Earlier this year, Massachusetts changed many of the state's probate laws in order to make the probate process more efficient and cost-effective. One of the most notable changes is the addition of an informal probate proceeding that allows estates to be administered quickly and with little interference from the courts.
The New Informal Probate Process
Families who have lost loved ones now have a probate option that requires less court oversight and less time to process. The major feature of the new rule is the creation of a personal representative who takes the place of an executor or administrator. This personal representative can be appointed in as little as seven days after a loved one's death, compared to the six weeks to five months it used to take to appoint an executor or administrator.
In the informal probate process, the personal representative administers the estate according to the decedent's will and other estate planning documents. Personal representatives can also keep an unincorporated business running for four months after the decedent's death and may incorporate a business. They can also distribute cash and other assets to heirs and other beneficiaries.
The personal representative is responsible for notifying interested individuals that the estate is going through probate within 90 days of the representative's appointment, including a newspaper notification within 30 days. He or she is also responsible for filing a Petition for Informal Probate with the court that includes the formal appointment of a personal representative, evidence that shows Massachusetts has jurisdiction over the estate and lists the heirs and property included in the estate.
A magistrate oversees the informal probate process, rather than a probate judge. The magistrate reviews the petition and formally appoints the personal representative. Individuals are still able to file objections to the validity of a will or estate distribution process, which converts the informal process to a formal administration that involves a probate judge.
Rules Also Update Statutes of Limitations
Under the new informal process, personal representatives must file their Petitions for Informal Probate within three years of the decedent's death, and those who wish to contest a will must do so within one year of notification.
Additionally, allegations of fraud must be filed within two years of discovery and within five years of when the alleged fraud occurred. Creditors still have a year to file claims against the estate to try to collect debts, but the personal representative can start distributing funds to heirs and other beneficiaries after just six months.
New Considerations for End-of-Life Documents
The multiple changes to the probate process have implications for those drafting wills and other end-of-life documents. For example, the powers given to executors in older wills will now be given to personal representatives in the informal process, which may render the sections outlining fiduciary responsibilities unnecessary. Also, any memorandums regarding tangible property, like furniture and jewelry, are enforceable even if the decedent drafted them after writing his or her will, so long as they are signed and mentioned in the will.
Another change affects the amount of assets heirs may receive in the probate process. Members in the same generation are now awarded the same proportion of assets. For example, if one late spouse has three children and his or her partner has one child, all assets awarded to the children will be split into fourths.
Since these changes are quite complex, it is important for those wishing to update their wills and end-of-life documents to enlist the help of an experienced Massachusetts estate planning lawyer.