The purpose of this course is to explain the Probate process to real estate brokers and salespersons so that they will understand the requirements of dealing with estates fiduciaries as well as what is required when a person owning real property dies. The course may also cover Property in Trust, however the primary focus should be Estates, what assets are parts of the Probate Estate and what assets are excluded from the Probate Estate, who may be authorized to transfer Real Property after the death of an individual owner.

The Course is a general outline and approved schools are encouraged to supplement materials and curriculum provided. Ideally, the course should be taught by a Massachusetts Attorney with some level of expertise in Probate of Estates.

  1. Review Concurrent Ownership
    1. Tenants in Common
    2. Joint Tenants
    3. Tenants by the Entirety
    4. Tenancy in Partnership
  2. Terms /Definitions
    • Ademption
    • Administrator/Adminstratrix
    • Antinuptual Agreements
    • Beneficiary
    • Custodians
    • Conservators
    • Decedent
    • Divorce
    • Executor/Executrix
    • Guardians
    • Probate
    • Probate Estate
    • Non-Probate Assets
    • Intestate
    • Testator/Testatrix
    • Pretermitted Children
    • Predeceased Children
    • Devisee
    • Fiduciary
    • Will
    • Trust
    • Trustee
    • Disclaimers
    • Power to Sell
    • License to Sell
    • Partition
    • Trust
    • Testamentary Disposition
    • Kindred
    • Issue
    • Legatee
      • Heirs
      • Homestead
  3. Probate: The supervised Process that takes place after someone dies to settle his or her estate.
    1. What assets are part of the Probate Estate
    2. Assets not part of the Probate Estate
    3. Transfer of Title
    4. Payment of Debts and priority
    5. Intestate vs. Testate Estates

      Person who dies without leaving a will is said to die intestate, and is referred to in the law as an intestate. One who dies leaving a will is said to die testate, and is known as a testator. Intestate estates are administered by an administrator. Where the decedent does leave a will, the estate is settled in two basic steps: the probate of the will, and the appointment of an executor. Where the decedent has not left a will, then only the appointment of an estate administrator is necessary. These aspects of estate settlement are initiated by the preparation and filing of a petition in the Probate and Family Court in the county where the proceeding is to be brought.

      See Newhall's Settlement of Estates and Fiduciary Law in Massachusetts, 5th Edition, §1.7 - §1,9.

    6. Vesting of Title to Real Estate By Probate Decree:

      Whenever a decree of the probate court directs that a deed, conveyance, or release of real estate or any such interest shall be made, and the party so directed does not execute it within the time specified by the decree, the decree itself shall operate to vest the title in the person entitled as fully as if the deed or other instrument had been fully executed.

  4. Probate Record.
    1. Registries of Probate
      • Property of Deceased Persons
      • Property of Minors and Incompetent Persons
      • Property of Divorced Persons
    2. Registries of Deeds
      1. Filing for a "Small Estate" (value limit of $15,000.00 exclusive of one automobile). This is known as a "voluntary administration" if there is no will, and a "voluntary Probate" if there is a will. No need to present petition for appointment to a judge.
      2. Formal probate proceeding where combined value of all assets exceeds $15,000.00
      3. Appointment of special administrator used where there is needed to appoint a temporary legal representative on behalf of an intestate estate while the appointment of a full administrator is pending. The probate court may authorize a special administrator to take charge of real estate, make repairs, collect rents, or even coordinate the sale of the real estate. (G.L. c. 193 section 10-16).
  5. Probate of Will
    1. Inventory
    2. Petition of Executor
    3. Allowance by Court
    4. Due Notice
    5. Hearing, if there is appearance against allowance of the Will
    6. Wills - Matters of Effecting enforceability
      1. Capacity of Testator/Testator at
      2. Formalities of Execution / Attestation
      3. Necessity of Probate
      4. Effect of Marriage or Divorce
      5. Spousal Waiver
      6. Rights of Children
    7. Homestead Allowance and Procedure (M.G.L. c 188)
      1. An owner or a lessee who rightfully possesses a home by lease, who occupies a home as a principal residence can claim an "Estate of Homestead" up to $500,000.00. The homestead estate is exempt from the creditors of the person claiming the homestead estate. When a spouse who obtained a homestead estate documents, the surviving spouse and the children have the right to live in the home until the spouse dies or remarries and the youngest unmarried child reaches 18. (M.G.L. c. 188 section 4)
  6. Waiver by Spouse / Statutory Share
    1. within 6 months after probate of a will
    2. Spouse may waive the provisions of will and
    3. Take statutory share.
    4. Statutory Share, M.G.L. c. 191 § 15
      1. If deceased leaves Issue, 1/3 Real Property and 1/3 Personal Property
      2. If deceased leaves Kindred, but no Issue, spouse takes $25,000 and ½ remaining Real Property and ½ remaining Personal Property in life estate.
      3. If deceased leaves no Issue and no Kindred, a spouse takes $25,000 and ½ the remaining Real
  7. Children
    1. Children
    2. Omitted Children
      1. unintentional
      2. intentional
      3. Requirement of Executor's Bond
    3. Pretermitted Children
    4. Children out of wedlock
  8. Predeceased Devisee / Ademption
    1. Predeceased Devisee
      1. If to child or blood relative, take by right of representation
      2. If to third party devisee, the gift fails
    2. Ademption - "to take away"

