Each state has its own requirements for what constitutes a valid Will.  When it comes to signatures, the basic requirements in Massachusetts are that you, as maker of the Will, must sign the document, plus it must be signed by two witnesses who are not beneficiaries of the Will.  There’s no legal requirement that a Will itself be notarized.

However, Massachusetts does allow you to attach a Self-Proving Affidavit to your Will. This is a document signed by you and both witnesses in which the witnesses acknowledge that they watched you sign your Will, and that you appeared to be of sound mind and old enough to make a Will.  A Self-Proving Affidavit does have to be notarized in order to be effective.

What’s the advantage of having a Will with a Self-Proving Affidavit?  It helps your Executor to begin the probate process quickly and easily.  A “Self-Proved Will” is assumed to be validly signed, and is admitted to probate immediately. On the other hand, if a Will lacks a Self-Proving Affidavit, then your Executor will need to locate the witnesses to your Will, so that they can verify to the court that your Will signing was conducted in accordance with state law.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

If you have a loved one who has passed away and left behind debt, you may wonder how that debt will be handled during the probate process. And, more specifically, who is responsible for paying the debt.

More Assets Than Debts

How the probate process unfolds with regard to the debts of a deceased person really depends on that person’s total financial picture as of his or her death. If the deceased left behind enough assets to pay off all of his or her debt, then that’s exactly what will happen. During probate, the assets of an estate are used to pay off any valid debts (or taxes) before they can be distributed to heirs or beneficiaries. So, in this situation, inheritances may be reduced in order to pay off the debts of the deceased.

More Debts Than Assets

What if the debts of the deceased outweigh the value of all his or her assets? Then the debts are placed in priority as provided by state law, and the estate assets are used to pay off as many of the debts as possible, starting at the top of the list. When the assets run out, the remaining creditors are left out in the cold. Can they come after heirs of the deceased to collect on these debts? Generally, no.

But, there are a few exceptions. For example, if you and the deceased were joint borrowers, then you’ll be on the hook for paying off the debt, because you signed up to share in that responsibility. The same is true if you guaranteed or co-signed a loan for the deceased.

If a loved one has died and you’re not sure whether a particular debt is your responsibility, or the responsibility of the estate, check with an estate planning lawyer.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

If you own property here in Massachusetts, plus you own property in one or more other states, you need to know about ancillary probate.

What Is It?

Ancillary probate is the process through which property that’s titled in your name, and owned in a state other than Massachusetts, will be distributed after your death. When you pass away owning property in multiple states, the laws of the state where each piece of property is located will govern how that property is passed on to your heirs and beneficiaries.

So, if most of your property is here, but you own a home in Florida and have a car that’s titled in Florida as well, then not only will your loved ones have to deal with the probate process here, your Florida property will be distributed by way of a probate proceeding in Florida.

The Trouble With Ancillary Probate

Ancillary probate poses a few challenges for your loved ones after your death. The first is that dealing with the probate process in more than one state means additional court costs, attorney’s fees, time, and hassle spent settling your estate. And this is if you die with a will.

Without a will, there’s an additional complicating factor – the laws that govern how an estate is distributed vary from state to state. So, your out-of-state property could end up going to a completely different set of heirs than your in-state property.

Your Estate Planning Attorney Can Help

Fortunately, just like you can arrange your estate to avoid probate here in Massachusetts, there are methods you can use to avoid ancillary probate, as well. Your estate planning attorney can help you develop an effective plan.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Both a joint account and a pay on death account can be effective tools for keeping a portion of your assets out of probate at the time of your death. But, what’s the difference between the two?

Joint Account

A joint account is one that you own with one (or more) other people. As long as the account is designated as having “rights of survivorship”, then, when you pass away, the remaining owners simply have to present your death certificate to the bank, and your name will be removed from the account, leaving them as owners. The assets in the account simply transfer to the remaining account holders, without the need for probate.

There are a number of drawbacks to using joint accounts as a method for avoiding probate. Your estate planning attorney can explain all of the pros and cons to you, but one main drawback is that your co-owners will have equal access to all of the money in the account during your lifetime. So, not only do they have the same rights as you to deposit and withdraw funds; if one of you is sued, all the money in the account is in jeopardy.

Pay On Death Account

How is a pay on death account different from a joint account? At its most basic, a pay on death account is owned by you, and you designate one or more beneficiaries who will inherit the account when you pass away. So, your beneficiaries don’t have access to the account during your lifetime; however, when you pass away, all they need to do is present your death certificate to the bank, and the account becomes theirs.

