Massachusetts Probate Lawyer

What is probate?

Probate is the court-supervised process of settling a person’s estate after death. In Massachusetts it is handled by the Probate and Family Court under the Massachusetts Uniform Probate Code, General Laws chapter 190B.

Probate generally involves:

• Proving that a will is valid, if there is one
• Appointing a personal representative (the Massachusetts term for an executor or administrator)
• Notifying heirs, beneficiaries and creditors
• Collecting and valuing the estate’s property
• Paying debts, expenses and any taxes
• Distributing what remains to the people entitled to it
• Closing the estate

The process is similar whether or not there is a will. The main difference is who receives the property: the people named in the will, or the heirs set by Massachusetts law.

Does every estate need probate?

No. Only property that was in the person’s name alone, with no joint owner or beneficiary designation, goes through probate. Many assets pass outside probate, including:

• Property held in a funded revocable or irrevocable trust
• Real estate or bank accounts owned jointly with rights of survivorship
• Life insurance, retirement accounts and annuities with a named beneficiary
• Payable-on-death and transfer-on-death accounts

If everything passed outside probate, the family may not need to open an estate at all. If something is left in the person’s name alone, such as a house, a car or a bank account, probate is usually needed to transfer it. We review the assets with you and tell you whether probate is required.

First steps after a loved one dies

In the first weeks, families often do not know where to start. These steps help:

• Find the original will and any trust documents, and keep them safe. Do not remove staples or write on the original will.
• Order several certified copies of the death certificate from the funeral home or city clerk.
• Secure the home, vehicles and valuables, and keep insurance in place on the house.
• Collect recent bank, investment, retirement and insurance statements, and the last tax returns.
• Notify Social Security, pension providers and the person’s bank.
• Keep receipts for funeral costs and any bills you pay.
• Do not sell or give away property, or pay large debts, until you know who has legal authority and in what order debts must be paid.

Then contact us. We will tell you whether probate is needed and what comes next.

Types of probate in Massachusetts

Massachusetts offers several ways to settle an estate, depending on its size, whether there is a will, and whether anyone disagrees.

Voluntary administration for small estates

If the estate is small, with no real estate and personal property under the limit set by law (currently $25,000, plus a car), a family member may be able to use a simplified voluntary administration process at least 30 days after the death.

Informal probate

Informal probate is handled by a court magistrate without a hearing. It is available when there is no dispute, the original will (if any) is available, and the required people agree or receive notice. It is generally faster and less expensive. Informal probate must usually be started within three years of the death.

Formal probate

Formal probate is handled by a judge. It is required when there is a dispute, when the will is missing or questioned, when an heir cannot be located, when more than three years have passed since the death, or when the family wants a court order for certainty. It involves a citation, notice and a waiting period for objections.

We recommend the simplest process that fits your situation.

Probate with a will and without a will

When there is a will

The person who has the original will must deliver it to the Probate and Family Court after the death. The personal representative named in the will asks the court to admit the will and appoint them. Once appointed, they settle the estate according to the will’s instructions.

When there is no will

When someone dies without a will, a close family member usually asks the court to be appointed personal representative. The estate is distributed to heirs under Massachusetts intestacy law, which depends on whether the person left a spouse, children, parents, siblings or other relatives.

The personal representative’s job

Once the court issues Letters of Appointment, the personal representative has legal authority to act for the estate. Their responsibilities include:

• Notifying heirs and beneficiaries of the appointment
• Opening an estate bank account and obtaining a tax identification number
• Finding, securing and valuing the estate’s property
• Filing an inventory when required
• Giving notice to creditors and paying valid claims
• Filing final income tax returns and, when needed, a Massachusetts estate tax return
• Selling or transferring real estate and other property
• Distributing property to beneficiaries or heirs
• Keeping records and accounting to the beneficiaries

A personal representative is a fiduciary, which means they must act honestly and in the best interest of the estate and its beneficiaries. Mistakes can lead to personal liability. We guide personal representatives through every step.

Creditors, debts and the family home

Many families worry about debts. In general, the estate, not the family, is responsible for the person’s debts. Creditors usually have one year from the date of death to bring claims against the estate. The personal representative must handle claims in the order the law requires, and should not distribute property to family members too early.

