probate law

Probate is the legal process that is often required after someone passes away.  It involves the process of transferring assets to the proper beneficiaries (who are called “heirs” if there was not a Will or “devisees” is there was a Will).  In most cases, the Probate and Family will appoint a person called a Personal Representative (formerly known as “executor”) to collect and manage assets owned by the person who passed away (called a "decedent").

The Personal Representative is often a surviving spouse or other close family member.  The Personal Representative has the authority to gather the deceased person’s assets and pay valid debts and taxes.  Once any taxes are paid and valid debts are dealt with, the Personal Representative can then transfer the assets to the people who inherit them.  Once the estate has been fully administered, the Personal Representative can close the estate.  The Law Offices of Mark R. Scialdone are able to assist you during each step of the probate procedure. 

In Massachusetts, not all cases need to be probated.  For those cases that do, various factors must be considered in determining what type of probate is best for the particulate case.  The probate procedure in Massachusetts can be a complicated process.  Moreover, the loss of a family member or loved one is difficult enough.  During this time, no one needs the added stress of maneuvering the often-complex probate procedure in Massachusetts. 

At the Law Offices of Mark R. Scialdone, we will work closely with you to determine which type of probate administration is best for your situation. We will answer any questions that you may have and we will guide you throughout the entire probate process.  

Please contact us today to discuss your options. 

Voluntary Administration:  Massachusetts law provides for a simplified process called voluntary administration.  This is generally the best option for small estates with no real estate and personal property valued under $25,000, exclusive of one automobile.

Informal Probate:  Informal probate is generally used with uncontested estates that do not require court oversight.  Once appointed, the Personal Representative is free to administer the estate and there is generally no longer any involvement of the Probate and Family Court.  Informal Probate is often the best option when all the beneficiaries are known, there are no creditor issues, and all beneficiaries are in agreement. 

Formal Probate:  Unlike informal probate, formal probate typically occurs before a judge.  The formal probate process generally takes longer than informal probate and is often more complex.  There are several reasons why formal probate might be required, including: when real estate is involved, when there are issues with a Will, or when litigation is expected. 

Supervised Probate:  Supervised probate simply means that the Personal Representative may not distribute any assets without the approval of the Probate and Family Court.  In these cases, the Judge will decide all contested issues and oversee administration of the estate.  Supervised administration is often a useful option in high-conflict cases.

Late and Limited Probate:  A probate petition must generally be filed within three (3) years from date of death.  If an estate has not been handled within this time period, Massachusetts law provides for a “late and limited” probate.  The  Court may appoint a Personal Representative to administer the estate.  However, the Personal Representative has limited authority in a late and limited proceeding.  This is an evolving area of the law and we suggest you contact us to discuss your options. 

At the Law Offices of Mark R. Scialdone, we have extensive litigation experience in the Probate and Family Court.  Wills, trusts, and similar documents are often the subject of disputes between interested parties, such as a spouse, children, creditors, or other family members.  In addition, beneficiaries from earlier versions of testamentary documents may seek to contest a Will or trust. 

It is important to realize that not all probate attorneys handle probate litigation.  In fact, many probate lawyers only represent clients with uncontested matters.  Probate litigation is a complex area that requires an attorney who has knowledge of substantive probate law as well as experience in trial procedure and techniques.  Furthermore, your attorney must be sensitive to the family dynamics and the emotionally charged issues that often come into play during probate litigation.  

The attorneys at the Law Offices of Mark R. Scialdone will take the time to review your case, explain the law, and discuss your legal options.  

Please contact us to arrange a free initial consultation regarding your probate litigation needs.

