Probate in Massachusetts
The death of a loved one is an overwhelming and life-altering event which often causes an enormous amount of stress. Often, families are eager to complete this process as quickly as possible. They would prefer to be focusing on grieving for their loved one. Unfortunately, without a fully funded revocable trust, their assets will need to go through Massachusetts Probate Court. This is often a lengthy, expensive, and stressful endeavor in and of itself.
Probating a decedent’s estate is the necessary legal process by which their debts are paid before their assets are distributed. The initial step for beginning the process is by having an individual with statutory authority file a petition with the Probate Court of jurisdiction. For the vast majority of estates there will be two types of petitions from which to choose: Informal and Formal.
What is Informal Probate?
Informal probate is exactly what it sounds like, a less intrusive, less expensive, and overall, less complicated probate process. It doesn’t go in front of a judge but is reviewed and approved by a magistrate. It involves fewer forms, doesn’t receive a citation from the Court, and generally gives the appointed representative significant leeway in administering the estate. However, with this less restrictive form also comes the fact that the administration of the estate holds less legal weight and significance in regard to both the actions of the Personal Representative and the ability of the estate to act in certain respects.
What is Formal Probate?
Formal probate represents a more official and significant legal process for administering an estate. A judge reviews and approves all filings, with orders that are typically reversible only in cases of gross and deliberate fraud. This process grants the Personal Representative full powers over the estate as if they were the decedent. While it is more timely, costly, and complicated, there are many circumstances when a petitioner should choose formal probate over informal probate.
When to file a Formal Probate?
The following situations are some of the most common examples of when you should file a formal probate over an informal probate:
- When the decedent owned registered land.
- When the heirs or devisees are in disagreement.
- When there is a question as to the validity of the decedent’s last will and testament.
- When one or more of the decedent’s heirs or devisees cannot be located.
- When the estate will need to initiate a lawsuit.
- When a clause or term in the decedent’s last will and testament needs to be clarified or amended.
- When the decedent had a large amount of debts which may outvalue the assets of the estate.
- When there is a question as to the identity of the heirs at laws of the decedent.
The above is not meant to be an exhaustive list of when to file a formal probate. You should always consult a qualified attorney before filing a petition with the probate court.
