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When a family member passes away it is necessary to probate his or her estate in the Probate and Family Court unless all of his or her assets were held jointly and passed to a survivor, held in an intervivos trust, or otherwise fall outside probate. Property held solely in the decedent’s name is listed in the inventory of their estate, which is filed with the Probate Court in the county where they lived at the time of their death.
If the decedent left a will, the executor or executrix named in the will usually becomes the fiduciary responsible for probating the estate. If no will was left by the decedent, the closest living relative often assumes the responsibility of administering the estate. In either case, the fiduciary’s lawyer petitions the court to appoint his client as the estate’s representative. Once the fiduciary has been appointed by the court, his/her first responsibility is to gather the assets of the probate estate and protect them. After the assets have been gathered, an inventory is prepared and debts of the estate are paid pursuant to a priority established by the Congress and Massachusetts legislature: funeral expenses and legal fees/expenses, federal and state taxes, medical expenses of last illness and statutory Medicaid reimbursement, and certain other debts must be satisfied before any distribution is made to heirs and/or beneficiaries of the estate.
If the decedent was engaged in a lawsuit at the time of her/his death or was about to begin a legal or equitable action, the estate’s fiduciary may substitute himself in that action and/or begin a civil action by the estate in the decedent’s stead. There is a one-year statute of limitation for most claims that may be brought against an estate.
After the debts have been paid and the remaining assets distributed to the beneficiaries of the estate, an accounting is filed with the court and allowed, bringing the process to a close.
Attorney Gentile has more than 30 years of experience successfully guiding clients through the probate of their loved ones' estates.