Helping Massachusetts families
plan for the journey ahead.

Frequently Asked Questions

Many of the following "Questions and Answers" are extracted from the website www.malawforum.com.  This site provides a venue for the public to ask legal questions of Lawyers licensed in Massachusetts who specialize in a variety of areas of practice. All information is provided for informational purposes only, not as legal advice. Attorney Bernardin is a regular contributor on the topics of estate planning and estate administration.

   • Obligation to Deliver Will to Probate Court
   • Estate Tax and Grasping Relatives
   • Do I have to go through Probate?
   • Obtaining Deceased Father's Medical Records
   • Acceptable Length of Time to Probate Will?
   • How Do I Register or Transfer Car After Death of Spouse/Owner?
   • Question on Taxes and Distribution of Estate
   • Estate Is Now in Probate - Should I Remove Any Belongings From the Home?
   • Relative Hiding Assets from Will to Which He Was Executor
   • Voluntary Administrator
   • Contesting a Will or the Appointment of an Executor
   • Do I Have to Probate?
   • Who Gets What When There is No Will?
   • Should I Change my Deed After my Spouse Dies?
   • Can I Force the Estate Executor to File an Accounting?
   • Not Really Life Estate But ....
   • Father Passed Away, No Will?
   • Durable Power of Attorney
   • Irrevocable Trust

TOP

Obligation to Deliver Will to Probate Court

Question: My father died in June of 2007. I have been checking with the appropriate probate court for the county, but my father’s will has not been filed. I have not seen my fathers will nor have I been contacted by my stepmother’s attorney. I have been told verbally that my father left all assets to her. My father had siblings and a living parent, so I do not believe this to be true. Is there anything I can do under Massachusetts law to force her attorney to file the will so it is a public record? Regardless of assets, I would like to see my father's final wishes.

Answer: Under Massachusetts law, a person in possession of the original Will is obligated to deliver the Will to either the Probate Court, or to the named executor (who is then obligated to deliver the Will to the Probate Court). You may want to review Massachusetts General Laws chapter 191, section 13. There is a procedure by which the Probate Court will require the delivery of the Will - so I am confident that if there is a Will, you will be able to get it produced (even if it means hiring an attorney to force the issue). That is the easy part.

The more difficult issue is that a Will only controls what happens to your father's "probate assets" - and it would not surprise me to learn that your father did not have any probate assets at his passing. It is very common for spouses to hold all their assets in joint name, and for each spouse to name the other as the beneficiary of retirement plans and insurance policies. So quite often there are NO probate assets on the death of the first spouse, and therefore the Will really is not a factor. But by all means, either you or your attorney can make an informal phone call to your father's attorney. If there is a Will, then it will need to be delivered. Good luck.

TOP

Estate Tax and Grasping Relatives

Queston: After my mother’s death, my father made a will  leaving everything to me. (I have a brother 10 years older than I am). I now pay all the bills, and taxes on [my father’s house.] We have no mortgage, but my father has an equity loan which I pay for him every month. My question is: does Massachusetts law allow me to take my mother’s name off the deed to the house and have mine put on with my father’s? And if my father passes away, am I responsible for paying inheritance tax? I don’t mind paying what I’m supposed to, but there is a lot of land here, and I can’t afford to pay it all at once. Also can my father’s family (brother or sister) whom we haven’t seen in 20 years, lay claim to our home? --

Answer: Assuming that your mother and father owned the real estate either jointly or as tenants by the entirety, it is a relatively simple matter for your father to transfer an interest in the real estate. He will need to record an original death certificate, a new deed, and he should record a document to release the MA estate tax lien (an Affidavit or a form M-792). I do not usually recommend an outright transfer of the real estate. I prefer either a simple living trust or perhaps a deed with a "retained life estate". Both approaches allow your father to avoid the probate process (just like joint ownership would), but with more flexibility and protection for your father.

Your father really needs to work with an attorney on these matters because the type of transfer you describe can result in disqualification from MassHealth (Medicaid). There are also some income tax issues that should be fully explored before your father makes any final decisions. I assume that you live in Massachusetts - so your father's estate will only be subject to a federal estate tax if the value of the gross estate is more than two million dollars (in 2008). His estate will only be subject to a Massachusetts estate tax if the value of the gross estate is more than one million dollars.

