What is Probate and How Does it Work in Massachusetts?

So, what is probate anyway? Probate can be a complicated process to navigate if you have never been involved in any probate cases before. The process can also be difficult emotionally, as it involves distributing the belongings of a deceased individual amongst their grieving family and friends. If you have recently been involved in a probate case and have inherited real estate you intend on selling, Everlasting Home Solutions can help. We specialize in selling inherited properties in a quick and efficient manner, and we strive to give you closure and peace of mind.

This article is a guide to the types of probate in Massachusetts, as well as the general probate process. 

What is Probate? Here are some key terms:

Probate: A legal process that takes place after an individual dies which sees that their will is administered, or in situations where there is no will, that their assets are distributed in a fair and logical manner amongst the deceased person’s heirs. 

Will: A legal document which describes how an individual wants their property, assets, and debts to be distributed after they have passed away. 

Assets: In probate, assets are things that a decedent owned which have significant value. Assets include real estate, bank accounts, and vehicles, as well as valuable personal property such as jewelry, artwork, heirlooms, and furniture. 

Administration (of a will): Process by which a deceased individual’s assets and liabilities are distributed to individuals who were identified in the will, typically the spouse, children, other family members, and close friends of the decedent.  

Decedent: The deceased person whose assets and liabilities are distributed through probate. 

Heir: An individual who receives the assets of a decedent, and is entitled to do so by law. Heir is used to describe individuals who receive the assets of a decedent in cases where the decedent did not leave a will through a legal process called intestate succession. 

Devisee: An individual who receives real or personal property from a decedent’s estate because they were designated to receive that property in the decedent’s will. 

Estate: All property, real and personal, as well as all assets and debts held by an individual.

Personal representative: The individual who is chosen, either in a decedent’s will or by other methods, to manage the probate process. The Personal representative is responsible for gathering and documenting all of a decedent’s assets and debts, and distributing them in an organized and fair manner. 

Intestate succession: The legal process that is used to determine who inherits a decedent’s assets and debts in cases where the decedent left no will. 

What is Probate?

Probate is a legal process that can begin after an individual dies, and which governs the process of distributing their property, as well as any outstanding debts they may have. There are different types of probate which are used in different situations. Some probate cases will require a court hearing, and others will not, as simpler cases can be handled by a Magistrate rather than a judge. 

Probate is not always necessary after a person dies. If the decedent, or person who has died, did not own any assets that were in their name, or owned all of their assets jointly, there is no need to petition for probate. Probate is necessary in situations where a decedent owned property or had debits in their name alone. The process of probate, which will be discussed in the next section, is how this property and any accrued debts the decedent had are distributed to the correct beneficiaries. 

What is Probate? – A Guide to the Probate Process

Probate does not happen automatically after someone dies. A chosen individual, called a personal representative, must first start the process. If the deceased individual had a will, the person they want to have as their personal representative will be chosen in the will. In cases where the deceased individual did not leave a will, or the person they did choose is not willing to serve as a personal representative, the spouse of the deceased individual is typically chosen to be the personal representative. If the decedent was not married or was widowed, there are guidelines about who can be named as their personal representative. The probate process typically takes about one year to complete. 

Beginning the Process

The personal representative begins the probate process by filing the decedent’s will, their death certificate, and a Petition with the Probate and Family Court for the country the decedent lived in. The Petition is a request by the personal representative to be legally recognized as such, so that they become authorized to carry out the process. Once the personal representative has been appointed by the court, they are able to begin gathering together all of the decedent’s assets and a record of their debts. 

The Next Steps

Before any property can be distributed, the personal representative needs to do some bookkeeping. The personal representative is tasked with gathering all of the decedent’s property and assets. They should document each piece of property and each asset, and try to estimate their value. They also need to keep track of the decedent’s debts, if any, so that they can be paid off using the value of the decedent’s assets. The personal representative is also responsible for filing the decedent’s final tax return. In Massachusetts the final tax return is typically due by April in the year following the decedent’s death. 

