Informal Probate is Coming to Massachusetts

The laws in Massachusetts affecting the probate of Wills, dying without a Will (intestate), and the administration of estates have undergone a complete transformation. Effective on July 1, 2011, the Massachusetts Probate Code (the “Code”) repeals the majority of the existing chapters and statutes on probate law in an effort to simplify, streamline and clarify the process of settling a person’s affairs in a manner consistent with his or her intent. One of the most significant changes is the introduction of informal probate.

In order to provide for the transfer of property or the nomination of a personal representative of the estate, a Will must be declared valid by the Probate Court. In Massachusetts, 96% of all estates that are probated are uncontested and yet must be formally probated; a costly and time consuming process that is overseen by a judge. Formal probate requires the issuance of a citation, service of process and publication, which can easily delay the appointment of an executor or administrator to manage the assets of the estate for up to six months. Furthermore, the Court must approve interim and final accountings of the assets of the estate before the estate can be closed.

In contrast, under the new Code, estates that are relatively routine and involve no controversy will be administered through an informal probate procedure overseen by a court magistrate.

Under the new rules, a person seeking informal probate and appointment as a personal representative of the estate must give at least seven days notice of the petition to probate the Will to all interested parties. If the petition is satisfactory, and there are no objections, the court magistrate will grant the petition and appoint the personal representative to manage the affairs of the estate, effective immediately. After the appointment, the personal representative will administer the estate virtually free of court supervision. Rather than file accountings with the court for approval, the estate can be closed once the personal representative files a sworn statement with the court that debts, expenses and taxes have been paid and distributions have been made to the persons entitled to them. The Code still provides for formal probate proceedings in the event an objection is made by an interested person to the Will or to the proposed personal representative.

For those dying without a Will, the Code, among other improvements, gives the surviving spouse a larger share than is provided for under current Massachusetts law. In addition, the Code imposes time limits on the administration of informal and formal probate proceedings to provide closure to estates, rather than allowing them to linger on unresolved. There is no question that the changes in probate procedures under the Code will save the vast majority of estates substantial amounts of time, money and frustration.

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