Keeping up with your record keeping duties and filing all accounts in a timely manner are all part of your responsibilities as a fiduciary. You can also hire an accountant or an attorney to assist you with this work.

1.         Talk to your attorney about the issues.  If you’re having difficulty getting phone calls returned from your attorney or are starting to have other problems with the representation, talk to your attorney about it first.  You can either write them a letter with your issues or schedule a meeting or a telephone call with them to go over the problems that you’re having.  If you’re still having issues after you talk to them about it, it may be time to find a new attorney.

2.         Review the agreement that you signed with your attorney in the beginning of the representation.  Depending on the type of work they’re doing for you, you may be entitled to a refund of fees that you have paid towards a retainer.  You may owe them money for work that they have done up to this point that you haven’t paid them for yet.  In certain circumstances, such as a contingency fee agreement where there will be a settlement coming after an accident, you may owe them money at the termination of your legal case even if they are still not representing you.

3.         Always send the request to terminate the relationship in writing.  You do not need to go into great detail but you should let them know clearly that you would like to terminate the relationship and that you would like a copy of your file and any original documents they may be holding for you. .

4.         Get the file back from your former attorney.  There may be a delay in this if your attorney has filed an appearance in court for something such as a divorce or a probate matter as they will need to get the court’s permission before they can relieved as your attorney.  In general, if you have requested in writing that they terminate the relationship, there should not be an undue delay in the judge granting the request.

5.         If you are terminating the relationship but still wish to pursue your legal issue, be honest with your next attorney about what didn’t work.  Attorneys are often very hesitant to work with a client who is on their second or third attorney.  If it was a difference in communication, that the former attorney’s workload was too high for them to give you the attention that they needed or if you simply had a difference in strategy with your attorney, talk to your new attorney about that.

Clients will sometimes appoint their attorney as their executor, agent under a power of attorney as their health care proxy. If you are ending your relationship with your attorney, be sure to have these documents redone to appointment new agents, and let your former attorney know that you have drafted new documents naming other people.

The purpose of the Inventory is to put the other heirs and creditors on notice about what is in the estate of the deceased person and what its value is.  In most cases, the executor/administrator must file the Inventory within 3 months of appointment.

You are required to list on the Inventory everything that is in the decedent’s probate estate – things like bank accounts in the decedent’s name only, personal items, cars, real estate located in Massachusetts.  Jointly owned property or property that is passing to a named beneficiary is not listed on the Inventory.

Property should be listed with sufficient detail so that it is clear what has come into the hands of the executor. For example, financial accounts should be listed with the account number and name of institution, real estate should be listed with a brief description of the property including the book and page number. Personal property (household goods, clothing, etc) is usually listed as one lump sum unless there are antiques or art work that have been appraised, then they should be listed separately. Vehicles can be listed with the Vehicle Identification Number.

The Inventory is the starting point for the Accounting that must be filed periodically and at the close of the estate, so the more detailed and complete the Inventory is, the easier it will be to complete the Accountings.

Accurate record keeping is an important part of the job of executor or administrator.  If you are the executor or administrator of an estate and you need assistance completing and filing the Inventory, you should seek the guidance of the attorney assisting you in your role.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

If you are trying to obtain the will of a person who has passed away because you are the named executor, the attorney will most likely require a written request along with a certified death certificate. The attorney will most likely only release the will to the named executor, since the executor is responsible for filing it with the Court.

If you are trying to obtain the will of a person who has not passed away, you are probably out of luck. Even if you are the named executor or think you may be named as a beneficiary in the will. This is because the person whose will it is is protected by confidentiality guidelines.  If for some reason they want you to have a copy of the will, they will need to request it in writing from the attorney.

If you cannot located the attorney who had your will because they passed away, retired or moved their office, you can check with the Board of Bar Overseers (or a similar organization in your state) to find out where their new office is, or who may have taken over their files when they retired or passed away.

I sometimes have people contacting me about their parent who has recently passed away and they can't find the Will, which they think was drafted many years ago.  These are the suggestions I give them about how and where to start looking:

• Go through any papers you can find in file cabinets, desk drawers and the tackle box in the back of the closet.  If you don't find the Will, be on the look out for a letter or business card from an attorney.
• If you find communications from an attorney, contact that person and ask if they have the original or a copy of the Will, or if they drafted one.  If the attorney has retired, you can contact the Board of Bar Overseers to get their contact information. 
• If you can't find any information about an attorney, contact any other advisers that the person used. The financial planner or accountant may know the attorney used by the decedent.
• Check with their bank (or banks, if they used multiple institutions).  The person may have put the Will in a safe deposit box. There are certain steps you'll need to follow to obtain access to the box to find out if there is a Will, and the banker can assist you with this.
• If you have a vague recollection of your parent mentioning a Will being done by some attorney in a certain town but you can't remember the name of the attorney, you could use your telephone book or internet and just start calling attorneys in that town to see if they drafted a Will for your parent.  You could also place a "Lost Will" ad in the local paper.
• Check with the Probate Court in the county where you parent resided. It is possible, although not common these days, that the Will was filed with the Court when it was executed. 

