(781) 395-0020 info@dowley.legal

When handling the legal processes following a loved one’s passing, asking “what is the difference between voluntary and involuntary probate?” will be one of the top items on your agenda. Here at Dowley Legal, our experts can support you through both.

After a loved one passes in the State of Massachusetts, a court-supervised probate service may be required to enable a loved one (usually the surviving spouse or close family member) to access, manage and distribute the deceased’s assets. The procedure may include gathering assets, paying debts, and subsequently transferring assets to the intended beneficiaries.

When you complete probate in the Bay State, you are most likely to choose voluntary or involuntary. By the end of this guide, you will know what is the difference between voluntary and involuntary probate while also knowing which is right for you.

What is Voluntary Probate?

Given that 55% of Americans die without a will or estate plan, it’s likely that probate will be needed when the deceased had assets solely in their name. Voluntary probate is the quickest, cheapest, and most convenient way to complete the procedure. 

Voluntary probate is when the procedure is completed under voluntary administration in which the surviving spouse is given authorization by the courts to become the executor – also known as the voluntary personal representative. It is available when the deceased’s estate satisfies the following criteria;

  • Probate assets total less than $25,000.
  • The assets include no more than one vehicle in the deceased’s name.
  • There is no interest in real estate owned.

The assets that can be declared under voluntary probate include bank accounts, certificates of deposit, unclaimed property, stock, and savings bonds. While no more than one vehicle can be included, its value is not factored into the $25,000 limit.

Voluntary probate cases are completed in accordance with Section 3-1201 of the 192nd General Court of the Commonwealth of Massachusetts while the process can only be made if at least 30 days have passed since your loved one’s death.

What is Involuntary Probate?

When a probate service is required but the above criteria cannot be met, it will be necessary to look at the prospect of involuntary probate instead. These cases can be split into two sections – formal or informal probate.

Informal probate

Informal probate is available when all beneficiaries are happy with the proposed distribution of the deceased’s assets. However, it will not be possible if one or more of the heirs wants to contest the division of assets. Other potential obstacles that may stop you from using an informal procedure include;

  • The deceased’s will prohibits an informal probate
  • One of more of the beneficiaries cannot be located
  • One or more of the beneficiaries will argue the will’s validity
  • A death certificate was not issued
  • One or more of the beneficiaries is a minor

The informal probate route is quicker because it isn’t necessary for each transaction to be monitored. Meanwhile, it will be cheaper than formal probate. The main problem with the informal route is that a beneficiary can contest the situation at any time, especially if they are unhappy with how the executor has acted. 

On a side note, the executor becomes responsible for compensating any beneficiaries who have been missed out or under-compensated. This type of probate is submitted via the Massachusetts Uniform Probate Code (MUPC). 

Formal probate

A formal probate is slightly different and will require at least one court hearing (often several) with a judge. As a process where supervised administration is needed, every action that the personal representative wants to take must be authorized in advance. This type of probate is most commonly needed when;

  • Informal probate has been contested
  • The decedent’s will has unclear terms or is a copy
  • A special personal representative is required
  • A creditor or public administrator filed the petition for probate
  • Circumstances dictate that a judge signature is needed on the final decree

Late and limited formal probate can also be used under certain circumstances, usually when a petition wasn’t used in the first three years following a loved one’s death – after March 31, 2012. 

Voluntary Probate Vs Involuntary Probate in Massachusetts

Voluntary and involuntary probate share several key features. For example, the aim is always to handle a decedent’s unsolved financial obligations while serving all named or intended beneficiaries and heirs. Meanwhile, in almost all cases, a personal representative is the executor who will be responsible for managing the situation.

Once it has been determined that probate is needed, understanding the distinct nature of both routes should inform your decision. The main differences between the two methods, however, are summarized below:

  • Voluntary probate is for estates of limited size compared to involuntary probate where the assets may be far larger.
  • Voluntary probate is a less complex procedure, which also leads to savings of time and money.
  • Formal probate is overseen by an expert but does mean that the executor avoids potential financial liability.
  • Involuntary probate takes longer to complete but cannot be contested in the same way that voluntary processes can.
  • Voluntary probate is great for when families are united and will work together to respect their loved one’s final wishes.
  • With involuntary probate, professionals will take care of locating beneficiaries or informing heirs who may have caused disagreements.
  • Involuntary probate can also be less time-consuming, even if the process is longer, as a special executor can be named.
  • An involuntary probate can be used in difficult circumstances, such as having no official death certificate.

Ultimately, though, all types of probate aim to close the decedent’s estate and serve the best interests of all beneficiaries and heirs – even if one or more of them make things difficult. 

The Final Word

Even when a simplified voluntary probate process is available, it’s likely that you will want to focus on grieving and handling the loss with your family. Now that can answer “what is the difference between voluntary and involuntary probate?”, the next step is to start the procedure in style.

If you need help filing the necessary court documents, identifying appropriate distributions to beneficiaries, or any other aspect of probate in Massachusetts, contact Dowley Law at (781) 395-0020 today.