From the information you provided I have no way of knowing what estate tax will be due, if any. Your father's family would have a hard time establishing standing to object to his estate plan or his lifetime gifts. Your brother, on the other hand, would have standing and therefore would be able to object. That does not necessarily mean that he will be successful, just that he could make your life difficult. Therefore it is very important that everything is done correctly. I Hope that helps. If your father's attorney does not specialize in estate planning, then have him work with an attorney who is a specialist. You should be as far removed from the process as possible so that your brother cannot allege that you (rather than your father) made all the decisions.

TOP

Do I have to go through Probate?

Question: My Dad passed away 3 months ago. 5 years ago he placed his home in a Life Estate transferring ownership to me. He also had a will naming me as sole heir ( although I do have a sibling) He "excluded him" and it is stated in the will. Upon his demise he held a small amount of money in a joint account with me which I have since used to pay off his outstanding debts. Yesterday a bill for $8000.00 was mailed to his home for a loan that he had taken out 3 years ago that I was never aware of. There is not any monies left to pay this. Am I now responsible for paying this? Do I have to probate his estate as there is nothing left 

Answer: In Massachusetts, there is no obligation to go through the probate process if there are no probate assets. Based on what you have described, it does not appear that your father had any probate assets. The joint bank account and the real estate have both passed to you by operation of law on your father's death OUTSIDE of the probate process. Therefore I am not sure why you would need to go through the probate process.

You will need to file an original death certificate and a estate tax affidavit with the proper registry of deeds to establish clear title to the real estate in your name. I would also close the joint account and transfer the remaining funds into one of your own accounts. Finally, you are technically supposed to file the original will in your possession with the proper probate court - despite the fact that you will NOT be seeking the allowance of the Will.

Your father's creditors can generally only recover against his probate estate - so again you should be fine. You did not indicate whether the $8,000 was secured by the real estate. If it is, then you will have to do something because despite the fact that the real estate passed to you on your dad's death, you would take the real estate subject to any security interest that existed on his death. If it was an unsecured loan - then you are fine. If it was secured by a mortgage on the real estate, then you will have to deal with it at some point.  You will most likely be hounded by creditors for a while - who may make all sorts of erroneous statements and claims. In general you can ignore them.

TOP

Obtaining Deceased Father's Medical Records

My dad passed away suddenly in April and the family is interested in obtaining a copy of the medical records generated during his hospital stay. My mom is still living and they have a will but it seems more documentation is needed for the hospital to release these records. The medical records office suggested having a "voluntary administrator" appointed. Would this be appropriate if a will already exists? Can you give us any insight in how we can successfully obtain these records? Thanks

Answer: I am sorry for your loss. I am sure that this is a difficult time for your family. Generally, our privacy rights are very durable, surviving even our death. So it is not inappropriate for the hospital to refuse to release medical records except to a court appointed fiduciary.

I am sure that if someone in the records department is telling you that they will release the files to a duly appointed Voluntary Administrator (used for a decedent who died without a will), then they will also release the files to a duly appointed Voluntary Executor as well (used for a decedent who died with a will). The Voluntary process is a much-streamlined process intended to allow for the efficient administration of very small estate. It is a very simple process, requiring only one form (along with an original death certificate and the original Will)be filed with the appropriate Probate Court. There are several significant limitations, however: the value of the probate assets (excluding one automobile) must be less than $15,000, there can be no real estate in the probate estate, the Voluntary cannot be filed for at least 30 days after the decedent's death, the named executor is competent, no petition to probate the Will has been filed, and the decedent had to be a MA resident. If the estate does not qualify, then it is not eligible to use the Voluntary process.

Ordinarily I shy away from encouraging non-lawyers from trying to probate an estate - it really can be a difficult process. But the voluntary approach really is pretty straight-forward. You may want to give it a try. You can always call for reinforcements if you feel that you are over your head.

TOP

Acceptable Length of Time to Probate Will?

A relative passed away January 2007. Her will was in the process of being changed when she passed which caused a bit of a hiccup. She did not have a savings, but was counting on money received from the sale of her home to be given out to the people listed in her will. Her home was put up for sale and once sold, the proceeds were used to pay off her home related expenses up to that date and the rest was to be divided between the legatees listed on the will. There was not enough money to give everyone what she wanted so the ones who were at the top of the list were safe, those on the bottom were excluded.

