My Loved One Has Passed Away – Where Do I Start?

If your loved one had a will, the crucial first step is to locate the original document. A valid Last Will and Testament outlines your loved one’s specific instructions for managing and distributing their estate among heirs or beneficiaries. The will typically also names the personal representative (formerly known as the executor) responsible for overseeing the probate process and carrying out these instructions. If no will was left, your loved one died ‘intestate.’ In such cases, the Massachusetts Probate and Family Court will guide you and other heirs through the probate process according to Massachusetts intestacy laws. 

Do I Need To Hire A Massachusetts Probate Lawyer?

You do not legally need to hire a lawyer to complete the Massachusetts probate process. You may represent yourself in the probate process, which is also called going pro se. However, given the complexities involved in navigating the probate process, our team recommends hiring a lawyer. Any lawyer you hire to help you through the Massachusetts probate process must be a Massachusetts lawyer and should have probate experience. 

Some situations where a probate attorney will be especially helpful are:

• If you anticipate disagreement and disputes between the beneficiaries
• If you suspect an heir will challenge the validity of the will
• If the estate’s debts appear to be larger than its assets
• If you reside in a different state than your deceased loved one
• If the total value of the estate is worth more than $25,000
• If your deceased loved one owned a business

I Now Have A Probate Attorney. What Happens First In The Massachusetts Probate Process?

You will file a petition with the Massachusetts Probate and Family Court to be formally appointed as the personal representative (PR) of your loved one’s estate. This step is necessary to initiate the Massachusetts probate process, regardless of whether you were named in the will.

When you petition to become the appointed personal representative, you will also choose which type of probate to open with the court system. Many factors contribute to this choice, and some are out of your control. Here is a brief overview of the four different probate processes in Massachusetts depending on your circumstances:

• Informal Probate – A streamlined probate path with less direct judicial oversight, typically processed by a Magistrate. 
• Formal Probate – A probate path involving more judicial oversight, sometimes including one or more court hearings.
• Late & Limited Formal Probate – Used if your loved one died three or more years before probate was initiated
• Voluntary Administration – An expedited pathway available if the value of the estate’s personal property is less than $25,000 or less (excluding vehicles).

Can You Tell Me More About These 4 Types Of Massachusetts Probate?

• Informal Probate in Massachusetts: This type of probate is processed administratively by a Magistrate, without formal court hearings before a judge. PRs can pursue informal probate when a will and death certificate exist, all heirs are identified and located, and all minor or incapacitated heirs are properly represented by court-appointed guardians. Additionally, informal probate is not possible if an heir intends to formally dispute something in the will.

• Formal Probate in Massachusetts: This type of probate occurs in court with a judge overseeing one or more hearings. While heirs do not typically need to appear in court in person, Formal Probate occurs is necessary in various situations, including: if the person petitioning for probate is a creditor or public administrator; if the will is a copy, contains handwritten additions or deletions, or unclear terms; or if any heirs are incapacitated or minor heirs require court-appointed representation.

• Late & Limited Formal Probate: This process is used when an individual has died and three or more years have passed since their death before any probate proceedings were initiated. With judge oversight, a will is admitted to formal probate, or the court will officially confirm there is no will and determine who the legal heirs are. The court appoints a personal representative to manage the estate. 
• Voluntary Administration: This is a simplified, expedited available if the deceased’s estate consists solely of personal property with a combined value of $25,000 or less (not including cars). The estate is distributed by the individual acting as personal representative according to the deceased’s will, if one exists, or by intestacy law.

What Do I Need In Order To Begin The Probate Process?

1. Gather Necessary Documents: Collect the deceased’s original will (if applicable), death certificate, and other relevant financial and legal documents.
2. File the Will and Petition: Submit the original will and a petition for probate to the Probate and Family Court in the county where the deceased lived.
3. Notify Interested Parties: Inform all legal heirs and named beneficiaries of the probate proceedings as required by law.
4. Attend the Hearing: If required, attend a court hearing where the judge will validate the will and officially appoint the personal representative.

What Happens If There Is No Will?

