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What Is Informal Probate In Massachusetts?
Probate is the legal process to settle a person’s assets after their death to ensure that their will is valid.
These assets include bank funds, investment accounts, homes, and properties, plus assets like cars, boats and businesses. However, it is essential to understand that the assets will be liable for probate with or without an existing will unless the deceased created a trust. That is the only to avoid probate.
There are three types of probates in Massachusetts; formal, informal, as well as late and limited.
Informal Probate Vs. Formal Probate
According to Massachusetts law, informal probate is only applicable when all the beneficiaries and heirs agree to the decedent’s division of assets. In case of disagreement between the beneficiaries, formal probate is needed for dividing assets.
However, formal probate requires every step of the transaction to be approved by the court and can take years to settle. On the other hand, informal probate happens much faster for the benefit of all parties as it does not require extensive court involvement.
Here, it is important to know that informal probate can be disqualified if the deceased’s will prohibits an informal proceeding. Additionally, it is also not applicable in a contest where a beneficiary objects to the will’s validity.
If the heir and beneficiaries cannot be located, or if one or more of the beneficiaries happen to be minors, the court will not allow for informal probate.
In other cases, where a death certificate was not issued for the decedent, or the original will cannot be located – informal probate is not permissible. The beneficiaries will have to apply for formal probate, with a court-mandated executor overlooking every process.
Suppose disputes or disagreements between the beneficiaries arise during informal probate. In that case, the court can intervene and supervise the probate process.
Filing An Informal Probate
It is relatively easy to file for informal probate in the state of Massachusetts. A beneficiary needs to file a petition with the court to proceed with the informal probate. The court will name them as an executor, provided all other beneficiaries agree with this decision. We are assuming the decedent did not name an executor in their will. Also, there should be no contest from the beneficiaries or any disagreement regarding the will.
Once the petition is approved, the court will issue letters to the executor, which empower them to carry out the probate process. They must send out messages to all beneficiaries of the deceased. If the executor misses out on any beneficiaries, he is personally responsible for compensating them.
The executor will establish a new bank account specifically for this cause- with a title as “Executor for the estate of (the deceased’s name)” and transfer all assets to this account.
Assets have a holding period, where creditors can file claims, and assets are assembled. The executor will calculate any taxes and file returns on them. And also, pay any debts that the deceased left behind.
Once this is done, the executor will tell the judge they’re ready to disburse, and the judge shall authorize it.
Duties Of An Executor
The executor must make an inventory of all the property and assets of the decedent. If there is a threat of theft, they must secure the assets first. Then they must submit this inventory to the concerned authorities in the court.
If the decedent has any acquired debt in his name, that must be cleared off from the assets. This will also include any bills or taxes. And finally, after that, pay off all the beneficiaries.
Benefits Of An Informal Probate
The duration of the informal probate is less than that of a formal probate. Since no judge or higher court authority is overseeing and validating every transaction, there is less hassle for the decedent’s beneficiaries and representatives.
You can get done with informal probate in a few months, while formal probate can take up to a year or more.
The informal probate process is also cheaper than formal probate because there is no need to hire an attorney to represent you. If the estate happens to be too large or complicated, you might feel the need to hire a lawyer for assistance, but it is not binding.
You will not need to make regular court appearances, and the few times you do, the proceedings are quicker and more relaxed.
Possible Drawbacks Of An Informal Probate
A striking disadvantage of informal probate is that a beneficiary can pull back their consent during the process, and the probate will be discontinued. If they have issues with how the executor is conducting the probate, they are entitled to pull back from the process.
In that case, they can file a petition with the court demanding formal probate with official supervision. The executor will have to relinquish their authority and the court will start the proceedings from scratch, wasting a lot of time.
In an informal probate, the executor will be responsible for the complete process. If there are any mistakes or discrepancies, they will be responsible for compensating for the damage. 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 responsibility for compensating them lies on the executor.
If there is real estate involved, informal probate isn’t usually a good idea even if you just want to sell the property.
When Is A Probate Not Required?
There are a few cases where probate is not necessary. This includes joint assets that the deceased left behind. If the decedent owned assets in joint tenancy with others, they pass onto the surviving owners, unless specified otherwise. If they shared assets with their spouse, it would pass onto the surviving spouse, without the need for a probate.
The decedent could have named a beneficiary in their will to be able to claim particular assets. These assets will not qualify for probate. Life insurance policies and pension benefits in the deceased’s name also do not qualify for probate.
An informal probate case in Massachusetts can be riddled with legal complexities. Having reliable legal counsel by your side is important to protect your interests in the best way. Attorney Mucci is a seasoned lawyer with years’ of experience assisting clients meet their goals.