The family home often raises questions: whether it must be sold, whether one child can buy out the others, and how a mortgage is handled. MassHealth may also have a claim against the estate if the person received long-term care benefits. We help the family understand its options before decisions are made.

Selling real estate in an estate

When an estate includes a house, the personal representative often needs to sell it, transfer it to a beneficiary, or arrange for one family member to buy out the others. Before a sale, the personal representative must be appointed by the court, some sales need additional court approval, and the buyer’s title company will review the probate file. We work with families, real estate agents and closing attorneys so the sale goes smoothly, and we explain how the sale proceeds are used to pay expenses before distribution.

The Massachusetts estate tax

Massachusetts has its own estate tax for estates of more than $2 million. The value of the home, retirement accounts and life insurance may count toward that total, even if they pass outside probate. When a return is required, it is generally due nine months after the death. We coordinate with the family’s accountant when an estate tax return is needed.

How long does probate take?

A simple, uncontested Massachusetts estate often takes about a year to settle, largely because of the time allowed for creditor claims. Larger estates, estates with real estate to sell, tax returns, or disagreements among family members can take longer. Voluntary administration for small estates can be much faster.

Closing the estate

When the debts, expenses and taxes are paid and the property has been distributed, the personal representative closes the estate. Depending on the case, this may be done by filing a sworn closing statement or by asking the court for a formal order approving the final account and discharging the personal representative. A proper closing protects the personal representative from later claims.

Family disagreements and will contests

Probate is easier when the family agrees. When there are disputes, such as questions about whether a will is valid, whether a personal representative is doing the job properly, or how property should be divided, early legal advice can often resolve issues before they become a court fight. When a contest cannot be avoided, the formal probate process gives each side a chance to be heard.

Avoiding probate for your own family

Many of our probate clients ask how they can spare their own children the same process. A revocable living trust, careful beneficiary designations and joint ownership can keep most or all of an estate out of probate. We can review your own plan once your loved one’s estate is settled.

How we help

• Free consultation. We review the situation, in English, Portuguese or Spanish, and tell you whether probate is needed and what it will cost.
• Filing. We prepare and file the petition and supporting documents with the Probate and Family Court.
• Guidance for the personal representative. We explain each duty and help with notices, inventories, creditor claims and taxes.
• Real estate and property. We help with selling or transferring the home and other property.
• Closing. We prepare the final account and closing documents.

Frequently asked questions

How long does probate take in Massachusetts?

A simple estate often takes about a year, mainly because creditors have one year from the date of death to make claims. More complex estates can take longer.

Do I need a lawyer for probate in Massachusetts?

It is not required, but probate involves court forms, deadlines and personal responsibility for the personal representative. A lawyer helps avoid costly mistakes.

What happens if someone dies without a will?

A family member asks the court to be appointed personal representative, and the property passes to heirs under Massachusetts intestacy law.

Is there a deadline to start probate?

Informal probate generally must be started within three years of the death. After that, formal probate is usually required.

Can I avoid probate for a small estate?

Estates with no real estate and personal property under the legal limit may qualify for voluntary administration, a simpler process.

Who pays the person’s debts?

The estate pays valid debts before property is distributed. Family members are generally not personally responsible for a loved one’s debts.

Is a personal representative paid?

A personal representative is entitled to reasonable compensation from the estate, unless the will says otherwise. Many family members choose to serve without pay.

Will I have to go to court?

Often not. In informal probate, papers are filed and reviewed by a magistrate without a hearing. Formal probate and contested matters can require a court appearance, and we attend with you.

Can I use the person’s bank account to pay bills after they die?

Usually not. When an account is in the person’s name alone, the bank generally freezes it until a personal representative is appointed. Paying bills from your own money can be reimbursed later if you keep receipts, but large payments should wait until you know the estate can pay all valid claims in the order the law requires.

What happens to the person’s car?

A car in the person’s name alone is part of the estate. In a small estate, a family member may be able to transfer it through voluntary administration or the Registry of Motor Vehicles. Otherwise the personal representative handles it with the rest of the property.

Can you help if family members live in Portugal or Brazil?

Yes. We handle notice to heirs abroad and work with the documents other countries require. Our staff speak fluent Portuguese and Spanish.