Probating an Estate when there is No Will
What Do You Do When Someone Dies Without A Will?
An estate may still be probated if no will was left. The person closest to the decedent that wishes to undertake handling the estate may apply to the probate court to be an administrator or administratrix. An administrator is a male who handles the estate of a person without a will and an administratrix is a female who handles the estate of a person who dies without a will. Dying without a will is legally referred to as dying intestate. The person's estate is distributed according to the state laws. In Massachusetts, it would first go to the decedent's spouse and children. If a person dies with no spouse or children, the estate goes to the closest relatives. If a person dies with no relatives, the estate goes to the state.
What is Included in the Estate of the Decedent?
Anything that was in the name of the decedent alone is part of the estate. Interests that pass automatically upon death are not included in an estate. Examples of property not included in the estate are money in a joint bank account payable upon death to the survivor, real estate held in joint tenancy or tenancy by the entirety or life insurance policies which are payable to anyone but the estate.
What are the Responsibilities of an Administrator) ?
An Administrator is responsible for locating all the assets and debts that belonged to the decedent (the person who passed on) and making sure that the state laws for estate distribution are followed. This process should be carried out through the probate court. The probate court's approval of the administration of the estate will protect the administrator from any problems that could arise.
What is a Bond?
To probate a will, the administrator must file a bond with the court. The bond is that person's promise to carry on his duties in a responsible manner and to handle the distribution of the estate honestly. In other words, if you have been appointed as an administrator, you file a bond to promise to the court and all the heirs that you will distribute the estate to all the named heirs and you will not take the money for yourself and fly off to Paris.
What are Sureties?
When a bond is filed, it may be filed with personal sureties or with corporate sureties. A surety is another person (or corporation) who will stand by you and state that your promise to handle the estate responsibly and honestly is good. A bond may be filed with personal sureties, which in Massachusetts, must be two people who reside and own real estate in Massachusetts, who are willing to sign the Bond as guarantors of your word. If you cannot find two such people to act as sureties, a corporate surety may be purchased to guarantee the word of the executor.
What Happens If the Administrator Steals from the Estate?
When a bond is filed by an Administrator, a penal sum is part of the bond. The penal sum is based on the value of the estate. If the administrator steals from the estate, he will be liable for the sum of the penal bond. If he cannot pay that sum, the personal or corporate surety on the bond must pay the penal sum.
What is An Accounting?
After a person is approved as an executor or an administrator, he must file an accounting. The accounting is a formal schedule of all of the assets of the decedent. Subsequent accountings must be filed to show how these assets were distributed.
Do I Have to File An Estate Tax Return?
If the estate of the decedent is over one million dollars, both state and federal estate tax returns must be filed. If the estate of the decedent is less than that, an Affidavit of no Estate Tax Due should be filed with the Registry of Deeds for any estate that included real estate. If the Estate Tax is not paid or if no Affidavit of No Estate Tax Due is not recorded with the Registry of Deeds, it will affect the title of the property that will prevent future sales or refinances of the real estate. My office routinely handles estate tax returns and the filing of No Estate Tax Due Affidavits.
How Long Does Probate Take?
Probate can take years, depending on the complexity of the estate. An estate should be open for a year, to insure no claims against the estate are missed. Creditors have one year from the date of death to file a claim against the estate or they are barred from doing so. Liquidating estate assets may take a substantial amount of time. If the will is contested or objections are filed, these actions can also delay the final closing of the estate. To close an estate a Final Accounting is filed with the Court which shows all the assets of the estate and how they were distributed. When the final accounting is approved by all the heirs and the court, the probate of the estate is officially finished.