Probate, Trust & Estate Administration

The process of wrapping up a loved one’s final affairs is deliberately slow-paced to ensure compliance with all required legal formalities for fairness and finality for everyone involved. Please understand that the complete process, from start to finish, may last anywhere from about 9 months to 18 months, depending on the types of assets your loved one owned and how. Whenever it is necessary to go through the probate court process it takes longer and there are more out of pocket costs, fees, and expenses involved.

Generally speaking, there are 3 phases to the complete probate, estate administration, or trust administration process, as applicable:

1. Opening the Probate Estate or Funding the Irrevocable Trust
2. Administering the trust or estate
3. Closing the probate estate or distributing all assets out of and terminating the trust

In the early stage of the process there tends to be a lot of hurry up and wait involved.  You will initially jump into action and start making lots of decisions and calls and there is often a lot of adrenaline and a feeling of loyalty involved to spur you on when you are otherwise grieving or even shocked, depending on the circumstances.  Then there is a boring middle phase with less communications and the process settles into more of a calm routine. It is after that that you may start to feel frustrated and wonder what you are involved with and if it is really all necessary. Sometimes there is resistance to finalizing the process or following formalities near the end, but failing to do so could subject you to personal liability so it is better to do this by the book, formally, than to become lax and take it too casually when you are so close to the finish line. If you choose to allow us to guide you through the process we will keep you informed and help you manage the pace with as little stress and as much professional assistance as we are able to provide you.

In Massachusetts, we now call the person appointed to serve under a Last Will and Testament a “Personal Representative,” but people often still use the term “Executor” (or even the old-fashioned term for a woman serving, “Executrix”).

Your primary responsibilities as Personal Representative under a Will or as Trustee under a Trust are to gather and safeguard all the property and assets, ensure the necessary and appropriate debts and expenses are paid in the right order at the right times as required by law, and to provide for the beneficiaries according to the wishes of the person who entrusted you to serve that way. You will also have to notify all the beneficiaries and give notice to all creditors regarding the circumstances and carefully record and track all the assets sold, received, and coming into and going out of every account before ultimately distributing the assets according to the terms of the Will or Trust.

There is no legal requirement that there be a reading of the Will; that makes for entertaining television and movies, but it almost never happens in real life. Depending on the terms of the Trust, beneficiaries may have the right to information that is directly relevant to their interests under the Trust, but they may not have a right to see a copy of the entire Trust. A Will is public record, so once it is filed with the Court any beneficiary is entitled to see a copy of it. Respecting the terms of the Will or Trust, it is generally good practice to provide basic information to beneficiaries who have a right to know and to keep them posted throughout the process of the trust and estate administration to satisfy their curiosity and decrease concerns they may have if they are otherwise uninformed and left guessing about the process. The people designated as beneficiaries in a Will or Trust do have the right to request an accounting of the property and assets of the estate or trust, so it is critically important to maintain very carefully detailed and accurate records throughout the process. The general rule is: document everything and keep all the receipts.

You absolutely can do this on your own!  And we absolutely do not recommend that even for our closest friends, even if you hire another Massachusetts probate, wills, trusts, and estates law firm to help you!  In fact, if we’re not the right fit for you, we will tell you that and refer you to one of our friendly colleagues who can assist you instead.

Even for professionally trained, licensed, and experienced attorneys who specialize in this complex practice area of the law, there are still lots of nuances and complexities and we learn something new just about every day!  Words do not have the same meaning in the law that they do in casual, spoken language, and if you assume they do you will probably make costly mistakes. Rules, practices, and terminology vary wildly from state to state, so even if you have been through this process in other states it does not mean you know what you need to know to proceed here in Massachusetts. If there are assets in another state, you may need lawyers in both states to cooperate to assist you. Lawyers who practice in different areas of the law or in different states routinely hire lawyers who practice this area of the law in Massachusetts to assist them. Lawyers know what we don’t know.

