Probate in Massachusetts: small estates, no will, skipping court
The short answer
In Massachusetts, voluntary administration lets family collect a small estate by sworn statement: a car plus up to $25,000 of other personal property, 30 days after death, with no real estate. Larger estates use informal or formal probate. Massachusetts has an estate tax on estates over $2,000,000.
When someone dies in Massachusetts, the family's first question is usually practical. Do we have to go to court, and how long will it take?
Massachusetts has a short small estate process, an informal probate that runs without close court supervision, and a few rules that differ from many states. This page covers each one, plus who inherits if there is no will. It is part of our state-by-state estate planning guides. If the word is new, start with what probate is.
Can my family use a small estate affidavit in Massachusetts?
Yes, if the estate is small and has no real estate. Massachusetts calls it "voluntary administration" (M.G.L. c. 190B, section 3-1201).
It works when a Massachusetts resident dies leaving only personal property:
- A motor vehicle the person owned, plus
- Other personal property worth $25,000 or less.
Here is how it works:
- Wait at least 30 days after death, with no petition for a personal representative filed.
- Any interested person files a sworn statement on the court's form with the probate court in the county where the person lived. Include the death certificate, the original will if there is one, and the fee.
- Send copies to MassHealth by certified mail.
- The filer becomes the "voluntary personal representative."
With an attested copy, the voluntary personal representative can collect the listed assets. Anyone who pays them out is discharged, and a refusal can be taken to court (M.G.L. c. 190B, section 3-1202).
One firm limit: real estate can't pass this way. If the person owned a home, the family will need another route.
Who inherits if there's no will?
Massachusetts's intestacy law decides. Massachusetts is not a community property state. The surviving spouse takes (M.G.L. c. 190B, section 2-102):
| Family situation | Spouse's share |
|---|---|
| No descendants and no surviving parent | Everything |
| All descendants are shared, and the spouse has no other descendants | Everything |
| No descendants, but a parent of the person who died is living | First $200,000 plus three-quarters of the rest |
| All descendants are shared, but the spouse has children from another relationship | First $100,000 plus one-half of the rest |
| Some of the person's descendants are not the spouse's | First $100,000 plus one-half of the rest |
Anything that doesn't go to the spouse passes in this order (M.G.L. c. 190B, section 2-103):
- Descendants.
- Parents equally, or the surviving parent.
- The parents' descendants: brothers, sisters, nieces and nephews.
- The next of kin in equal degree.
Friends never appear on this list. If you want a friend, a charity or a favorite neighbor to receive anything, it has to be in a will or trust. Our post on dying without a will covers what happens when the list runs short.
Who serves as personal representative?
Massachusetts calls the executor a "personal representative." If more than one person wants the job, the order is (M.G.L. c. 190B, section 3-203):
- The person named in the will, or nominated under a power in it.
- A surviving spouse who inherits under the will.
- Others who inherit under the will.
- The surviving spouse.
- Other heirs.
- A public administrator, if there is no known spouse or next of kin.
People in groups 2 through 5 may nominate someone else. A personal representative is a fiduciary: legally required to act in the estate's interest and follow what the will says.
Living out of state is allowed. The statute lists only two disqualifications: being under 18, or being found by the court in formal proceedings to be against the estate's best interests. There is no residency rule and no in-state agent rule. By accepting the job, the personal representative agrees to the Massachusetts courts' authority over estate matters (M.G.L. c. 190B, section 3-602).
A bond with sureties is required unless the will waives it, all heirs or beneficiaries waive it in writing, the personal representative is a qualified bank or trust company, or the court decides sureties aren't in the estate's best interest (M.G.L. c. 190B, section 3-603).
Informal or formal probate: which one?
Massachusetts follows the Uniform Probate Code model (M.G.L. c. 190B, section 3-301, section 3-306).
Informal probate is a petition, generally filed within 3 years of death. Heirs, beneficiaries and MassHealth get 7 days' written notice beforehand, and a newspaper notice is published within 30 days after appointment. The estate is then handled without court supervision, and inventories and accounts don't have to be filed with the court.