      If a Testator/Testatrix transfers during his/her lifetime dispose of real property which is the subject of specific devise in a will, the devise is taken away.

      Kelley v. Neilson, 49 Mass.App.Ct. 115, 727 N.E.2d 82 (2000) review granted 432 Mass. 1103, 738 N.E.2d 353 (2000) and rev'd by 433 Mass. 706, 745 N.E.2d 952 (2001) Signing a purchase and sale agreement that did not result in transfer of title until after testators death does not cause an ademption.

  9. Intestate Estates - Descent and Distribution

    In the absence of a will, the property of a deceased person passes as intestate property in accordance with M.G.L. c. 191.

    Real Property as an Asset of the Estate:

    If there is no will (leading to an intestate estate which must be administered by an administrator), title to the real property vests immediately in the decedent's heirs. If there is a will, title to the real property passes to the devisees named in the will. The only right which an executor or administrator has with respect to the decedent's real property is to sell the real property under a court - issued license if monies from its sale are needed to pay debts. The appointed administrator in this situation must petition the court for a license to sell the real estate to pay debts and legacies. If there is a will and it includes the power of the executor to sell real property of the decedent, the executor may do so without a court - issued license.

    See Newhall, 5th Edition, §9.10.

    1. Deceased leaves a spouse
    2. Spouse/Issue/Kindred Shares
  10. Title to Distributees under Will of Intestacy are Subject to:
    1. Estate Tax Liens
    2. Claims for Necessaries, M.G.L. c. 196 "Widow's Allowance"
    3. Claims for Administrative Expenses of the Estate
    4. Claims of Creditors of Decedent (M.G.L. c. 198 section 1)
      1. secured creditors
      2. unsecured creditors
  11. Disclaimers and Postmortem Estate Planning
    Six requirements of Disclaimers
    1. must be irrevocable
    2. in writing and explicit as to what is disclaimed
    3. disclaimer must be delivered to transferor or person in possession, usually within 9 months of death
    4. disclaimant must not derive benefit from interest disclaimed
    5. property must pass without direction of disclaimant
    6. disclaimant may not be insolvent

      See M.G.L. c. 191A and I.R.C. § 2518 for further information

  12. Judicial Proceedings
    1. Voluntary Executors and Special Administrators

      Appointment of a Special Administrator:

      Under M.G.L. c. 193 §10 - §16, a temporary legal representative may be appointed on behalf of the intestate estate while the appointment of a full administrator is pending. The Probate Court may authorize the Special Administrator to take charge of real estate, make repairs, collect rents, or even coordinate the sale of the real estate. The Special Administrator may be appointed for a period of up to 90 days, though extensions may be granted by the Probate Court on motion with notice.

      See Newhall's, 5th Edition, §6.2

    2. Full Probate Proceedings vs. Small Estate

      "Small Estate" vs. Formal Probate:

      If the estate consists entirely of personal property and the value of such property does not exceed $15,000, plus the value of one motor vehicle, can do a Voluntary Administration in the absence of a will. If there is a will, it is known as a Voluntary Probate. Where the combined value of all assets exceeds $15,000, a formal probate must be done.

