What is “Death Probate’?

Jul 20, 2020

What is “probate” and when is it needed? There are various forms of “probate” but this article will be discussing what is commonly referred to as “death probate”, or the process of transferring assets from the deceased person to that person’s beneficiary(ies).

We’ll use an example that hopefully will help to make this more clear. We’ll discuss a fictitious married couple – Bill and Mary Jones – who own a home together and also have numerous bank accounts and other financial assets, held jointly. They each have a will leaving everything first to each other, and then to their only child, Susan.

Sadly, Bill passes away, and as sometimes happens, Mary also passes away within the year. Susan soon makes an appointment with the attorney who drafted her parents’ wills. At the attorney meeting, Susan is informed that her parents’ house and other assets must “go through probate” before she can do anything with them. Confused, Susan reminds the attorney that both of her parents had a will that specifically stated that they wanted their assets to be passed to Susan.

The attorney explained as follows:

First, it is good to have a will because it is a chance to set forth in writing whom you want to inherit your property. Without a will, the laws of the state dictate who shall inherit. But, what many don’t realize is that a will must be submitted to a probate court for review and action. Contrary to what many think, the will is not “read” in an attorney’s office, with beneficiaries walking out with their share of the assets. There is a court process required. The court decides whether the will is valid, and then proceeds to appoint a Personal Representative (this used to be called “Executor” or “Executrix”) to deal with the deceased person’s property. Without this appointment and the issuance of what is called “Letters of Authority”, no one has the ability to handle either the real estate or other assets.

Susan next asks, “How much will it cost and how long will it take?” In Massachusetts, in cases similar to the Jones’, the cost to file the necessary paperwork with the probate court will be $405. The paperwork, assuming there are no unusual circumstances, will consist of a court petition, a bond, a military affidavit, and an order. In some situations, other court forms also must be filed. And there will be attorneys’ fees for completion of the documents. In most cases, the court will issue a “citation” which will have to be published in a local newspaper, the cost of which averages $400. The notice must also be sent to the Division of Medical Assistance in case there are any Medicaid liens, and to any other interested parties. Once this has been completed and a Return of Service submitted back to the court, the court, in time, will issue the necessary Letters of Authority. Assuming all goes smoothly, the Letters will be issued in three to four months after notice to the court. Susan will then have to obtain a tax i.d. number for the estate, and she’ll need to bring the Letters of Authority, new tax number, and death certificates to each bank and financial institution in order to have access to her parents’ accounts. The total fees for this simple probate are usually in the range of $3,000 to $4,000.

So what have we learned about probate from this example? In summary, probate is not usually “quick” nor “cheap”. To avoid probate, please contact our office and ask to learn more about a Living Trust.