When a loved one dies, those left behind are often left to not only cope with the loss, but also to administer their loved one’s estate. Assets not held in a trust-or held in the decedent’s name alone-must be distributed through the court process called probate. The county where the decedent was domiciled has jurisdiction of the probate administration.
The probate process involves the court appointment of a personal representative or executor to handle the decedent’s estate administration. This is done through a petition for appointment. If the decedent had a will, there will be a personal representative or executor named in it. When there is no will, anyone can petition the court to be named personal representative or executor, but there is a hierarchical order to who has priority. Along with the petition for appointment, the petitioner must file the original will, death certificate, a list of heirs (and devisees if there is a will), bond, and a military affidavit, among other forms. The petitioner must provide notice to all interested parties and the Medicaid Estate Recovery Unit. Once appointed, the personal representative or executor is responsible for paying estate expenses, satisfying debts to creditors (or resolve disputed claims), protecting estate assets, and distributing assets. Depending on the type of probate process, the personal representative or executor may also be required to file an inventory and accounting and close the estate. Occasionally, this process is straightforward, but more often there are complicated issues that must be resolved, such as determining which creditors are entitled to priority of payment when limited funds are available, or determining which beneficiaries are entitled to specific distributions through a will.
Certain states follow the Uniform Probate Code (i.e. Massachusetts), some do not (i.e. New Hampshire).
Massachusetts has three different types of probate: an involuntary administration, informal probate, and formal probate. An involuntary probate is for estates worth less than $25,000 (not including one car). An informal probate is usually what most probate cases fall into. It is appropriate when there is an original will, which names a personal representative, and there is no objection to that person’s appointment; there is an official death certificate; and all heirs and persons inheriting under the will are locatable. Informal probate a fairly straightforward process. Formal probate is required (among other reasons) if the original will is missing, there is no death certificate, or a person not having priority for appointment wishes to be the personal representative. If there is real estate involved that is registered land (as opposed to just recorded land), that will also require a formal probate.
New Hampshire has two types of probate: regular (full) administration and waiver of full administration. Most cases will require a regular administration, as the waiver of administration is allowed only when there is only one beneficiary and he or she is the administrator of the estate. Waiver applies whether there is a will or not. A regular administration must be used in all other cases.
Anything owned in the decedent’s name alone at the time of death becomes part of the probate estate. Assets held in trust pass outside of probate and go directly to the beneficiaries of them. Joint bank accounts pass outside of probate, as do retirement accounts that have named beneficiaries. Jointly held real estate passes outside of probate.
The length of probate depends on the type of administration necessary. It can last a couple of months to more than a year. Contested administrations – either with the appointment of the personal representative/executor or the distribution of assets – will necessarily take longer.
In all cases, creditors have one year to file any claims against the estate.
That depends on what is in the probate estate. The probate estate consists of any assets in the decedent’s name alone that do not pass automatically (outside of probate) to a beneficiary. Examples of assets that pass outside of probate are jointly held real estate, life insurance proceeds, retirement accounts (unless the estate is the beneficiary), and assets contained in trusts. If your spouse had any real property or accounts in his or her name alone, you will have to open a probate administration, but depending on the value, it may not have to be a complex one. Definitely consult with an attorney for your specific situation.
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