First, you should go through any papers and if you do not find the Will, be on the look out for a letter or  business card from an attorney.  If you find the attorney, you will be able to contact that person and ask if they have the original or a copy of the Will, or if they ever drafted one with that attorney.  A financial planner or accountant may also know the attorney that the decedent used.

You can also check with the decedents bank(s).  The person may have put the Will in a safe deposit box and a banker could assist you with obtaining access to the box.  If you still can not find the Will but remember your parent mentioning an attorney in a certain town, you could use the telephone book to contact attorneys in that town to see if they drafted a Will for that parent.

If by this time the Will has still not turned up, you should check with the local Probate Court.  A Will can be filed in advance of death and docketed with the Probate Court by the decedent themselves.

If you still can’t find the Will, the next step is to contact an attorney to determine how the decedents estate will be settled without a Will.

One exception is property held in joint tenancy.  A jointly owned asset will transfer to the surviving spouse or whomever the property was jointly owned with.  Also, assets with named beneficiaries such as insurance policies, IRAs and annuities will also avoid probate as long as the beneficiary is alive.  Furthermore, you can keep your assets from going through probate by transferring your assets into a trust.  This will help eliminate the need for your assets to go through probate.

After you prove that trust mismanagement has occurred, you will next need to show how you were harmed by this trust mismanagement.  This will often require financial experts who can reasonably predict what would have occurred to the trust assets if they had been properly managed by the trustee.  The court will generally award you damages for the amount the trust would have made but for the mismanagement by the trustee.  In some cases, criminal charges may also be brought against the trustee.

Another way to avoid a Will contest is to communicate with your heirs about the estate and probate proceedings.  This can prevent jealousy and suspicions which can result in a Will contest.

There is a procedure known as voluntary administration or “quick probate” that is available if you hold less than $15,000 in probate assets plus an automobile, and if you do not own an interest in real estate. If you own more than the above amounts of probate property at the time of your death, the probate process will be more formal and extensive and in most instances it will take more than a year to complete a probate proceeding.

Proper estate planning could avoid probate altogether but in some situations, you might want probate.  Contact an experienced estate planning lawyer to find out what you should be doing to plan for your beneficiaries.

Currently in 2010, the exemption amount for Massachusetts is $1 million while there is an unlimited exemption for Federal estate tax purposes.  This means that your estate will not be subject to any federal estate taxes this year no matter how much money you have.  However, if your estate is greater than $1M, you will have to pay Massachusetts estate taxes.

It is important to keep in mind that estate taxes are NOT paid by the beneficiaries.  It is paid by the estate and whatever is left over after paying taxes is the amount that goes to the beneficiaries.  Beneficiaries do not have to fear that they will have to pay out of pocket for their loved one’s taxes.

A Trust is one of the tools that may be used in order to avoid probate.  The person who will be creating the Trust is called the “Donor” and the person who is entitled to benefit from this Trust is called the Trust’s “Beneficiary.”  A Trust will also name a “Trustee” who is responsible for the control of any assets transferred to the Trust and manages those assets for the Beneficiary.

With a properly drafted and implemented Trust, one will be able to avoid probate, and also have assets managed during your children’s lifetimes, if necessary.  You will be able to determine if a Trust is appropriate for you by consulting with an experienced estate planning attorney.

If you have included a health care proxy, the lawyer should keep the original and you should also give a copy to your attending physician as well to be made part of your medical records.

The person you designate as your spokesman or advocate doesn’t have to be a family member.  They only need to be someone you trust will keep your wishes met and speak for you.