As with joint accounts, there are both advantages and disadvantages to using pay on death accounts as a method for avoiding probate. One disadvantage is that, since a pay on death account is a non-probate asset, any changes in the beneficiary designation for the account will need to be made directly with your bank. Simply using your will to express a desire to change or add beneficiaries to your account will have no effect, since your will only controls probate assets.

Your estate planning attorney can help you decide how joint or pay on death accounts should fit into your overall estate plan.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

You’re in the middle of a busy afternoon when you get a phone call. A distant relative has passed away, and, surprise! He appointed you to serve as his Executor. Do you have any legal obligation to take the job, and act in this capacity? And, what happens if you don’t serve as Executor?

There’s No Obligation

While being named as Executor of someone’s will is certainly an honor, it’s also a big responsibility. Fortunately, if you can’t take on the role – or simply don’t want to – you have no obligation to serve. Of course, the probate process is a legal proceeding, so there will be paperwork involved. In order to formally decline to serve as Executor, you’ll have to sign a document saying so.

What happens if you decline the honor?

What Happens Next?

If you decline to serve as Executor, and your loved one named an alternate Executor in his will, then the alternate will be given the opportunity to serve.

If your loved one did not name an alternate, then once you decline the role, anyone who wants to serve can petition the probate court, and the court will decide who takes over as Executor.

Who’s Your Executor?

The real lesson in this is that, when you’re making an estate plan, it’s a good idea to check with loved ones before you appoint them to any fiduciary position, be it Executor, Trustee, or Guardian. If you surprise someone, they might just decline the honor.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

One of the primary reasons that people want to arrange their estates so that they can avoid probate, is that the process can be quite lengthy. And while your property is tied up in probate, it’s not accessible to your heirs. What are the factors that tend to lengthen the probate process?

• If you have a large estate, the probate process can be extended for a number of reasons: the larger your estate, the more likely it is to be subject to estate tax…and your estate can’t be settled until the IRS confirms that your executor has paid the tax that’s due. Also, if you have a large estate, you’re more likely to have property that needs to be professionally appraised, extending the process.
• If you have a large family or a large number of heirs, your estate may take longer to administer, because your executor needs to notify all involved parties before your property can be distributed. Plus, when a large family is involved, the likelihood of disagreements and will contests increases, and any kind of conflict is likely to extend the probate process.
• If your executor lives far away, it’s likely that the probate process will not go as quickly as it could. This is because the logistics of mailing documents back and forth to the probate attorney can be tricky and time-consuming.
• If your heirs are scattered across different states, the same logistical difficulties may apply, but on a larger scale. Coordinating the necessary documents among many people who live far apart, and far away from the probate attorney, can add time and expense to the probate process.

If you’re concerned about the length of time it may take to probate your estate, the best thing to do is to plan ahead to avoid the process. Your estate planning attorney can help you assess your family’s situation, and figure out which estate planning methods are right for you.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

If you’re just getting started on your estate plan, you may be wondering what probate is and why there seems to be such a big fuss about avoiding it.

Probate is the court process of having a deceased person’s Will declared valid and having their property distributed according to the instructions in the Will and according to state law. Depending on the size of a person’s estate and whether or not any disputes arise during the process, probate can take anywhere from several months to several years.

While the estate of a deceased person is in probate, his or her property is generally not accessible to the heirs of his or her estate. It’s only after all the debts and taxes owed by the estate are paid off, and the court permits it, that the remaining estate property can be distributed to family members or other beneficiaries.

Because of the time and legal fees involved in the probate process, many people choose to plan their estates so that they can avoid the process. There are a number of methods for doing this, including establishing a Revocable Living Trust, owning property as Joint Tenants With Rights of Survivorship, and taking advantage of payable on death accounts.

There are some advantages to the probate process that can benefit people in certain situations. In order to be truly beneficial, your estate plan should be tailored to your specific circumstances. For guidance as to which estate planning methods are best for you, consult with an estate planning attorney.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Like many people, you may believe your Will is the document that distributes every piece of your property, right down to the last dollar. This isn’t always the case however, as some assets are distributed according to other laws, regardless of what the Will might say.

A husband and wife for example, may own their home together. This joint ownership is called joint tenancy with the right of survivorship, and it overrides any bequest made in a Will. If the husband passes away and the wife is still living, she automatically inherits his interest in the home and this transfer happens regardless of whether there is a Will or not.

