Probate & Trust Administration
Advice on management of independent trusts and those created by Wills, in order to handle taxes and beneficiaries correctly.
Initiating probate after a loved one’s death can seem like a daunting task. Friends and family have been notified, the services have been planned, and care has been arranged for dependents and pets. If you have been selected as the Personal Representative in the Decedent’s will, you may be at a loss for what needs to be accomplished next.
Here are some tasks for the Personal Representative that can be accomplished before your meeting with our office about the probate:
- Locate wills, codicils, and trusts (If created by us, we will have originals in most cases)
- Obtain multiple death certificates from the funeral director
- Fill out paperwork for the Post Office to hold/forward mail
- Locate any mortgage/reverse mortgage/HELOC or auto loan documents to review with us
- Review credit cards. Cancel accounts with a $0 balance, but DO NOT PAY or contact until discussed with us
- Keep records of all payments for the funeral and other expenses
- Evaluate the need for security of the residence
- Remove perishable items
- Arrange for care of plants
- Remove any weapons (by someone with a license to carry if firearms are involved)
- Cancel or rearrange home deliveries
- Notify liability insurance (fire, theft, auto)
Do not do anything further until meeting with us!
Once we’ve met, you will be making the following types of notifications and ensuring the following types of meetings occur:
- Notify any pension companies, including VA (Social security will be notified by the funeral director)
- Notify life insurance company to initiate the paperwork for payout
- Retain and meet with a CPA for tax matters (including possible estate tax return if not prepared by us)
- Meet with Decedent’s financial planner to review the status of assets (retirements, investments)
- Investigate business, partnership, and investment arrangements and meet with relevant individuals
- Investigate employee benefits, including accrued vacation pay, death benefits, final wages, retirement plans, deferred compensation, medical reimbursements
Not all assets held by a Decedent require Court administration (known as “probate”). Specifically, assets held by trust, those which name a beneficiary, and any jointly-held assets all entirely avoid Court procedures and instead pass by “operation of law” (i.e., as directed during lifetime). If there are assets outside of these avoidance structures, only those assets pass via the probate process. For example, homes, automobiles, and bank accounts are all common probate assets, while retirement accounts and life insurance policies frequently by-pass probate via their beneficiary designations.
Once/if the need for probate is identified, then there are four avenues for filing probate in Massachusetts:
- Verbiage: A quick and simple process available when the probate assets do not exceed $25,000 in aggregate value;
- Informal: Utilized when there are no complicated family issues and no real estate among the probate assets;
- Formal: Any time there is real estate as a probate asset or there are complex family dynamics at play;
- Ancillary: The Decedent was domiciled outside Mass. but had real estate in the Commonwealth that requires probate;
There are many forms of trusts, as outlined on our “Legal Services – Estate Planning – Trusts” page. Our office assists clients not only in the creation of all of these trusts, however. We also provide ongoing assistance in the funding, management, and taxation of assets held in trust during a Donor’s (i.e. creator’s) lifetime. Eventually, that typically culminates in trust termination – frequently upon the death of the beneficiary(ies) – and there are paperwork and tax filing requirements to be satisfied at that juncture, as well. Further, our office advises on how to administer lingering provisions after the trust terminates (e.g., if there are minor children or disabled beneficiaries at issue) and we are frequently called upon by clients to act as a trustee at one or more of the above junctures.
Estate Taxes & Additional Matters
Most people don’t realize that following someone’s death it’s not just the court procedures (“probate”) that must be considered but also the various tax ramifications. Estate tax, income tax, and capital gains tax each requires consideration as applied to the assets in a decedent’s portfolio. Any Massachusetts estate exceeding $1 million carries an estate tax filing requirement, although if there is an inheriting spouse there may not be any tax actually due to the government. Such a filing, along with any tax owed, must be filed within nine months of date of death.
Aside from factoring in tax exposures, there may be assets held by a decedent that do not require the court procedures known as “probate”. Examples of this include investment accounts that carry a so-called “transfer on death” designation or retirement accounts that name a designated beneficiary. Jointly-held assets also avoid the probate process.
Our office ensures that you consider all relevant probate and non-probate matters when reviewing a loved one’s affairs.
Feel free to contact us with immediate questions and please refer to the “Immediate Concerns” of the Probate section of this website. We will direct you on the data to collect in anticipation of a meeting with one of our attorneys.