When someone dies their estate (meaning all of their possessions and assets) must be divided between their heirs or beneficiaries and any debts they owe must be paid in full. This process is called “probate”, and it can be a lengthy process that lasts months or even years in complicated circumstances.
During this process, the court must be involved to ensure probate law is properly followed. Since going to court or having the courts involved in your life is usually anxiety-inducing, you’re not alone if you’re concerned about what you’re going to have to do now your loved one has passed.
Today, we’ll guide you through what to expect at a probate hearing and throughout the process.
Not always – if the estate was in a trust or if the estate is small enough to qualify for nonformal probate or a small estate administration, then probate hearings can be avoided. (To find out more about avoiding probate court, click here.)
Probate court is the court where probate takes place; that means all assets and debts of a recently deceased person are handled in this court. The personal representative or executor of the estate (the person the deceased elected to handle their estate) must file for probate with the county court in the county where the deceased person resided.
Probate court sounds intimidating, but they’re simply there to ensure that the deceased’s wishes are followed and that any outstanding debts are paid. They’ll also handle any claims on the estate and will decide whether these claims can be upheld or not.
The executor should file a petition in probate court and the hearing date will be set. Any relevant parties will receive a notice about the hearing. These parties include creditors, heirs, the executor, and anyone else named in the will (such as friends and charities). The executor should decide if they need a probate lawyer to attend the hearing. This is a good idea if there are likely to be any demands on the estate that will differ from the deceased’s will.
What happens at a probate hearing?
There are usually two hearings. At the first hearing, the executor of the estate is chosen. This usually goes by the deceased’s wishes, but there can be circumstances where the deceased did not choose anyone or where the chosen executor does not feel able to perform their duties due to grief or another circumstance.
The court may ask about the relationship between the executor and the deceased. This isn’t to catch you out – it’s simply to make sure the elected executor is the right person for the position. This hearing is usually straightforward, but it may be more lengthy if there was no chosen executor, if the heirs do not agree with the person elected as executor, or if the chosen person does not have the ability to fulfill the role.
After this hearing, the executor should fulfill their duties. This includes:
- tracking down and appraising all the deceased’s assets
- notifying heirs, beneficiaries, and creditors
- pay any outstanding creditors either with cash assets or by selling assets as appropriate (consult a probate lawyer if this is necessary)
- transferring titles to heirs
- filing taxes
Once they’ve done all of these things, they can file for a Petition for Final Distribution. This is approved at a second hearing. This hearing usually happens a full 10-12 months after they first filed for probate, though it depends on the size and complexity of the estate in question.
Once the judge has reviewed all the executor’s actions, they’ll sign the petition and the estate will be closed.
While most estates can go through probate without any major hiccups, some are more complicated. One complication is when an heir believes the will is incorrect. The only reasons why they can contest a will is if:
- They believe the will may have been signed and/or executed in exceptional circumstances
- They believe the will was created and/or signed after the deceased lost their mental capacity to make the right choices
- They believe fraud is taking place
- They believe “undue influence” is an issue with the will or its execution
If this is the case, the judge will hear their case and decide whether they have a valid concern or not. Once this has been concluded, the probate process can and will move forward.
Selling a home during and after probate can be a challenge, especially if the house has been tied up for some time. We’ve written a complete guide that will take you through the process of selling a home after probate, so you can find that here.
We’ve also got a quick-start guide to help you find all the necessary probate forms for completing probate in Massachusetts – find that guide here.
When you’re ready to sell, the fastest way to do so is to sell to a cash buyer. We buy homes for cash in Massachusetts in as-is condition, meaning you don’t need to do any repairs or renovations. All you need to do is send us a few details about your property and we’ll send you our best cash offer.
Our offer is free and you are under no obligation to accept. If you do, we can close in as little as 2 weeks. To get your offer or to find out more about the process, click here.
Want to learn more? Check out these Probate resources
- How to sell a house in Massachusetts during probate (detailed guide)
- How much is probate in Massachusetts?
- Massachusetts probate forms
- What happens to homeowners insurance during probate?
- How long does probate take in Massachusetts?
- Is probate required when a spouse dies in Massachusetts?
- Top reasons to avoid probate court
- How probate laws work in MA
- How to avoid probate court in Massachusetts
- How to probate a will without an attorney
- How to file probate in Massachusetts
- Can you empty a house before probate?