Printed in part from information provided by the Massachusetts Bar Foundation

When a person dies, all property which does not pass directly to others (such as jointly owned property and life insurance payable to a named beneficiary) is subject to a legal proceeding called "probate" under state law. This proceeding takes place under the jurisdiction and supervision of the Probate Court (the "Court") for the county where the deceased person (the "decedent") resided.

The probate procedure involves three major functions. First, the court will determine if the decedent left a valid will. Second, the court will appoint a personal representative, who may be an individual or a bank, to administer the decedent's estate. Third, the court will supervise the administration of the property subject to probate ("probate estate").

Anyone in possession of a will of a deceased person must file the will in the appropriate Probate Court within 30 days of the death of the deceased person. Statutory penalties are provided for withholding or destroying a will.

The initial step for the allowance of the will (or the administration of the estate) and appointment of a personal representative usually takes six to eight weeks from the date of the filing of the petition, which may be prepared and filed immediately following the death of the decedent. State and federal estate tax returns and payment of the taxes are due nine months from the date of death. Although a partial distribution may be made prior to the complete settlement of the estate, final settlement, because of tax complexities, may take from one and a half years to two and a half years. However, the vast majority of the work is usually completed in the first nine months following death.

What is a Guardian and a Conservator... Reprinted in part from information provided by the Massachusetts Bar Foundation

Guardians and conservators are personally appointed by the Probate Court. The individual for whom they are appointed is called a ward.

A guardian is appointed for a ward when the Probate Court determines that one of the following circumstances exists:
1. The ward is a minor (less than 18 years old);
2. The ward is mentally ill as evidenced by the opinion of a qualified physician;
3. The ward is mentally retarded, as evidenced by the opinion of a qualified physician;
4. The ward, because of excessive drinking, gambling and the like, wastes or lessens his estate, commonly called a "spendthrift."

In each of the foregoing situations, except in the case of minors, it must appear to the Probate Court that the ward is incapacitated in such a degree that he is unable to make informed decisions regarding his personal and financial affairs.

A conservator is appointed for a ward when the Probate Court determines that one of the following circumstances exists:
1. The ward is of advanced age;
2. The ward suffers from mental weakness;
3. The ward is mentally retarded;
4. The ward suffers from physical incapacity.

In each of the foregoing situations, it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his financial affairs.

Guardians and conservators have many duties in common and are subject to supervisions of the Probate Court. Some of these duties are indication of the scope of duties:
1. Pay the ward's debts;
2. Represent the ward in all law suits;
3. Control and manage the ward's property;
4. Invest the ward's funds;
5. Collect funds due the ward;
6. Support the ward and his family from the ward's funds;
7. Sell, lease or mortgage the ward's property, with the approval of the Probate Court.

A guardian, unlike a conservator, has custody of the person of his ward. Also, a guardian must consent to such matters as medical treatment and where the ward will reside.