If a person dies without a will in Massachusetts, their estate is distributed according to the state’s intestacy laws. This means that the assets will be allocated to the deceased’s heirs based on a predetermined order of priority, typically starting with the spouse and children. If there are no immediate family members, the estate may pass to more distant relatives or, in some rare cases, to the state.

I Have Petitioned To Be Appointed PR and Have Opened Probate – What’s Next?

After filing, there is typically a waiting period as the Massachusetts courts process your petition and related forms, which can sometimes take several months. While this wait can add stress to an already difficult situation, remember that it’s a standard part of the process.

What Happens After I Have Been Appointed As Personal Representative?

As the appointed personal representative, you now hold the crucial responsibility for administering your loved one’s estate. This includes identifying and gathering all assets, paying legitimate debts and taxes, and ultimately distributing the remaining assets to the beneficiaries (either as explicitly stated in a will, or according to intestacy laws if no will exists). Creditors may also file claims against the estate during a specific ‘creditor period.’

Can You Explain The Creditor Period In Massachusetts?

The creditor period during probate refers to the timeframe in which creditors can file claims against the estate of a deceased person for any debts owed to them. Under Massachusetts law (M.G.L. c. 190B § 3-803), creditors generally have one year from the date of the decedent’s death to assert their claims against the estate. Here are some general points about the creditor period:

• Personal representatives are required to notify potential creditors of the probate process.
• Notification usually involves publishing notice in a local newspaper and/or sending direct notice to known creditors.
• Creditors must submit a formal claim within the prescribed one-year period to be considered valid.
• Claims submitted after the this period may be barred unless specific special circumstances apply.
• PRs must evaluate all claims filed and decide whether to approve or contest them.
• Valid claims are paid out of the estate assets before any distributions are made to heirs or beneficiaries.

How Do I Complete A Probate Asset Inventory?

Creating a probate asset inventory involves identifying, documenting, and valuing all the assets of a deceased person’s estate. This inventory is a critical step in probate as it provides a clear picture of the estate’s total value and ensures proper management and distribution. Here are specific steps on how to create a probate asset inventory:

1. Gather All Documents That Show Asset Ownership

• Obtain the original will (if one exists).
• Collect financial records such as bank statements, investment account statements, loan documents, and property deeds.
• Review past tax returns for additional clues about assets.
• Search for safe deposit box keys or other secure storage locations.

2. Identify And Make a List of All Assets 

Assets are typically categorized into real property (e.g., land, buildings) and personal property (e.g., vehicles, cash, jewelry). Common categories include:

Real Property: 

• Homes, vacation properties, land, rental or investment properties

Financial Accounts:

• Bank accounts (checking, savings, certificates of deposit).
• Retirement accounts (IRAs, 401(k)s) (if the estate is a beneficiary).
• Brokerage and investment accounts.
• Life insurance policies (if the estate is a beneficiary).

Tangible Personal Property:

• Vehicles, boats, or other titled assets.
• Jewelry, art, collectibles, and antiques.
• Furniture and household goods.

Business Interests:

• Ownership shares in businesses or partnerships.

Other Assets:

• Debts owed to the deceased (e.g., loans made to others).
• Digital assets such as cryptocurrency or online accounts.
• Pending lawsuits or settlements.

3. Determine the Value of Each Asset

• Obtain appraisals for real property and any valuable personal property (e.g., art or antiques).
• Use account statements for liquid assets like bank or brokerage accounts, valuing them as of the date of death.
• For vehicles, use reliable valuation tools like Kelley Blue Book.
• Consult professionals for business valuations, if applicable.

4. Document Liabilities

• Include all known debts of the deceased such as:
  • Mortgages or home equity loans.
  • Credit card balances.
  • Medical bills or other personal debts.
  • Outstanding tax liabilities.

5. Prepare the Inventory Report

Organize the inventory into a clear, categorized list. For each asset, include:

• Description: Detail each asset (e.g., “Toyota Camry, 2018”).
• Value: Indicate the appraised or estimated fair market value as of the date of death.
• Location: Specify where the asset is physically located or held.
• Ownership: Note if it was solely owned by the deceased or jointly owned (but still subject to probate, which is rare).

