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.
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If you have estate planning questions or concerns, or would like to get started creating your estate plan, contact the experienced Lexington, Massachusetts estate planning attorneys at MA Wills and Trusts at 781 863-8606 to schedule your consultation. Or contact us at Contact