Probate in Massachusetts: An Overview
What is Probate in Massachusetts?
Probate is the legal process of transferring the property and assets of a person who has passed away to the rightful heirs and beneficiaries. Probate can be complex, time-consuming, and costly, depending on the size and nature of the estate, the existence and validity of a will, and the number and claims of creditors and heirs.
The Socius Law Firm is a trusted and experienced probate law firm that serves clients in Westborough, MA, Worcester County, and MetroWest Boston. The Socius Law Firm can help you with all aspects of probate and estate administration, whether you are an executor, a beneficiary, or a creditor of an estate.
Who Needs to Probate an Estate?
Probate may be needed whether the deceased left a will or not. If the deceased owned assets in their name alone, a Massachusetts probate court may need to be involved to distribute those assets properly. The process can vary depending on the complexity of the estate and whether the decedent’s wishes were stated in a will.
Probate is required for most estates in Massachusetts, unless the estate qualifies for one of the following exceptions:
- Small estates: Estates that are worth less than $25,000 and do not include real estate can use the voluntary administration process, which does not require a court hearing or a personal representative.
- Jointly owned property: Property that is owned jointly with another person with the right of survivorship, such as a joint bank account or a joint tenancy, passes automatically to the surviving owner and does not need to go through probate.
- Beneficiary designations: Property that has a beneficiary designation, such as a life insurance policy or a retirement account, passes directly to the named beneficiary and does not need to go through probate.
- Trusts: Property that is held in a trust, such as a revocable living trust or an irrevocable trust, passes according to the terms of the trust and does not need to go through probate.
Why is Probate Necessary?
Probate is a legal process that is necessary to ensure the proper distribution of the deceased’s assets to the appropriate beneficiaries. It serves the crucial purpose of protecting the rights of creditors, ensuring that any outstanding debts are paid off before any assets are distributed. Moreover, probate can also be a valuable mechanism for resolving any disputes that may arise among family members or other interested parties, providing a fair and impartial platform to address any conflicting claims and ensure a smooth and just distribution of the estate.
What are the Different Types of Probate in Massachusetts?
There are different types of probate in Massachusetts, depending on the value and complexity of the estate. The main types are:
- Formal probate. This is the most comprehensive and formal type of probate, which requires a hearing before a judge and the appointment of a personal representative. Formal probate is necessary when there is a will that needs to be proved, or when there is no will and the heirs are unknown or minors, or when there is a dispute or a contest over the estate. Formal probate can be supervised or unsupervised by the court, depending on the degree of oversight and involvement that is needed.
- Informal probate. This is a simpler and faster type of probate, which does not require a hearing or a judge, and can be handled by a court official called a magistrate. Informal probate is possible when there is a will that is self-proved, or when there is no will and the heirs are known and adults, and when there is no dispute or contest over the estate. Informal probate is always unsupervised by the court, and the personal representative has more flexibility and discretion in administering the estate.
- Late and limited formal probate. This is a special type of probate that can be filed after three years from the date of death, if no other probate proceeding has been filed within that time. Late and limited formal probate is limited to certain purposes, such as determining the heirs, or confirming the title to property, or obtaining a license to sell property. Late and limited formal probate requires a hearing and a judge, and the appointment of a personal representative, but it is less extensive and involved than formal probate.
- Voluntary administration. This is the simplest and quickest type of probate, which does not require any court involvement or filing, and can be done by filling out a form and submitting it to the court. Voluntary administration is only available for small estates that meet certain criteria, such as having a total value of less than $25,000 (excluding the value of a car), and having no real estate, and having no creditors, and having all the heirs or beneficiaries agree to the distribution of the assets. Voluntary administration does not require the appointment of a personal representative, and the person who fills out the form can distribute the assets to the heirs or beneficiaries.
Where Do You Probate an Estate?
Probate proceedings usually take place in the county where the deceased has lived. If you’re not sure where to start the probate process, our experienced probate attorney can guide you through the process and provide the necessary assistance. You can view a list of Probate Court locations here.
What are the Steps Involved in the Probate Process?
Probate is generally a long, frustrating and expensive process. Much of our practice is devoted to using Revocable Living Trusts and other planning tools to help our clients avoid Probate altogether. However, for families who did not do Probate avoidance planning, we are frequently hired to guide them through the probate process.