    3. Accounting
  13. Claims Against the Estate (See Probate Process From Start To Finish, National Business Institute Publ., No. 15519 (2004) AP 63-66.
    1. Funeral and Administrative Expenses
    2. Creditors of the Decedent
    3. Inheritance and Estate Taxes
    4. Legaties
    5. Claims
    6. Insolvency
    7. Real v. Personal Property in payment of Claims
  14. Inheritance Taxes and Estate Taxes (See Newhall's, Ch. 13)
    1. Inheritance Taxes and Estate Taxes are subject to change and liability may vary based on the date of death of the decedent as well as the size of the estate. Instructors and Students are reminded to keep abreast of changes in the laws and encouraged to the advise of a seek tax professional for specific situations.
    2. Due Date for Estate Tax Returns
    3. Release of Estate Tax Lien (See How to Probate An Estate, Parts 1 and 2 Mass. C.L.E. Series Pub. PLCO4/PLEO4, Pages 87-118
      1. Affidavit
      2. M-792
      3. Proof of Payment
      4. Release of Federal Tax Lien, IRS Form 4422
      5. Taxable Estate of Decedent, State and Federal based on Date of Death
      6. Clear Title, See Real Estate Bar Association Title Standards Number 13
  15. Distributions (See Newhall's Settlement of Estates and Fiduciary Law, Chapter 12, section 12.1, 12.2, 12.4, 12.5, 12.13)
    1. License to Sell
    2. Power to Sell in Will
    3. Direction to Sell in Will
  16. Deductibility of Expense of sale. Broker's Commissions and Recording fees:
    1. Normally not taken as deductions on estate tax returns
    2. May be taken under limited circumstances
      1. If sale is found in Direction to Sell in Will. See I.R.C. 642 et. seq.
      2. If sale is necessary to pay debts, expenses, taxes or legatees. See I.R.C. 2053; 26 C.F.R. 20.2053.3(d)(2)
  17. Disposition of Real Property by Minors and Incompetents

    Guardian v. Custodian
    M.G.L. c. 201A.

  18. Special Rules for Registered Title

    Registered Land is land under the jurisdiction of the Land Court and, in the case of Joint Tenancies or Tenancies by the Entirety, evidence of death of a co-tenant must be noted on the encumbrance sheet of the certificate of title.

Citations

  • State:
    • M.G.L. c 188 (Homestead)
    • M.G.L. c. 191 § 15 Statutory Share
    • M.G.L. c. 191A
    • M.G.L. c. 193 section 10-16
    • M.G.L. c. 196 Necessary Service "Widow's Allowance"
    • M.G.L. c. 201A. Guardian, Custodian
  • Federal
    • I.R.C. 642 et. seq.
    • I.R.C. § 2518
    • I.R.C. §2053;
    • 26 C.F.R. 20.2053.3(d)(2)
  • Case Law
    • Kelley v. Neilson, 49 Mass.App.Ct. 115, 727 N.E.2d 82 (2000) review granted 432 Mass. 1103, 738 N.E.2d 353 (2000) and rev'd by 433 Mass. 706, 745 N.E.2d 952 (2001)

Handouts

  • Estate Tax -M792
  • Federal Tax792
  • Affidavit Regarding Massachusetts Estate Tax
  • Affidavit Regarding Federal Estate Taxes
  • Joint Affidavit
  • Declaration of Homestead
  • Declaration of Homestead by Elderly or Disabled Person
  • Death Certificate

Other sources to review:

Materials third party sources and are cited for informational purposes. Instructors must seek copyright permission if materials from sources are to be used.

  1. How To Probate An Estate: Parts 1 & 2, Massachusetts Bar Continuing Legal Education Series, Publication PLCO4/PLEO4, Pages 1 - 18 (for a detailed chronology of the probate process). November 2003.
  2. The Probate Process From Start To Finish in Massachusetts, National Business Institute, Publication No. 15519 (2004)
  3. Settlement of Estates and Fiduciary Law in Massachusetts, 5th Edition, Newhall §1.7 - §1,9.
  4. Massachusetts Practice (West Publishing, St. Paul, Minn)
    • Vol. 4, Baily and Vandorn, Taxation
    • Vol. 15-15A, 16-16A-16B Hovey and Koenig, Legal Forms 4th Ed.
    • Vol. 23-24 Annino, Estate Planning with Forms, Second Edition
    • Vol. 28-28A Hovey and Koenig, Real Estate Law with Legal Forms 3rd Ed