caused the decedent’s death, family allowances, and valid wage claims against the decedent will be paid.
During probate, creditors will be given notice and have the right to pursue valid claims. A personal representative may be able to negotiate with creditors. However, if there are insufficient funds to pay these expenses, then a surviving spouse may be liable.
By avoiding probate, you may be able to prevent dealing with these concerns and keep everything running smoothly for your family.
Yes, if your estate qualifies, it will still need to go through probate even if a Power of Attorney is in place. In fact, the authority granted in the Power of Attorney will end at the time of death of your loved one.
It is essential to have a proper estate plan in place that includes a Power of Attorney but also includes the following important documents:
Suppose your loved one passes away with a Trust in place, and you are involved in handling the affairs after their passing. In that case, you can breathe a small sigh of relief in avoiding the probate process.
However, the Trust will need to be administered. If you are the trustee, then the responsibilities will fall to you to handle any direction the Trust provides. As a trustee, there will be a duty to manage the Trust’s property, funds, and other assets. Further, the trustee is in charge of distributing the assets to the beneficiaries.
The language of the Trust will control how everything is distributed, and an accounting will need to be prepared to show the distributions. Be ready to account for everything, because there may be personal liability if something is unaccounted or improperly accounted for. Also, consider your family dynamics and work on getting ahead of any disputes or issues.
It depends on the “intestate laws” specific to each state. Most people assume that your belongings will go to your spouse if you are married. However, that is not always the case.
We call it the “government plan.” The government plan in Massachusetts states that if you die with children and no spouse, then your children will inherit your estate. If you have children under 18, a conservator will need to be appointed to help, which will be done in probate court. If you have a spouse but no children or parents, your spouse receives everything in your estate.
However, if you have a spouse and children and only children between you and your spouse, your spouse will receive the entire estate. If there are children outside of the relationship with your spouse or if you have parents still alive, then it gets more complicated.
If you have no spouse, children, or parents, your estate may go to siblings or nieces and nephews if those siblings pre-decease you. Depending on your situation, your estate could be split, and families could be torn apart.
It is confusing just reading the criss-cross path of “intestate.” To add more issues with the “intestate” process, suppose your parents inherit from your estate but must enter a nursing home. In that case, these assets can be exposed to Medicaid or cause issues qualifying for Medicaid.
Avoiding the government plan and instead having your own plan wherein your exact wishes can be followed is a better option for everyone.
You can rest easy knowing that there is a perfect way to take care of your pet if you pass away. First, you can make a Trust for your pet. In the Trust, you can list who you would like to take care of your pet.
This is only one step of the process, of course, because the people you choose often may not have the financial means to take care of your pet. Therefore we also suggest you set aside funds or a bank account in your Trust that will go towards the care of your pet.
You can also create a letter of instruction to your trustee to lay out the duties and responsibilities. This can enhance the quality of care and provide you with reassurance that your pet will have a wonderful life once you have passed.