When someone dies, an estate will often need to be probated in order to transfer property that is part of the estate. There are exceptions to this, for example, if:
- the property is jointly held with a right of survivorship;
- the property consists of proceeds from an insurance policy, bank or retirement account that names a beneficiary;
- the property is held in a trust created by the decedent.
However, the estate will need to be probated if:
- the ownership or title of real or personal property needs to be changed;
- the decedent’s creditors need to be paid;
- the decedent’s medical records need to be accessed;
- the decedent’s tax returns must be filed;
- there is a question as to the validity of the will.
For further guidance on whether an estate must be probated, see the information page provided at mass.gov. If the estate does in fact need to be probated, there are four types of probate processes in Massachusetts that can be initiated by a petitioner to appoint a personal representative, who will in turn distribute the estate’s assets to the decedent’s heirs, devisees and creditors.
Formal Probate
Formal probate is required when a judge must sign an order or decree for any reason. Generally, formal probate involves at least one court hearing.
The specific reason why formal probate is required could be any of the following:
- To object to an informal probate.
- The original will is lost, destroyed, otherwise unavailable, contains interlineations (handwritten words) or there are any deletions (crossed out words).
- There is no official death certificate.
- The location and/or identity of any heir at law or devisee is unknown;
- The person to be appointed as personal representative does not have priority for appointment (for more information on whether a person has priority see Chapter 190B, Section 3-203 of the Massachusetts General Laws).
- The person to be appointed as personal representative is an interested person solely due to their status as a creditor or as a public administrator (for more information on when a public administrator may be appointed, see Chapter 194, Section 4 of the Massachusetts General Laws).
- An heir at law is an incapacitated person, a protected person or a minor; and is not represented by a conservator or is represented by a guardian who is also the petitioner.
- Supervised administration is necessary.
The foregoing reasons for initiating a formal probate proceeding preclude filing a petition for informal probate.
In order to file a petition for formal probate, the petitioner must be an “interested person” as defined by Chapter 190B, Section 1-201 of the Massachusetts General Laws, which includes: heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claims against the estate of a decedent. It also includes persons having priority for appointments as personal representatives and other fiduciaries representing interested persons.
When filing for formal probate, the petitioner must provide notice to all interested persons as defined above, as well as to the Division of Medical Assistance if applicable. This is done by serving a copy of the citation (a formal notice), which is issued by the court. Additionally, a copy must be published in a newspaper as designated by the Registry of Probate. For more information regarding formal probate proceedings, see the Instructions for Formal Probate.
Informal Probate
Informal probate is available when none of the above-listed factors, which require formal probate, are present. When available, any interested person may file a petition for informal probate.
Notice is also required to all interested persons, including the Division of Medical Assistance when applicable, and publication in a newspaper as designated by the Registry of Probate.
Where informal probate substantially differs is that it allows for a far more expeditious administration of the estate. Since an informal probate proceeding does not require a judge or a hearing, a magistrate can process and issue an order as soon as seven days following the decedent’s death. For more information regarding informal probate proceedings, see the Instructions for Informal Probate.
Voluntary Administration
Voluntary administration is generally limited to situations where the decedent’s estate does not exceed $25,000 in value, and the decedent was a Massachusetts resident. Instead of filing a petition, a voluntary personal representative (“VPR”) simply files a voluntary administration statement. This statement may be filed after 30 days following the death of the decedent, and can even be filed more than three years following the death, which is generally not allowed when filing formal or informal petitions: Chapter 190B, Section 3-108 of the Massachusetts General Laws.
A VPR may be any “interested person” as defined above, with two caveats. First, the VPR can be a person designated by the Division of Medical Assistance; and second, the VPR cannot be a creditor of the decedent.
There is no express notice requirement for voluntary administration other than the requisite notification provided to the Division of Medical Assistance by mail. A VPR need not be appointed by a judge or magistrate to administer the decedent’s estate, but this means that a VPR’s authority is limited in some regards. Specifically, a VPR does not have the authority to obtain the decedent’s medical records, nor can they bring or settle a wrongful death action on behalf of the estate.
The foregoing criteria for voluntary administration for an estate are set forth under Chapter 190B, Section 3-1201 of the Massachusetts General Laws; for more information, see the Instructions for Voluntary Administration.
Late and Limited Probate
As the name suggests, late and limited probate can only be filed late, and the effect is limited. A proceeding may only be commenced more than three years after the date of death, and the personal representative, if any, has limited authority.
Specifically, the personal representative can only confirm title to estate assets in the decedent’s successors. This means that no claims may be presented against the estate, and this limitation even extends to claims brought by the Division of Medical Assistance. In other words, MassHealth cannot recover for services rendered to the decedent.
In order to be eligible to file a late and limited petition, a person must either have a property interest in the estate of the decedent (not as a creditor), have priority as personal representative or be a fiduciary who represents an interested person.
In a late and limited proceeding—because it is technically a type of “formal” proceeding—the petitioner must provide notice as prescribed for a formal probate proceeding. For additional details regarding late and limited proceedings, see Instructions for Late and Limited Formal Probate.
If you need further information or advice with respect to your estate planning or estate administration needs, or have questions about the different types of probate, please reach out to one of our lawyers today.