Formal Probate vs Informal Probate

When someone dies, all of their possessions (known as their “estate”) must go through a process called probate. Probate is the process of legally appointing someone as a representative of the estate, and giving them the power to wrap up the estate’s affairs and distribute the estate according to the deceased’s wishes.

In Massachusetts, there are 3 types of probate:

Voluntary Administration for small estates worth no more than $25,000, with a car but no real estate
Informal Probate
Formal Probate

If someone’s estate is worth more than $25,000 or includes real estate, their estate must go through through the formal or informal probate process. Since these are the two types of probate most people go through, they are what we’ll cover in this article. For information on voluntary administration for an estate, click here.

What is Informal Probate?

Informal probate allows the personal representative of the estate, appointed in around 7 days after the notification to all interested parties, to take control of distributing the estate and wrapping up any of the estate’s affairs (such as paying off debts).

Informal probate is the easier and faster option because it requires less involvement by a judge. Informal probate is possible when:

All heirs are known by the personal representative (sometimes known as the executor, they are the person responsible for distributing the deceased’s estate)
All heirs are adults
No heirs have any objections
The personal representative is in possession of the original will
There is an official death certificate

Informal probate is by far the easiest and fastest way to settle a deceased’s estate, but it is only possible when everyone agrees to the division of assets and the appointment of the personal representative. If there are any disagreements or disputes, the estate will have to go through formal probate.

Once the personal representative is appointed, they must notify all beneficiaries to notify them of what the estate will be giving them. If the personal representative makes any mistakes, they are personally responsible for compensating the beneficiary that missed out.

The executor should make a new bank account as the Executor for the Estate of [the deceased], and transfer all of the estate’s liquid assets into the account. The estate’s assets have a holding period in which creditors can make claims, if necessary. The executor must also pay any outstanding taxes and debts during this time.

When this is all done, the executor can tell the judge that they are ready to distribute the remaining assets to the beneficiaries, and they can do so as soon as the judge authorizes the action.

What is Formal Probate?

Formal probate takes place when informal probate is not possible. This may be because:

There are missing or estranged heirs or beneficiaries
When an heir or beneficiary is a minor
When an heir or beneficiary is “incompetent”
When there is a dispute about the will (its contents or its validity)
When there is no will
When there is no official death certificate (such as in the case of a missing person)
When someone other than the person appointed as the personal representative by the deceased needs to ask the court to become the personal representative
When a formal determination of the heirs is necessary
When the probate includes registered land
The deceased requested formal probate

Formal probate starts with a petition for formal probate, after which the court sets a date for any interested parties to make any objections by, before a personal representative can be appointed. From there on, every step must be approved by the court, and so naturally the entire process can take years to conclude.

In some cases, the formal probate process must be “supervised”, which means the court must approve every asset for distribution. This is generally only appropriate for highly contested or complex estates.

Late and Limited Formal Probate

There is a secondary form of formal probate, which is late and limited formal probate. If formal probate is necessary, you can petition for late and limited formal probate if all of the following 3 statements are true:

the deceased died on or after March 31, 2012
no estate proceedings took place in the 3 years following their death
you only need to go through formal probate to confirm the ownership of probate assets.

The personal representative of a late and limited formal probate process has some restrictions since they are not able to sell real estate on the deceased’s behalf.

How much time must an estate be open in Massachusetts?

The law provides creditors with 12 months from the date of death to make a claim. For this reason, an estate can not be closed until the anniversary of the deceased’s death.

Is there any way to speed up the probate process?

Unfortunately, the probate process is notoriously slow. The executor of the estate will need to ensure that the estate continues to pay maintenance fees for its assets until they can be distributed. For example, the estate may need to continue to pay a mortgage, utility bills, security fees, and so on.

Can you sell real estate during probate in Massachusetts?

Selling a home during probate is possible, but it’s not always easy. Here are a few of our best resources to help guide you through the process:

When the probate process is all said and done, you may want to sell your newly inherited property quickly so you can finally move on after your loved one’s death. We buy houses in as-is condition in Massachusetts, meaning you don’t need to renovate the home before you sell it or make any costly repairs. We cash-buy, meaning we can move as quickly as possible to get the money in your account.

To find out more about the process or to get an offer for your (soon-to-be) inherited home, click here.