This all took about 2 years to come to this point, and her home was sold October of 2008. June of 2009 lawyer sent letters to original people in the will asking if they wanted to split the will into percentages, so that everyone listed in the will could get some money, even if it wasn't the original amount. All legatees involved agreed, sent signed papers into lawyer as he gave a deadline as mid July. Papers were supposedly filed in court and as long as judge agreed, the funds would then be given out by attorney's office. No word comes from attorney. Call was placed in September 2009 asking for update. We were told court was backlogged by 2 months and it should be "any day". Still no word from attorney so we called again in October. And again in November. Both times given the same answer "I have no idea why it's taking this long. Should be any day" Called the week of December 6th 2009. "It's on the judges desk we saw it when we were there. It should be any time now". Got word another legatee called the week after that to see what was going on as attorney's office had not been keeping anyone in the loop as to the status. He was told that the judge was heavily involved in a theft case and probably won't be getting to this until sometime in February 2010. Judges can only handle one thing at a time?

I really find the run around we have been given very fishy. We are calling the ACAP this week to have the office investigated as we keep getting told one excuse after another. Is it normal for a case like this to take 3 years? I can't imagine a judge would be so involved in a case that they cannot attend to any other pending matters put in his charge. also- what type of account has this money been held in? Is it required to collect interest? If so, who gets it, the attorney or the people named in the will? There has been no mention of that. There was also $800 cash given to attorney that the decedent's sister found in her home. This money has not been accounted for in any paperwork we have seen. Isn't that stealing? I would think it should have been listed under the assets in the will, right?  The attorney was named executor if that makes a difference.

The cash was never documented in the copies he sent us of the sale of the home, bills that were paid from sale money and what was left over and "divvied" up between the legatees.
The ACAP did call the office and he immediately sent out a letter stating that the papers have been filed and they are waiting for the ok from the judge for the attorney to disperse the funds. It's sad that we had to report him just to get a direct answer. By the time this is settled it will have taken 3 years. What a mess!

Acceptable length of time to execute will

Answer: I am not sure I understand. In order for a Will to be effective, it must be executed in strict compliance with a set of very structured requirements. So if the Will was never finalized and executed, it does not really matter what it provides. You would either use the Will that the decedent executed last, or if there was no prior Will then the decedent would have died intestate – meaning that the probate assets will be distributed in accordance with the laws of intestacy (generally to the decedent’s closest then living blood relatives).

Assuming that there is a Will, then there is a very specific set of rules that must be followed with regard to the proper order in which beneficiaries take - residual legatees would all take a proportionate haircut, but different classes of legatees would not necessarily do so. It can be tricky and a lot of caution is indicated.

The Court does not generally get involved with the distribution specifics, except when the executor files the Account and requests its allowance. Not sure if there is some special process that the attorney decided to utilize to protect the executor (such as a petition for instruction).

Seems like I have more questions than answers. I can, however, confirm that the Probate Court and the court personnel in almost every county are completely swamped. We have been routinely waiting three months for things that used to take a week or two. I know that it does not make sense that the judge could not take a moment of time to address your particular issue - but the problem is that there are literally a thousand people in queue with you waiting for "just a moment" of the judge's time.

With regard to the $800 - I am not sure but it sounds like the sister found the money and gave it to the attorney? Then absolutely, it should be an asset of the estate. My guess is that the $800 was either put into the estate checking account, or the attorney applied the $800 against the professional fees. In any case, you should be able to "account" for the $800 with very little effort.
As you may have read on this site before, the estate administration process is supposed to be very open and transparent. If you are a beneficiary of the estate, then you have certain rights. Your frustration is understandable, but I am not sure what steps you have already taken: Have you talked about your concerns with the executor? Maybe ask the executor for permission to speak directly to the attorney handling the estate? Have you thought about consulting with an attorney to review the situation? Although I do not usually recommend this – perhaps speaking to the court personnel would help?

Sorry I cannot provide much in the way of specific guidance.

TOP

How Do I Register or Transfer Car After Death of Spouse/Owner?

Question: My dad is very ill and not expected to last much longer. I'm trying to help my mom get his and her affairs in order and will continue to help after he passes. What should I do with the car that is registered in his name only. My mom just wants to keep it but does she need to re register the car in her name to transfer ownership? Thanks for any help.