6. File the Inventory with the Court

• Once complete, the personal representative submits the inventory to the probate court or provides a copy to all the interested persons.
• In years past, the Massachusetts rules required that the personal representative prepare an Inventory and file it with the court. The newer Massachusetts Uniform Probate Code still requires the preparation of the Inventory, but it is no longer required that the personal representative file it with the court, unless otherwise ordered. Instead, the personal representative has the choice of filing the Inventory with the court or mailing a copy of it to all interested persons.

Conducting A Probate Inventory Sounds Time-Consuming. Any Tips for Success?

• Stay Organized: Use spreadsheets or inventory forms to keep track of all information.
• Consult Professionals: Work with attorneys, appraisers, and accountants as needed.
• Communicate with Beneficiaries: Keep all beneficiaries informed throughout the process to maintain transparency and help prevent disputes.
• Secure the Assets: Ensure all valuables and significant assets are safely secured and protected during the entire probate process.

How Are Personal Representatives Compensated In Massachusetts?

In Massachusetts, personal representatives are entitled to reasonable compensation for their work in administering an estate. The state does not specify a fixed fee or percentage, but compensation must reflect the time, effort, and skill required for the estate’s management. Here are some factors that can affect compensation:

Reasonable Compensation:

• Massachusetts law allows personal representatives to receive compensation deemed “reasonable under the circumstances.”
• What is considered reasonable depends on factors such as:
  • The size and complexity of the estate.
  • The amount of time and effort spent managing the estate.
  • The level of expertise required to handle the estate’s assets.

Agreement or Will Provisions:

• If the will specifies compensation, the personal representative generally follows that provision unless it is deemed unfair or is contested.
• The representative may petition the court for additional compensation if the will’s specified amount does not adequately cover their work.

Court Approval:

• Compensation is often subject to approval by the probate court, especially if:
  • Beneficiaries challenge the amount.
  • The estate is unusually large or complex.

Taxable Income:

• Compensation received by a personal representative is considered taxable income under federal and state tax laws.
• Personal representatives may prefer to waive compensation to avoid additional tax liability, particularly if they are also beneficiaries of the estate.

Reimbursement for Expenses:

• Personal representatives are entitled to reimbursement for reasonable expenses incurred while administering the estate, such as:
  • Court filing fees.
  • Travel expenses.
  • Costs of hiring professionals (e.g., attorneys, appraisers, or accountants).

How Do I Manage The Estate’s Finances During Probate?

It is strongly recommended to open a dedicated estate bank account once you have been appointed as personal representative. This is crucial for keeping estate finances entirely separate from your personal finances. You will deposit all estate funds into this account during probate including funds from the deceased’s remaining bank accounts, the proceeds from the sale of real estate and personal property, and any incoming payments to the decedent like rent or stock dividends. All estate payments, such as probate attorney fees, tax payments, mortgage payments, and the like, will also be made from this separate account.

How Do I Request PR Compensation From The Estate?

The personal representative typically includes their compensation request as part of the final accounting submitted to the court. Beneficiaries have the right to review and contest this request if they believe the amount is excessive.

Does Massachusetts Have Estate Tax?

Yes, Massachusetts has its own estate tax. For individuals dying on or after January 1, 2023, the Massachusetts estate tax generally applies if the total value of the estate exceeds $2 million. While the law refers to a filing threshold, a credit applies that effectively exempts estate valued up to $2 million. This $2 million threshold includes all assets, such as real estate, personal property, bank accounts, life insurance policies and business interests. The current tax rate in Massachusetts ranges from 0.8% to 16%, increasing with the size of the estate. 

In addition to the Massachusetts estate tax, estates may also be subject to the federal estate tax if their value exceeds the federal exemption which is currently $13.99 million as of 2025. Recent legislation “permanently” increased this amount to $15 million starting in 2026 (indexed for inflation for later years).

How Do I Pay The Estate Tax?

