PROBATE PROPERTY
The Personal Representative is responsible for managing and preserving the property titled in the decedent’s name alone. This is generally referred to as probate property and will pass through the decedent’s estate.
Non-probate property is generally jointly held property, retirement assets or life insurance with a named beneficiary (other than the estate), and revocable trust property. Non-probate property passes directly to the named beneficiary and outside of probate.
INFORMAL ADMINISTRATION
If a decedent died with a will (testate), an informal proceeding may be brought to probate the decedent’s will without requesting the appointment of a Personal Representative. A proceeding may also be filed for the informal appointment of a Personal Representative after the formal or informal probate of a will. If the petitioner is requesting the appointment of a Personal Representative and the decedent died with a will that has not been probated, the petitioner must also request that the will be probated at that time. If a decedent died without a will (intestate), a proceeding for informal appointment of a Personal Representative may be filed.
“Informal proceedings” require filing Form MPC-150 (Petition for Informal Probate of a Will and Appointment of Personal Representative) in the Probate and Family Court. A certified death certificate and the original Last Will and Testament (if applicable) of the Decedent must accompany said Form MPC-150. Form MPC-801 (Bond) must also be filed with said Form MPC-150. No sureties are required if sureties are waived in the Last Will and Testament.
In addition, Form MPC-550 (Notice of Informal Probate) must be given to the Division of Medical Assistance by certified mail seven (7) days prior to filing the Petition with the Court. Notice will also be given by either mail or hand delivery to the heirs and devisees. Along with said notice to the heirs and devisees, Form MPC 455 (Assent and Waiver of Notice/Waiver of Sureties) is included for all heirs and devisees. By signing said forms, the heir, devisee, or other interested person is assenting to the Petition for Informal Probate of the Will and Appointment of Personal Representative, and waiving his or her statutory right to notice to all proceedings regarding the Petition.
After said seven (7) days, the petition and related documents may be filed with the Court. If the petition is satisfactory, the informal probate and letters of authority will issue. The timing of issuance can be anywhere from one (1) day to two (2) months. Publication must then be made in the appropriate newspaper (as determined by the Court) within thirty (30) days. After the letters of authority issue, and publication is completed, the Personal Representative can begin to administer the estate relatively free of court supervision, provided that no interested party requests intervention by the court.
Once letters of authority issue, the Personal Representative will have authority to act in respect to all probate assets. A tax identification number from the Internal Revenue Service will then be obtained for the Estate.
FORMAL ADMINISTRATION
A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may, but need not, involve a request for appointment of a Personal Representative or probate of will.
- If a decedent died with a will (testate) or more than one will, a formal petition may be filed to probate the will and determine heirs with or without requesting the appointment of a Personal Representative.
- If a decedent died without a will (intestate), a formal petition for an adjudication of intestacy and a determination of heirs may be filed with or without the request to formally appoint a Personal Representative.
Any of the above proceeding may be filed in conjunction with or after the informal appointment of a Personal Representative.
A formal proceeding to appoint a Personal Representative may be necessary to determine the priority or qualification of one who is a petitioner for appointment as a Personal Representative, or of one who previously has been appointed Personal Representative in an informal proceeding, if an issue concerning the testacy of the decedent is or may be involved. A formal proceeding to appoint a Personal Representative results in an adjudication by the Court.
If the petitioner is requesting the appointment of a Personal Representative and the decedent died with a will that has not been probated, the petitioner must also request that the will be probated at that time. A formal petition may also be filed for the formal appointment of a Personal Representative after the formal or informal probate of a will.
Pursuant to 3-414, the Division may accept a petition to formally:
- Determine who is entitled to appointment as PR under 3-203;
- Appoint a PR in a supervised or unsupervised administration;
- If appropriate, terminate any prior appointment found to have been improper.
“Formal proceedings” require filing Form MPC-160 (Petition for Formal Probate of a Will/Adjudication if Intestacy/Appointment of Personal Representative) in the Probate and Family Court. A certified death certificate and the original Last Will and Testament (if applicable) of the Decedent must accompany said Form MPC-160. Form MPC-801 (Bond) must also be filed with said Form MPC-160. No sureties are required if sureties are waived in the Last Will and Testament. Form MPC-470 (Military Affidavit) must also be filed.
