Post-Death Administration
What to do...
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We'll meet for a 2 hour roadmap session. To get everything on the table, and in front of your eyes-in a single view. You don't have to remain confused about what to do next. 1) IDENTIFY AND REVIEW WILL OR TRUST Get clear on what you want to achieve with your involvement 2) MAKE SIMPLE LIST OF ASSETS AND DEBTS Single piece of paper is the place for estimates 3) ESTIMATE SIZE OF ESTATE Give it a quick total, it's good enough to get the big picture 4) REVIEW FOR NEED FOR PROBATE Sometimes a will needs to be probated in the court system to enable transfer of assets 5) CHOOSE NEXT STEPS Develop a short, prioritized list of your next, best legal actions |
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Big picture what to do
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Experts agree that after death, the responsible person should take the necessary legal steps. If a will or trust is involved, the first step is to find the document. And then:
Steps to Take After.a Death If a will is involved, the post-death process is called probate. If a trust is concerned, we call it post-death administration. When a living trust is involved in which its' creator was the original trustee, the trust may name a successor trustee to manage the trust and a beneficiary (one or more) to receive the trust's assets after death. Law statutes and the trust itself dictate the duties a successor trustee has. The terms of a trust can differ widely from each other. So, there is no substitute for reading the legal documents. It is common to have an attorney review the materials as well as the named executor (will) or trust (successor trustee). Trust administration depends on the particular circumstances. The trust document may contain various ways of leaving assets to specific persons in case of:
Managing a trust can be time-consuming and overwhelming when dealing with the responsibilities and emotions caused by the death of a loved one. We can help you, the trustee, so that the responsibilities of trust administration are more manageable.
The successor trustee can be held personally liable by the beneficiaries if they do not meet the requirements of the trustee as set out by the trust. RETURN to Estate Planning Services page After a person has died, there are legal steps that should occur. The particular assets left behind and the deceased's estate planning documents largely dictate what steps you should take. The gist of the issue is this: no financial institution will hand over the assets until the court approves a person to act for the estate. This court-appointed person is now called a 'personal representative.' About 2010, Massachusetts law changed the title from the 'executor' to the 'Personal Representative.' One feature of a will is that you can nominate whom you want to be in charge of your affairs. You can name one person or more, and you can list them in order or require them to act cooperatively. Probate is the name given to this court process. It is detailed and has a long tradition of technical rules. Over time, the Commonwealth of Massachusetts has worked to make it more modern. Massachusetts adopted the Uniform Probate Code not long ago (2009). Our state adopted the more modern set of rules on the late side, as the law was first suggested nation-wide in 1969. The probate court process is involved if you die with a will or if you die without a will. One aim of probate is to allow the surviving persons to get their hands on the assets you have left behind. When the probate court appoints the MA personal representative, then that person can ask the court for a document called a letter of authority. The personal representative then hands over one of these letters to each institution (bank, brokerage) that exists in the SOLE name of the deceased. Only SOLE assets are subject to the probate court process. Assets that are not in the sole name pass to others depending on the legal ownership at death. Non-probate assets may have a death beneficiary named on a form filed with the IRA custodian. Joint assets will belong to the surviving joint owner. The wording on the account is important and should show something like ''with rights of survivorship.' Different from joint with survivorship is a title held before death as Tenants in Common. Tenants in common mean that each joint owners' share will be distributed to the person the deceased appointed in their will. And if no will, the tenant in common share will flow to the Probate Estate of the deceased. RETURN to Post Death Administration Services page In Massachusetts, the probate of the Last Will near Lexington or Boston is central to the Will becoming effective. Until someone probates the Will, the will is just several pieces of paper with a staple connecting them. Background: After your death, someone needs to give your assets to someone else or to a charity. Maybe to more than one person. Either you have no will, a will, or a MA revocable trust. You can have both a will and a Massachusetts living trust - this is common. If you do NOT have a will, someone will distribute your assets to your heirs, pay your debts, and look after any loose ends. The word 'heirs' is just another word for your nearest relatives in the eyes of the law. The law of each state determines who these people are, but the laws of most states are similar. If you have signed a will, the Will will replace the default 'heirs' of your nearest relatives. The will's terms supercede the terms of