If the estate’s value exceeds the $2 million Massachusetts estate tax threshold, the personal representative must file a Massachusetts estate tax return (Form M-706). This return is due 9 months after the date of death, although extensions for filing the return may be requested (the payment of the tax is still due within 9 months).

Is There A Way to Avoid Estate Tax When I Pass Away?

Absolutely. Proactive estate planning can significantly reduce or even eliminate estate tax liability. Here are some common strategies:

• Use both Massachusetts Exemption Amounts: For married couples, the most important step is to ensure that your estate plan fully utilizes the Massachusetts exemption amounts for both spouses. This usually requires one or more trusts and appropriate asset allocation.
• Gifting During Life: You can reduce the size of your taxable estate by making lifetime gifts. For 2025, you can gift up to $19,000 per person per year to any number of recipients without incurring gift tax or using any of your lifetime federal gift tax exemption.
• Irrevocable Trusts: Assets transferred into certain irrevocable trusts can be removed from your taxable estate, effectively reducing your estate tax exposure. This is especially effective with life insurance.
• Charitable Contributions: Making donations to qualified charities, either during your lifetime or through your will, can significantly reduce your taxable estate.

Reach out to Attorney Ken Harvey to understand more about personalized estate planning strategies and how to potentially save your beneficiaries from the Massachusetts estate tax.

Are There Other Taxes I’ll Have To Pay?

Unfortunately, yes – you’ll have to file the final personal income tax return for your deceased loved one for the portion of the year they were alive. This is separate from the estate tax. There may also be an income tax return that will have to be filed for the estate.

How Do I Finish Probate In Massachusetts?

After the PR has gathered and valued the estate’s assets and paid any outstanding debts and taxes, the PR will distribute the remaining assets to the beneficiaries. You should wait until the creditor period if over, and it is also wise to get a signed receipt from each beneficiary confirming they have received their inheritance, which provides a clean conclusion to the process. 

While there is no longer any requirement to submit a formal accounting of the assets with the court (unless so ordered), you may choose to have an accounting prepared and filed with the court and then seek an allowance from the court (basically the court’s “blessing” of the accounting).  An accounting details all income, expenses, and distributions made during the probate process, and preparing one is a good exercise to undertake whether or not you file it with the court and seek the court’s approval.

How Long Does Probate Take In Massachusetts?

Because of the one-year creditor period In Massachusetts, the probate process typically takes at least 12 months, even though a lot of that time is spent waiting in simple estates. The process can take longer depending on the complexity of the estate.  Factors requiring additional time include significant assets that require estate tax returns to be filed, disputes that may arise, or other unforeseen challenges that come along.

How Do I Avoid Probate In Massachusetts?

To help your loved ones avoid the probate process for your own estate after you pass away, you can utilize several estate planning strategies:

• Revocable Trust: Creating and funding a revocable trust during your life allows your assets to be managed by a trustee and distributed to your beneficiaries without going through the probate process.
• Joint Ownership: Holding property in joint tenancy with rights of survivorship or as tenants by the entirety (for married couples), allows the property to pass directly to the surviving owner(s) upon your death, bypassing probate for that asset.
• Beneficiary Designations: For financial accounts, retirement plans (IRAs, 401(k)s), and life insurance policies, you can name specific beneficiaries. These assets will transfer directly to the named individuals upon your death, outside of probate. This includes “Payable-on-Death (POD)” or “Transfer-on-Death (TOD)” designations for bank and brokerage accounts.
• Gifts: Gifting assets to heirs during your lifetime reduces the size of your probate estate.

Effective estate planning is an important, crucial step to streamline the transfer of your assets and potentially save your loved ones from the probate process. Please reach out if you would like to begin that process or just learn more.

Do You Have Any Tips To Make Probate Go Relatively Smoothly?

The most significant recommendation is to be communicative, collaborative, and transparent with the other beneficiaries. Probate can become challenging when beneficiaries are not aligned on decisions regarding the estate, especially if parts of the will are vague or do not specify certain details. Working cooperatively with all interested parties to the greatest extent possible is always in everyone’s best interest.