Beyond The Will

This post continues the discussion of the general probate process.  My most recent post addressed notice to interested parties in connection with probating a will and/or obtaining the appointment of a personal representative of a decedent’s estate.

Once the Probate Court has issued its Decree and Order and Letters of Authority appointing a personal representative, the estate of the decedent must be administered.  A more in-depth discussion of administering a decedent’s estate will be addressed at a later time.  To briefly summarize, however, as part of administering a decedent’s estate, the personal representative will need to gain control of the decedent’s probate assets and use these assets to pay any outstanding debts or estate administration expenses prior to making distributions to beneficiaries.

In connection with gaining control of assets, the personal representative is responsible for preparing an inventory of the decedent’s probate assets identifying each asset and its fair market value.  Note that in most circumstances this does not need to be filed with the Probate Court unless so ordered.  An inventory should be provided to all interested persons.

Under the Massachusetts Uniform Probate Code, creditors have one year from a decedent’s date of death to commence an action.  Accordingly, a personal representative should not fully distribute a decedent’s estate until the statute of limitations for creditor claims has expired.  When it does come time to distribute assets to beneficiaries, it is recommended that the personal representative have the beneficiaries sign a receipt for the property.

Once a decedent’s assets have been distributed (subject to any reserve set aside for final administrative and legal expenses), the personal representative should close the probate estate with the Probate Court.  There are three primary methods for closing an estate in Massachusetts (two of which will be discussed in detail here).

The first is by filing a closing statement with the Probate Court.  A closing statement may not be filed earlier than 6 months from the date of the original appointment of the personal representative.  Absent certain circumstances, a closing statement may be filed whether an estate is being administered under informal or formal proceedings.  A closing statement is a sworn statement by a personal representative providing that the personal representative has: (i) determined the time limited for presentation of creditors’ claims has expired; (ii) fully administered the decedent’s estate by paying, settling or disposing of all claims, expenses of administration and estate, inheritance and other death taxes except as specified, and has distributed the decedent’s assets; and (iii) sent a copy of the closing statement to all distributees of the estate whose interests are affected and to all creditors or other claimants, and has furnished an account to all distributees of the estate whose interests are affected.

If no proceedings are pending in the Probate Court one year after the closing statement is filed, the closing statement may not be challenged except for fraud or manifest error.

Alternatively, a personal representative may file a Petition for Order of Complete Settlement in order to close an estate under either informal or formal proceedings.  The petition requests approval of a final account and provides that: (i) one year has passed since the date of the appointment of the personal representative or that the petitioner is the personal representative; (ii) the time for creditors’ claims has expired; (iii) the final account is filed with the petition or on file with the Probate Court; and (iv) all interested persons have assented to the petition or have been given notice.

In connection with filing the petition, the personal representative is required to file an account. When filing an account with the Probate Court, such account must be on forms generated by the Court.  The forms consist of three schedules, Schedule A on which the estate’s income and gains are listed, Schedule B on which payments, distributes and losses are listed and Schedule C on which the balance of the estate property is listed.  When filing a final account, Schedule C should reflect a zero balance in connection with the distribution of all of the probate assets.

After filing the petition, the Probate Court will issue a citation unless all interested parties have assented and waived notice to the petition.  The notice of the citation must be provided to all interested persons who have not otherwise assented either in hand or by certified or first class mail at least fourteen days before the return date.

After the return date, and assuming no objections are filed, the Probate Court will issue a Decree and Order which may approve the distribution of the estate and discharge the personal representative from further claim or demand of any interested person.  This discharge will forever exonerate the personal representative from all liability except for fraud or manifest error.

A personal representative may, for example, want to file a Petition for Order of Complete Settlement where he wants the protection of a formal decree allowing the personal representative’s account or where there is a question as to whom estate assets should be distributed and in what amount.

The third method for closing an estate is by filing a Small Estate Closing Statement.  This is only applicable to certain “small estates” as defined under the Massachusetts Uniform Probate Code.

Navigating the probate process as a whole can be complicated and overwhelming.  An individual seeking to become a personal representative of a decedent’s estate should always engage experienced legal counsel.