What is Probate?

Probate is defined as the official proving of a will by establishing its validity.  Under the Massachusetts General Laws, anyone having custody of a will must file it within 30 days with the Probate Court in the county where the decedent was domiciled.

Under the Uniform Probate Code, you can probate an estate in three (3) different ways:

  1. Voluntary Administration
  2. Informal Probate
  3. Formal Probate

The goal of any probate administration is to amass assets, pay any debts of the estate and distribute assets to those beneficiaries of the will or, in a situation where there is no formal will, to distribute assets according to Intestate Succession (link to other page).  The probate court can be accessed at the Massaschusetts Probate and Family Court website.

 

Voluntary Probate Administration

Pursuant to G.L. c. 190B s. 3-1201, an interested party of the decedent may be able to proceed on a voluntary administration if the decedent’s estate does not include assets exceeding $25,000 in personal property and one motor vehicle owned by the decedent.  If Voluntary Administration is available to the petitioning party, the petitioner may file with the appropriate Probate Court a statement pursuant to the pains and penalties of perjury containing specific information regarding the petitioner, decedent, relationship of the parties, known assets, known heirs or devisees, etc. The petition may only be filed thirty (30) days after the death and the original of any will must be attached to the statement.

Upon presentation of such statement, accompanied by a death certificate, the register will enter the documentation into the permanent court docket system and if no other probate proceeding is pending, the court will issue an attested copy of said statement.  This attested statement may be utilized by the petitioner for purposes of estate administration including obtaining funds from small bank accounts, securities, insurances proceeds, etc.  Upon payment of the associated fee, the register may also issue a certificate of appointment to the voluntary personal representative with an attached attested statement.

 

Informal Probate Administration

Under the Uniform Probate Code, the Informal Probate process was established to help expedite the probate process in situations where disagreement about the estate administration is unlikely.  If the estate fits the requirements of Informal probate, the Personal Representative can be appointed by the Court or the Magistrate as quickly as seven days after the date of death.  The Informal Probate is heard in front of a Magistrate in lieu of a Judge and formal hearings are not required.

Informal Probate is an expedited process, but does not end with the finality of a judicial decree.  Thus, until the later of one year after the probate or three years after the death, anyone who wishes to formally contest the Informal Probate need only file a Formal Probate Petition with the court. Informal Probate is not an option if the original will is unavailable, there is no official death certificate, the location of an heir or devisee is unknown or various other factors.

When the court receives a request for Informal Probate, the court will make certain that the petition is complete and timely, that a death certificate is filed stating a date of death at least 7 days prior, and that the petitioner attests, under oath, that he/she is an interested party, filing in the proper venue, a duly executed and unrevoked will, and that he/she issued proper notice of said filing.  If these findings are made, the court shall issue a written statement of informal probate. Informal probate is valid for all purposes until, if any, a formal probate is subsequently filed.

 

Formal Probate Administration

Formal Probate is typically heard by a Judge and may involve multiple hearings to determine the validity of the will, interpretation of language, priority of appointment, appointment of the Personal Representation and the need for supervised administration amongst other issues.

The formal probate of assets must begin no more than three years after the date of death.  The formal probate process involves the appointment of a personal representative who is tasked with amassing the decedent’s assets and providing an inventory to the court.  The Personal Representative has the responsibility to pay any creditors of the estate and distribute the remaining property according to the mandates of the will.  As part of the formal probate process, the Personal Representative must publish notice of the proceeding in order to notify creditors of any potential claims against the estate.

 

Avoiding Probate?

I can’t tell you how many times I have heard – I just want to avoid probate.  In Massachusetts, the holder of a will is required to file that will with the Probate Court within 30 days of the decedents death, thus it is impossible to entirely avoid probate.  The more appropriate question is how to limit those assets that need to flow through the Probate Court in order to avoid the Formal Probate Process.  Minimization of those probate assets helps to minimize the tedious nature of the probate process by allowing for a more streamlined and expedient estate administration.  In order to “avoid probate,” or as I like to refer to as minimize probate, it is important to understand those assets that flow outside of the probate process.

Some examples include:

  • Assets owned as joint tenants. Joint tenants share equal ownership of the property and have the equal, undivided right to keep or dispose of the property. When one joint tenant passes, the assets passes automatically to the surviving owner.
  • Assets with stated beneficiaries. These assets include investment accounts, insurance policies, transfer-upon-death bank accounts and retirement accounts.
  • Assets owned as tenant by the entirety. The most common assets owned in this manner is a principal residence.  Similar to joint tenants, tenants by the entirety enjoy a right of survivorship over the property that flows directly to the surviving owner.  Unlike joint tenants, assets held as tenants by the entirety can only be between a husband and wife and is a form of concurrent ownership.
  • Assets held in a revocable living trust.

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