Once the debt and taxes have been paid off, the decedent’s assets can be distributed by the personal representative. If the decedent left a will, the personal representative must satisfy all requests made by the decedent regarding who will receive their assets. If there was no will, the personal representative distributes the assets based on state law. 

How Does Probate End?

The probate process ends in different ways depending on whether it is informal or formal, which will be discussed in more detail in the next section. Generally, probate ends once all assets have been distributed and a statement is filed by the personal representative indicating their completion of the distribution process. 

Steps in the Average Probate Process:

1. A personal representative is identified, either by the decedent’s will, or by a process described by Massachusetts state law. 
2. The personal representative files the decedent’s will and death certificate, and submits a Petition. There are also fees that need to be paid to the court. 
3. The personal representative must send out a notice to a designated local newspaper. In formal probate cases, they will send out a citation from the Registry of Probate to a newspaper, as well as all parties involved in the case. 
4. The Petition is accepted, and the personal representative is formally recognized by the court, giving them the power to manage the decedent’s assets. 
5. The personal representative creates an inventory of the decedent’s assets and debts. 
6. The personal representative pays off the decedent’s debts, and files the decedent’s final tax return. 
7. The decedent’s assets are distributed to the appropriate people, as instructed by the will, or by Massachusetts state law.
8. The probate process is completed once all assets have been appropriately distributed and the personal representative has filed and mailed out their statement to all relevant parties. 

Types of Probate: 

Informal Probate

Informal probate is one of the faster probate types that you may file for. Informal probate is when your probate case is handled by a magistrate rather than a judge, meaning that you do not have to go to court probate hearings. In order to file an informal probate case, there are a few requirements: 

1. You must have original copies of a will and death certificate for the decedent
2. You must know who and where all beneficiaries of the will are. 
3. The chosen personal representative must have priority for appointment, meaning that Massachusetts state law considers them to be a logical choice based on their relationship to the decedent. 
4. Any beneficiaries who are minors, or are adults who are incapacitated, are represented by a guardian or conservator. 
5. The court has not identified the case as needing supervised administration.  

If all of these requirements are met, you can file for informal probate. The court will still need to approve the personal representative, but after this, the personal representative is responsible for carrying out the probate process. 

In informal probate cases, you must post a publication notice about the probate proceedings in a newspaper. Each county in Massachusetts has a list of acceptable newspapers that probate notices can be posted in, which is available online. 

Formal Probate: 

Formal probate is a more intensive process than informal probate, and requires involved parties to go to one or more court hearings at a Massachusetts Probate and Family Court. Formal probate is required in circumstances where the criteria for informal probate (listed above) cannot be met. Here are a few reasons other you would need to file for formal probate:

1. The will is unclear or has been edited.
2. There are issues appointing a personal representative.
3. A judge is needed to sign an order or final decree.
4. A Special Personal Representative is needed.
5. In rare circumstances where supervised administration is required.

In formal probate cases, you will need to give written and publication notice in order for your petition to be accepted. The Registry of Probate will send you a formal notice, called a citation, and you must send copies of this citation to all parties involved in the probate proceedings, as well as to the local newspaper so that it may be published. 

Voluntary Administration

Voluntary administration is a shortened probate process that can be filed for when the decedent had little to no assets. If the decedent had no real estate and less than $25,000 of personal property, excluding one vehicle, and resided in Massachusetts, their probate case qualifies for voluntary administration, regardless of whether or not they left a will. 

You must wait at least 30 days after the decedent’s death to file for voluntary administration, and you cannot file if another probate case regarding the decedent’s estate is pending. With voluntary administration, there is no need to publish a notice about the probate proceedings.

Overview – What is Probate?

Probate is a complicated process to undertake, but this guide serves as a starting point to learn about the process. Whether you are filing for informal or formal probate, there are several steps to keep track of to make sure things run smoothly. If you are planning on selling real estate that you’ve inherited through the probate process, but don’t know where to start, we can help you out. Everlasting Home Solutions’ most important goal when working with clients is to make sure they are satisfied, and to take the pressure off their shoulders at an already difficult time. We specialize in the sale of real estate inherited through probate, so we are well equipped to help you sell the property you’ve inherited in an efficient manner.