Legal Question in Wills and Trusts in Massachusetts

Re: Writ of Right of Survivorship

First my condolonces on your loss.

WROS may be under the terms of the Mutual Fund a contractual beneficiary and therefor no probate required. However, bank accounts are not generally treated as contractual obligations like Retirement accounts or life Insurance. In that case you will need to open probate for your mother.

In fact depending upon what other assets your mother has or had, you may need to open a small estate probate or a regular probate account.

I suggest you contact the bank and mutual company and find out if they will accept a certified death certificate or if they will require a letter of authority from the probate court. If they require a letter of authority from the probate court, I then suggest you contact an attorney for assistance.

Re: Writ of Right of Survivorship

The mutual funds and bank accounts that have your name on them go to you without probate. You will need to have original copies of her death certificate, and the mutual fund company will have a specific form which you will need to complete to have the funds transferred to you.

However, she may have other assets (real estate? stocks?) which were held in her sole name. Those assets must go through the probate process before they can be sold or transferred to the heirs.

Re: Writ of Right of Survivorship

I am so sorry for the recent loss of your mother.

Your mother probably intended "with rights of survivorship" on these various accounts.

Whether you are acting as executor or administrator with respect to your mother's estate, you may want the assistance of an attorney in sorting out whether property is considered to be "probate" or "non-probate".

The services of an attorney are considered expenses of the estate, and can be very helpful in navigating complicated and paper-intensive Probate Court procedure, and in dealing with family members and other beneficiaries.

Please contact me if I can be of any further assistance.

Re: Writ of Right of Survivorship

Generally, if assets have contractual beneficiaries (e.g., life insurance, pension, IRA, Pay On Death, With Right of Survivorship, Joint Bank Accounts), such assets don't go through probate. Any assets titled in the name of the decedent without a contractual beneficiary do typically pass through probate.

If a decedent has some assets of each type, probate will still be necessary.

In certain more unique situations, a challenge could be made to the title of assets (e.g., if assets were put into joint title with right of survivorship by use of a power of attorney, or due to undue influence exerted by a beneficiary on the decedent). However, the general rule is as stated.

This does not address estate tax issues, as such assets will still be considered part of the decedent's "gross estate" for estate tax filing and tax liability purposes, and certain assets may result in income tax consequences for the recipient.

Please feel free to contact my office if you need any assistance in the administration of an estate or for estate planning.