Yes, there are court forms but knowing whether you need to use them, which forms to use, when, how to complete them, when and how to submit them, and so forth is complicated enough. Yes, there are written instructions but there are also lots of unwritten county-specific preferences and practices also. Clerks of court and at the registries are not allowed to provide legal advice.  Lawyer of the day free legal assistance is available during limited days, times, and not available on any kind of ongoing, professional relationship basis.

At the risk of sounding like a lawyer, it depends!  Sorry, we know that’s frustrating, but it really does.  These matters are highly variable and unpredictable in nature because we are dealing with a wide variety of personal, family, and financial circumstances.  A “traditional” family with a husband and wife and adult children with no special needs or complicating circumstances could have very complex assets involved and require court intervention or a complex, blended family could have very streamlined and well-organized assets that will all avoid the necessity of going through the court process.  It is nearly impossible to predict, at the outset, exactly what will be required.

We have a nickel jar for every time a client tells us at the outset that it’s “pretty simple” and “should be pretty straightforward.”  In our experience, almost every probate and trust administration client matter has a “curve ball” somewhere in it that throws things a bit for the loop, sometimes even with our own clients who did not disclose to us all the relevant information during the initial planning. Some common examples of these surprises include:

• the decedent owned property or assets in a different way than you initially understood or expected
• there are complications regarding ownership of certain assets, such as the title to real estate that had been jointly owned and no death certificate was filed previously or ownership did not automatically pass as expected
• newly discovered property or other assets about which you were not initially aware
• unexpected creditors for previously unknown debts
• missing, ambiguous, or different-than-expected beneficiary designations on retirement plans or insurance policies
• beneficiary surprises such as designated beneficiaries or intestate heirs about whom you or other beneficiaries were not previously aware

No two matters are identical, though there are some similarities that, based on our professional experience and judgment, after an initial file review and consultation, we can try to predict an estimated total cost with a greater degree of accuracy. We always try to move matters along as expeditiously as possible, keeping costs, fees, and expenses down as much as possible. Our top priority is to help you and make a difficult time for you as easy as possible.

Should you choose to retain DGVE law to guide you through the post-death probate or trust administration process, we will enter into a comprehensive engagement agreement and require a retainer payment into our client trust account to begin working for you. We then use those funds to pay the necessary costs, fees, and expenses related to your matter.

The estate or trust is responsible for paying all associated costs, fees, and expenses of the administration as well as any necessary costs, fees, or expenses related to defending any lawsuits related to the same. As the named Personal Representative or Trustee you are not responsible for paying any of those costs personally. If you do have to go out of pocket initially for necessary and appropriate costs, fees, and expenses, you should be entitled to reimbursement for the same as soon as you have access to the assets of the estate or trust. It is very important to understand which costs, fees, and expenses the law considers necessary and appropriate and to what extent, as opposed to what you personally may find customary and appropriate. With these matters it is always safer not to assume and to ask questions and clarify in advance to avoid frustrations or disappointments later.

If you are serving as the Personal Representative (formerly called “Executor”) or Trustee you are responsible for gathering all the necessary information and hiring a professional to prepare federal Form 1041 and Massachusetts Form 2 final income tax returns or fiduciary income tax returns and, depending on the value of all the assets that your loved one owned and which we associated with your loved one’s name and Social Security Number at the time of your loved one’s death, you may also have to file an estate tax return here in Massachusetts. That is sometimes referred to by the Massachusetts Department of Revenue form number as the M-706. Even if your loved one did not owe any federal estate taxes, your loved one may owe Massachusetts state estate taxes and the way it is calculated is by preparing the Form 706 federal estate tax return. Depending on what time during the calendar year your loved one died, that may be due right away and you may need to file extensions or you may be able to file a short return. Depending on the circumstances and your preferences, we can work with your trusted professional certified public accountant or assist you with these filings in our office.

Our law firm policy is to return all client correspondence within one regular business day when our office is open. We recommend our clients copy info@dgvelaw.com, rather than only directing or responding to an email from the Attorney or any one team member, to ensure the fastest possible response time.  We strive to provide regular status updates  throughout the process and schedule meetings as necessary and appropriate to address your questions and concerns and keep your matter moving along without unnecessary delay as efficiently as possible.

