Proper estate planning aims to avoid the probate process and family conflicts, but under many circumstances, individuals and families still need legal counsel. You may be appointed to administer a loved one’s estate. There may be questions about the validity of the will. You may need to step in to protect the interests of an elderly parent. We advise and represent personal representatives, trustees, beneficiaries and other parties with duties or vested interests.
Estate Administration / Probate
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. While our estate planning practice focuses on helping clients avoid this process, the majority of estates without such planning will have to go through probate. No two probate proceedings are ever the same, but they always involve making a filing with the Massachusetts Probate Court. 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. Every probate estate is unique, but most involve the following steps: Filing of a petition with the proper probate court; Notice to heirs under the Will or to statutory heirs (if no Will exists); Inventory and appraisal of estate assets; Payment of estate debt to rightful creditors; Sale of estate assets; Payment of estate taxes, if applicable; and Final distribution of assets to heirs. While many assets will pass through probate, some assets, like life insurance and retirement accounts, will pass directly to the named beneficiary. Other kinds of assets, like those held in joint tenancy, will pass directly to the other joint tenant. The important thing to remember is that all of these assets are counted as “part of the estate” for purposes of calculating whether taxes are due and/or as part of any existing or future MassHealth (Medicaid) applications. You should also know that estates over a certain threshold have to be probated, whether they are “taxable” or not.
We can help you navigate this process and help reduce the time, expense and frustration associated with probate as much as possible.
Conservatorships / Guardianships
If a parent, spouse or loved one can no longer handle his or her own affairs, it may be necessary to petition the court to take control of that person’s finances or personal care. A conservatorship is a judicially supervised proceeding whereby one person is appointed to take financial responsibility and control over another individual’s assets. A Conservatorship allows a person or persons to take control over ones finances, while a Guardianship allows one to take control over ones physical self or body.
You should try to avoid a Conservatorship or Guardianship by using a durable power of attorney or Health Care Proxy. While the conservatorship is time-consuming, public, and often adversarial, a durable power of attorney and health care proxy is inexpensive, private, and non-adversarial. If you choose a conservatorship or guardianship, the proceeding will begin with a petition filed in the probate court asking a judge to appoint an individual to oversee the financial and/or physical affairs of the disabled person. Notices are required to be sent to all the heirs, who have a chance to object. If no objections are received, or if all objections are dismissed, a conservator and/or guardian will be appointed to take financial control.
The conservator is responsible for collecting all assets, income, and paying all bills. Annual accounts to the probate court are required. Notices are required to be sent and any person objecting to an account will have the right to do so. When the ward dies, the conservatorship is closed out and the assets are to be paid over in accordance with either the ward’s last will and testament, or, if there is no will, in accordance with state law.
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. 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 Personal Representative. We represent the estate, beneficiaries or excluded heirs in will contests such as allegations of undue influence or fraud.
We can advise executors, trustees and conservators in fulfilling their obligations and defend them against accusations of breach of fiduciary duty.