While every probate is unique, here is a list of steps involved in a “typical” Probate:
- Filing a petition for probate with the Probate and Family Court. The petition can be filed by the person named as the personal representative in the will, or by any interested person if there is no will or no personal representative named. The petition must include the original will (if any), a certified copy of the death certificate, and a list of the heirs or beneficiaries and their addresses. The petition must also indicate the type of probate that is requested, which depends on the circumstances of the estate.
- Giving notice to the interested parties and the public. The petitioner must give notice of the probate proceeding to the heirs or beneficiaries, the creditors, and any other interested parties, such as the Attorney General if the estate involves a charitable interest. The notice must be given by mail or in person, and by publication in a newspaper designated by the court. The notice must inform the parties of their right to object to the probate petition or the appointment of the personal representative within a certain period of time.
- Appointing a personal representative. The court will appoint a personal representative to administer the estate, unless there is an objection or a contest. The personal representative can be the person named in the will, or the surviving spouse, or the next of kin, or any other suitable person, depending on the type of probate and the priority of appointment. The personal representative must accept the appointment and post a bond (if required) to secure their fiduciary duty to the estate and the beneficiaries.
- Inventorying and appraising the estate assets. The personal representative must prepare an inventory of all the property that belongs to the estate, and have it appraised by a qualified appraiser. The inventory must include the description, value, and location of the property, as well as any liens or encumbrances on it. The inventory must be filed with the court and sent to the beneficiaries within a certain period of time.
- Paying the debts and taxes. The personal representative must pay the valid claims of the creditors and the taxes that are due from the estate. The personal representative must also file the final income tax returns and the estate tax returns for the decedent and the estate, and pay any taxes that are owed. The personal representative must notify the creditors of the probate proceeding and the deadline for filing their claims, and must also publish a notice to the unknown creditors in a newspaper. The personal representative must examine the claims and either allow or disallow them, and notify the creditors of their decision. The personal representative may also seek the court’s approval or guidance on any disputed or doubtful claims.
- Distributing the remaining assets. The personal representative must distribute the remaining assets of the estate to the beneficiaries according to the will or the law. The personal representative must also prepare and file an account of their administration of the estate, showing all the income and expenses, and the distribution of the assets. The account must be approved by the court and the beneficiaries, or by the court after a hearing if there is any objection or contest. The personal representative must also obtain a release or a discharge from the beneficiaries and the court, and file a closing statement to close the probate proceeding.
When Do I File a Probate?
Probate should be initiated as soon as possible after the death of the person, unless there is a valid reason to delay it. Probate can be initiated by filing the original will and a petition for probate with the local probate court. Probate can take anywhere from a few months to a few years, depending on the size and complexity of the estate, the existence and validity of a will, and the number and claims of creditors and heirs.
How Long Does Probate Take in Massachusetts?
The length of the probate process in Massachusetts depends on the type of probate, the size and complexity of the estate, the existence and validity of a will, and the presence of any disputes or challenges.
How Much Does Probate Cost?
The cost of probate in Massachusetts depends on various factors, such as the type and size of the estate, the existence and validity of a will, the presence of any disputes or challenges, and the fees of the court and the professionals involved. According to some sources, the average cost of probate in Massachusetts is around 4% to 5% of the total gross estate, but it can range from 1% to 10% or more, depending on the circumstances. For example, if the estate’s value is $500,000, the average probate cost would be $20,000 to $25,000, but it could be as low as $5,000 or as high as $50,000 or more.
How to Avoid Probate in Massachusetts
There are various effective strategies available to avoid probate and ensure a smooth transition of assets. Some of these include establishing a living trust, opting for joint ownership, and designating beneficiaries. By implementing these measures, you can proactively plan for the future and protect your assets. Our experienced firm can provide personalized guidance and recommend the most suitable approach based on your unique circumstances and goals.
Learn More: Will vs. Trust: What’s the Difference?
Should I Hire a Probate Attorney at the Socius Law Firm?
At the Socius Law Firm, we have an experienced team dedicated to serving clients in the local area. We can provide expert advice on all aspects of probate, including estate planning, trust administration, and court proceedings. Our team is committed to providing compassionate and understanding service while also ensuring that your legal needs are met.
If you’re in need of probate services, the Socius Law Firm is here to help. Contact us today to learn more about our probate services and how we can assist you during this difficult time.