Answer: I am very sorry about your dad. It is never an easy thing to deal with. Generally any asset that is held in your dad's individual name (without a surviving joint owner or a named beneficiary) will be a probate asset. You want to try and avoid probate assets if at all possible because that will mean that you have to go through the "probate process" after your dad passes.
With regard to a motor vehicle, your dad can add your mom to the title while he is still living (if that is an option). If not, then there is a special exception to the general rule stated above. A surviving spouse is allowed to transfer the ownership of a motor vehicle without going through the probate process (in most circumstances). There is a DMV form that must be filled out by the surviving spouse - and the car will be re-titled into your mom's name. Your insurance agent will have the necessary form, if not it is available on-line.

TOP

Question on Taxes and Distribution of Estate

Question: I have a couple of questions about the planning of an estate by a friend's father.
He has 3 children. He made the oldest son a joint owner on his checking account that has $200K. He owns his house outright, which is worth approximately $200K. Other than that, he has one IRA with about $100K.

He doesn't want a will - he says that his estate is worth less than $1M, so it won't be taxed. He has made his intention clear that the oldest son (my friend) can be trusted to split up the estate into thirds, equal to his brother and sister. He wanted to have his son joint on his account to make sure that they would be able to write out checks for the funeral and taking care of the house until it sold after he passed away.

My questions are as follows:
- If the account is in my friend's name, can he just write out equal checks (1/3 of the account remaining after the funeral) to his brother and sister? Will there be tax implications for these (as gifts?)
- Does the account need to be handled by probate if it has his son's name on it?
- Is the inheritance really not taxable, by the fed or state if it is under $1M?
- Is the inheritance taxable as income for the children?
I apologize if this is answered in other questions - I am just having trouble finding the answers to this through all the different scenarios.

Answer: I am not surprised that you cannot find answers easily - you have very technical questions. You do, however, seem to have a good understanding of the situation. It is treacherous to give this kind of advice without fully working up the family history, the client's wishes, etc. I can provide some general information that may help.

First, let me just point out that your friend's dad is doing what every client does - he is underestimating how fluid and dynamic life can be. Holding property jointly can be a very effective tool to avoid the probate process - provided that the son survives the dad. If the son does not survive the dad, then you have a big mess. Other factors to consider: If the son gets sued (credit card debt, bad mortgage, car accident) then the father's assets are reachable by creditors, and if the son gets divorced (or married and divorced), the you can bet that the divorcing spouse will consider those assets "fair game".

Assuming that the parent is comfortable with the joint ownership approach on the bank account, what has he done with the house? Has he named primary and secondary "Designated Beneficiaries" on the IRA? In some ways this is like trying to compress a two hour estate planning consultation into a couple of paragraphs - which is not really possible.

So to your questions (and remember - all these answers are specific to Massachusetts):

1. There is a rebuttable presumption that the joint account was intended (by the decedent) to pass to the surviving joint owner. The funds become the property of the oldest son at the dad's passing without restriction or obligation. If the son were to share the account, my position has always been that technically he is making taxable gifts to his siblings (because the account belongs to him on his dad's death). So any amount gifted over $13,000 to a sibling in any given year would require a gift tax return. No gift tax may be due - but the son would be utilizing some of his available federal credits. That is another very involved discussion.

2. A joint account is generally considered to be non-probate, unless it was held for convenience purposes only. An interested party has the right to ask the probate court to treat the account as a probate asset (i.e. try to rebut the presumption that the account was intended to pass to the surviving joint owner).

3. The current federal estate tax exemption is $3.5 million dollars, and the current MA estate tax exemption is $1 million. The calculation of the taxable estate is a little tricky in that it can include assets that most laypersons would not factor in - but those are the filing thresholds.

4. OK - keep in mind that there are multiple types of tax that you have to keep your eye on: estate, gift, and income. In general, assets passing from a decedent to the beneficiaries are NOT subject to any sort of INCOME tax (federal or state). Certain types of assets, however, will create an income tax liability down the road. The best example is the dad's IRA. The children will not have to pay income tax on the IRA right away, but as soon as they start to draw on the IRA they will have to pay income tax on the distributions.

Sorry - I wish I could make this stuff easier - but I hope that helps.

TOP

Estate Is Now in Probate - Should I Remove Any Belongings From the Home?

Question: My mother recently passed away, I am the sole surviving beneficiary in addition to being named the executor and administrator of the estate in the will. While the estate has been submitted to probate, should I refrain from removing any belongings from the home?

