Most people have a general understanding of what it means to have a will as well as to deal with family property when there isn’t a will and similar basics of estate probate. When they’ve lost a loved one, however, these and other legalities can seem overwhelming.
In our state, there are two different ways to probate an estate. These options apply whether or not the person had a will. An informal probate is an administrative proceeding processed by a MUPC Magistrate. Hearings are neither required nor allowed by the court. This expedited process can take as little as seven days if all legal requirements are met. Informal probate isn’t allowed if the original will isn’t available, there isn’t an official death certificate and if any heir or devisee isn’t identified or able to be located. Incapacity by reason of incompetence or minority without guardianship or conservatorship representation precludes an informal probate. The person to be appointed as personal representative must have priority for such appointment. There must be no requirement for a judge to sign any order or final decree relating to the probate.
A judge usually presides over formal probate matters in one or more hearings before the court. Reasons for a formal probate of a person’s estate include, among others, an objection by someone to an informal probate and unclear will terms. A will that doesn’t bear the original signature, has handwritten additions or deletions, or contains provisions pertaining to a minor or incapacitated person needing representation is subject to formal probate. If a creditor or public administrator is the petitioner, supervised administration is necessary or if the personal representative doesn’t have priority for the appointment, formal probate is warranted. If for any reason informal probate is unavailable or a judge has to sign an order or final decree relating to the estate, formal probate must take place.
Probate isn’t always needed. It depends upon titling of property and if trusts are in place. However, probate settles questions such a will’s validity, creditor issues and ownership of bank and other accounts without a right of survivorship provision.
Source: Massachusetts Court System, “Probate Estate Options,” accessed April. 22, 2015
446 Main Street, 8th Floor, Worcester, MA 01608
45 Lyman Street, Suite 15, Westborough, MA 01581
We strive to take a proactive approach in anticipating and preventing legal disputes. When possible, we resolve conflicts through strategic mediation and arbitration. Our attorneys have the experience and knowledge required to devise successful litigation strategies and imaginative, tax-effective estate plans.