1 PROBATE 101 Christopher H. Suh, Esq. The Wagner Law Group One Financial Center, Suite 3610 Boston, MA 02111 (617) 271-5282 csuh@wagnerlawgroup.com https://linktr.ee/suhchris 2025 2 Introduction The Wagner Law Group 3 What is “Probate”? • Probate is the legal process a one’s estate goes through with the probate court when he or she dies. • During this process the probate court will: 1. Determine whether or not the decedent had a valid Will; 2. Authorize a Personal Representative to administer the decedent’s probate property; and 3. May make other important legal determinations, such as: a. who the decedent’s heirs at law are, b. what distributions should be made from the estate, and c. construe the terms of the decedent’s Will. • Without probate no one will be able to access a decedent’s probate property. The Wagner Law Group 4 What is your “probate estate”? • We have to distinguish between non probate property and probate property. • “Probate property” is property in one’s own individual name, • “Non-probate property” that already knows where to go when the decedent dies. Non-probate property is not part of the decedent’s probate estate. • Examples of Non-Probate Property: – Jointly held property – Property with a beneficiary designation (such as life insurance or retirement assets) – Property held in a trust • Probate Property doesn’t know where to go on its own when one passes away. – A bank account in the one’s individual name would be probate property. – Probate property needs a Will or the laws of intestacy to tell it where to go after death. • One’s probate estate only includes probate property. The Wagner Law Group 5 What is a “Will” • A Will is a written instrument legally executed to express the one’s wishes upon death. • A Will can do many things including the following: – Dispose of a decedent’s probate property – Name a Personal Representative of the estate – Name a guardian and conservator for a decedent’s minor children – Indicate whether a Personal Representative will need a bond with sureties – Indicate what powers the Personal Representative will have • A Will has to be executed in accordance with certain formalities in order to be valid, such as having two witnesses. Most Wills are also notarized. • Many estate plans include a revocable trust in addition to a Will. The Wagner Law Group 6 Who is a “Personal Representative” • A Personal Representative (PR) is the person appointed by the probate court to administer a decedent’s probate estate after his or her death. • A Personal Representative is a fiduciary that stands in the shoes of the deceased person, and can do most of the things that the deceased person could do. • The job of the Personal Representative is to marshall all the assets of the decedent, file his or her taxes, pay all of his or her debts and expenses, and dispose of the assets of the estate. • A Personal Representative has no power over Non-Probate Property • The term Personal Representative used to be called Executor and Executrix. 7 How your probate estate is distributed The Wagner Law Group 8 If there is a Will • The estate must first pay for the debts and expenses of the estate, including the decedent’s taxes and attorneys’ fees. – These are generally paid from the residue of the estate. • The rest of the estate property is distributed in accordance with the terms of the Will. – Many Wills indicate that the remaining property should be distributed to a revocable trust, because a trust may save taxes and also can provide greater long term control of the property. The Wagner Law Group 9 If you do not have a Will • The remaining property after debts and expenses of a decedent who died without a Will will be distributed according to the laws of intestacy (MGL 190B, sec. 2-102) • The surviving spouse will receive: – the entire intestate estate if: • no descendant or parent of the decedent survives the decedent; or • all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent; – the first $200,000, plus ¾ of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; – the first $100,000 plus ½ of any balance of the intestate estate, if there are any descendants of the decedent or the surviving spouse that are not in common with each other; • Remainder to descendants per capita at every generation. • This distribution may not properly reflect one’s wishes. It is therefore important to have a Will so one’s property will be distributed as one would like. The Wagner Law Group 10 Per Capita at Every Generation Example • The Decedent has 3 children, C, D, and E. Two are deceased (C and D) and one is living (E). – C himself has three living children. – D himself has one living child. – E is alive with no children of her own. • Upon the Decedent’s death, each surviving child (or the generation nearest to the designated ancestor) gets a share, and all of the remaining shares are divided equally among the surviving descendants of the deceased children. Therefore, in the above example, – E would keep her 1/3 share and – the 4 grandkids (3 children of C, and 1 child of D) would get to equally share the remaining 2/3 The Wagner Law Group 11 Elective Share (M.G.L. c. 191, § 15) In place of what the Will says: • If there are living descendants, a spouse may claim 1/3 of property (first $25,000 outright and the remainder in a life estate) • It there are no living descendants, a spouse may claim $25,000 outright plus ½ of remaining property in a life estate 12 Types of Probate The Wagner Law Group 13 Types of Probate • Formal Probate – This is the most traditional form of probate – Once allowed it is difficult to remove the Personal Representative or invalidate Will – Can be a supervised administration • Informal Probate – Streamlined probate – Not available or advisable if there are complications or potential complications • Voluntary Administration – For small estates under 25K + motor vehicle • Special Personal Representative – Short term appointment of Personal Representative for emergency • Late and Limited Probate – If over three years has passed since death The Wagner Law Group 14 Informal Probate v. Formal Probate • Informal probate is an administrative proceeding to probate a will and/or appoint a Personal Representative. Unlike a Formal Probate, one does not have to have a hearing in front of a Probate and Family Court judge. • Informal Probate is not available or advisable if there are complications or potential complications. • It is best suited for situations in which one is certain that none of the interested parties will contest the process. • Informal Probate is intended as a streamlined process, but in reality it may take nearly as long as Formal Probate given the slow pace that probate courts may take in processing paperwork. • If anyone objects to an Informal Probate at any time, a Formal Probate will be required. The Wagner Law Group 15 Informal Probate is unavailable if: • The original Will is unavailable, • There is no official death certificate, • The location of any interested party is unknown, • The intended Personal Representative does not have priority for appointment, • An interested person is a protected person without a conservator or independent guardian, • The intended Personal Representative is a creditor or public administrator, • The estate of a since deceased interested party does not have a Personal Representative, • A supervised administration is necessary, or • A judge must sign an order or a final decree for any reason. 16 Formal Probate The Wagner Law Group 17 Initial Documents for Formal Probate • Petition – Asks for allowance of Will (if there is one) and appointment of PR • Bond – Binds PR to be responsible for probate property. – Will can waive sureties on the Bond • Original Will (if there is one) • Certified Death Certificate – Proof of death • Surviving Spouse, Children, Heirs – Provides information regarding the decedent’s natural heirs • Devisees (if there is a Will) – Provides information regarding the beneficiaries of the Will The Wagner Law Group 18 Initial Documents for Formal Probate • Military Affidavit – Says whether any interested party is in the military • Uniform Counsel Certification Form – Indicates that interested parties have been made aware of alternate dispute options. • Proposed Decree – Indicates to the court what you want • Filing Fee $405 • Assents? – Interested Parties can assent to the Petition The Wagner Law Group 19 Citation • Once the initial documents are filed, the Probate court will issue a Citation. • The Citation indicates what sort of Notice is required to interested parties. • The Citation will also provide a Return Date, which is the deadline for people to file an objection to the Petition. The Wagner Law Group 20 Notice • Citation must be provided to all interested parties who have not assented. • Citation must be published in a local paper. • Citation and the Petition must be provided to the DMA • Citation and Petition must be provided to the attorney general if there are any charitable beneficiaries of the Will.