Formal proceedings go before a judge and are used to resolve objections.
| Your situation | Likely path |
|---|---|
| A car plus $25,000 or less of other personal property, no real estate | Voluntary administration |
| A home or larger estate, family in agreement | Informal probate |
| A dispute over the will or who should serve | Formal proceedings |
| Assets in a living trust or with named beneficiaries | Those assets pass outside probate |
Our post on the probate process walks through the steps, and how long probate takes covers timing.
How long do creditors have?
One year from the date of death. A creditor can't sue the personal representative unless the case is started within that year, and within the year the personal representative is served or a notice of the debt is filed with the register (M.G.L. c. 190B, section 3-803).
That year runs from death, not from when a notice is published. There are narrow exceptions, such as liens.
How much is the personal representative paid?
Massachusetts says "reasonable compensation" (M.G.L. c. 190B, section 3-719). There is no percentage schedule.
If the will sets a fee, the personal representative may turn it down before taking the job and take reasonable compensation instead. They may also give up all or part of the fee. Our post on what an executor gets paid compares approaches.
Can my house skip probate?
Not with a transfer-on-death deed. Massachusetts has no statute allowing them for real estate. Its transfer-on-death law covers securities and brokerage accounts only (M.G.L. c. 190B, section 6-301).
The usual tools are a living trust or joint ownership. A revocable trust in Massachusetts can be changed or revoked by you unless it expressly says it is irrevocable (M.G.L. c. 203E, section 602). Our post on what a trustee does explains that role, and how to avoid probate compares the options.
Will my heirs owe Massachusetts estate tax?
Possibly. For deaths on or after January 1, 2023, no Massachusetts estate tax is due if the federal taxable estate is not more than $2,000,000 (M.G.L. c. 65C, section 2A).
Older articles describe a lower threshold, so check the date on anything you read. Nonresidents can owe the tax on Massachusetts real estate and tangible property located in Massachusetts.
Here is a typical case, a composite. Eleanor, 77, lived in Quincy and never married. Her condo was in a living trust naming her nephew as successor trustee. Her checking account and car were all that was left outside the trust. Thirty days after she died, her nephew filed for voluntary administration, and the condo passed under the trust.
Some people would rather not leave this to a nephew in another state. Trella Trust Company, through a Kinly membership, can be named as executor or trustee, first or as backup to someone you choose. If it steps in and settles the estate, that work is charged by the hour, and you see the rates before anything starts.
Before death, the papers that matter most are your Massachusetts financial power of attorney and your Massachusetts health care proxy.
Common questions
What is the small estate limit in Massachusetts?
A car plus up to $25,000 of other personal property. The family waits 30 days after death, and the estate can't include real estate.
Does a surviving spouse inherit everything in Massachusetts?
Only in some cases. The spouse takes everything if there are no descendants or parents, or if all descendants are shared and the spouse has no other children. Otherwise the spouse takes a set amount plus a share of the rest.
Can someone who lives in another state be a personal representative in Massachusetts?
Yes. There is no residency rule. By accepting the job, they agree to the Massachusetts courts' authority over the estate.
Does Massachusetts allow transfer-on-death deeds?
No. Massachusetts has no transfer-on-death deed for real estate. A living trust or joint ownership is the usual way to keep a home out of probate.
Does Massachusetts have an estate tax?
Yes. For deaths on or after January 1, 2023, no tax is due if the federal taxable estate is $2,000,000 or less.
Sources
- M.G.L. c. 190B, section 3-1201: Voluntary administration (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-1202: Effect of voluntary administration (Massachusetts Legislature)
- M.G.L. c. 190B, section 2-102: Share of spouse (Massachusetts Legislature)
- M.G.L. c. 190B, section 2-103: Shares of other heirs (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-203: Priority for appointment (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-602: Submission to jurisdiction (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-603: Bond (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-301: Informal probate (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-306: Notice (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-803: Limitations on creditors (Massachusetts Legislature)
- M.G.L. c. 190B, section 3-719: Compensation of personal representative (Massachusetts Legislature)
- M.G.L. c. 190B, section 6-301: Transfer-on-death registration, securities only (Massachusetts Legislature)
- M.G.L. c. 203E, section 602: Revocable trusts (Massachusetts Legislature)
- M.G.L. c. 65C, section 2A: Estate tax (Massachusetts Legislature)
This page is general information, not legal or financial advice. Laws vary by state.