Formal vs. Informal Probate in Massachusetts
A Guide for Personal Representatives and Beneficiaries Navigating the Probate & Estate Administration Process in Massachusetts
It’s not a dress code.
Many clients assume that informal probate is better, maybe because it sounds more casual. But if you are deciding between formal and informal probate, it is important to remember that you are not setting a dress code, you are seeking the legal authority to take possession of a deceased person’s assets and transfer ownership of those assets to the lawful beneficiaries. Given the number of variables and the significance of the transactions involved, formal probate is usually the better choice.
Formal Probate Is Often the Better Choice.
Although informal probate may sound easier, many of the differences between formal and informal probate in Massachusetts are technical in nature, and do not have a meaningful impact on a client’s experience of the process.
One-Year Statute of Limitations on Creditors’ Claims.
Regardless of whether the formal or informal process is used, creditors have one year from the decedent’s date of death to come forward and file a claim against the estate. Therefore, final estate distributions in Massachusetts are typically delayed for up to a year or more after a person’s death due to factors unrelated to whether the formal or informal probate process was used. In fact, it is often the informal probate process that leads to otherwise avoidable problems simply because people gravitate towards using the simpler-sounding process, even when it is not appropriate for the circumstances.
Formal Proceedings Take Priority over Informal.
In addition to the one-year deadline on creditors claims, another key factor that makes formal probate a better option is that, at any time during an informal proceeding, any interested party can initiate a formal probate proceeding in the same case. This filing of a formal petition automatically freezes any informal proceedings, and also freezes any powers granted to a Personal Representative under the informal process.
Having to switch from informal to formal probate is very inconvenient for anyone who has already spent money on legal fees to start the informal process. In addition, the switch may also lead to a loss of control over the process by any informally-appointed fiduciary. This inevitably leads to increased costs, expenses, and significant procedural delays, many of which could likely have been avoided if the case been initiated as a formal proceeding.
Why are there Two Different Probate Processes in Massachusetts?
The Massachusetts Uniform Probate Code (MUPC) took effect in 2012 and introduced separate formal and informal probate options. The goal of providing an “informal” process was to make estate administration more efficient. However, while there are technical differences between formal and informal probate, the time, effort, and cost required to administer an estate is generally the same regardless of which process is chosen. Factors other than court procedures are most often the cause of delays in administration (e.g. family disputes, disorganized or complex assets, charitable distributions, etc.).
What is Informal Probate?
Informal probate is very similar to formal probate, except that informal matters are signed off and approved by a court magistrate rather than a judge. The informal process has slightly different notice requirements. Informal probate is available only if:
The original will (not a photocopy) is available, clearly valid, and properly executed.
All heirs and beneficiaries are legally competent and do not object.
There are no disputes, creditor issues, missing, disabled, or minor parties.
The Personal Representative (PR) gives advance notice to all interested persons.
For informal probate, the court does not issue a formal notice (known as a Citation). Instead, notice must be prepared by the petitioner and sent to interested parties before the initial petition is filed.
What is Formal Probate?
Formal probate is the judge-supervised probate process for when there is any type of uncertainty, complexity, or disagreement in the case. Unlike informal probate, the formal probate process involves oversight from a probate judge. As part of the formal process, the court issues an official decree validating the will, appointing the Personal Representative, and legally confirming the beneficiaries.
Common situations where formal probate is required in Massachusetts:
There is no last will & testament.
The will is a photocopy, requires interpretation, lacks proper attestation, or is handwritten.
Heirs cannot be located.
Heirs are minors (under age 18), or are otherwise incapacitated.
Any terms of the will are disputed or if other conflicts exist.
Creditors have filed claims against the estate.
In formal probate, the court issues a notice that must be published in a newspaper and sent to interested parties. The formal probate notice process may be expedited if all parties file an Assent to the initial petition, but this is not always possible.
With formal probate:
A judge reviews and confirms the will and heirs.
The PR's authority is backed by a judge’s Decree & Order.
Disputes are typically forced to a resolution at the outset of the case.
The estate can be closed formally, reducing liability of the PR.
Start on the Right Path.
If you are confused about the probate process in Massachusetts, you’re not alone. The probate process is full of complex choices that have significant legal consequences. One of the key decisions is choosing between formal or informal probate.
Massachusetts offers two different probate processes. Making the wrong choice can lead to costly delays, disputes, and even loss of control over the estate administration. For probate in Massachusetts, starting off on the right path is critical, and can help ensure that the estate is settled in the most efficient possible manner.
Next Step: Talk to a Probate Attorney.
Even small estates can be complicated. Whether you are a nominated someone’s will as a Personal Representative (executor), beneficiary, or are a creditor of the deceased, selecting the correct first step in administration is vital to protecting your rights and avoiding liability.
