What probate is, and when a house needs it
Probate is the court process that gives someone the legal right to collect a dead person’s property, pay their debts and pass the rest on. Massachusetts follows the Massachusetts Uniform Probate Code (M.G.L. c. 190B). The person in charge is called the personal representative (the old words were executor and administrator).
You usually need probate to change title on real estate that is only in the decedent’s name without a right of survivorship, to pay creditors, and to file tax returns (Mass.gov). Property can skip probate when it passes automatically: a joint account or deed with survivorship, a life insurance or retirement account with a named beneficiary, or an asset in a trust.
The general rule is that probate has to be started within 3 years of the death. After 3 years, for a death on or after March 31, 2012, you can ask for a late and limited formal probate, but that personal representative cannot get a license to sell the real estate (Mass.gov). So waiting years on a house can close the easy road to a sale.
Informal vs formal probate, side by side
| Informal | Formal | |
|---|---|---|
| Who decides | A MUPC magistrate; no hearings allowed | A judge; may involve one or more hearings |
| Filing fee | $375 + $15 surcharge | $375 + $15 surcharge + $15 citation |
| Speed | An order can issue as early as 7 days after death | Depends on the court calendar and whether anyone objects; we found no official time estimate |
| Notice | Written notice to people entitled to notice at least 7 days before filing; publication notice within 30 days after the petition is accepted | The court issues a citation; interested people may respond |
| When you can use it | Original will and official death certificate in hand, all heirs and devisees known, and the person has priority to serve | Anything informal cannot handle |
| Common reasons for formal | Not applicable | Will is a copy, has handwriting or cross-outs, terms are unclear, someone objects, a minor or incapacitated heir needs representation, or a judge must sign an order |
Informal is only available if you have the original will and official death certificate, you know every heir and devisee, the person asking has priority, any minor or incapacitated heir is represented by someone other than the filer, and no judge needs to sign an order. Most uncomplicated estates qualify. If you are unsure, an attorney can tell you in one meeting.
Supervised administration, where the court approves every step, exists but Mass.gov says it is not commonly required.
The steps for an informal probate
- Give written notice to the people entitled to notice at least 7 days before you file.
- Fill out the forms. With a will you need the bond (MPC 801); other common forms are the Assent and Waiver of Notice (MPC 455), the Cause of Death Affidavit (MPC 475) or Affidavit of Domicile (MPC 485), and the Military Affidavit if not every interested person agrees. The original will and an official death certificate go with the petition.
- Pay $375 plus the $15 surcharge. You can eFile, mail the forms, or file in person at the court for the county where the person lived. If they did not live in Massachusetts, file in a county where they owned property.
- Once the court accepts the petition, post a publication notice in a newspaper the register has designated, within 30 days.
- After appointment, the personal representative gets to work. The executor checklist covers what comes next.
Small estates: voluntary administration
For a small estate with no real estate there is a simpler path. To qualify under the Mass.gov rules:
- The person was a Massachusetts resident.
- The estate is entirely personal property worth $25,000 or less, not counting a car.
- At least 30 days have passed since the death.
- No other probate case is pending.
The fee is $100 plus a $15 surcharge. A voluntary personal representative has limited authority and no formal court appointment (Mass.gov). A house is real estate, so voluntary administration is not an option for an estate that includes one.
Which court: Middlesex or Essex
If the person lived in Massachusetts, file in the Probate and Family Court for the county where they lived at death. For our towns:
| If the person lived in | County | Court and address | Phone and hours |
|---|---|---|---|
| Melrose, Malden, Medford, Stoneham, Wakefield, Woburn, Reading, North Reading, Winchester, Everett, Arlington, Burlington | Middlesex | Middlesex Probate and Family Court South, 10-U Commerce Way, Woburn, MA 01801 (the court also has a northern location in Lowell) | Main (781) 865-4000; estates and guardianships (781) 865-4008; Mon to Fri 8:00 am to 4:30 pm |
| Saugus, Lynn, Peabody, Lynnfield, Danvers | Essex | Essex Probate and Family Court, 36 Federal St., Salem, MA 01970 | (978) 744-1020; Mon to Fri 8:00 am to 4:30 pm |
Check the court page before you go. Hours, cashier hours and which registry takes a given filing can change, and eFiling is available for both informal and formal petitions.
Selling the house during probate
A buyer’s attorney will want to know that the seller has the power to sign. In Massachusetts there are two ways the personal representative gets it:
- The will gives the power to sell real estate. M.G.L. c. 190B s. 3-715(23 1/2) lets a personal representative, appointed formally or informally, sell real estate to an arm’s-length third party if the will, probated formally or informally, empowers the sale (statute text).
- A license to sell from the probate court. If there is no will, or the will gives no power to sell, a license under M.G.L. c. 202 is needed. Under s. 6 the probate court that appointed the personal representative may grant it.
The same section of the law treats a sale to an arm’s-length buyer as conclusive in these cases. That is why a sale can proceed even while an informal appointment could still be challenged.
If the estate is large enough to owe Massachusetts estate tax, the sale also needs a Certificate Releasing Massachusetts Estate Lien before a buyer’s lender will close. The DOR guide explains the application. Estates at or under $2 million need only a recorded affidavit that no filing is required (Mass. DOR).
Whether to sell as-is or list is a separate decision, covered at inherited or probate house. For the first steps with the property, see what to do with a house after a parent dies.
Timelines to know
| Event | Timing | Source |
|---|---|---|
| Informal probate order | As early as 7 days after death | Mass.gov |
| Voluntary administration | Not before 30 days after death | Mass.gov |
| Publication notice after informal petition accepted | Within 30 days | Mass.gov |
| Inventory of estate property | Within 3 months of appointment | M.G.L. c. 190B s. 3-706 |
| Creditor lawsuits against the personal representative | Barred after 1 year from death, with exceptions | M.G.L. c. 190B s. 3-803 |
| Massachusetts estate tax return, if required | 9 months after death | Mass. DOR |
| Start probate | Within 3 years of death in general | Mass.gov; c. 190B s. 3-108 |
We did not find an official statement of how long a whole estate takes, and real estates vary a lot. Ask the attorney for a range for your case rather than trusting a number from a website.