PROBATE & ADMINISTRATION SERVICES

PROBATE LAW

By Attorney Lynda L. Saracusa

1. WILLS AND SETTLEMENT OF ESTATES IN GENERAL

2. EXAMPLES OF COURT PROCEEDINGS

A. VOLUNTARY personal representative PETITION

B. FORMAL VS. INFORMAL PROBATE OF WILL & APPOINTMENT OF PERSONAL REPRESENTATIVE

• FORMAL PROBATE OF WILL

• INFORMAL PROBATE OF WILL

• SUPERVISED VS. UNSUPERVISED

C. FIDUCIARY DUTY & FIDUCIARY BONDS

D. MASSACHUSETTS ESTATE TAX LIENS

If you die owning property alone and you don’t own it jointly, paperwork must be filed with the Probate Court in Massachusetts to appoint a representative of the deceased person`s assets who has the authority to transfer it to the appropriate named persons in a will or by operation of law to your heirs.

If you die without a will you are said to have died “intestate.” If you have no will, your property will go to your heirs as spelled out in the Massachusetts Intestacy Statute. Your closest heirs will be the recipients.

Your estate may consist of personal property (such as cars, bank accounts, cash, checks, investments, bank accounts, mutual funds, jewelry, valuable collections or an insurance policy with no named beneficiary) or real estate, (whether unimproved land or something with a house or other buildings or improvements located on it).

A fiduciary or Personal Representative (formerly known as an Executor in Massachusetts) of the estate must request appointment as Personal Representative (or administrator) from the Probate Court prior to being able to conduct business in behalf of the estate or the decedent.  The representative even if “named” or nominated in a will has no legal authority until officially appointed by the Probate Court.

Most commercial businesses such as a bank or investment broker, require official current documentation from the Probate Court prior to permitting a person claiming to be the Personal Representative to act on behalf of the estate and access information or money.

This prohibition on dealing with the property of the decedent even extends to checks made payable to the decedent alone or in the name of the estate.   

The documentation from the Probate court that authorizes the Personal Representative to act for the estate is called Letters of Authority.

VOLUNTARY PERSONAL REPRESENTATIVE PETITION

If your estate is small, a simpler procedure is available to settle your estate. Smaller estates with a value of up to $25,000.00 in personal property excluding the value of one automobile owned by the you can be settled by a procedure known as Petition of Voluntary Personal Representative. There must be no real estate owned by you at the time of your death.

The person named in the will to be the Personal Representative is an appropriate petitioner for a Voluntary Petition. Massachusetts law sets out a list of other persons entitled to file the petition in the event of absence or prior death of a named Personal Representative.

This procedure is a simpler, faster and less expensive method to settle a small estate. The paperwork and other filing requirements are less complicated but if the total estate exceeds the dollar limit of $25,000.00 by additional assets which are discovered during the course of administration, the regular lengthier Informal or Formal Probate would be required to settle the estate.  

(See further on for more information about Informal Probate and Formal Probate requirements.) 

The petition for Voluntary Personal Representative must list all the heirs of law of the decedent and parties who would take the property if there was no will. A brief inventory of the decedent's property is included as part of the petition. All parties of interest are entitled to actual notice of the petition.

A notice published in the local newspaper is another requirement to notify the general public and other parties of interest, such as creditors. 

Sending interested parties a copy of the citation (notice) published in the newspaper by certified mail is proper. The original will, (if there is one) signed by the decedent must be filed with the petition and a certified death certificate. A filing fee ($115.00) is required but no bond is necessary with a Voluntary Personal Representative petition.

INFORMAL PROBATE OF WILL & APPOINTMENT OF PERSONAL REPRESENTATIVE

DECEDENT DIES OWNING:

a. TOTAL PERSONAL PROPERTY EXCEEDING $25,000.00

b. SOME PART OF THE ESTATE IS COMPRISED OF REAL ESTATE

All forms are available online or from the Probate Court.  The estate may be supervised or unsupervised by the Court depending on the directives in the will, or by agreement of the parties of interest or heirs at law, if circumstances warrant it.

