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MA Estate Planning Law (Wills/Probate) Questions and Answers

Welcome to our Massachusetts Estate Planning Law Forum. Feel free to post questions, answers, or comments about wills, trusts, guardians, probate, and other MA estate planning issues.  If you need professional legal advice, please use our Attorney Directory to find a MA estate planning attorney.

Have a question? Use our SEARCH feature, below, to find your answer.  For example, if you have a question about using a Medicaid planning trust in estate planning, simply enter one or two key words, such as: Medicaid trust

Massachusetts Estate Planning Law Basics

Before we get to the forum, we’d like to present some basic information about estate planning in Massachusetts. Although estate planning is a broad subject that involves many areas of the law, including taxation, insurance, and property law, we can think of it as an attempt to control the way we transfer our property to those who survive us, typically our family members and friends. As you scroll through our forum, you will discover that estate planning is accomplished with many tools, including trusts and wills. If, in this synopsis or in the forum, you see terms you do not understand or that you would like more information about, just use our search tool to find more in-depth discussions.

We should probably start by defining what an estate is: everything you own or in which you have an ownership interest. Your estate plan, therefore, is the means by which you will transfer the ownership of your estate at your death. Your will is a part of this plan, a written set of instructions in which you (the testator) explain to the probate court how you want your probate assets to be distributed. Given that definition, it is important to understand that you may have assets in your estate that are non-probate assets, meaning their disposition will not be controlled by your will.

The simplest definition of a probate asset is anything held solely in an individual’s name at the time of his death, such as a bank account with only the decedent’s name on it. After the death occurs, this bank account does not have an apparent owner. In other words, we cannot look at the passbook or statement and identify the new owner of the money. Accordingly, we must look to the decedent’s will (or to the laws of intestacy if he had no will) to help us make that determination.

Non-probate assets, on the other hand, have a new owner at the moment the decedent dies. An asset such as an insurance policy with an identified beneficiary, for example, will be payable directly to that beneficiary upon the death of the person who owned the policy. This is so even if the decedent’s will states that the insurance proceeds should go to a person other than the named beneficiary. Why? Because a decedent’s will does not control the distribution of non-probate assets. So, rather than passing through the probate process, the insurance policy proceeds are disbursed according to the contractual terms of the policy. Similarly, any property placed in a trust during the decedent’s lifetime will be distributed according to the terms of the trust.

Property might also fall outside of the probate process because of the way its ownership is structured. For example, a decedent may have owned an asset, such as a piece of real estate, with another person as “joint tenants with rights of survivorship.” When one owner dies, full ownership of the jointly owned real property will pass directly to the surviving joint owner, without regard to the provisions of the decedent’s will.

Now that we understand the role a will plays in distributing our estates—and how that role is limited—let’s look at some nuts and bolts. We are all familiar with the most basic part of a will: an identification of the person or persons we want to inherit our property. Some wills identify specific property, but others use generic language, such as “all my possessions and property.” Your will should also name an executor, the person you identify as being responsible for the management of your estate, as well as an alternate executor, in case your first choice is unwilling or unable to serve. As long as the document is properly executed, that’s pretty much all you need for a valid will in Massachusetts.

If you do not have a will, or if your will is invalid, you may die “intestate.” In cases when a person dies intestate, his probate assets are distributed according to statutory guidelines that are extremely rigid. After the payment of expenses related to estate administration, funeral and other debts, and taxes, the decedent’s property is distributed according to a formula that is lengthy and covers many contingencies.

Regardless of whether the decedent had a will or not, whenever a person’s estate contains probate assets, they will be subject to the probate process. This legal proceeding takes place in the Probate and Family Court in the county where he resided. The probate process provides for: the collection and preservation of the decedent’s probate assets; the payment of all debts and taxes owed by the estate; and the determination of the proper distribution of the assets. The process usually starts when someone, often the person named as the personal representative in the will (the “PR”), files a petition for the allowance of the will. If there is no will, an interested party, such a family member, may file a petition for the administration of the estate. After an initial determination that the will is valid or that there is no will, the court will appoint a PR for the decedent’s estate.

Generally speaking, if you can avoid probate through good estate planning, you should. One of the best tools for probate avoidance is the trust. Estate planning attorneys love trusts because, more than any other estate planning document, a well drafted trust can satisfy a whole host of client objectives, including asset protection and tax avoidance. Without going into too much detail we can describe a trust as a contract between the person who establishes the trust (the trustor) and the person who holds legal title to the assets in the trust (the trustee). The trustee agrees to follow the instructions that the trustor has included in the trust for the maintenance and eventual distribution of the property.

Hope all that helps.  Please enjoy this and our other forums and let us know what you think.

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by Thomas Swain Smith
Joint Tenancy & Tax Implications upon Death
My father received property valued ~$250,000 from his father in 1999 via a quitclaim deed. His father received it via probate from his mother in 1974....
1 1 year 43 weeks ago
by srlittle6
1 year 42 weeks ago
by TheLawyerKnows
MA Probate & Intestate Estate
My parents were divorced in 1979 but were Tenants By The Entirety in the marital home. The divorce agreement left no rights of the either party in the...
2 2 years 5 days ago
by bsprtsgrp
1 year 43 weeks ago
by cynthiaambuster
Removing/Adding Executor to a will
My Grandmother and Grandfather had my uncle and my mother as executors to their will. Recently my mother found out that when my grandmother died, my u...
1 1 year 44 weeks ago
by BBirmingham
1 year 44 weeks ago
by The Editor
Accountings - Trustee as current and sole income beneficiary
My aunt created a trust years ago. She died about 10 years ago and her husband is current trustee and current sole income beneficiary. The other con...
2 1 year 47 weeks ago
by Interested party
1 year 45 weeks ago
by The Editor
Compelling Exector to Submit Inventories and Disbursement Plan
Mother passed away on Sept 17 , 2011. 1. Will her will be probated under the new probate law or old? Is that the discretion of the Executor? ...
1 2 years 1 week ago
by Whaler
1 year 51 weeks ago
by TheLawyerKnows
Pros and Cons of Estate vs. Heirs Selling Home
Hello. A divorced man died intestate this year (2012). His adult children, his only heirs, want to sell his home. It seems easier for the estate (per...
1 2 years 2 days ago
by Mayflower
2 years 22 hours ago
by TheLawyerKnows
Volunteering Joint Account to be Probated?
If a surviving joint account owner, the son/daughter of the deceased, wishes to share the account funds with siblings (because she understands that to...
1 2 years 3 weeks ago
by Mayflower
2 years 1 week ago
by BostonLawMan
Who gets annuity after death in MA?
My dad has an annuity that he and my mom bought when they were married and she was still alive. I haven't seen the annuity because my dad is sort of ...
1 2 years 1 week ago
by RikG0
2 years 1 week ago
by The Editor
Retrieving MA Abandone Property when original will was never filed with Probate
My grandfather died in 1980 and we just discovered that an insurance policy with a closed bank was never paid out and was recovered by the state. His ...
1 2 years 4 weeks ago
by maprobate_qa
2 years 3 weeks ago
by Peter Bernardin

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