When a loved one dies with a will, their estate will need to be probated. Probate is the process through which the deceased’s creditors and taxes are paid, and estate assets are identified and collected and then distributed to the appropriate heirs. Massachusetts offers several types of probate including informal probate and formal probate.
Informal probate
Informal probate is overseen by a Massachusetts Uniform Probate Code Magistrate, because it is an administrative proceeding rather than a judicial proceeding. Informal probate is generally completed in much less time than formal probate.
In order to qualify for informal probate, you must be able to provide the original will and an official death certificate. You must also know where all heirs and devisees are located. In addition, the personal representative in informal probate proceedings must have priority for appointment. Incapacitated heirs, spouses and devisees as well as minors must have the representation of a conservator or guardian, who cannot be the same individual who is filing for probate. In addition, there must be no supervised administration requirements. Finally, to qualify for informal probate there must be no reason for a judge to sign an order or issue any sort of final decree.
Formal probate
Formal probate is a judicial proceeding. Formal probate is necessary in certain circumstances. Formal probate is necessary if an heir objects to informal probate of if the will has handwritten interlineations or deletions. Formal probate is necessary if the language in the will is vague or if supervised administration is necessary. Formal probate is also required is if it is necessary for the court to appoint someone as Special Personal Representative or if there are minors or incapacitated heirs or devisees that need representation. In addition, formal probate is necessary if the personal representative lacks priority for appointment or if the petitioner is a creditor of the deceased or a public administrator. Finally, formal probate is necessary if the requirements necessary for informal probate are not met or if there is any need for a judge to sign an order or final decree.
Other probate options
Informal probate and formal probate are only two probate options in Massachusetts. Depending on the circumstances, late and limited formal probate or voluntary administration may be appropriate. It is important to select the correct form of probate, so your loved one’s estate can be administered in the appropriate manner.