The Probate Process

Attorneys at Cohen & Oalican, LLP serving Boston, Andover and Raynham discuss the Probate Process

1. What is the probate process?

Probate is the process supervised by the probate court by which a deceased person's property, known as the "estate," is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about a year. However, substantial distributions from the estate can be made in the interim.

2. What property is subject to the probate process?

The probate estate includes all property held in the decedent's name. Certain kinds of property, such as property owned jointly by the deceased and another person, life insurance, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example jointly owned bank accounts pass automatically to the surviving joint owners upon the death of one of the owners without going through probate. The non-probate property, however, is part of the decedent's taxable estate (see below).

3. How is the probate process started?

First, a petition for probate of the will must be filed with the probate court, along with the original will and a certified copy of the death certificate. Notice must be mailed to all of the decedent's heirs at law (usually the surviving spouse, children and children of any deceased children), to those named as beneficiaries in the will, and, if a charity is involved or there are no heirs at law, to the Attorney General. Notice must be also published in a local newspaper. If no one objects by a deadline set by the court, the executor named in the will is appointed by the court.

4. What does the executor do?

The executor is responsible for collecting the probate property and for paying any debts of the estate. The executor must file with the probate court an itemized list, known as an "inventory," of the probate property, including the value of each item. The executor must file an estate tax return within nine months of the date of death. This is true even if no estate tax is owed, if the decedent owned real estate or the executor wants his or her final accounting (see below) allowed by the probate court. Creditors of the estate have one year to bring claims against the estate. Executors generally wait until this claim period has expired to complete distribution of the estate according to the terms of the will. As his or her final responsibility, the executor must file an accounting with the probate court showing the income and expenditures of the estate administration.

If you would like to pursue this further, contact an attorney at Cohen & Oalcian, LLP who is skilled and experienced in this area; practicing only elder law and disability law

Durable Power of Attorney and Health Care Proxy - FAQ Part 3

12. When does a health care proxy take effect?

A health care proxy takes effect only when you require medical treatment and are unable to communicate your wishes concerning your treatment.

13. What if I become able to communicate my own decisions?

If you become able to express your wishes at any time, you will be listened to and the health care proxy will have no effect.

14. Who should have a copy of my health care proxy?

Your agent should have the original document. You should have a copy and your physician should have a copy with your medical records.

15. How can I get a health care proxy?

Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.

Durable Power of Attorney and Health Care Proxy - FAQ Part 2

Durable Power of Attorney and Health Care Proxy - Part 2


6. What kind of records should I keep?

It is very important that you keep good records of your actions under the power of attorney. That is the best way to be able to answer any questions anyone may raise. The most important rule to keep in mind is not to commingle the funds you are managing with your own money. Keep the accounts separate. The easiest way to keep records is to run all funds through a checking account. The checks will act as receipts and the checkbook register as a running account.

7. Can I be compensated for my work as attorney-in-fact?

Yes, if the principal has agreed to pay you. In general, the attorney-in-fact is entitled to “reasonable” compensation for his or her services. However, in most cases, the attorney- in-fact is a family member and does not expect to be paid. If you would like to be paid, it is best that you discuss this with the principal, agree on a reasonable rate of payment, and out that agreement in writing. That is the only way to avoid misunderstanding in the future.

8. What is a health care proxy?

A health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for you if you are unable to communicate such decisions yourself.

9. Why have a health care proxy?

In case you ever become incapacitated, it is important that someone has the legal authority to communicate your wishes concerning medical treatment. This is true especially if you were to disagree with family members about your treatment. By executing a health care proxy, you ensure that the direction that you have given your agent will be carried out in the event of such disagreement.

10. Who should I appoint as my agent?

Since your agent is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, it should be a family member or friend that you trust will follow your wishes. Before executing a health care proxy, you should talk to the person that you want to name as your agent about your wishes concerning medical decisions, especially life sustaining treatment.

11. Should I have a medical directive (Living Will)?

A medical directive provides your agent with instructions on what type of care you would like. If you wish, you may include a medical directive in your health care proxy. It may include specific instructions concerning the initiation or termination of life sustaining treatment or a more broad statement granting general authority for all medical decisions that are important to you.


Please contact Cohen & Oalican, LLP Boston, Andover and Raynham, for further information.

Supplemental Needs Trust - Questions Answered Part 2

Are there restrictions on how the funds in the supplemental needs trust may be spent?


Yes and no. Yes, each public benefits program has restrictions that must be complied with in order not to jeopardize the beneficiary’s continued eligibility for public benefits.
For instance, the beneficiary would lose a dollar of SSI benefits for every dollar paid to him or her directly. In addition, payments by the trust for food, or housing for the beneficiary are considered "in kind" income and, again, the SSI benefit will be cut one dollar for every dollar of value of such "in kind" income. Some attorneys draft the trusts to limit the trustee's discretion to make such payments. Others do not limit the trustee's discretion, but instead counsel the trustee on how the trust funds may be spent, permitting more flexibility for unforeseen events or changes in circumstances in the future. The difference has to do with philosophy, the situation of the client, and the amount of money in the trust.

This series brought to you by Boston Attorneys Cohen & Oalican,LLP, specializing in Guardianship and Conservatorship.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Cohen & Oalican, LLP specializing in elder law, guardianship and conservatorship present the final article of the series:

"Do I need to become a guardian for my parent?"

Even if your parent has already been diagnosed as suffering from Alzheimer’s or has dementia that does not automatically mean you need to be come their guardian. The first question to look at is whether your parent has enough understanding to sign a durable power of attorney or healthcare proxy. Our goal is to help families in the simplest, most cost effective way possible. Using advanced directives instead of guardianship is one way to do so.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Part 3 "Do I need to become a guardian for my parent" Cohen & Oalican,LLP offices in Boston, Andover Raynham

Cohen & Oalican, LLP specializing in elder law, guardianship and conservatorship present Part 3 of the series:

Do I need to become guardian for my parent?

The second way to get decision making authority is by having your parent directly give it to you with a durable power of attorney or health care proxy. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. A health care proxy gives another person(the agent) the authority to make health care decisions should the principal become incapacitated.These documents are also called “advanced directives”. They are great way to make sure that you have the legal authority to make decisions for your family in the event they become incapacitated.

This series brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Part 2 "Do I need to become a guardian for my parent" Cohen & Oalican,LLP offices in Boston, Andover Raynham

Cohen & Oalican, LLP specializing in elder law, guardianship and conservatorship present Part 2 of the series:

Do I need to become guardian for my parent?

Clients often ask us do I need to become guardian for my mother? Hopefully the answer is no.You can have legal authority to make decisions for another person in one of two ways. First is by having the Probate Court appoint you as guardian. Guardianship and conservatorship are legal relationships where the Probate Court gives one person (the guardian or conservator) the power to make decisions for another. Whenever possible we try to keep our clients out of court and that includes guardianship cases. We try to avoid guardianship for several reasons. First you are bringing your family’s private affairs into the public realm. Second the courts move slowly. Finally, the legal fees can be quite high, especially if there is any disagreement regarding who should serve as guardian. These problems have only gotten worse with the recent changes in the Massachusetts guardianship laws in July, 2009.

This series brought to you by Boston Attorneys ,Cohen & Oalican LLP, specializing in Guardianship and Conservatorship.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.