My nephew had resided at the house until last year, and he is demanding access in order to remove items that he claims are his own property. While I am not against providing him access, I am concerned that the removal of anything may potentially be in violation of the probate process.
Your input is greatly appreciated.

Answer: The probate process only controls the decedent's probate assets. Assets which did not belong to the decedent can be returned to the rightful owner. You can supervise the process to make sure that there is no confusion or disputes as to the ownership of the assets.

The only people who could possibly object would be the creditors of the estate and the beneficiaries under the Will. If you are correct in your statement that you are the only beneficiary, then you should not have any concerns (because creditors - if any - do not generally get too excited about used furniture and the like).

As an aside, you do want to secure the property and the contents. If other beneficiaries surface (such as an illegitimate child or a "pretermitted child") or if there are creditor issues, they can hold you, as executor, responsible for any missing assets.

TOP

QUESTION MISSING:

Answer: In Massachusetts, there is no obligation to go through the probate process if there are no probate assets. Based on what you have described, it does not appear that the deceased had any probate assets.

If there is a joint bank account and/or real estate, they have both passed to you by operation of law on the decedent OUTSIDE of the probate process. Therefore I am not sure why you would need to go through the probate process.

You will need to file an original death certificate and a estate tax affidavit with the proper registry of deeds to establish clear title to the real estate in your name. I would also close the joint account and transfer the remaining funds into one of your own accounts. Finally, you are technically supposed to file the original will in your possession with the proper probate court - despite the fact that you will NOT be seeking the allowance of the Will.

Creditors can generally only recover against his probate estate - so again you should be fine. You did not indicate whether the $8,000 was secured by the real estate. If it is, then you will have to do something because despite the fact that the real estate passed to you on your dad's death, you would take the real estate subject to any security interest that existed on his death. If it was an unsecured loan - then you are fine. If it was secured by a mortgage on the real estate, then you will have to deal with it at some point.

You will most likely be hounded by creditors for a while - who may make all sorts of erroneous statements and claims. In general you can ignore them.

TOP

Relative Hiding Assets from Will to Which He Was Executor

My wife has been estranged from her brother for many years. Recently she called to speak to their mother, who had come to live with him and his wife 15 months ago, in Massachusetts. Their mother passed away 6 months ago. Her brother had always refused to take her calls to their mother and only yesterday told her that their mother had passed away in December of 2008, and had been a great burden to him.

In addition to this inhuman cruelty, their mother was well-to-do, with property including a high-end home in South Carolina, and had promised 1/3 of its value to our children (the mother's grandchildren), in her will. The brother refuses to discuss anything with my wife, including the details of their mother's death. (He only "allowed" their mother to speak to my wife once or twice a year, and at other times did not pass messages along that my wife had called. Our children and my wife wrote, but never received any written replies - very odd for my mother-in-law, who at 84 was very "with-it," at LEAST until early December of 2008, when she and my wife last spoke for nearly three hours on the 'phone.)

The brother was named executor of their mother's will but refuses to speak about it, even to say whether it has been probated and if so, where.

This is about our (my wife's and my) children, who are grown and in graduate school. (My wife and I claim nothing for ourselves.)

What can we do to prevent our children from being cheated out of their rightful inheritance, in accordance with their grandmother's will and wishes??

Answer: I am sorry - that is an awful situation. There is nothing "right" or acceptable about your brother-in-law's behavior. Assuming that your mother-in-law moved to Massachusetts with the intention to make this state her residence, then the Probate Courts of Massachusetts would have primary jurisdiction over her estate. That means that the Probate Court for the County in which your mother-in-law passed away will control what happens to her personal property (where ever located anywhere in the world) and Massachusetts real estate.

Real estate located in another state would be handled through a process call "ancillary administration" meaning that whoever is appointed in Massachusetts will also have to be appointed in each state in which real estate is located. In Massachusetts, anyone in possession of an original Will has to deliver the Will either to the Probate Court or the named executor within 30 days of the testator's death (M.G.L. c. 191 §13). So assuming that your bother-in-law has the Will but has not yet petitioned the Court to be appointed executor, perhaps the best place to start would be to go to the proper probate court and file a petition to demand the production of the Will. The court takes this very seriously - and in fact MA law allows the person holding the Will to be jailed or fined (M.G.L. c. 191 § 14)!