The following forms and documentation are required to begin the process:    

• Informal Probate Petition (Form MPC 150)

• Surviving Spouse/Children/Heirs at Law form (Form MPC 162)

• Devisees Form (Form MPC 163)

• Original will

• Certified copy of Death Certificate

• Notice of Informal Probate & Return of Service ((Form MPC 550)

• Order of Informal Probate of Will and/or Appointment of Personal Representative (PR) (Form MPC 750)

• Fiduciary Bond (Form MPC 801)

• Military Affidavit (Form MPC 470)

The following forms and documentation MAY be required in addition to the above items:

• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (Form MPC 455)

• Affidavit - as to cause of death (Form MPC 475)

• Affidavit of Domicile (Form MPC 485)

• Affidavit of No conflict of a Conservator who is also an heir or devisee

• Proof of Guardianship/Conservatorship if any of the heirs or devisees is under a disability or is a minor.

The fully completed and signed required forms and documentation are filed with the Probate Court along with the filing fee. 

The petition form (Form MPC 150) must include the residence of the Decedent and the name and address of the Personal Representative. The petition contains a certification by the petitioner (signer and lawyer if any) that a copy of the petition has been sent to the Department of Health and Human Services by Certified Mail.  This is to ensure that if the decedent was a recipient of benefits under the Medicaid (or MassHealth) program the appropriate agency is notified and can enforce its claim for reimbursement.

The SURVIVING SPOUSE/CHILDREN AND HEIRS form (Form MPC 162) lists all the heirs at law of the deceased person of the decedent with all their contact information and relationship to the decedent.

The DEVISEES form (Form MPC 163) lists all the persons who are named in the will to receive property from the Decedent.

A MILITARY AFFIDAVIT signed by the petitioner indicates whether any of the heirs at law or parties of interest are currently in the military service and entitled to special consideration or representation, is also required.

In addition to a FIDUCIARY BOND, (See below for more details.) an INVENTORY is optional in an Informal Probate.  This would list all real estate and personal property at date of death values and would account for all funds and property received by the Personal Representative.  All values listed in the inventory are as of the date of death of the decedent.

A notice informing the general public of the petition about to be filed must be published in the local newspaper. All the parties of interest are entitled to receive actual notice of the petition.

The notice will contain a deadline, also known as the return day, by which time any objections to the allowance of the will as the valid last testament of the deceased or the petitioner being appointed as the Personal Representative of the will, must be filed. Once the return day has passed, if no objections or appearances are filed by any parties of interest, the return of service (proof of publication and mailing as required by the Court) the appointment can be allowed or approved by the Court.  Once the Return of Service is filed with the Court, the petition for appointment can be allowed by the Court and the Letters of Authority are issued by the Court.

The Court will issue a Letters of Authority or a Certificate of Appointment which is proof positive of the representative capacity of the Personal Representative. The Personal Representative can then proceed to follow the instructions from the decedent in the will using the Letters of Authority.

PROBATE OF WILL & APPOINTMENT OF PERSONAL REPRESENTATIVE

A FORMAL PROBATE requires approval by a judge in the Probate Court.  It may be supervised or unsupervised by the Court depending on the directives in the will, if circumstances warrant it or what is requested by the Parties of Interest.  

A Formal Probate is required if:

• Informal Probate is not available

• The original will was lost, destroyed or is otherwise not available

• The will has handwritten changes, additions or crossed out words.

• No official death certificate is available

• The whereabouts of any heir or devisee (person named in the will) is unknown.

• The Petitioner (Person requesting appointment) does not have priority to be appointed by the Court.

• Any heir or devisee is incapacitated, under a disability or is a minor and not represented by a guardian.

• The Personal Representative is a creditor of the estate or a public administrator.

• An heir or devisee has since died and is not represented by a Personal Representative

• Supervision of the estate by the Court is required; or

• An order or decree must be signed by a judge for any reason

FORMAL PROBATE FILING FEES:

Current filing fees are a total of $405.00, $375.00 for the petition filing fee including all required forms and documents, $15.00 surcharge to assign a Docket (Court case number) and $15.00 for the Legal Notice (Citation) to be published. The $405.00 also includes the cost of court issued Letters of Authority, but not the publication costs for the Citation.  

