01.21.09
Informal Probate
One of the great advances the new Massachusetts Probate Code introduces is informal probate. It not really new, its been around since the time of sir William Blackstone and you can read about it in his Commentaries, Book II, Chapter 32. “The executor… must prove the will… either in common form, which is only upon his own oath before the ordinary or his surrogate, or per testes, in more solemn form of law in case the validity of the will be disputed.”
Solemn form is basically our current formal procedure to obtain a final judgment after notice and proof of the will by the witnesses (per testes). Informal probate (common form, as it is still called in some states) permits immediate appointment of a personal representative without waiting for a final judgment allowing the will or determining heirs. This leaves open the opportunity for anyone to contest the will or heirship while allowing someone to get to work right away to marshal assets. Actually, 7 days prior notice must be mailed to interested parties. Publication is still required, but not until after informal appointment. This procedure can be found in the Code at 3-301.
If probate is opened informally, any interested party may still file a formal probate resulting in an automatic suspension of the personal representative’s power to distribute plus any other limitations the court wishes to impose.
The new code still allows one to probate formally in the old fashion by requesting a citation, giving notice and wating for a return date to request an appointment and allowance of the will. This will be preferred when a contest is anticipated or by the cautious person who wants the protection of a judgment before undertaking the responsibility. The formal filing may be made immediately after death and prevents a later informal filing. The formal procedure is at 3-401.