For any of these inquiries, the banks, courts or other attorneys will need a certified copy of the person's death certificate, so be sure to have a few of those handy. 

If you still can't find the Will, your next step should be to contact an attorney to determine how the estate will be settled without a Will. 

The form Will that the father had filled out had spaces for specific bequests – specific items that he wanted to go to certain people.  So the father had filled those out.  Then he signed the Will in front of two witness and had it notarized. 

As the years passed, some of the things the father had left to people went out of his estate – cars were sold, bank accounts were closed and new ones opened – and some of the people he was leaving things to had died.  And no where in his Will were these things taken into account.  There were no contingent beneficiaries, people who would inherit if the first beneficiary died before the father.  The residuary clause – the catch-all clause that says "anything else I may own at the time of my death goes to the following people:" – wasn't even on the form. 

When a Will is properly drafted with an attorney, the attorney will ask questions of the person making the Will – "You want to leave that account to Sharon, ok, do you want to leave all bank accounts to Sharon? What if you close that account and open another, what would you like to have happen? What if Sharon passes away before you? Do you want her share to go to her children or to her siblings? Are her children minors? Do any of them have special needs? What about the grandson you mentioned who's having problems with drinking? – and so on and so on. 

That is the reason to have an attorney assist you with this process. We know the questions to ask, and we know what to do with the answers.  We know how to read the hesitation in your voice when you are trying to decide who to choose as guardian or executor, and how to tease out more information so that you can make the best decision for your family.  And we are here when your life changes and you or your family need some guidance on what to do next.  We are here when the Power of Attorney you signed has to be used by your children and the bank is giving them a hard time.  We are here when your sister has to use your Health Care Proxy and she can't find her copy and she doesn't have a key to your apartment because she never thought anything like this would actually happen. 

So, what will happen to that father's estate? The things that are still in the estate and are mentioned in the Will will pass through the Will. The things that are left to someone who has predeceased would have passed through the residuary clause to someone else of the father's choosing but will now pass by Massachusetts Law, through the Intestacy Statue, which differs greatly from the father's wishes.  Those things which were not mentioned in the Will at all, the new bank accounts the father had opened, those will pass through the Intestacy Statute as well.  For some things, the Court's guidance may need to be sought, for others a guardian needs to be appointed for a minor child who is inheriting "unintentionally", all of which involve more time and more money, which the father was trying to save by doing it himself. 

There are ways to keep costs under control when preparing your estate plan. Buying documents online just doesn't happen to be one of them.  Working with an attorney ensures not only that your wishes will be honored, but also that your estate can be administered in the most timely and cost effective manner after you pass away. I always tell my clients "when your affairs are in order, I become the last person your family calls in the event of a crisis and instead of the first," which is how it should be. 

________
Estate
Planning, Probate and Trusts involve complex areas of law. Individual
circumstances must be considered before any advice can be given.  The
general information above is not to be construed as legal advice, which
can only be given after consideration of the unique facts of each
matter. Please seek the advice or counsel of your attorney, financial
advisor or CPA as it may be appropriate.

One of the reasons for having all the heirs gather in the past was to obtain their assent to the will, in order to avoid the necessity of having to "prove" the will.  These days, wills usually contain self-proving affidavits which make it unnecessary to prove the will.   All of the heirs will still be notified of the probate of the will and given the chance to object to it if they wish. 

If you love those movies with the dramatic will-reading scenarios, you might like the opening scene in the book The Testament by John Grisham. 

The author describes how her mother, a member of the American Association of University Woman, was often called to help clean out someone’s estate that had been left to the AAUW.  They had to prepare the house for sale, and in doing so they had to clear out decades-worth of things that had been collected by these people who had generously left their estate to the charity. 

The author’s mother offered these tips to aging people, as well as their adult children as they decide what to keep and what to recycle, give away or throw away:

1. Do not save months and years of magazines, with a thought towards donating them. 

   Collections of magazines, such as Life or Look, usually have no
   value as libraries have copies in their archives. National Geographic
   and The New Yorker, for instance, are available on CD-ROM. Professional
   journals are usually available on-line these days. Newspapers,
   magazines, and other periodicals collect moisture, become mildewy
   and/or moldy and attract other unhealthy pathogens.

2. If you have collectibles that you want people to inherit from you, think about giving the item sooner along with the story behind it. 
3. Identify all keys with tags or labels.  Safe deposit box keys should have the bank name, branch and box listed on them.
4. Photographs of unidentified people are usually thrown out if donated to a charity, and are much more valuable to family if they have the identity, date and relationship listed on them. 

   It only takes a few generations for the identity of people in photographs to be lost, so if you are looking through unlabeled pictures with an older family member, take some time to ask them who the person is, what they were doing, where they were, and who they were related to. Which is more meaningful, a label that says "Joe", or one that says "Uncle Joe, Joe Sr.’s son, age 19, 1942 in front of his store front in San Francisco."  This type of project is a good one for younger generations to help out with, and can lead to more stories and memories being shared and passed down. 

