Call to Schedule a Discovery Meeting: (413) 567-5600
ATTORNEY

JOHN L. ROBERTS

Springfield, Massachusetts

Probate of A Decedent's Estate in Massachusetts:
Which level and form of Probate Do You Need?

In Massachusetts, the Probate process begins with a Petition that we file a petition in the Registry of Probate. There are three levels of Probate. Which one will work for you? That depends on the total value of estate assets, whether there is controversy (arguments and fights) over the estate, and whether there is real estate (houses, land, real property) in the estate.
Voluntary Administration: This procedure works when the total estate value is under $25,000 + a motor vehicle.
Informal Probate: Requirement for Petition 3-301, Notice, and Findings. Publication 30 days after Allowance of Petition.
Formal Probate: Purpose of Petition 3-401. These Formal Proceeding are needed when it is necessary to: Determine the identity of the heirs and whether the will is valid, or that the decedent did not leave a valid will 3-402.

Ownership of an asset can be passed without probate if the assets is controlled by a Trust, a joint ownership arrangement or beneficiary designations already filed with a bank or insurance company. If these advance arrangements were not made, legal title must be transferred through the Probate process. If there is a Will, Probate transfers property from:

The Decedent >>>to>>> The Devisees (people) who are Named in the Will. 1-201(11)

If there is no Will, Probate procedures are needed to transfer property and assets from:

The Decedent >>>to>>> The Heirs, including the surviving spouse and the commonwealth, who are entitled under the statutes of intestate succession to the property of a decedent. 1-201(21)

With or without a Will document, the personal representative must determine which form of probate to use, to transfer legal ownership of the decedent's property.

Client Review: Attorney Roberts settled her brother's estate:

Because Informal Probate leaves open the possibility that someone could object to the will until 3 years after a decedent’s death, there are questions about whether real estate buyers can accept deeds transferred through the informal process. A Title Standard does allow deeds signed by the Personal Representative of an Informally ProbateInformal Probated estate, but only if there is a power of sale in the decedent’s Will document, and no one has filFormal Probateed objections to the Will. The Legislature has passed subsection 23½ to Section 3-715 of the Probate Code, giving the informally appointed Personal Representative a power to sell real estate, IF the Will included the Power to Sell. If there is no will, or there have been objections to the will, people who buy real estate from an estate are going to insist on Formal probate or a Probate Court license to sell the real estate. Even with a Will that does contain a Power of Sale, Formal Probate may still be needed.

 

 
MA Uniform Probate Code
Eff. April 2012
Probate of the estate must be filed within 3 years of a decedent's death. (The 3 year Limitation only applies to commencing the estate, not to closing the estate.)
§ 3-108
Exceptions to 3 year time limit include fraud, doubts about decedent's death, and contesting informal proceedings
§ 3-108
Exception with no time limit: Sole purpose of establishing a devise of real estate if there was no proceeding within 3 years of decedent's death
§ 3-108

Here's howProbate can work for you and your family:

  • Probate makes sure the heirs or intended beneficiaries get their share of the Estate
  • Probate can prove how the decedent has expressed his or her intentions for distributing property and assets to surviving people, upon death (The word Probate comes from the Latin word meaning to prove.)
  • Probate shuts the door on a decedent's creditors. Unless those creditors have perfected their liens before the decedent's death, or they file claims according to special Probate procedures, the creditors are finished.
  • Probate handles the transfer of property. When assets such as real estate, a bank account, or stocks and bonds cannot be reached by the family or heirs of a deceased person, Probate provides the answer to the question of who gets ownership of that property.

Properly drafted Wills and Trusts reduce the cost of Settling an Estate, and that's a blessing to surviving family members. Without advance planning, family members will be confronted with complicated decisions and tasks involved with managing and distributing property, at the very time they are grieving the loss of a loved one.

For estate planning and estate settlement services that keep you in control of the probate process, and for answers to questions from the decedent's heirs and family members, call us at 567-5600.

NEXT PAGES:
  • Settling the Affairs of a Loved One, and Safeguarding the Estate
  • Funeral Arrangements and Emotional Care for You and Your Family
  • Capacity, Undue Influence and Other Objections to Will Documents
  • Save Time and Money on Probate of Small Estates
  • Estate Assets Checklist
    PDF Checklist For Probate and Estate Settlement: Estate Assets Checklist and Certification Form
  • Personal Representative's Duty to Protect Your Loved Ones, and Your Probate Estate
  • Important Reasons to Prepare a Will
  • How An Elder Law Attorney Prepares a Will that Protects Your Interests
  • The Trust & Estate Planning Calculator we create during your Discovery Meeting
  • PDF Checklist Power of Attorney Selection Checklist
  • Six Planning Tools to Consider, if Your Goal is Avoiding Probate.
  • 9 Risks You Must Consider Before Transferring Your House to Joint Ownership or Life Estate with Your Children
  • Probate Court Guardianship: Planning Can Protect Your Rights
  • Probate Court Conservatorship
  • Probate Court Filing Fees in Massachusetts
  • Probate Forms
  • Probate Court Records at MassCourts.org
  • Elder Care & Medicaid Website
  • Learn more about the 4 options for probating an estate
  • MA Courts Virtual Help Desks
  • Home
  • CO$TS OF SERVICES
  • MEET THE ATTORNEY
  • Avoiding Probate
  • Basics: Will, POA Health Proxy
  • Estate Settlement and Probate
  • Estate Tax Prevention Trusts
  • Irrevocable Trusts
  • Real Estate Buy, Sell, Refi
  • Second Marriage Planning
  • Supplemental Needs Trusts
Martindale
Member of the National Academy of Elder Law Attorneys