I started with that assumption because it does not seem possible that your brother-in-law could have done anything with the estate yet. Your wife is an heir at law of the estate, so she would absolutely have to receive actual notice of his petition. And it is good to keep in mind that the probate process is specifically designed to be as transparent as possible - it is NOT a secretive process! I hate to say it (since it seems like I end all of my posts this way), but this is something that you probably do not want to handle yourself - particularly from afar. Find a good local attorney who specializes in Probate matters - you need to move aggressively to address this situation. Your brother-in-law is not in control of this situation, even if he is named as executor!

Dear Peter,
I send you the heartfelt thanks of my wife and me, for your timely and comprehensive reply to my letter.

You have given us hope for closure regarding my wife's mother's passing. You have given us a place to start in settling this matter, and seeing that justice is accomplished and that my mother-in-law's wishes are carried out - wherever it may lead.

Thank you, sir. I will tell you that your response brought tears to my wife's eyes that "a stranger" would care enough to be so complete and so generous with his hard-won knowledge and experience. May God bless you and yours for your kindness.

TOP

Voluntary Administrator

Question: My sister past away in 1992 without a will. My father applied and became the administrator of her estate. He died in 1999. He had a will and I was named executrix of his will. I was the only heir. My mother had also passed away in 1993 before my sister's estate was finalized. I recently became aware of some money in the abandon property division in MA. I believe all I need to do is apply to become a voluntary administrator for her estate. Is this correct? Thank you in advance for any information.

Answer: A Voluntary Administration is a streamlined process that allows you to administer the estate of a MA resident who dies with a very small probate estate. It is a great approach - when it is an option. Unfortunately, it is only available in certain circumstances. In this case, where a petition for (full) administration has already been filed, the Voluntary is not supposed to be available. You can check with your local Probate Court, but my expectation is that the court will instruct you that you must petition to be appointed Administrator De Bonis Non (d.b.n.) of the estate not already administered (form CJ-P 5). That is more involved, but not impossible.
Good luck.

TOP

Contesting a Will or the Appointment of an Executor

Question: My brother has filed for executorship of my mom’s estate, and my brothers and I have filed to contest. We will be going to ‘case management.’ What will happen there? There is a Will that my mom signed after being diagnosed with Alzheimer’s. We think my stepfather should be in charge of this process, because they were together for 27 years. Under Massachusetts law, will it be easy to contest the Will, since the rest of the family is against my brother’s appointment as executor? My stepfather has documentation of the Alzheimer’s diagnosis dated before the Will was written. Thank you for your input.

Answer: I admire your willingness to attempt this on your own, but I have to warn you that a Will contest is a very difficult thing to do without any training. I have witnessed many good attorneys make procedural mistakes or miscalculations that were disastrous. I am a probate attorney with many years of experience but I still refer most of my will contests out to attorneys who specialize in that type of law. It is that specialized – and given what little I know about your situation I expect that a specialist is indicated here. Your brother has asked that the court appoint him as executor of your mother’s estate, which means that he has filed a document purported to be your mother’s final Will with the Probate Court. You have filed an appearance, and thereafter you are obligated to file your specific written objections to your brother’s request. You don’t provide much detail, but typically a Will contest revolves around your mother’s capacity at the time she executed the Will, her susceptibility to undue influence, the validity of her signature, the existence of a more current Will, etc.

 In the alternative, you may actually believe that the Will is valid but object to your brother’s appointment because he is not a suitable executor. That approach is a little difficult because

Massachusetts courts generally grant broad deference to the decedent’s wishes. In any event, over the course of the dispute, the judge will schedule status conferences to ensure that the matter is progressing. So it sounds like you will be going to Court to meet with the judge and discuss the situation. It generally does not matter that most of the family is not comfortable with your brother’s appointment; You must meet your burden of establishing why the Will is not valid or by showing why your brother should not be appointed. You may need to gain access to and present medical evidence to the court (perform discovery, file motions, gather evidence, etc.) It is not an easy task, nor one that I would want to try without any training. I would strongly urge you to consult with a Massachusetts attorney who specializes in will contests as soon as possible

TOP

Do I Have to Probate?

Question: My Dad passed away 3 months ago. 5 years ago he placed his home in a Life Estate transferring ownership to me. He also had a will naming me as sole heir (although I do have a sibling) He "excluded him" and it is stated in the will. Upon his demise he held a small amount of money in a joint account with me which I have since used to pay off his outstanding debts. Yesterday a bill for $8,000.00 was mailed to his home for a loan that he had taken out 3 years ago that I was never aware of. There is not any monies left to pay this. Am I now responsible for paying this? Do I have to probate his estate as there is nothing left?

