Massachusetts Probate Questions and Answers
We have compiled a few commonly asked questions from clients and provided a response that should help you have a better understanding of the probate process. If you have any further questions, please feel free to contact us
Massachusetts Probate Questions:
Please note that nothing in this section should be considered legal advice nor does it create an attorney client relationship. Every situation is different and only an experienced, licensed estate planning attorney can advise you on your particular situation. Contact us today to speak with a Massachusetts attorney today.
- Do I need a will?
- What happens if I pass away without a will?
- What is Probate?
- When can I probate a will?
- Who can probate a will?
- Where are Wills probated?
- What are the grounds for contesting a will?
- When can a will be contested?
- What is an "in terrorem" or "no contest" clause?
- When can an Executor or Trustee be removed?
ANSWERS
Q: Do I need a will?
Yes. If your goal is to ensure that your property is distributed to the right people or if you want to simplify the process for your heirs. Otherwise, the Commonwealth of Massachusetts will decide who receives your property. A properly executed Will assures that your property passes to the family, friends or charities of your selection. To ensure the efficient administration of your Will in probate, it is important that you use the expertise of one of the attorneys of Grantham Cencarik, P.C.
Q: What happens if I pass away without a will?
If you pass away without a Will, the Commonwealth of Massachusetts will decide who receives your property according to state statute. Your property does not pass to the State unless your heirs cannot be located.
Q: What is Probate?
After you pass away, your Will is submitted by your representative (proposed executor) to the Probate Court for recognition of the Will as valid and binding upon your creditors, heirs, and property. This process also allows your Executor to use many of their powers, such as collection, liquidation, and distribution of estate property; payment of debts and funeral expenses; prosecution of claims; and other duties necessary to wind up your personal and financial affairs.
Q: When can I probate a will?
Wills can only be probated after the death of the testator (person signing the Will). A holder or possessor of a Will has a statutory obligation to file and produce the Will within 30 days after the death of the testator.
Q: Who can probate a will?
The representative or named Executor of the Will should probate the will.
Q: Where are Wills probated?
A Will must be probated in the Probate and Family Court Department in the county in which the decedent resided at the time of their death.
Q: What are the grounds for contesting a will?
Wills are invalid if they are improperly executed by the testator, witnesses, notary / attorney. Wills are also invalid if the testator is medically proven to be incompetent to make a will. Will are invalid if the testator was unduly influenced (forced) to make a will. Wills can also be invalidated if a later Will (executed after the Will in question) is proven in Probate Court. Trusts are invalid on these same grounds.
Q: When can a will be contested?
An interested party must file an appearance in the Probate matter by the return day stated on the Notice provided to you by the Probate Court . An affidavit of objections is due 30 days after the expiration of the return day deadline.
Q: What is an "in terrorem" or "no contest" clause?
An "in terrorem" or "no contest" clause is also known as a "forfeiture provision." These are often found in wills and usually provide that, if any beneficiary contests the document, he/she forfeits their interest. In cases of a will contest, if the will or trust is invalid, the forfeiture provision in the will or trust is also invalid, and cannot be applied to a beneficiary. Many forfeiture provisions provide little protection from contests because the contestants are often not named as a beneficiary, therefore they are given nothing to forfeit.
Q: When can an Executor or Trustee be removed?
Executors and Trustees owe fiduciary duties to the beneficiaries, which must be observed at all times. Some examples of fiduciary duties are: 1) a duty to fully account assets of the estate or trust; 2) A duty of full disclosure concerning affairs of the estate / trust; 3) A duty of loyalty to act in the best interests of the beneficiaries; and 4) Duty to make prudent investments, or otherwise, place trust assets in secure, gaining investments. If an Executor or Trustee mismanages or misappropriates the estate or trust property; self-deals property; or violates any of the above mentioned duties, he / she is subject to removal, and could be ordered to pay damages to the beneficiaries.
If you would like to speak with a Boston Estate Planning Attorney about preparing a will, trust or power of attorney, contact our law firm by filling out our Free Consultation Form, or calling (617) 497-7141.
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The Massachusetts lawyers at Grantham | Cencarik, PC operate as a debt relief agency located in Cambridge and serve clients in Boston and eastern Massachusetts, including Cambridge, Braintree, Somerville, Revere, Brockton, Chelsea, Peabody, Quincy, Saugus, Boston, Winthrop, and the following counties: Essex, Middlesex, Norfolk, Plymouth, and Suffolk.