At the Law Offices of Mark R. Scialdone, we have successfully handled a wide range of issues frequently litigated in the Probate Court, including:

- Estate and Trust Litigation 

- Breach of fiduciary duties 

- Contesting disposition of estate assets

- Will Contests

- Conflicts of interest

- Undue influence and competency 

- Testamentary capacity

- Fraud

- Complaint and Petitions in Equity

- Constructive Trust / Unjust Enrichment litigation 

- Resulting Trust / Real Estate litigation 

- Complaints to Quiet Title

- Petition to Partition 

- Improper administration of estates

- Petitions for Instruction and Declaratory Judgments

- Removal of Personal Representatives and Fiduciaries 

- Guardianship and Conservatorship litigation 

A Will contest is a legal challenge as to the validity of a Last Will and Testament.  These challenges are most often put forth by someone who believes that the Will was created under improper circumstances.  These circumstances often include: 

Undue influence - the allegation that the decedent was pressured into signing the Will by a person who benefits under the Will. 

Lack of capacity - which refers to a document being invalid because the person who signed the document did not have the mental capacity to fully understand their actions. 

Fraud - which can be found if the decedent making the Will relied on a false statement or fraudulent misrepresentation.

A Will can also be subject to litigation if the original Will can not be located, if certain provisions are crossed out, or if the terms of a Will are not clear.  An improperly executed, witnessed or signed Will can also cause a Will to be subject to litigation.  

At the Law Offices of Mark R. Scialdone, we have extensive experience representing people involved in Will contests.  Please contact us today to discuss your legal options. 

In Massachusetts, the process of selling an inherited home can be confusing.  In many cases, it will be necessary to obtain authorization from the Probate and Family Court to sell inherited real estate.  Whether a license to sell is required depends on several factors.  

A license to sell may not be required if the decedent's Will authorizes the Personal Representative to sell the real estate.  However, even if the Will does contain this authority, there are many benefits in obtaining a license to sell.  If the decedent did not have a Will, it will be necessary to get approval from the Probate Court. 

There are certain steps that must be taken in order to obtain a “license to sell” the real estate from the Probate and Family Court.  The amount of time to accomplish this depends on several factors, including the complexity of the estate and whether all interested parties are in agreement with the proposed sale.  When selling real estate involved in probate, it is important to consult an attorney who has experience in such matters.  At the Law Offices of Mark R. Scialdone, we have extensive experience representing individuals involved in Will contests.  

Due to the issues that often arise when selling inherited real estate, we recommend speaking with an experienced attorney.  Please contact us today to discuss your legal options or to schedule a free consultation. 

A petition to partition is a legal proceeding to force the sale of real estate that is held by multiple owners.  This type of situation generally occurs when multiple people inherit real estate but do not want to own or live in the property together.  In such a situation, one party may file a petition to partition which will allow the Court to determine how to divide the property between the owners.  

Upon filing a petition for partition, the Probate and Family Court will typically appoint a “commissioner” who is authorized to sell the property. In most cases, the property will be sold on the open market to a third party.  The Court will then make a determination as to how the proceeds should be divided between the parties. 

Each party frequently obtains their own attorney.  These factors add to the complexity, length, and cost of a partition matter.  As such, it is often preferable to reach a resolution as opposed to protracted litigation. Given the substantial property rights involved as well as the complex nature of a partition proceeding, we strongly recommend that you contact us to discuss your options. or to schedule a free consultation. 

A “fiduciary” is the person responsible for the maintenance or distribution of a trust, estate, or the financial affairs of another person.  Common fiduciaries include:  Personal Representative, Trustee, Guardian, and Conservator.  The appointment as a fiduciary comes with responsibilities, obligations, and duties. It is important for the fiduciary to be aware of his/her legal obligations under Massachusetts law. 

Administering a trust or an estate is often challenging if you are not aware of your duties and responsibilities under the laws in Massachusetts.  Family members or dissatisfied beneficiaries might not be happy with your decisions.  Fiduciaries may be faced with questions or concerns from interested parties, which might lead to litigation in the Probate Court.

At the Law Offices of Mark R. Scialdone, our attorneys will advise you as to your duties and obligations as a fiduciary.  Our firm has extensive experience advising fiduciaries and we will guide you in the often-complex role of fiduciary. If you need advice as a fiduciary or if are being sued in your role as a fiduciary, please do not hesitate to contact us and speak with an experienced attorney.