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Massachusetts Estate Planning Info --- Part One


What happens to a person’s property when they die?


The distribution of the deceased’s property usually goes through probate. Probate is a process where a Petitioner (usually the deceased’s relative) asks the Probate Court to approve the will or designate the heirs of the deceased. They also seek the Court’s approval or authority to distribute the estate’s assets. Every county in Massachusetts has a Probate Court where these matters are filed and heard.


What is Estate Property?


People often ask me what property is included in a person’s estate when they die.

Property is defined as both real and personal property or any interest therein and means anything that may be the subject of ownership.


What is included in a person’s estate depends on what you are counting as property.


For Probate Court Purposes:

Property owned as tenants in common (i.e., people who own property jointly without the right of survivorship) is considered property of the probate estate. Property that is owned jointly with a right of survivorship generally is not included in the estate. Life insurance proceeds on the decedent’s life owed to a decedent’s beneficiary are not considered part of the probate estate. A Personal Representative is required to prepare an inventory of the property belonging to the decedent at the time of death.

For more information on the responsibilities of a Personal Representative to inventory the property of the Probate estate, see:

General Law - Part II, Title II, Chapter 190B, ArticleIII, Section 3-706 (malegislature.gov)

For Estate Tax Purposes:

Property owned with others as joint tenants with right of survivorship are counted in the estate taxable estate. Life Insurance Proceeds on the Decedent’s life that are owed to another are also included in the estate taxable estate. In addition, annuities and trust assets for which the deceased had a power of appointment are included in the estate taxable estate.

For more information on what assets are part of the Estate Taxable Estate, see:

A Guide to Estate Taxes | Mass.gov and

Estate Tax | Internal Revenue Service (irs.gov)

Stay tuned for Part 2 of this 3 Part Blog series which will cover why some families prefer to avoid probate.

If you would like a free initial consultation to discuss creating your personalized comprehensive estate plan, please contact the Law Offices of Martin I. Flax, P.C. at flaxlaw@gmail.com.


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