What is the difference between Informal Probate and Formal Probate in Massachusetts?

Massachusetts provides several options for probate of an estate, including Voluntary Administration for small estates with property not more than $25,000 and a car (no real estate), Informal Probate and Formal Probate.  To appoint a personal representative of the estate, Massachusetts provides two separate processes for winding up the affairs of a decedent – informal probate and formal probate.  Informal probate is generally available if:

  • You know who all of the heirs are to the estate, they are all adults, competent, do not object to the petition, and you know where to find them;
  • You have the original will and there are no changes or deletions made to it;
  • You have an official death certificate; and
  • As the person seeking to be appointed personal representative, you have priority for that appointment under the law.

The primary advantage of informal probate is that it can be done more quickly than a formal probate process.

Under an informal probate, the appointment can be made in as little as 7 days after notification to the interested parties.  However, it is important to understand that during the Covid-19 epidemic, courts are often facing periodic and significant staffing shortages and appointments are made as quickly as possible in the circumstances, but significant delays may occur.  Conversely, the appointment of a personal representative in formal probate cannot be made until after a number of other matters are considered and completed, including court ordered notice to interested parties; thus the appointment in a formal probate often takes an additional 2-3 months.

When Would You Proceed with a Formal Probate in Massachusetts?

  • When you cannot locate all of the heirs and beneficiaries;
  • When one of the heirs or beneficiaries is a minor or incompetent individual;
  • When there is a dispute among the interested parties about the Will;
  • When you do not have an official death certificate;
  • When you ask the court to appoint you as the personal representative, but you are not the person with priority under the law to serve as the personal representative;
  • When you want a formal determination of the validity of the Will or that the person died without a Will;
  • When you want a formal determination of the heirs of the estate;
  • When you need a legal representative appointed quickly before the final decree (Special Personal Representative);
  • When the probate estate includes registered land.

As a Massachusetts probate lawyer, one of my first tasks will be to determine whether informal probate may be available and appropriate for their loved one’s estate.

In order to have someone appointed to serve as personal representative (formerly known as an “executor”) of an Estate, a Petition for Informal Probate or a Petition for Formal Probate will need to be filed with the Court.

The Appointment of a Personal Representative

One of the biggest advantages to filing a Petition for Informal Probate is the ability to obtain the personal representative’s appointment quickly.  An Informal Petition may be submitted to the Court for review and consideration after giving just seven (7) days’ advance notice to the interested parties.

Unlike the informal procedure, a Petition for Formal Probate is filed with the Court prior to giving notice.  Upon acceptance of the formal petition, the Court will issue a Citation that includes orders for giving notice to the interested parties and a date by which anyone who objects may do so.  The Court will not further consider the petition until the deadline for objections has passed (known as the “return date”).

An Informal Probate May Not Always be Possible, Even if the Requirements Have Been Met

There are numerous circumstances where the Court will require the filing of a formal probate, it is not always a petitioner’s choice.  Examples of some the circumstances that make the informal process unavailable include (but are not limited to):

  • the original Will is unavailable;
  • the original Will contains handwriting and/or cross-outs;
  • one or more of the heirs or beneficiaries of the Will are unknown or have not been located; or
  • someone is contesting the Will.

In addition, when the Court issues an order appointing the personal representative through the formal process, a formal determination of the heirs of the estate may also be made.  This can be very helpful down the road if the estate owns real estate, particularly if there is no Will.  Otherwise, a formal determination of heirs may need to be obtained through the procedure for closing out the estate with the Court before clear title to the real estate can be transferred to a buyer, the processing time for which may be lengthy.

What Estate Debts Should Be Paid First?

Once appointed, the Personal Representative takes control of and manages the assets of the Estate.  The Personal Representative is responsible to address the debts of the estate and the payment of taxes before distributing assets to the beneficiaries.  The law gives some debts priority over others so not all bills should be paid right away or in random order.

Administrative costs, which include such things as funeral/burial expenses and legal fees and costs are given first preference.  Other claims may also have priority.

If you will be serving as a personal representative, I will advise you of which debts should be paid first and the order in which to pay remaining debts.  In this regard, we help you work through the debts of the estate to be sure that debts are paid are paid in the proper order and that you as the personal representative are protected against creditors who have perfected their claims against the estate.   We also work with accountants who can assist you in the preparation and payment of the decedent’s last income tax return, as well as any necessary U.S. and Massachusetts estate and income tax filings and returns.

Am I Responsible for Paying Debts if there are Not Sufficient Assets in the Estate?

No.  As a personal representative, you are not responsible for using your own money to pay creditors, even if the decedent was a family member (such as your mother or father).

In probate, the normal process would be to liquidate all assets of the decedent if there is not sufficient cash available to pay all debts.  This liquidation might take place through an auction or through marketing the asset for sale to the public.  Family members would be entitled to bid on the assets, as would members of the public.  After the sale is finalized, whatever proceeds are raised would be used to pay creditors based upon the priority established under the law, with the remaining assets after expenses to be distributed to the beneficiaries of the estate.

How Long Does an Estate Need to be Open in Massachusetts?

In Massachusetts, because the law provides that creditors have one year from the date of death to bring a claim against the estate, until that one-year period has expired, the estate may be responsible for any legitimate and perfected claims that arise, whether the Personal Representative knew about them or not.  As a result, the Personal Representative should not distribute estate proceeds until after the period has closed for creditor in making claims.  Also, in some cases, Mass Health may also assert a claim to recover monies for services it paid on behalf of certain of its members after administrative costs have been paid.

Closing An Estate.

One option to formally close the estate with the Court, after one year following death,, is the Petition for Order of Complete Settlement.  This petition may include requests to the Court to approve a final accounting, including proposed distributions to be made to the beneficiaries.  The Petition may also ask the Court to make additional findings such as a formal determination of the heirs of the Estate and whether the decedent died with or without a valid Will, if those determinations were not previously made.

As an alternative option for closing out the estate and assuming that six months have passed since the Personal Representative was appointed and the one-year creditor claim period has expired, the estate may be eligible to file a sworn Closing Statement.  As part of this statement, the Personal Representative represents to the Court that all creditor claims have been resolved, the interested parties have been provided proper notice and account, and the estate has been finally administered.

A Personal Representative should be aware that there are important distinctions between obtaining an Order of Complete Settlement as opposed to filing a sworn Closing Statement.  Protections provided to the Personal Representative by each method of closing the estate are not the same.  Unlike an Order of Complete Settlement which gives the Personal Representative protections from future responsibility except in the case of fraud or obvious or intentional errors, a sworn Closing Statement may be subject to future challenge for fraud or any mistake at all, even if the mistake was unintentional.

Which procedures are chosen to both open an estate and to close out an estate, as well as how the assets are managed, will likely be determined by many factors, including the specific legal issues involved and other unique circumstances.  Let us navigate the probate process with you, help you to make sound decisions, and choose the best options.