In Massachusetts, there are 3 types of probate, as well as a simplified procedure called voluntary administration.
Informal probate is an administrative proceeding and is processed by a Massachusetts Uniform Probate Code (MUPC) Magistrate instead of a judge. Hearings aren't required or allowed by the court. Informal probate can be an expedited process if all the requirements of the law are met. A Magistrate can issue an informal order as early as 7 days after the decedent’s death.
Informal probate isn't available if:
- The original will can't be found.
- There is no official death certificate.
- The location or identity of any heir or devisee is unknown.
- The person to be appointed personal representative doesn't have priority for appointment.
- There is a spouse, heir, or devisee that is incapacitated or a minor and not represented by a conservator, or a guardian who is not the petitioner.
- Supervised administration is necessary.
- A judge must sign an order or final decree for any reason.
Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. Formal probate may be required for several reasons, including:
- To object to an informal probate
- If the will is a copy or has handwritten words added (interlineations) or crossed out (deletions)
- The terms of the will are unclear
- Supervised administration is necessary
- A Special Personal Representative needs to be appointed
- Interests of incapacitated or minor heirs or devisees need representation
- The personal representative doesn't have priority for appointment
- A creditor or public administrator is the petitioner
- Informal probate isn't available
- A judge must sign an order or final decree for any reason
Late and limited formal probate
You may need to petition for late and limited formal probate for several reasons, including if:
- The decedent died on or after March 31, 2012.
- No original proceeding relative to the estate has happened within the 3 year period after death.
- A formal testacy or appointment proceeding is needed for the limited purpose of confirming title in the successors to estate assets.
The court may accept a petition to:
- Admit the decedent’s will to formal probate and determine both the heirs and devisees.
- Determine that the decedent died without a will and determine the heirs.
- Appoint a personal representative to administer the estate, including a person designated as a public administrator, in a supervised or unsupervised administration.
- Appoint a special personal representative pending the appointment of the personal representative in the formal proceeding.
A late and limited appointed personal representative can't seek a license to sell real estate of the decedent. The personal representative’s authority is limited to confirming title to estate assets in the successors and paying expenses of administration.
Voluntary administration is a simplified procedure for an estate with minimal assets and no real estate. It's available whether or not the decedent left a will. To be eligible for voluntary administration:
- The decedent must have been a resident of Massachusetts.
- The decedent must have left an estate consisting entirely of personal property valued at $25,000 or less (excluding the value of a car).
- 30 days or more have passed from the date of the decedent’s death
Voluntary administration isn't available if another probate proceeding is pending. The authority of the voluntary personal representative is limited by the law and doesn't result in an official appointment by the court.