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The Heritage Law Center, LLC Blog

What is Formal vs. Informal Probate?

POSTED ON: May 17, 2021

man signing estate planning document

People often want to avoid probate because it can be very time-consuming and expensive. The Massachusetts probate process can take about 12-18 months to allow time for creditors to make claims. Probate expenses include executor’s fees, attorney’s fees, accounting fees, court fees, appraisal costs, and surety bonds.

A Massachusetts probate attorney can provide you with the legal advice you need because we’re familiar with both the state law and how the probate court works. We can help you navigate this process and reduce the time, expense, and frustration associated with probate as much as possible.

What is Probate?

Probate is the court-supervised proceeding where a will is verified and assets still titled in the name of a decedent (person who has died) are distributed according to the will or the law of intestacy if there was no will. The assets involved in this process are referred to as probate assets because they require a probate court order to pass title from the decedent to the beneficiaries.

During this process, the executor, the person nominated in the will to manage and distribute the estate, gathers the decedent’s assets and pays any of the decedent’s outstanding debts, taxes, and expenses. If there’s no will, or the person named in the will isn’t available or willing to serve, a personal representative will be appointed by the court.

Probate can be an overwhelming and difficult process to go through while you’re grieving the loss of a family member. As a Massachusetts probate lawyer, I can guide you through this process and make sure that everything is done properly in accordance with Massachusetts law.

Informal Probate

Informal probate involves an administrative process without any court involvement or court hearings. The process involves a Massachusetts Uniform Probate Code (MUPC) Magistrate instead of a judge.

Informal probate is possible when:

  • The original will is located.
  • All the beneficiaries and heirs agree to the decedent’s division of assets or any other matter.
  • There is an official death certificate.
  • The location and identity of all heirs and devisees (someone who receives real property) are known.
  • A judge doesn’t have to sign an order or final decree.
  • Any spouse, heir, or devisee who is incapacitated or a minor is represented by a conservator or guardian.

A disadvantage of informal probate is that a beneficiary can pull back their consent during the process, and the probate will be discontinued. In an informal probate, the executor will be responsible for the complete process. If there are any mistakes or discrepancies, the executor will be financially responsible for compensating for the error. For example, if the decedent had debts, which the executor failed to consider, they would be responsible for paying them. Also, if there are beneficiaries that the executor failed to take into account, the executor is also responsible for compensating them.

Formal Probate

Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. Formal probate may be required in situations where:

  • The will is a copy or has words that are handwritten or crossed out.
  • A creditor or public administrator is the petitioner.
  • A judge must sign an order or final decree.
  • The terms of the will aren’t clear.
  • Interests of incapacitated or minor heirs or devisees need representation.
  • A special, personal representative needs to be appointed.
  • An interested party objects to the will or the appointment of the personal representative.
  • Both the formal and informal probate procedures must be initiated no more than three years after the decedent’s death to be valid.

How We Can Help

There are frequently unexpected complexities to the Massachusetts probate process, which is why we guide our clients to avoid it. Nevertheless, as a skilled Massachusetts probate attorney, I can help you manage all the legal complications of probate. My team and I can work with you throughout the process to make it as easy for you as possible. Call us today at 617.299.6976 or send an email to info@maheritagelawcenter.com to schedule a confidential, no-cost consultation to discuss how we can help you.