Here are things you can do to keep your matter moving along as efficiently as possible to avoid unnecessary delays and to keep costs, fees, and expenses down:

• let us know how you prefer we contact you (e.g. text, call, email) so we can try to reach you in the manner most convenient for you to reply
• be honest, forthcoming, and thorough in providing answers to the questions we ask, even if some of the details feel very personal, even if you or your loved one was a very private person, and even if you are not sure why we are asking (ask us why and we will certainly clarify!)
• confirm and verify contact information for all interested parties as we request
• gather, organize, and share documents with us as quickly and completely as possible
• respond to our communications, and schedule meetings we request with you as quickly as possible
• try to “batch” your questions, making notes for yourself and then concisely asking us several questions at a time so we are able to respond to all of them after one file review while your matter is fresh in our minds

Missing and incomplete information or avoidable surprises delay the process and prevent us from fully evaluating your options and determining how to advise you about the best course to proceed. Understand that, in every case, we are relying on the information and documentation you provide us and a failure to provide us with complete and accurate information may end up causing time delays as well as additional costs, fees, and expenses.

Again, we’re sorry to have to say it this way, but it depends! It depends on what the Will or Trust says as well as on the specific, personal facts regarding each beneficiary. It depends whether we are going through the probate court process (for a Will-based estate plan) or proceeding with a private trust administration (for a Trust-based estate plan). It may depend on whether all beneficiaries are notified and in agreement. It may depend on whether there are debts that need to be paid first and whether, after paying those debts, there are sufficient assets left to satisfy all the specific bequests, gifts, and distributions intended. It is always better to ensure that necessary costs, fees, expenses, and taxes are paid first before distributing anything to the beneficiaries. Otherwise, you may be personally liable for payment of any unsatisfied debts or put in the very uncomfortable position of having to go back to the beneficiaries to ask them to give back some of what you already gave them!

{Here we go again, sorry!} It depends. How are the accounts titled? Who has ownership and access now? Will those accounts need to go through the probate court process (so that you will need letters of authority from the court first) or are they owned in trust? Once we review the account statements, we will advise you about which documents to use and how to access the accounts, and what to do once you are able to access the accounts.

No! Don’t do that. Please! Do not commingle your personal assets with those of your loved one’s trust or estate. That is a recipe for personal liability disaster!

Nope! Not yet. First let’s make sure that we are very clear about who holds title to the car, how, and that you have authority to transfer or sell it and that the necessary costs, fees, expenses, and debts are paid to make sure that the value of the car is not needed to satisfy those.

Not yet – no! Your first responsibility is to gather, safeguard, inventory, and document what there is. You have to make sure your loved one didn’t leave specific instructions about who should receive what before you start giving things away. And you need to make sure that you are receiving fair value for the property and depositing it into the correct account. Then you need to make sure that those funds are available if needed to pay necessary costs, fees, expenses, and taxes before you distribute anything. When emotions are running high it is tempting to cave to emotional pressures but your loved one needs you to manage this professionally and honor your loved one’s wishes and any written instructions regarding the same.

{ducking for cover here} It depends. Is the house ready for sale? Who has authority to manage the tangible personal property in the home? When? How is the real estate owned?Who has legal authority to sell it, when? Is there an account into which the sale proceeds (for tangible personal property in the home and the home itself) may be deposited legally and appropriately at closing on the sale of the real property?

If you choose to work with DGVE law on your loved one’s trust or estate administration, we will provide you with tools to use to track the assets and we will assist you with that as well as with tracking all the important deadlines. You do not have to invent the wheel or go this alone; we are here to help take as much of the burdens of the legal and financial paperwork and administration off of you as we can to make a difficult time easier and allow you to focus on grieving instead of worrying about all these details.

Definitely not! Let’s see whether those bills need to be paid at all, whether there are sufficient assets to pay all the debts, and then we’ll respond accordingly. The law specifies which debts must be paid in what order and failure to pay those that way can subject you to personal liability or cost you unnecessarily.