Frequently, people tell me that getting a will is on their long-term to-do list. It’s usually been on the list for a while. One of the reasons that so many people procrastinate their estate planning is that they don’t understand how a will works. This lack of understanding leads to intimidation, which leads to avoidance. Therefore, I thought I’d write a quick post about what happens to a will once its testator (owner) passes on.
When someone dies, whoever is in possession of their will, usually a family member, and often their attorney, is required, within 30 days, to file the will with the Registry of Probate office of the Probate and Family Court. Each county in Massachusetts has its own Registry of Probate. Any person may petition the court to become the executor of the will. The executor is the person charged with gathering the assets of the decedent, determining valid debts that the decedent owed, and distributing the estate properly among its creditors and beneficiaries. Wills almost always nominate someone to serve as executor, and persons so nominated have preference in being appointed.
Often times the family member in possession of the will will bring it to an attorney. If an attorney holds the will, a family member will inform the attorney of the death. When I represent an individual who seeks appointment as executor, I will file the Petition for Probate of Will (and appointment of executor), the will itself, and a handful of other required documents at the same time. Court staff are stretched thin, so it is helpful for everyone involved to streamline the process for them.
Once they court receives the petition, will, and required paperwork, they assign the case a docket number. A few weeks to a few months later, they send the attorney a Citation. Don’t get worried, it has nothing to do with the citations that you might get for driving too fast through the Ted Williams Tunnel. Instead, this citation is a one page document that instructs the petitioner to mail written notice of the probate petition to the interested parties (next of kin, and beneficiaries of the will), and to publish notice in a local newspaper. After the citation has been served, the lawyer certifies the service with the court.
As long as no one objects, a few weeks later the court will approve the petition and mail a copy of the order appointing the executor to the attorney. The attorney and executor then work together to sort through the estate, file an inventory with the court, pay debts, distribute to beneficiaries, etc. Once all is said and done, they will file an accounting with the court, showing how the assets of the estate were spent.
So there you have it: a brief explanation of the probate of a will in Massachusetts. The process itself is quite simple, but there are several variations to deal with specific problems, and the assistance of a Massachusetts probate attorney is recommended for significant estates. Of course the actual probate of a will is only one step in the estate administration process. The marshaling (gathering) of the assets and payment of debts, claims, bequests, and devises is the most challenging part.
Oh, let me also mention, the Massachusetts probate laws are all changing on January 2, 2012. Stay tuned for more on the Massachusetts Uniform Probate Code later.