5. Identify flowers, plants, trees and houseplants if you know what they are.  These can be useful for prospective buyers, who may want to know how to continue to care for them.
6. Broken, rusted or otherwise unusable tools have no value. Consider having them repaired or throwing them away.
7. Identify circuit breakers.
8. Clearly mark where the main water shut-off valve it.  Houses that are left vacant can sometimes have pipe-freezes and knowing where to shut off the water coming into the house is vital to stopping the flood.  The plumber can usually find it, but the water should be shut off ASAP in the event of a pipe freeze. 

Many times my clients who are dealing with the estate of a loved one have commented to me about things their mother, father, aunt or uncle saved, and have wondered aloud what made them hold on to so many things.  They often resolve that they will not subject their children to the same onerous task of clearing out their house when the time comes. 

Are there things you are saving because you think they might be of value? Do you need help decluttering and clearing out your house? Are you trying to figure out how to approach your parents about their clutter?  You might try starting with some books on the topic,  and then gently offering to help. Remember that people are often very attached to their clutter (and their sentimental items) so you can’t just start throwing things away that don’t belong to you, but you can start a conversation and offer to help get things in order. 

People often talk about wanting "to avoid probate." They have an image of estates that remain open for years, with property languishing and heirs in a never ending battle. While this can happen, it is not typical, and can be prevented with proper planning.

Below are some of the general steps involved in probating an estate in Massachusetts:

1. The original will is filed with the probate court, along with a petition, bond and death certificate. A copy of the petition and death certificate are sent to the Office of Medicaid (Medicaid may have a claim against the estate if the person received Medicaid, or MassHealth, while they were alive.
2. Heirs and "interested parties" are notified. Interested parties are those people named in the will, and may be the Attorney General if there are charities named in the Will or if there are no known heirs at law. 
3. The Court will issue a citation, which needs to be published in the newspaper and sent to interested parties. This citation lists the date (called the "return day") by which people can object to the appointment of the executor or administrator.  The citation will contain very specific instructions which must be followed.
4. File a military affidavit with the court if all heirs have not assented.
5. Once the will has been approved and the executor appointed, the executor should begin to gather the assets, review the debts, obtain a tax id number for the estate and open an estate bank account.
6. The executor will need to file an inventory with the court, outlining all of the property that is in the estate.
7. The debts of the estate, such as funeral debts, should be paid, if the estate is solvent. Be aware of Medicaid estate recovery debts.  Creditors have a year to come forward and make claims against the estate. 
8. Determine, perhaps with assistance of an accountant, the best way to start making distributions from the estate. If there is real estate, that may need to be sold and may be subject to Title V (septic tank) regulations, which can be costly if repairs or replacement are needed. 
9. When the estate is closed, an account will need to be filed with the court which lays out what was in the estate when the person died, what came into the estate and what went out of the estate and where it went (usually distributed to heirs or to pay debts.)

There are tax matters that need attention, so you’ll want to make sure to have an accountant you can consult with.  And things that can hold up the process are waiting many years to open an estate, heirs who are missing, heirs who object to the appointment of the executor or the provisions of the will or anything else they can think to object to, real estate which has title problems or needs extensive septic work done, abandoned property (especially stocks if the stock certificates have been lost). 

This is not a comprehensive list, but it will give you some idea of what the executor will need to do, and where some of the bottle necks can occur.

If you are responsible for probating someone’s estate in Massachusetts and need legal assistance, or you want to talk to someone about structuring your own estate plan to prevent bottlenecks, please call me at 781-749-2284. 

The article outlines the information you should have in case of an emergency.  It doesn’t need to be posted on your refrigerator, but it should be kept in a safe place in your house, and you should let someone you trust know where to find it.  The information includes:

• details about your assets, what they are, how they are held, where to find the account information.  If you have out-of-state real estate or other assets, be sure to include these.
• the names of your advisers – your financial planner, your accountant, your attorney, the guardian you’ve chosen for your minor children.
• information about any safe deposit boxes you might have.
• where your estate planning documents are located: your Health Care Proxy, Durable Power of Attorney, Will, Trust and deeds.
• insurance policies: long term care, life and health.

A wonderful way to keep track of these things is with the What If… Workbook, created by Gwen Morgan.  The workbook provides a place for you to document:

• financial information
• personal contacts
• location of important documents
• whether you want burial vs. cremation
• how to care for pets
• family medical history
• special gifts you’d like to leave for loved ones
• and even space for you to start documenting the type of legacy (other than financial) that you would like to leave behind for your loved ones. 

To help you get started, and to provide the often necessary accountability to complete the workbook, Gwen holds small group sessions or individual meetings.

Click here to receive the Workbook at a special rate, just for readers of this website.  You could get them for you and your family members for the holidays, as a good way to start the discussion about planning and  your wishes for the future.