WHY FILE A FORMAL PETITION FOR PROBATE AND WHY WOULD I NEED ASSISTANCE OF COUNSEL?

Let’s say you manage to be appointed Informally by the Probate Court as a Personal Representative. Everything is apparently going fine and you have spared yourself dealing with counsel and spending legal fees, right? Not necessarily. If you are appointed Informally and another person decides he or she is unhappy with your administration of the Estate, he or she can file a Formal Petition and you will not be able to act further as an Informally appointed Personal Representative. You are effectively removed without there being a Removal Petition, in short. Mass Health can also seek a Formal Petition for Probate to satisfy its lien in the Estate Recovery process.

With an Informal Petition, heirs are not determined by the Court and you will therefore need to have a Petition for Complete Settlement allowed by the Court which Petition also seeks determination of heirs. This is particularly important in the context of transferring good title to real estate.

Many fact situations are such that an Informal Petition is not possible and an attempt to do so can be wasteful of time and money . If not all persons having priority are to your knowledge going to Assent to your Informal Petition or for example not all adults with priority are competent and are also lacking the appointment of a guardian or conservator , for example, then the Informal Probate process will not work. Furthermore, starting the Informal process may alert others to commencing their own process.

If someone files a Formal Petition, you would need to file an appropriate Appearance and Objection and also file your own Formal Petition for your Formal appointment if you still want to be the Personal Representative! This is a common problem for pro se Petitioners and the Court will not give you legal advice!

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