the default law. The default law is called the law of being 'intestate.' or having no will. Because after death, you obviously can't sign the deeds, write the checks, or handle your business affairs, a person approved by the probate court takes over those duties. There are five necessary steps to settling an estate: Step One: Filing Petition and Gathering Material Your family will get started by getting an estimate of your assets. Then, with a will in hand or none at all, they will file a written request to the local probate court for the will to be accepted as your last will. They will be asking in the court to (1) accept the will as your last wishes, proper in form, and (2) appoint a person or two to be in charge of your will and other duties that need attention. In addition to recognizing the will's legal validity, they will ask the court to appoint a Personal Representative. Under earlier law, this was called the Massachusetts Executor. Step Two: Publishing Notice to Creditors Due process of law requires that any creditors have a chance to get paid at your death. Each state has a law that requires some public notice of your death. In some mid-Western states, the type of necessary notice is more than Massachusetts law requires when you die. In Massachusetts, the notice must be in the newspaper once. But in other states, there may be up to 3 repeated notices published in the local newspaper. And there may be a law that requires the Personal Representative to send a letter to every known creditor - telling them of your death. Creditors are notified either by a single legal notice in the newspaper or directly by mail (states outside of Massachusetts and therefore not subject to Massachusetts probate law). The notice will inform the creditor the amount of time they have to file a claim in the probate court to ask it be paid from your probate estate. Each state law sets a period in which the creditor must act or lose the right to be paid. In Massachusetts, the creditor period is one year from the death. Other states may have a shorter or longer time frame. And there are exceptions to this one year rule of law. RETURN To Estate Planning Page Step Three: Inventory and Appraise Assets Another step is for you to compile a list of assets the deceased owned in their SOLE name. These are the assets that pass under the Will. You may have owned other assets that was not sole ownership. Assets such as joint assets or retirement accounts such as 401(k) or IRA accounts do not pass under a Will. It is not that unusual for a married person to own little or no assets in their sole name. If all assets are joint, on the first death, the will may not need to be brought through the probate process. But because we have in Massachusetts a Massachusetts estate tax, it is necessary to compile a list of ALL assets of the deceased. Whether they were owned in their sole name or in another way, say joint or retirement accounts or life insurance. Step 4: Consider whether your estate needs to file a Massachusetts Estate tax return and whether your estate needs to pay MA estate tax Massachusetts still has an estate tax. Many other states have eliminated an estate tax. It is important to remember that MA has an estate tax because the MA exemption from estate tax is considered low - it is a total of $1 million of assets. And this includes ALL assets you die with - including 1/2 of joint assets and your retirement IRA accounts and life insurance on your life. You may or may not PAY Massachusetts estate tax. But your family will need to file a MA estate tax return called an M706 if your gross estate is over $1 million. Step 5: File Income tax returns and distribute the assets and prepare a report of how you distributed the assets - the Accounting There are many other steps the Personal Representative needs to take after you die. It is a period that is full of details. It is these details that can make the role of handling your estate possibly painful for a non-detailed person to handle. The final step of compiling an asset list and listing of all income, debts, and distributions, is called the Accounting. It includes listing all the interest and dividend payments received after your death and then the amount of any estate tax or other taxes paid. At our office, we have been through the post-death process almost 200 times and know what to do. Call us at 781 863-8606 to speak with us. Breaking a will means to debate its' validity. It doesn't happen often, despite a rumor that it does. The person contesting the will claims that you signed it but:
Many times the will's contester received less than they expected. It doesn't happen as often as many people think that it does, in less than 1% of the post-death cases. Huge hurdles to contest a will In most situations, no one feels the will treats them unfairly. In the great majority of the time, the children or others were fairly provided for in the documents. One hurdle is social: If you bring a lawsuit against a family member's will, a family member may take offense. As wrong meddling. Remember, contesting a will is a lawsuit. Another hurdle is cost: Legal fees and court fees can be significant. Of any type, lawsuits cost thousands of dollars. And the person contesting the will has no guarantee of success. The law has obstacles: Most importantly, the law demands adequate proof of a claim to move forward with a claim. Because of the law's reluctance to allow upsets of wills, many claims are either settled or do not go to trial. RETURN to Post Death Administration Services page |