Answer: In Massachusetts, there is no obligation to go through the probate process if there are no probate assets. Based on what you have described, it does not appear that your father had any probate assets. The joint bank account and the real estate have both passed to you by operation of law on your father's death OUTSIDE of the probate process. Therefore I am not sure why you would need to go through the probate process.

You will need to file an original death certificate and a estate tax affidavit with the proper registry of deeds to establish clear title to the real estate in your name. I would also close the joint account and transfer the remaining funds into one of your own accounts. Finally, you are technically supposed to file the original will in your possession with the proper probate court - despite the fact that you will NOT be seeking the allowance of the Will.

Your father's creditors can generally only recover against his probate estate - so again you should be fine. You did not indicate whether the $8,000 was secured by the real estate. If it is, then you will have to do something because despite the fact that the real estate passed to you on your dad's death, you would take the real estate subject to any security interest that existed on his death. If it was an unsecured loan - then you are fine. If it was secured by a mortgage on the real estate, then you will have to deal with it at some point.

You will most likely be hounded by creditors for a while - who may make all sorts of erroneous statements and claims. In general you can ignore them.

TOP

Who Gets What When There is No Will?

Question: A member of my family passed away. There was no will. Myself, and my brother and sister, were raised by this person, from when we were children; I was about 14 months when placed into custody with her. Because there is no direct bloodline to the deceased, we are being handed a portion of the estate that equals 1/3 of 1/3 of 50%. Is there some law that states after some period of time, we could be considered her children? There is one person, who has zero bloodline connection, and they are getting 300% more than us.

Answer: If there was no will, then the decedent died “intestate”, and the decedent's probate property must be distributed to the heirs-at-law (the decedent’s closest living relatives as determined by statute) in accordance with the Massachusetts laws of intestacy. The laws of intestacy are pretty rigid, so there is no ability to adjust the statutorily required distributions. In fact the Administrator of the estate could be sued by the “rightful” beneficiaries for doing so.

I'm assuming that you and your siblings are related to the decedent, but were never adopted by the decedent (the only way that you might be considered the children of the deceased). There may be some other arguments that could be made (such as promissory estoppel in some circumstances) but otherwise, I do not know of any avenue that you could pursue.

TOP

Should I Change my Deed After my Spouse Dies?

Question: My wife died last year, and I was wondering if Massachusetts law requires me to do anything to change the deed to our house. For example, should I change it so just my name is on the deed?

Answer: Your next steps will really depend on how you and your wife held title to the real estate. Assuming that the real estate is located in Massachusetts and that you held title either as "joint tenants" or as "tenants by the entirety" (you will need to look at the deed to determine how you hold title), then title to the property passes to you automatically by operation of law on your wife's death. You will need to record an original death certificate with the appropriate registry of deeds (to establish that your wife has died), and that is all that is required to establish title in your name. If you and you wife held title as "tenants in common" (which would be somewhat unusual), then you will have to probate her estate in order to address the title to the real estate.

In that situation, I would recommend that you consult with an attorney.
One last issue to consider is the estate tax lien. Under Massachusetts law, an automatic lien arises against the estate of a decedent. The lien is in force for ten years from the date of death - so if you are going to sell or mortgage the property before the tenth anniversary of her death, the lien will be a problem.

You can remove the lien by recording an estate tax affidavit with the appropriate registry of deeds (if your wife's gross estate was worth less than one million dollars at the time of her passing), or by filing an estate tax return (M-706) and Lien Release (M-792) with the appropriate registry of deeds (if your wife's gross estate was worth more than one million dollars at the time of her passing).

TOP

Can I Force the Estate Executor to File an Accounting?

I am one of 11 beneficiaries in a will. The 11th beneficiary is also the executor. The ten of us feel that the accounting process is taking too long. Our aunt passed away in January of 05. How would we (or can we) petition the court to produce a final accounting?

Answer: Unfortunately, this happens more than you might expect - in fact, January of '05 will not even raise an eyebrow in the court. That said, the beneficiaries of the estate have the absolute right to an Accounting. If the Executor will not voluntarily prepare and file the Account, there's a specific procedure/form that the Probate Court has in place to force the Account.

