Want to Try Probating Your Relative’s Estate on Your Own?
First read this Article on the pifalls of DIY estate administration.
We occasionally receive an inquiry from a person named executor in a will we have prepared for a client who has passed away seeking to locate the original will as well as information to help them probate the will on their own. With the state of the economy and the focus on saving money on everything today, excursions into do it yourself probate administration are definitely on the rise. But are there any risks involved? There are several. Here are just a few to consider.
First you have to know where to commence proceedings, or, in legal procedure terms taught in law school, what court has jurisdiction and which locale has proper venue? With filing fees in excess of $200, you do not want to be filing in the wrong court. What if the decedent had two or more homes or pieces of real estate in different localities? Have there been or will there be proceedings in another state?
Then you need to decide whether voluntary probate is appropriate, formal administration or informal administration or probate, and ultimately whether to have supervised or unsupervised administration.
You have to be sure that the appropriate probate petition and supporting documents are properly completed, that all necessary parties are properly named with appropriate status given. A proper bond must be prepared and filed and you need to be prepared to deal with the issue of required sureties on the bond. In cases of informal probate you must give notice to interested persons prior to filing the petition and fill out and serve the appropriate paperwork.
You have to get the petition and the necessary accompanying documents, including the original will, if any, to the courthouse. Are you going to risk mailing? If there is a will, how will it be proved?
Depending on the type of proceeding you have chosen the court may issue an order of notice and it must be served properly on everyone mentioned in the order, even if not named in the petition (such as the Attorney General or the VA), and in most cases publication will be required, all within strict time limitations. In some cases you must prepare the notice for publication yourself and see that it is published after letters are issued. Proof of service may be required.
If there has been any mistake in the preparation or serving notice of the petition, it can leave any order or decree allowing probate and a will, if any, open to being overturned at a later time, possibly invalidating any action taken by the executor or administrator. If the bond is insufficient, in amount, form or substance, probate authorization simply may not issue.
After probate is allowed, a properly completed inventory must be prepared including both real estate and personal property. The issue of the Massachusetts Estate Tax must also be dealt with. Will a return be required? If not, what other requirements may there be relative to the estate tax lien? If there is an estate tax to be paid, how can the lien be cleared so that any real estate can be sold before the tax return is finally processed by the Department of Revenue? Will a taxpayer ID number for the estate be necessary?
In some cases court authorization of a sale of real estate or other assets may be required or, although not required, advisable. This involves a separate petition for each asset, with proper notice and so forth as on the original petition for probate. Any irregularities may render any decree subject to attack in the future.
As the estate winds down, there will be issues of distribution and accounting which should be addressed. This would include appropriate closing procedures or other safeguard options for the executor or administrator to consider. Do you fully understand the rules of personal liability of the executor or administrator in dealing with the estate?
These are only some the problem areas to consider where no one involved is posing any special difficulties that need to be dealt with, such as filing an opposition to the petition, disagreeing with the price at which an asset is being sold, questioning exempt property allowances, insisting on a surety bond, or raising the issue of advancements.