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FAQ'S PROBATE

TEN FREQUENTLY ASKED PROBATE QUESTIONS

My father just died and left a bank account in our joint names. 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.

I recently learned that a customer of mine who has a large outstanding accounts receivable balance died two months ago. He ran his own business, which I do not think was incorporated. How do I get paid?

Assuming you are correct in your belief that the business was a sole proprietorship, the first step is to find out whether administration of the customer's estate has been taken in the probate court for the county where he resided. If so, you should contact the personal representative whose name and address appear on the probate papers and find out whether he or she intends to pay the bill. If you do not get paid in a few months, you should promptly commence a lawsuit against the estate. If the lawsuit is not commenced within one year after the date of death, your claim will be time-barred. If no probate administration has been commenced, you may have to probate the estate yourself in order to bring your claim, assuming that there is any probate estate to administer.

My grandmother recently died and left a bequest of $5,000 to my minor daughter. The executor will not distribute the money to me unless I get probate papers appointing me the legal guardian of my daughter. Can't he just give me the money without all the red tape?

The executor is right to be unwilling to give you the money outright. 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.

My mother died six months ago, leaving me a 25 percent interest in her estate. Her husband (whom I do not get along with) is the executor, and he refuses to pay me anything yet. He says that he has to wait at least another six months, and even then may have to retain a substantial portion of the estate as a reserve against taxes. This sounds like stalling to me, and I am angry and suspicious. What are my rights?

You do not have a right to force distribution of your share of the estate sooner than one year after the date of your mother's death. This is because creditors of your mother's estate have up to that long to present claims against the estate. You are entitled to share in only so much of the estate as is left after all the creditors are paid. Even after the one year has expired, if there are pending claims against the estate or contingent tax liabilities, the executor will be justified in retaining a reasonable reserve to cover these contingencies. If you have not received any distribution after the one-year period has expired, you can bring a suit against the executor for payment, but the executor may have a partial defense by way of a need for the reasonable reserve just mentioned.

My father recently died, leaving a will in which I am named executor. My father's lawyer has custody of the will and said that he will prepare the court papers for me to sign. When I asked him about his fee for handling the estate, he was evasive. I don't like this lawyer and would like to have someone else do the legal work. Am I stuck with this guy?

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.

My sister, who owned a three-family house, died last month without a will. My brother and I are the only heirs. We want to rent the unit my sister lived in and to collect the rent on the two units that already have tenants. How do we do this?

As your sister's heirs, you and your brother received title to your sister's house at the moment of her death. You should take administration of your sister's estate, if you have not already done so, to create a public record of your status as heirs and new owners of the house, but you are already entitled to deal with the house as owners. In a letter, you and your brother should instruct the current tenants to pay you the rent due since the time of your sister's death. A lawyer can assist you in preparing this letter as well as a lease for the third unit.

My husband died two weeks ago and I was shocked to discover that he left his entire estate to his children by his first wife, except for $25,000 to me. I was a good wife to him for 20 years, and I feel I deserve better treatment than this. Do I have any right to get more than the $25,000?

Although you could contest your husband's will, it would be a mistake to do so unless you have a reasonable basis for contending that he was the victim of undue influence or was not of sound mind when he signed the will. However, assuming your husband's estate exceeds $75,000, you have a right to receive $25,000 outright plus the income for life from one-third of the personal property and one-third of the real property in his estate minus the $25,000. To claim this share in the estate, you must file with the probate court a form waiving the will within six months after the date of the will's allowance. In determining the value of your husband's estate for purposes of computing your one-third interest, certain assets transferred by your husband during his life may be includable, particularly assets transferred to certain types of trusts.

My aunt, who lived in Florida, died leaving a summer cottage on Martha's Vineyard. The lawyer in Florida who is helping me settle the estate says I will have to bring probate proceedings in Massachusetts to transfer title of the cottage. I don't see why we need another probate proceeding. Does he know what he's talking about?

The Florida lawyer is right. Probate proceedings have no binding legal effect outside the state in which they are pending. To transfer title to real property in Massachusetts owned by a nonresident, it is essential to bring probate proceedings in Massachusetts. If you expect to sell the cottage soon, you might wait until six months have passed since the date of your aunt's death, then seek a license as a foreign executor to sell the real estate. If you do not plan to sell, or cannot wait six months, you will have to probate your aunt's will in Massachusetts in order to transfer title.

I am supposed to receive a one-quarter share of the estate of my brother, who died last year. The lawyer handling the estate sent me a form and said I had to sign it before I could get my money. The form says I release my rights and assent to the allowance of an account, but I don't know whether I will be getting the correct amount of money. Is there anything I can do to satisfy myself before I sign?

The lawyer has no right to require you to sign the release form before he distributes your money to you. If you wish to, you can force the lawyer to file the account in the probate court and then examine the account to make sure the estate has been properly administered. You can then obtain a court order requiring distribution to you. A less formal and expensive way of solving the problem may be to ask the lawyer to send you a copy of the account which the release form refers to before you sign the release. If the lawyer refuses to send you the account, or claims that it has not yet been prepared, you should be on your guard and should strongly consider undertaking the formal measures just outlined.

My father was the executor of his sister's estate, but he died before he finished settling the estate. I am executor of my father's estate. What should I do about my aunt's estate?

Your only duty with respect to your aunt's estate is to prepare and file with the probate court an account covering the period of his administration of the estate on behalf of your father. You have no right or duty to administer your aunt's estate yourself. A successor executor or administrator cum testamento annexo, de bonis non should be appointed to complete administration of your aunt's estate. Who that person is will depend upon whether your aunt's will names a successor executor and whether that person is willing and able to serve. Once a successor fiduciary for your aunt's estate has been appointed, you can distribute the balance of your aunt's estate to him or her and then file a final account from your aunt's estate on behalf of your father.