This type of property is known as non-probate property because it does not require probate to pass from one owner to another.

In addition, a Will cannot bequeath certain financial instruments such as life insurance policies, retirement plans and investment accounts. These assets include a named beneficiary as part of the account document. When you pass away, the funds or assets within the account will pass automatically to the beneficiary you designated for your account.

So what property does a Will cover? Probate property can include:

• Bank accounts;
• Personal effects;
• Cash gifts;
• Real estate that is not owned jointly; and
• Debts and taxes owed by the estate.

Since an individual’s entire estate is often addressed in various documents and governed by particular laws, it’s important to have a comprehensive estate plan that meets your needs and addresses all the unique aspects of your estate.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

It’s not unusual for an heir to be unhappy about the contents of a loved one’s Will. Being left out of a Will or receiving less than you expected is difficult to accept. However, winning a Will contest (a lawsuit challenging the validity of a Will) is no easy task.

In order to have a Will invalidated, the person challenging it has to prove one of four things:

1. That the Will wasn’t properly executed. This means that the Will, on its face, wasn’t signed and witnessed according to the requirements of state law.

2. That the person making the Will lacked legal capacity. A person can lack capacity to make a Will for a number of reasons. For instance, children can’t make Wills because, as a matter of state law, they’re presumed to be incapable of doing so.

When it comes to adults, lack of capacity means that you don’t understand or aren’t aware of:

• What assets you own;
• The “natural objects of your bounty” (i.e., those people, such as your spouse and children, who would normally inherit your assets); and
• The legal effect that signing your Will will have (i.e., passing on assets to certain individuals or cutting certain individuals out of an expected inheritance)

Showing lack of legal capacity means presenting witnesses to prove that the person making the Will really was not aware of what was going on at the time the Will was signed.

3. That the person making the Will was subject to undue influence. This is a little different than showing a lack of legal capacity. In order to show undue influence, the person challenging the Will has to demonstrate that the maker of the Will was under the control of another individual to such an extent that he or she was powerless to exert his or her own desires, and instead, the Will reflects the desires of the influencer.

4. That the Will is a result of fraud. This requires proof that the maker of the Will was tricked into signing the document. Most often, fraud is proven where witnesses can testify that the maker of the Will thought that he or she was signing another document, like a power of attorney, when, in actuality, it was the Will that was signed.

Challenging a Will and winning requires more than just showing that the document is unfair. There’s a very high standard to meet before a court will declare a Will invalid, and most people who are unhappy about the contents of a Will never make it past the courthouse steps.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

There are several different situations that can contribute to how long the probate process takes. In some cases the process can go smoothly and will not take too long, but if there are any problems, probate can take quite some time.

The location of the personal representative can have a lot to do with how long the process takes. With probate it is necessary to have an original signature on many of the documents involved, so if the personal representative lives a distance from the attorney, naturally the probate process will take longer.

Another contributing factor that can influence how long probate will take is the number of beneficiaries. The more beneficiaries there are, the longer probate may take due to the time it takes to go through the process with each one. If these beneficiaries live out of town and do not have easy access to the attorney handling the probate, the process can take more time because of the necessity of mailing documents back and forth.

If there is a lot of disagreement among the beneficiaries, the process will take longer. This is really a very common problem with probate issues, especially if there are several beneficiaries. It is also not uncommon for one or two beneficiaries to hire their own attorneys to ensure that the probate is being handled properly; in this case the process can take much longer.

There is always the possibility that there will be a Will Contest. This is where someone starts proceedings to contest what is in the will. When someone decides to contest a will they will have to prove certain facts, such as that the will was not legally signed, or that the will is a fraud. There is also the possibility that the person contesting will try and prove that the will was signed under duress or someone influenced the deceased. Another common argument for a Will Contest is that the person signing the will did not have the mental capacity to know what they were doing. No matter what argument is used in the Will Contest proceedings, you can be sure that probate will take a great deal of time if the will is contested.

The more assets that are involved in an estate probate the longer the process will take; this is especially true when there are business interests involved. Another thing that might influence the length of probate is if the estate is taxable; in this case it will be necessary to wait for the tax authorities to release the estate, and this can take quite some time.

The better your estate planning is, the fewer problems your beneficiaries will have with probate later. This is why a good estate attorney is a must to ensure that everything is in place so that the probate process can go as smoothly as possible.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.