Frequently Asked Questions

Is it always necessary to probate an estate?

No, not every estate needs to be probated. Whether an estate will have to be probated depends on how the decedent’s property is titled when he or she dies.  For example, some or all of a decedent’s property, such as jointly held property where there is a right of survivorship, the proceeds from a life insurance policy or a bank or retirement account that names a beneficiary, may not be part of the probate estate because it passes directly to another person by operation of law. Property that is held in a trust created by the decedent may also avoid probate.   

Typically, it is necessary to probate the decedent’s estate if you need to:

    Establish the validity of the decedent’s will
    Change title (ownership) to real estate or to personal property such as bank accounts, stocks, bonds, etc., that is held in the decedent’s sole name without any right of survivorship
    Pay creditors of the decedent
    Obtain the decedent’s medical records
    File the decedent’s tax returns and pay taxes, when necessary

Is there a deadline to probate an estate?

Yes.   Although there are a few exceptions under the MUPC, the general rule is that an estate must be probated within three years of the decedent’s date of death.  This deadline does not apply to a voluntary administration, determination of heirs, or ancillary probate proceeding.

Who can be appointed personal representative?

A qualified person with legal priority has the right to be appointed personal representative of the estate above all others. For example, if the decedent died with a will, the person with priority is the person named in the will to serve as personal representative or executor. If the decedent died without a will, the person with priority is the surviving spouse, if the decedent was married at the time of death. If the decedent was not married at the time of death, the decedent’s heirs have priority for appointment.

Is there a simplified procedure for an estate with minimal assets and no real estate?

Yes.  The simplified procedure is known as a voluntary administration and is available whether or not the decedent left a will.  To be eligible for voluntary administration, the decedent must have been a resident of Massachusetts and left an estate consisting entirely of personal property valued at $25,000 or less (excluding the value of a car) and 30 days or more have passed from the date of the decedent’s death.  Voluntary administration is not available if another probate proceeding is pending.  The authority of the voluntary personal representative is limited by the law and does not result in an official appointment by the court.