ROLE OF PERSONAL REPRESENTATIVE
Essentially, the role of the Personal Representative will be to marshal and preserve the assets of the estate, pay all legally enforceable debts, estate taxes, expenses of administration and the like.
Payment of Debts
The Personal Representative must generally wait six (6) months after the date of death of the decedent before paying any debts to confirm that the estate will be sufficient to cover all debts. M.G.L.A. 190B § 3-807(c). The rationale is to make sure the estate is solvent and to avoid a lower priority creditor being paid and using up all funds before the higher priority creditor is paid. Among the highest priorities are funeral expenses. Credit card debt is a much lower priority. M.G.L.A. 190B § 3-805.
In accordance with M.G.L.A. 190B, § 3-805, if the assets of the estate are insufficient to pay all claims in full, the Personal Representative will make payment in the following order:
- costs and expenses of administration;
- reasonable funeral expenses;
- debts and taxes with preference under federal law;
- reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent;
- debts and taxes with preference under other laws of the commonwealth;
- debts due to the division of medical assistance;
- all other claims.
No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
Creditors generally have one (1) year from the decedent’s date of death to file a claim against the estate. In addition, estate tax returns and estate taxes are generally due nine (9) months from the decedent’s date of death. Generally, I will recommend to the Personal Representative that the process from death to distribution take at least one (1) year.
Tax Returns
During the period of administration, the Personal Representative will be responsible for filing (and paying) fiduciary income tax returns, the decedent’s final personal income tax return, and any estate tax returns required.
My office does prepare and will assist with any estate and/or gift tax returns required to be filed, however, we do not prepare individual and/or fiduciary income tax returns. I am happy to provide referrals for accountants if needed.
Inventory
The Personal Representative is/or may be required to:
- mail a copy of the Inventory (if requested) to all interested persons whose addresses are reasonably available; or
- file a copy with the Division. The Personal Representative may also file the original Inventory (if required) with the Division. A fiduciary may choose to file the Inventory with the Division where there are a large number of interested persons and the burden of sending the Inventory to all would be significant.
First and Final Account
I recommend the Personal Representative file Form MPC-853 (Account) with the probate court. The account cannot be filed until one (1) year from the date of death. This account is generally comprised of three (3) schedules:
Schedule A: cash receipts and inventory value of the estate, including any gain or income between the date of death and the filing;
Schedule B: cash disbursements (expenses and final distributions to the beneficiaries);
Schedule C: the balance of cash receipts and distributions, if any. For the final account, the receipts and inventory schedule equal the disbursements schedule, thus giving a balance of $0.
This is a relatively simple account, and will exclude any property not solely owned by the decedent (i.e. jointly held property, gifts, life insurance paid to a named beneficiary, retirement assets payable to a named beneficiary other than the estate, inter vivos trusts (revocable and non-revocable) and the like). You will account separately for principal and income, and for receipts and disbursements.
Along with Form MPC-853, a Petition for Order of Complete Settlement (MPC-855) will be filed and request approval of the final account and closing of the estate if all of the following requirements are met:
- one (1) year has passed since the date of the original appointment or the petitioner is the Personal Representative;
- the time for creditor’s claims has expired;
- all interested persons have assented to the petition (Form MPC-455) or have been given notice pursuant to 1-401;
- the final Account is filed with the Petition or on file with the Division at the time of filing the Petition.
The Petition for Order of Complete Settlement of Estate may request that the Court:
- make a final determination of testacy, if not previously determined;
- make a final determination of testacy as to heirs and devisees omitted as parties or not given notice of a formal testacy proceeding where testacy was previously determined and confirm or alter the previous Order of testacy in light of the new proofs;
- compel or approve a final distribution, a Final Account or both;
- construe any will;
- make a final determination of heirs;
- make a final determination of persons entitled to distribution of the estate; AND/OR
- adjudicate, direct or approve the final settlement and final distribution of the estate.
Generally, when the Court allows the Account and Petition for Order of Complete Settlement, the Personal Representative is insulated from liability and your fiduciary responsibilities end (for the most part).
DISCLAIMER
In accordance with G.L. c. 191A any person who is a beneficiary may “disclaim” a whole or any portion of his/her share. Such disclaimer must meet the statutory criteria. Such disclaimer is irrevocable and has a strict deadline of nine (9) months from decedent’s date of death.