How to Apply for Probate (MA)
One of the early steps in settling most estates is to apply for "probate" (i.e., ask the court for permission to legally represent and administer the estate, ultimately distributing its contents to the rightful recipients).
For non-lawyers, this step can seem a little daunting: for one thing, it occurs at the beginning, when you are just figuring things out, and for another, instructions and rules can be scattered all over the place.
Don't worry: we'll make everything understandable, and give you the estate-specific guidance you need.
Types of Probate
Almost every state offers multiple types of probate, ranging from simplified processes for small estates, to formal, closely supervised probate for complex or problematic estates, to standard probate for typical estates (with a number of states offering even further variations).
- Small: In most states, the small estate process actually bypasses court entirely, and is thus not technically "probate" at all (see small estate process for MA rules and instructions).
- Formal: If you need a formal, closely supervised variant of probate, it likely means that there is conflict expected, and thus you should almost certainly retain a lawyer, who can handle preparing your application.
- Standard: The most common form of probate in MA is known as "informal" probate, and is the focus of the application instructions below.
MA Application Process
There are several steps you must take to obtain the court's permission to represent and manage
-
Probate Application: In Massachusetts,
if the estate will go through probate,
start the process by submitting a Petition for Informal Probate (Form MPC-150)
to the court:
see application details ↧
- Attach a Notice of Intended Probate (Form MPC-550), including the return-of-service.
- If there is a will, but you do not have a "self-proving affidavit" signed by the witnesses to the will, it may simplify the process if you can attach a Will Witness Affidavit (Form MPC-480) from any surviving witnesses.
- If there is no will, or the will does not name you as first choice among executors (still living), it will be helpful to attach a renunciation Waiver (Form MPC-455) from anyone with equal or higher priority.
- Save $$: If there is no will, or the will does not address the requirement for a probate bond, you may wish to avoid probate bond costs by attaching a Waiver (Form MPC-455) of sureties from each person who will inherit (see Probate Bonds).
- Attach Heirs-at-Law (Form MPC 162), and if there is a will, Devisees (Form MPC 163).
- Attach a Military Affidavit to declare the decedent's military status .
- Attach a certified copy of the death certificate and the original will (if there is one).
- Attach a pre-filled Order of Informal Appointment (Form MPC-750), for the judge to sign.
- Note that you have at most 3 years from the date of death to submit your application (see MA Gen L ch III § 3-108).
- See official MA Probate Application Instructions, and pay careful attention to the restrictions on when an Informal approach can be used.
-
Notice of Probate:
In Massachusetts,
if the estate will go through probate,
at least 7 days before petitioning the court to begin informal probate,
an executor must send a Form MPC-550
to:
- Anyone named in the will to inherit
- Heirs-at-law (people who would inherit if there were no will, even if there is a will)
- Anyone with equal or higher priority to serve as executor
- Probate Hearing: The court will hold a hearing to officially consider and approve your application. Often this hearing is just a formality, and you may not need to attend at all.
- Probate Bond: If required by the court, you must obtain a probate bond to protect the estate from any losses you may cause (up to a certain dollar amount). Requirements for such a bond can depend on jurisdiction, whether there is a will, size of estate, whether you reside in the same state, and other factors. See Probate Bonds for advice on how to potentially avoid the need fo such a bond.
- Objections: Note that interested parties have the right to legally challenge your application (before your official appointment, or even afterwards).
- Letters: Once the court approves your application, you will receive your "Letters", which are certified documents you can use to prove your authority to third parties. If you applied for "probate", you will officially be known as the "executor" of the estate. If instead you applied for "administration", you will be known as the "administrator". Many states also use the term "personal representative" to cover both cases, sometimes deprecating the uses of the more precise terms.
If you'd like, friendly and experienced EstateExec personnel can fill out your probate application forms for you: see Probate Form Service. If you just want answers to a few legal questions, you can talk to an experienced lawyer for a surprisingly modest fee – see Have a Question?
Court Location
It can sometimes be difficult to determine which court to use for a given estate. The particular type of court that oversees the probate process varies by state: it may be a dedicated probate court, a circuit court, a superior court, a general county court, or something else.
In Massachusetts, the local Probate and Family Court handles wills and estate probate.
Note that real property must be probated in the state in which it is physically located, so you may need to go through probate in multiple states.
Next Steps
Once you have been officially appointed and granted your Letters, you can begin the bulk of the estate administration and settlement process, keeping in mind that you now have a fiduciary duty to act in the best interests of the estate.
See our Complete Guide to Estate Settlement in MA for an overview of estate settlement in general, Probate for the court-supervised aspects of estate settlement in particular, and Timeline for an overview of tasks by time period.
If you are using EstateExec, it will automatically generate a list of detailed tasks for you to accomplish, based upon the particulars of your estate.
Additional Information
See also Becoming Estate Executor (i.e., Personal Representative).
In case you're interested, instructions for probate application in other states can be found here:
