Types of Probate and Benefits of Each

| Mar 9, 2020 | Estate Planning & Trusts

When you lose a family member the logistics can be overwhelming. Between funeral arrangements, coordinating with other relatives, and grieving, it can be hard to know how to proceed. After the initial decisions have been made, and life has settled down, you may have even more decisions to make. What do you do with your relative’s personal possessions? What happens to bank accounts, investments or retirement assets? What about their real estate or their vehicles?

Many assets are transferred through a probate proceeding, but what kind? It is always best to meet with a probate lawyer to discuss what the assets are and how they are held. Certain types of assets automatically pass to relatives, or others, without the need for a probate filing. For example, real estate may pass to a surviving co-owner. Retirement accounts or life insurance policies may have pre-determined beneficiaries. These types of accounts can often be transferred to the next lawful owner by contacting the bank, investment or retirement companies and providing them with a death certificate.

However, many other assets will require a probate filing. In these situations, you must decide what kind of probate proceeding is needed. You should consult with an experienced probate attorney to answer this question. Each proceeding is filed in the Probate Court for the county where the deceased person lived. The three main types are:

Voluntary Administration

This is the simplest form of probate. It is only available for probate estates of less than $25,000 in personal property, not including the value of a car. The filing fee is $115. You need to complete a form and file it with the Probate Court for the county where the deceased person lived, along with their death certificate and their Will, if they had one. Filing a Voluntary Administration Statement does not result in an official appointment as Personal Representative by the Court. Because there is no official appointment, a voluntary Personal Representative cannot charge the estate for their services, and certain powers are limited. For example, they cannot represent the estate in a wrongful death proceeding. A voluntary administration is usually used when the estate has very simple or limited assets like bank accounts or cars. Often, this type of proceeding is used when someone dies and most of their assets either already have beneficiaries (such as retirement accounts) or automatically pass to a surviving co-owner based on the form of title, but at least one asset, such as a small bank account, needs to be transferred through probate.

Informal Proceeding

An Informal Proceeding is common for probate estates that exceed the $25,000 limit for voluntary administrations, or that require an official appointment as Personal Representative. (A Personal Representative is a person appointed by the Court to handle an estate. This can be as simple as closing bank accounts and distributing funds to beneficiaries or as complicated as running businesses and representing the Estate in lawsuits. An experienced probate attorney can advise you on your responsibilities as Personal Representative.) An informal proceeding is not an option when there are unknown heirs or more than 3 years have passed since the date of death. The filing fee is $390. The proposed Personal Representative in an Informal Proceeding must have priority to serve as Personal Representative under the statute.

Formal Proceeding

A formal proceeding may be required when a deceased person’s heir is a minor, there is not an official death certificate, the original will is lost or destroyed, any heirs cannot be located, or the proposed Personal Representative does not have priority for appointment under the statute, among other reasons. You should usually file a formal proceeding when you need authority to address issues such as selling real estate or there are other complications with the deceased person’s heirs. Also, any proceeding that requires a final order from a Judge should generally be filed as a formal proceeding. The filing fee for a formal probate is $405. Once the probate Petition is filed, the Court will issue a Citation (a legal notice) that must be served, and often published, as well, before a return date. This requirement can create a substantial time period between when the Petition is filed and when the Personal Representative is appointed. Although this time period can be inconvenient, a formal probate is often the best option when there are complicated issues in an estate.

Our attorneys understand the particularly sensitive nature of a dispute arising out of a trust or estate matter and exhibit the compassion, dedication, and understanding necessary to handle these delicate issues in a professional and personal manner.

Our attorneys are some of the most accomplished in New England and include counsel honored as Fellows of the Litigation Counsel of America, a distinction awarded to less than one-half of 1% of American Lawyers, as well as both SuperLawyers and Top Attorneys recognitions.

An experienced probate attorney can consult with you to determine the best form of probate for a particular situation, as well as discuss what other options may be available. If you have any questions or concerns about your options, you should speak to an attorney for legal advice.

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Contact:

Attorney, Janelle Tanenbaum

[email protected]

508-757-7721