What is Probate?

Probate is a legal process that determines who is entitled to the assets of a person who has died. Assets that require probate to transfer ownership to beneficiaries or that require probate to sell and distribute the sales proceeds to beneficiaries are referred to as probate property.

Massachusetts Probate and Family Court

Each county in Massachusetts has a Probate and Family Court. The Probate and Family Courts have jurisdiction over the probate of estates, certain trust and property actions, guardianships, conservatorships, divorce proceedings and related matters. Attorney Hoyle provides representation primarily in the counties of Norfolk, Middlesex, Suffolk, Essex, Bristol, and Plymouth..

Massachusetts Probate Law

Most of the current statutory probate law in Massachusetts is found in Massachusetts General Laws Chapter 190B known as the Massachusetts Uniform Probate Code (“MUPC”). The MUPC became effective on March 31, 2012. There was an amendment to the MUPC in July, 2012. Amended Standing Order 5-11 sets forth transitional rules for estates pending on March 31, 2012, or having a decree issued prior to March 31, 2012. The Supplemental Rules of the Probate and Family Court contain the Court’s rules. Some of the Uniform Probate Court Practices remain in effect.

The MUPC, rules, forms and other information are on the Probate and Family Court website.

When is Probate Necessary?

Probate may be necessary when someone dies or is deemed to have died owning personal or real property in his or her name that does not pass by form of ownership to another person or entity. This type of property is referred to as probate property. Property that passes by form of ownership, such as jointly owned property with right of survivorship or retirement accounts, annuities and life insurance that pass by beneficiary designation does not require probate. This type of property is referred to as non-probate property.

MUPC Section 1-107 sets forth the requirements for evidence of death or other status of a person who is deemed to have died. Definitions that apply throughout the MUPC are found in MUPC Section 1-201. According to MUPC Sections 1-102(a)(2) and (3), two of the purposes of probate, if commenced, are: “to discover and make effective the intent of a decedent in distribution of the decedent's property and to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent's successors”.

Probate Options

The MUPC gives options regarding whether or not probate is necessary and, if probate is commenced, what type of probate proceedings can be used. Options include:

Never commence any probate proceedings.
Delay commencement of probate proceedings. Subsequently begin one of the probate actions described below prior to expiration of the statute of limitations, or begin an action not barred by the statute of limitations after it has expired, such as a petition to establish a devise or to determine heirs, or a petition for voluntary administration.
Begin voluntary administration.
Begin informal probate proceedings.
Begin formal probate proceedings either with or without a request for court supervision.
Begin probate proceedings for the appointment of a special personal representative.

Formal vs. Informal Probate Proceedings

Whether or not to proceed with a probate petition and deciding on the type of petition depends on the type of property owned by the decedent, the form of ownership, the goals of the personal representative, and the status and actions of the decedent’s heirs and devisees.

Voluntary administration can be used if the decedent died domiciled in Massachusetts; more than thirty days have passed since date of death; the probate property consists of no more than one automobile of any value and other personal property having a value not exceeding $25,000; no real property; and no petition for informal or formal probate has been filed.

Informal probate proceedings can be used if not more than three years have passed from the date of the decedent’s death; no court has appointed a personal representative and no appointment proceedings are pending; any minor or incapacitated heirs or devisees are represented by a previously court appointed guardian or conservator who is not the petitioner; no interested person objects to the informal petition; and if there is a will, it does not specifically request formal administration. An informal petition may be approved by a magistrate. The involvement of a judge is not required. This form of probate is essentially an administrative filing. No further court action is necessary unless requested by the personal representative or an interested party. Notice of at least seven days prior to submission of the petition is required to be given to interested persons and publication of notice is required after the petition has been approved.

Formal probate proceedings can be used if not more than three years have passed from the date of the decedent’s death or, if the petition is to contest the appointment of an informal personal representative, not later than one year after the appointment of the informal personal representative even if that would result in a formal petition filed more than three years after death. The court issues a citation that must be served on all interested persons as well as published in the newspaper prior to a return date. A return of service is required. If no objections have been filed by the return date and there are no matters that require adjudication, the formal probate petition may be approved by a magistrate. Otherwise, a hearing before a judge on the formal probate petition is required. Formal proceedings must be used if voluntary administration or informal probate administration requirements are not met. For example, formal administration must be used if there are minors or incapacitated heirs or devisees that are not represented by a legal guardian or conservator other than the petitioner, if supervised administration is requested, or if an interested person contests the will.

What is the time deadline for filing a Probate Petition?

The general statute of limitations within which a probate petition must be filed is three years from date of death. There is a statute of limitations for commencing a formal probate proceeding to contest a previously approved informal probate petition. The formal petition must be filed by the later of three years after date of death, or one year from the date the informal probate petition was approved by the court. There is no statute of limitations to file a voluntary administration petition, a petition to establish a devise, or a petition to determine heirs. Notwithstanding these statutes of limitation, the law was revised after its initial enactment so that there is essentially no statute of limitations on commencing probate proceedings. However, there are restrictions on the powers of a personal representative when informal or formal probate is begun after the general three-year statute of limitations.

What is a Probate Inventory?

A probate inventory is a listing of all of the property included in the probate estate. The inventory is required to be prepared within three months of the appointment of the personal representative.

What is a Probate Accounting?

A probate accounting is a report showing all receipts and disbursements relating to an estate. There is a prescribed form that it must take if a personal representative intends to file the accounting with the court. Generally, it is wise to use the court's form even if there is no expectation of filing the accounting with the court.

What is a Bond?

A bond is a form signed by a personal representative and filed with the court wherein the personal representative agrees to be liable for any damages or losses he or she causes to the estate under certain circumstances.

What is a surety on a Bond?

A surety is a written agreement by a surety bond company in exchange for the payment of an annual premium to be bound in the amount shown on the personal representative's bond in the event a covered damage or loss occurs and the personal representative does not have sufficient assets to liquidate to pay for the damage or loss. There is an option where the court may permit two individuals to act as sureties instead of a surety bond company. However, personal sureties are not recommended because a large damage or loss could result in each individual who signed as a surety to have to liquidate his or her own personal assets to pay for the damage or loss.