First, do a diligent search for a will. Look through Mom’s records and see if Mom had an accountant, financial advisor, or an attorney she worked with in the past and reach out to them and ask if they are aware of her having a will or not. Look for business cards of accountants, financial advisors and attorneys in Mom’s home and call and ask them as well. Ask Mom’s siblings and friends. You may not have been told about a will, but Mom may have made an appointment without your knowledge.
Check the safe or for a fire-proof box Mom may have had at home. Contact the bank(s) where Mom had her checking and savings accounts – she may have had a Safe Deposit Box.
If you do find Mom’s will, it does not matter how old it is. If the will was never revoked, then that is the will that gets probated. If Mom had a will, her estate is “testate”. If Mom did not have a will, her estate is “intestate”.
Next, gather a list of Mom’s assets. Financial statements are particularly useful for a few reasons: First, you can see where Mom had her financial assets. Second, you will need to know the value of those assets as of her date of death for purposes of probate. And third, these statements may indicate how Mom owned the assets. If an asset was owned jointly with another person, then most likely that asset will pass to the surviving joint owner and that asset will not need to be probated. If the asset was not owned jointly with another person, it needs to be determined who the beneficiary(ies) of that asset is. If there are beneficiaries that survived Mom, then those assets will be paid to those beneficiaries and again, that asset will avoid probate. If, however, there is no named beneficiary(ies) to the asset, then the asset will need to go through probate in order to be properly distributed.
Tax returns are useful as well – they can tell who did Mom’s tax returns and shed light on other assets Mom had that you may not have been aware of.
Make an appointment with a Probate attorney. If Mom did have a will, keep in mind that you do not have to use the same attorney that did her will. Ask friends, family and people you trust for recommendations. When you meet with the attorney, you should feel comfortable with him or her as he or she will be advising you throughout the probate process if you decide to hire him or her.
When you meet with the Probate attorney, the attorney will want to review the information you have gathered and is likely to ask questions. The attorney is looking to determine if one, probate of Mom’s estate is necessary, and two, which type of probate is best for the situation at hand. (Massachusetts has three types of Probate: Voluntary, Informal and Formal.
Do not be afraid to ask the attorney what his or her estimated costs and fees are. The attorney will need to send you an engagement letter – that you will need to sign – outlining the services to be provided, costs and fees associated therewith, and payment structure prior to doing any work on probating the estate. Some attorneys charge an hourly rate while others charge a flat fee. Be aware, however, that there tends to be considerable out-of-pocket costs such as court filing fees, newspaper publication fees, certified mail and other delivery service fees, and registry of deeds filing fees.
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