Depending on what probate assets make up a Massachusetts decedent’s estate, an executor or administrator may be able to settle the estate without formal probate. Probate is the process of transferring property and ownership after someone has died. Whether an estate must be probated depends on how the decedent’s property is titled when they die.  Some property may not be part of the probate estate because it passes directly to another person by law.Types of probateTalk to a Boston estate planning lawyer about the differences between informal probate, formal probate, late and limited formal probate, and voluntary administration.  

• Informal probate is an administrative proceeding processed by a Massachusetts Uniform Probate Code (MUPC) Magistrate instead of a judge. Informal probate is only available if there is an original will, official death certificate, ability to contact all heirs and devisees, and personal representative has priority for appointment.

• Formal probate matters are typically heard by a judge and may involve 1 or more court hearings. Formal probate is filed to object to informal probate, if there are questions surrounding a will, or if necessary supervised administration by the court is warranted.  A judge must sign an order or final decree for any reason.

• Late and limited probate if a decedent died on or after March 31, 2012, and no original estate proceeding has happened within 3 years of the death, and necessity of formal proceeding is to confirm ownership of probate assets.  

• Voluntary administration is the simplified process for an estate with few assets and no real estate and can occur when the decedent was a Massachusetts resident, had an estate that consists entirely of personal property valued at $25,000 or less (excluding the value of a car, 30 days passed since death, and a petitioner must be an interested party but does not have to be a Massachusetts resident. 

If property transfer is allowed because of joint property, identification of beneficiaries in life insurance, bank, and retirements accounts, or through a trust, the assets can then transfer directly to the heirs. Other common issues that may allow probate to be bypassed include:

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• No assets to transfer. When an individual has no or little property at the time of their passing, or it is jointly owned by a spouse, child, or caregiver with a right of survivorship, any interest to property will be immediately transferred upon the death of the owner.  Financial accounts often have a right of survivorship or named beneficiary as well.

• Trust funds. Part of the estate planning process is the understanding of protection of assets upon the passing of the owner of those assets.  Many people create trust accounts so they can have some control of who receives their assets when they pass as well as using a trust to protect property interests as they age.  Assets such as a home are often part of a trust, and assets used to fund a trust are not commonly subjected to probate oversight unless a beneficiary contests or challenges the ownership transfer.

Importance of estate planningEstate planning is important regardless of age, wealth, or life circumstances or related variables. A Massachusetts estate planning lawyer will review documents when estate planning is initiated to ascertain any loopholes that individuals would be able to contest when a will goes to probate. The resolution of probated estates can be time-consuming and dragged out, depending upon the nature of the assets left to distribute requiring the service of an estate planning lawyer. Tax concernsA tax lawyer will be able to apprise beneficiaries of the inheritance tax liabilities associated with any type of asset they receive during estate settlements. Experienced lawyers will guide interested parties in accordance with Massachusetts probate and federal tax laws.  Sources:

• Article III (malegislature.gov)

• General Law - Part II, Title II, Chapter 190B, ArticleIII, Section 3-102 (malegislature.gov)