Probate as a Dirty Word — Part I

I am asked on a regular basis, “What does probate mean?”  or “Doesn’t a will avoid probate?”  It is easy to forget that what seems obvious to a lawyer is not necessarily obvious to our clients.  In this post and the next, I will attempt to provide a simple explanation for probate and why it has such a bad reputation.  There are also a number of words I will define along the way.

A History Lesson

Probate means “to prove” in Latin.  Lawyers today often talk about “proving” a will.  You may be interested to know that the practice of making wills goes back to Ancient Greece and Rome. In Rome, a citizen would make a will and it was stored with the Vestal Virgins in their temple.  Upon the citizen’s death, their family would remove the will from the temple.

More Definitions-More Latin Words

The person named in the will to carry out its terms is called the Executor.  If a person dies with a valid will, they are said to have died testate.  If they die without a will, they have died intestate.  A decedent is a dead person. A beneficiary is a person who benefits from a deceased person.  Recently our Commonwealth seems to be on a mission to eliminate Latin words from the legal vocabulary.  In Massachusetts, instead of “executors,” we now have Personal Representatives.

What is Probate?

Probate is the process of proving that a decedent’s will is valid, identifying the person who will carry out the terms of the will (the Personal Representative), and identifying the decedent’s heirs and beneficiaries.  A judge must make all these determinations.  However, not all of a decedent’s assets are subject to probate.  Some, or even all, of a person’s assets may pass to his or her beneficiaries without court intervention.  The assets which are subject to probate are called the decedent’s estate.

We will talk about avoiding probate in Part Two.  For now, let’s assume that our decedent died with real estate and bank accounts in his or her own name and which do not name a beneficiary so that all the assets require probate.  We will also talk later about what happens when a person dies intestate (without a will).

The Process of Probate

The goal of probate, as we have discussed, is to “prove” the decedent’s will and name the Personal Representative who will carry out the terms of the will.  We do this by filing paperwork with the Probate Court with a death certificate, the decedent’s will, and a filing fee.  Notice is given to the heirs (meaning persons who have a certain relationship to the decedent as defined by Massachusetts law) and a notice is published in the local paper.  There is a deadline given in the notice to heirs and in the paper for making objections.  Anyone can come forward to object either that the will is not valid or that the person who has applied to be Personal Representative is not appropriate.  For example, maybe there is a later will or maybe the will was signed while the decedent was mentally incompetent.  After the deadline, if there are no objections, the judge will automatically “allow” the will and “appoint” the Personal Representative.  The notice in the paper also allows the creditors of the decedent to file a claim with the court for money owed to the creditor, however, a creditor’s claim will not hold up the allowance of the will.

The Personal Representative receives a piece of paper which is called “Letters of Authority.”  These “letters” prove that the Personal Representative has the right to take control of all of the probate assets.  The Personal Representative takes the “letters of authority” to the bank and the bank will release the money in the accounts which were in the name of the decedent.  With traditional probate, the Personal Representative is then required to file several follow-up documents with the probate court and provide copies to the heirs: an inventory, which is a listing of all the assets in the estate; an account showing how the money was spent, etc.

The Facts about Probate In Massachusetts

In Massachusetts, lawyers are not allowed to charge a percentage of the estate as their fee.  Instead, the client must be billed by the hour for work performed.  So if the decedent died with a million dollars all in a bank account, the lawyer for the estate is not going to spend a lot of time on the probate.  If the decedent died with $200,000 made up of stock, real estate, and promissory notes, the lawyer for that estate is going to spend a lot of time helping the Personal Representative carry out the terms of the will.

Within the past two years, Massachusetts introduced a new form of probate called Informal Probate.  With informal probate, there is no notice period before the appointment of the Personal Representative, no court oversight,  and there is no follow-up paperwork to file with the court after the Personal Representative receives the Letters of Authority.   The heirs are still required to get notice of the probate and the notice must be published in a local paper.  However, since there is no follow-up with the court, the entire process is faster and less expensive.  All the heirs and beneficiaries must agree to the informal probate.  Obviously, the heirs and beneficiaries must have a lot of trust in the Personal Representative to allow him or her to serve without any court oversight.  The court filing fees are same whether you choose Formal or Informal Probate.  There are other drawbacks to Informal Probate so you should ask a lawyer for advice concerning which type of probate is right for your situation.

In next month’s post, I will discuss why Probate is a dirty word and how to avoid it.