Probate FAQ's

What happens if I die owning out-of-state property?

Many of our clients own out-of-state vacation property.  If the client dies as the sole owner of the property, the vacation property may be subject to probate in the state in which it is located.  In such situations, probate in the client’s home state must be combined with an “ancillary” probate in the foreign state in order to legally distribute the out-of-state property to the beneficiaries.  Ancillary probate is not only time consuming and costly, but it is more complicated, because other states may require certain documents certified by the home state’s Probate Court in order to commence ancillary probate.

In order to avoid ancillary probate, we often recommend that clients with out-of-state property create a Revocable Intervivos Trust to hold the out-of-state property.  When properly funded with the rest of your assets, a Revocable Intervivos Trust will even allow you to avoid probate in Massachusetts.

What happens if I am an out-of-state resident and I die owning Massachusetts property?

If the Massachusetts property is owned in your individual name at the time of your death, the property is subject to Massachusetts probate.  If an original probate has been opened in your home state, the Massachusetts Probate Court will require court certified documents, such as the Will, Death Certificate and Letters of Appointment, in order to proceed with an ancillary probate here.

What happens to my Estate if I die without a Will?

If you pass away without a Will, the probate court will appoint someone to be the Administrator of your estate and your Estate will pass according to the Massachusetts Intestacy Statute.  Generally, this means that your estate would pass to your surviving spouse and children if you have them.  Otherwise, your estate will pass to more distant relatives, starting with your parents.  Keep in mind that under current Massachusetts law, should you die married and childless, your spouse may share your estate with other family members – all the more reason to execute a Will!  Although for many people this sequence of distribution is very similar to their wishes, this form of distribution could be unfavorable for those who are unmarried but have a significant other whom they wish to benefit.

What is included in my taxable estate?

Your gross taxable estate includes all of the assets that you have control over at the time of your death. This includes all of your real estate, bank, brokerage and retirement accounts either individually or jointly owned.   Life insurance policies in effect on your death are also included in your gross taxable estate, as is the entire value of a Trust of which you are the beneficiary.

How does the probate process work?

Probate has been around for a very long time, and is an orderly, court supervised method of distributing property.  In most cases, a decedent’s family will meet with us and we will review the decedent’s Will and other important papers before filing a petition for probate.  Once we have gone over the decedent’s assets, we will help the Executor named in the Will (or the family member who is planning to serve as an Administrator if there is no Will) file a petition asking the court to be appointed.  Over the next several months, we have to give notice of the petition to heirs and the community.  Once the petition is approved, the Executor assembles the assets and begins distributions.  He or she also prepares any necessary tax returns, pays debts, and possibly sells or transfers property.  Once all of the distributions have been made, the Executor files a final account with the Probate Court and is discharged. 

How long does probate take?

At a very minimum, probate takes a year from a decedent’s date of death, because this is the statutory time during which creditors may file claims against a person’s estate.  Depending on the size and complexity of the estate, final distributions may be made within that first year.  In some other cases, especially if there is a dispute, probate can take years to complete.