Court Fees for a petition by a Public Administrator are lower.  

WHEN WOULD FORMAL PROBATE BE NECESSARY?

The Formal Probate process can accomplish the following:

• Submit the Decedent’s will to the Court and have the Court identify (determine) the heirs

• Make a determination that the Decedent died intestate (without a will) and have the Court identify (determine) the heirs

• Appoint a Personal Representative or a Public Administrator

• Appoint a Special Personal Representative temporarily until the appointment of a Personal Representative

The petition may also request:

• Previous Informal Probate petition be set aside

• Stop Informal Probate which is pending

• Confirmation of a prior Informal Appointment

• A determination of the decedent’s heirs and an adjudication of a valid will are only made in a formal probate.

Formal Probates require an inventory and accounting to be filed with the Probate Court. 

FIDUCIARY DUTY and FIDUCIARY BONDS

A fiduciary is a Personal Representative, administrator, guardian, conservator or trustee who owes a duty or responsibility to the estate or ward on whose behalf they were appointed. A Fiduciary Bond is submitted by the fiduciary to ensure that he or she will properly and completely carry out the duties for which appointed.

There are bonds with sureties and bonds without sureties. Sureties (guarantors) can be either personal or corporate sureties. The sureties guarantee that the fiduciary applying to be appointed, will properly perform all the duties required to settle the estate, not abscond with the money, and they are accountable and can be sued with the fiduciary if something along those lines does happen.

There are two acceptable but different types of fiduciary bonds with sureties based on the type of sureties provided. The sureties may be personal (individuals) or corporate (purchased for a fee from a surety bond company.)

If there is a provision in the will for an exemption from the fiduciary giving sureties then a bond without sureties is acceptable. If all the parties of interest assent, sureties may be waived.  Absent any provisions or waivers of sureties, a bond with sureties is required. The bond is approved at the time the petition is allowed by the Court.

The bond must recite a penal sum equal to one- and one-half times the estimated amount of personal property or at least a minimum of $100.00 if there is no personal property.

3. MASSACHUSETTS ESTATE TAX LIENS ON REAL ESTATE

Estate Tax Liens: Release procedure and exemptions

When a person dies owning real estate in Massachusetts by operation of law, an estate tax lien attaches to the property for up to ten years or until the lien is released. This is the case even if there was a joint tenancy or a tenancy by the entirety which vests title to the property in a surviving owner. The lien can be released by the filing of an estate tax return (Form M-706) with the Massachusetts Estate Tax Bureau of the Massachusetts Department of Revenue and an Estate Tax Lien Release (Form M-792) or the party in possession or the estate representative can sign and record an affidavit stating no tax was due and no estate tax return was due for the estate.

With the present Massachusetts estate tax exemption for persons dying in 2019 up to $1,000,000.00, unless the decedent's estate exceeds this amount there will be no tax due. The amount of the federal estate tax exemption in 2019 is $11,400,000.00. If no affidavit is filed an Estate Tax return must be filed in order to remove the lien from the property even if the estate is below the exemption. The property cannot be sold free and clear of the lien until it lapses or is released by recording an estate tax lien release or Massachusetts form M-792. If more than ten years has passed since the death of the decedent, the Massachusetts Estate tax lien is dissolved by operation of law. No estate tax lien release is required.

The person responsible for filing the tax return is the owner in possession of the property or the Personal Representative or administrator of the estate. The present amount of exemption for Massachusetts Estate tax is $1,000,000.00 for decedents dying in 2019. For Federal Estate tax purposes, the tax exemption in 2019 is $11,400,000.00.  See chart below for annual exemptions for Massachusetts and Federal Estate Taxes. 

FEDERAL ESTATE & GIFT TAX STRUCTURE        

**Unified Credit

PROBATE & ADMINISTRATION SERVICES