Kelsey & Trask, P.C. - Wills and Estates, Natick and Wellesley, Massachusetts

Wills and Estates

Below we have provided answers to many of the common questions that we are asked by our clients relating to estate planning. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

Why is Estate Planning important?

Many people are surprised to find out who their property might be given to, or who could be in charge of the distribution, if they do not have a Will. The Will allows you to specify who receives your assets, the order in which they receive them, who will be in charge of making the distributions and accounting (the Executor), and even disinherit relatives if necessary. One only has to look to recent headlines to see the importance of leaving a plan behind to keep one's family from having to make these difficult decisions, and in the worst case scenario disagreeing with each other about those decisions.

Is a Will my only option?

For more complicated estate plans, we work with you to identify the best methods of protecting your assets, whether through the use of Trusts of other legal entities. There are numerous different types of entities and Trusts which might be appropriate in different cases, and we can both explain and help you appropriately evaluate your best options.

What is Probate and can I avoid it?

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased. If you are not sure whether or not you need to proceed through the Probate process you should consult with an attorney.

How long does the Probate process take and what are the major steps?

The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. If a loved one has recently passed away, the timeline should serve as a general guide in the Probate & Family Courts in Massachusetts.

Within one week:
Contact any life insurance carriers, and complete whatever forms are required by the individual insurer. Provide whatever documents are needed (most likely a claim form and an original death certificate) to begin the process of claiming the insurance benefit, if any. Begin to gather the following documents:
1. Past 3 years of tax returns;
2. Current year W2's, 1099's, and income sources; and
3. Compile a List of debts, bank accounts, etc. and ensure it is complete.

Your attorney will assist you with preparing the appropriate court forms, called the "Petition" to begin the process of appointing a representative of the estate. Your attorney will also assist you in providing notice to the potential heirs and beneficiaries of the estate, as well as other notice requirements imposed by the Court.

Within approximately one month:
Depending on how busy the court is, Letters of Administration or Letters Testamentary should be issued in approximately one month. The Letters of Administration are your ticket to act as the representative of the estate, and are required to do such tasks as opening a bank account in the name of the estate, filing for a tax ID number, marshaling assets and depositing various assets, proceeds, and bank account balances.

Within Days after Appointment of Administrator:
Once an administrator or an executor receives the Letters of Administration (in the case of an administrator - where the deceased did not leave a Will) or Letters Testamentary (in the case of an executor - where the deceased passed away with a Will), the fiduciary can begin setting up and managing the estate. At this point, you or your lawyer will
1. Obtain Tax ID Number;
2. Retain an Accountant to discuss preparation of current-year income taxes (be mindful if we need to file a request for an Extension);
3. Open estate checking account;
4. Collect life insurance proceeds and deposit into estate account, if there was no beneficiary designation on the account. Obtain "Form 712", which is necessary for her estate tax returns;
5. Resolve issues with remaining time on the Decedent's lease; and
6. Notify all the financial institutions of your appointment as administrator; request date of death balances; consolidate all accounts into the estate account.

Within Three Months after Appointment:
1. File affidavits of Notice, if required by the court;
2. Prepare probate inventory. This is a list of all assets owned by the estate. Note, however, that not all assets are considered "probate assets", and you should consult with an attorney to determine what assets are "probate assets" and what assets pass outside the probate process;
3. File Probate Inventory with the Court; and
4. Transfer ownership of the decedent's car.

Within Four Months after Appointment:
1. Begin preparing estate tax returns, but do not file;
2. Pay funeral bill (if not already paid); and
3. Pay remaining debts.

Within Nine Months After Appointment:
1. Finalize Federal Estate Tax Returns and File; and
2. Prepare and file Massachusetts Estate Tax Returns.

One Year After Death:
1. Distribute remainder of estate assets to beneficiaries;
2. File Estate Accounting with Estate (We can assist in the preparation of the accounting); and
3. File Fiduciary's tax returns.

What happens if someone objects to the Will?

An objection to a Will, also known as a "Will contest" is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate. In order to contest a Will, one has to have legal "standing" to raise objections. This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. Certain types of assets, called "non-probate assets", do not go through probate. These include: property in which you own title as "joint tenants with right of survivorship"; (Such property passes to the co-owners by operation of law and do not go through probate); retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries; life insurance policies with designated beneficiaries; bank accounts with "pay on death" (POD) designations or "in trust for" designations; and property owned by a living trust (legal title to such property passes to successor trustees without having to go through probate).

Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him or her with these duties.

How much does probate cost and how long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.

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508.655.5980

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Frequently Asked Wills & Estates Questions:

Why is Estate Planning important?

Is a Will my only option?

What is Probate and can I avoid it?

How long does the Probate process take and what are the major steps?

What happens if someone objects to the Will?

Does probate administer all property of the deceased?

Do I get paid for serving as an Executor?

How much does probate cost and how long does it take?

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Suite 302B • 154 E. Central St. • Natick, MA 01760
Tel.508.655.5980 • Tel.508.720.0397 • Fax.508.655.5981

508.720.0397

508.655.5980


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