You need to complete a Probate Court form CJP 68 (available at the court and on line - try the Plymouth County website http://www.pcpfc.com/ - you will have to delete "plymouth" County and add the appropriate county).

Read through the form carefully as you will have to complete some sentences and strike phrases. Once completed, file with the Court. The Court will send the Executor an order to file the Account by a certain date. If the Executor does not comply, then you can file another form to request sanctions. At that point the court would also entertain a motion to remove the Executor from office.

TOP

Not Really Life Estate But ......

Question: not available

Answer: I understand your goals - ideally there would have been some planning 8 years ago but you can still make it work. You and your girlfriend can grant your mother a life estate in the property now, which should work pretty well. Your mom would take subject to the mortgage(s) - but there is not much you can do about that at this point.

You should be aware of the fact that if you do grant your mom a life estate, she has an ownership interest in the property. This means that every time you re-finance you will need her cooperation. Further, if you sell the property she will need to participate in that as well.

Perhaps a better approach would be for you to do a will (or better - a trust) in which you create a life estate for your mother. YOU WILL NEED TO MAKE SURE THAT YOU DO NOT OWN THE REAL ESTATE JOINTLY WITH YOUR GIRLFRIEND BECAUSE IF SHE SURVIVES YOU - THE PROVISIONS OF YOUR WILL OR TRUST WILL NOT CONTROL.

There are potential income tax, transfer tax, and Medicaid planning issues so you may want to seek the advice of a qualified attorney.

TOP

Father Passed Away, No Will?

Question: My father passed away very suddenly and he had no will. He did not own land or a house but he did have a car which I don't know what to do with at this point. What do I have to do to legally take possession of the vehicle? Any help would be appreciated.

Answer: If there is a surviving spouse, there is a special provision of MA law that allows a spouse to re-title a motor vehicle. Otherwise - assuming that your dad's total PROBATE ESTATE is worth less than $15,000 (not including the value of one car), you can do a "voluntary administration" - basically a very streamlined version of the probate process. You complete one form, and about a week later you will be granted the authority to deal with that one asset (in this case, the car). That should work well for you.

TOP

Durable Power of Attorney

Question: My Dad who is 78 has been advised to get a durable power of attorney. I will be his agent. Can I do this myself...i.e. download a form specific to MA from a website and have it witnessed and signed by a notary? Does it have to be recorded in the state of Massachusetts?

Answer: Yes, you can do it yourself. Make sure you have a form for a durable power (one that survives your dad's incompetence) and get it notarized. You do not need to record it. To be safe, try finding a form that is specific to MA. Look at the MA trial court library (very helpful librarians) if you cannot find one on line.  In addition I would also add that in my experience it is very rare that a 78 year old client is only lacking a Power of Attorney. Please make sure that your dad also has a Will or trust, a Health Care Proxy, maybe a Living Will, Burial Instructions (etc). With a quick 20 minute meeting a qualified estate planning attorney can help you understand what might be needed.

Good luck. Your dad is lucky to have such an attentive family.

TOP

Irrevocable Trust

Question: If I want to avoid Medicare and I put my house in trust, can I collect the income of the trust? Also, what is a special power of appointment and would putting that in the trust affect me tax-wise or for Medicare?

Answer: I have to tell you that your question involves one of the most treacherous planning areas of the law. There are NUMEROUS income tax, estate tax, lifestyle, creditor protection and Medicaid planning issues involved in this type of planning - so proceed with caution!

Without in any way encouraging you to try and do this without the necessary legal assistance, I will tell you that a properly drafted irrevocable trust can allow you to receive the income generated by the trust property, while protection the trust principal (your house) from nursing home costs.

The irrevocable trust can also include a special power of appointment - a provision that allows you to re-direct the trust property on your death. These type provisions are fairly popular because they allow you to take a "second look" and modify the disposition of your trust assets despite the fact that the trust is irrevocable. Typical language is something along the lines of "on the death of the Donor, the trustee shall distribute all or any part of the trust property to such of the Donor's issue as the Donor may appoint in his Will. In default of any such appointment, the remaining trust property shall be . . . "

REMEMBER THAT THERE IS FIVE YEAR "LOOK-BACK" PERIOD ON THIS TYPE OF TRANSFER - so careful planning is essential. Remember also that you are contemplating making an irrevocable gift, which - as the name would imply, cannot be "undone" after the fact.

There are some planning opportunities here, but many potential pitfalls. Talk with a qualified elder law attorney.