Losing a loved one is never easy, and handling their estate can feel overwhelming. At Casey Lundregan Burns, P.C., we have been guiding Massachusetts families through probate for over 90 years. We know how important it is to settle an estate quickly and efficiently without unnecessary complications.
For estates that qualify, informal probate can be a simpler, faster way to distribute assets while avoiding lengthy court proceedings. But not every estate meets the legal requirements.
So, how do you know if informal probate is the right choice? Here’s what you need to know.
What is Informal Probate?
Probate is the legal process of settling a person’s estate after they pass away. Massachusetts offers two main types of probate: formal and informal.
- Formal probate involves court hearings and is required when there are disputes, complex assets, or unclear wills.
- Informal probate is a simplified process that avoids court hearings and speeds up the administration of an estate, making it a more cost-effective option.
Informal probate is handled by a Massachusetts Uniform Probate Code Magistrate instead of a judge. While this process is quicker and requires less court oversight, not every estate qualifies. Certain conditions must be met to use informal probate.
Key Requirements for Informal Probate in Massachusetts
Not every estate can go through informal probate. Here are the conditions that must be met:
Original Will and Death Certificate
To file for informal probate, you will need the original last will and testament (if one exists) and an official death certificate. These documents must be submitted to the court as part of the probate application.
If the original will is lost or missing, the case may need to proceed through formal probate. It is always a good idea to secure these documents as soon as possible to avoid unnecessary delays.
Uncontested Estate
Informal probate is only possible if all heirs and beneficiaries agree on how the estate should be handled. If there is a dispute—whether over the validity of the will or how assets should be distributed—the case must be moved to formal probate.
Disagreements can slow down the process, so having open communication with everyone involved is key. If disputes arise, legal guidance can help resolve them before they escalate.
Known Heirs
The court must be able to account for all heirs and beneficiaries. If any potential heirs are missing or their whereabouts are unknown, informal probate is not an option.
If an heir cannot be located, you may need to hire a professional to track them down before proceeding with formal probate.
Adult and Competent Beneficiaries
All beneficiaries must be legal adults (18 or older) and mentally competent. If any heir is a minor or incapacitated, a legal guardian or conservator must be appointed to represent them, and this would require formal probate instead.
No Objections
If anyone contests the will or objects to the appointment of a personal representative, the case will need to go through formal probate.
Objections might arise if someone believes the will was signed under duress, is fraudulent, or does not reflect the deceased’s wishes. If any of these concerns exist, the court will require a judge to review the matter.
Priority for Appointment of the Personal Representative
The person seeking to act as the personal representative (executor) must have legal priority under Massachusetts law. Typically, this is the person named in the will. If there is no will, priority follows this order:
- Surviving spouse
- Adult children
- Other close relatives
- Creditors (if no family members are willing to serve)
If someone with a higher priority objects to the appointment, the case will need to go through formal probate.
Additional Conditions
- The estate cannot require supervised administration (which involves ongoing court oversight).
- A judge does not need to sign off on the final distribution of assets.
- The will must not prohibit informal proceedings.
- If any heirs are incapacitated or minors, their guardian or conservator cannot be the same person filing for probate.
Proper Venue
Probate must be filed in the county where the deceased lived. Filing in the wrong county can cause delays or require refiling.
Proper Documentation
In addition to the death certificate and original will, additional documents may be required, such as notices to beneficiaries and affidavits. Ensuring all paperwork is accurate and complete will help prevent unnecessary delays.
Time Frame and Process
One of the biggest advantages of informal probate is speed. Unlike formal probate, which can take over a year, informal probate can be opened as soon as seven days after death and may be completed in just a few months.
- No court hearings are required.
- The case is reviewed and approved by a Massachusetts Uniform Probate Code Magistrate.
- Once the case is approved, the personal representative can begin administering the estate immediately.
While informal probate is faster, any errors in paperwork or legal requirements can cause delays. Seeking legal help can ensure that things stay on track.
Common Misconceptions and Potential Pitfalls
Many people assume informal probate is an easy, do-it-yourself process. While it is more straightforward than formal probate, mistakes can still be costly. Here are a few common pitfalls:
- Failing to locate all heirs can cause the case to be rejected.
- Overlooking debts and taxes can lead to legal trouble for the personal representative.
- Incorrect filings can delay probate and force a move to formal proceedings.
- Misinterpreting the will may lead to disputes that require court intervention.
Even though informal probate avoids court hearings, it’s still a legal process with strict rules. If an estate doesn’t meet all requirements, it may be forced into formal probate instead.
Taking the Next Step: Contact Casey Lundregan Burns, P.C.
If you’re facing the probate process in Massachusetts, you don’t have to handle it alone. At Casey Lundregan Burns, P.C., we have been guiding families through probate for generations. Our experienced team is here to make the process as smooth and stress-free as possible.
Call us today at (978) 878-3519 or visit our Contact Us page to schedule a free consultation. Let us help you move forward with confidence.
Disclaimer: The information in this post is not intended as legal advice or as a substitute for the particularized advice of counsel. For more information, please consult an attorney.