Probate Court Administration FAQ

What is probate administration?
There are two types of probate administration in Massachusetts: the first involves a probate estate where there is a will.  In that case a person’s assets will pass according to the directions set forth in the will. The second form of probate is for people who die without making their wills. This form of estate administration is called "intestacy". In both cases, the probate court in Massachusetts oversees the distribution process.
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Do I have to go through the probate court or can it be avoided?
Probate is necessary unless assets are held in a form that will automatically pass title to others after an individual’s death. This includes joint ownership of assets or assets where a beneficiary can be named, such as life insurance, IRAs, pension plans, etc. The assets transferred to living trusts prior to death are also not subject to probate, but are controlled by the trust agreement.  The probate process can take time. In fact, the estate is required to stay open for one year from the date of death so that creditors have time to file any claim.  
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If I have a joint bank account and the other owner dies, do I have to wait until the will is probated before I can get the money?
The bank account is presumed to belong to the surviving joint tenant, and you are therefore entitled to withdraw the funds immediately without waiting for probate and without affecting bequests that may have been made to you in the will. If the executor later brings a lawsuit against you, however, and can prove that the account was held in joint name for convenience only and not to permit you to receive the money as an inheritance, the executor will be entitled to recover the funds from you.
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Can the executor of my grandmother’s will give me the $5,000 she bequested to my minor daughter without the court appointing me legal guardian of my daughter? 
Unless you are the legal guardian of your daughter - which you are not if the probate court has not appointed you as such - you have no right to receive funds belonging to your daughter. Formal guardianship is a relatively cumbersome and expensive procedure, however, and should be avoided in this situation if possible. Ask the executor to distribute the funds to you as custodian for your daughter under the Uniform Transfers to Minors Act. So long as such distribution is not forbidden by or inconsistent with the terms of the will, it is authorized by statute and fully protects the executor.
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As executor of my father’s will, do I have to use his attorney to prepare the court papers and handle the estate or can I select my own?
As executor, you are entitled to hire whomever you wish to assist you in settling your father's estate. Your father's lawyer has a legal obligation to deliver the will either to the probate court or to you within 30 days after learning of your father's death. He is not entitled to any legal fees unless you choose to hire him, and you should not hire any lawyer unless you clearly understand the basis upon which his or her fee will be determined.
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