As discussed previously on our Quincy legal issues blog, sometimes a deceased person's estate will need to go through the probate process to legally transfer the decedent's assets and work through any issues left unresolved at the time of death. Careful estate planning can usually help keep most (perhaps all) assets from having to be probated, but many will have to deal with probate to some degree.
When it is necessary to probate an estate in Massachusetts, one person will be named as the estate's personal representative. The court will first look to see whether the decedent named a personal representative in his or her will, and confirm whether that individual is qualified to act in such a capacity. If no-one was named in the will, or in cases where there is no valid will, the court will look first to the person's surviving spouse. Finally, if there is no spouse to serve as the estate's personal representative, the court will choose one from among the individual's heirs.
There is also a timeline within which an estate must be probated. Typically, the process must be completed within three years of the individual's death. If the court has to exert efforts to identify valid heirs, however, the probate process could take longer.
Drafting a will, setting up a trust and other estate planning steps are often discussed as ways to help keep one's estate out of probate. It is true that these measures can greatly reduce the amount of time and stress involved in distributing an estate's assets. But, particularly with the assistance of a legal professional, estate planning can help even when probate is necessary by naming a valid personal representative and documenting the names and contact information of one's heirs, in addition to leaving instructions for how assets should be divided. The information herein is intended to be general in nature only, and not taken as specific legal advice on estate planning.