When a person dies, the process for probating the decedent’s estate typically must be started within three (3) years after their death. If the decedent died on or after March 31, 2012, and more than three years have passed, a probate proceeding known as a “late and limited probate” can be filed. The court may accept a Petition for Late and Limited Formal Testacy and/or Appointment of a Personal Representative to:
- Admit the decedent’s Will to formal probate and determine both the heirs and devisees
- Determine that the decedent died without a Will and determine the heirs
- Appoint a Personal Representative to administer the estate or
- Appoint a special Personal Representative pending the appointment of the Personal Representative in the formal proceeding.
As the name implies, the scope of the late and limited Personal Representative’s authority is limited. The Personal Representative can only confirm title to estate assets and pay expenses of administration. A Personal Representative appointed in a late and limited probate cannot get a license to sell or exercise a power of sale in a Will. Furthermore, when a Personal Representative is appointed in a late and limited probate, title to the real estate is not clear until the court issues an Order of Complete Settlement, the petition for which cannot be filed until one year from the date of the Personal Representative’s appointment.
Sale of Real Estate by Heirs/Devisees in a Late and Limited Probate
If the only estate asset is real estate and if you intend to sell the real estate from a decedent’s estate in a late and limited petition scenario, you may consider only petitioning the court to confirm heirs/devisees and decline to appoint a Personal Representative. Since the heirs/devisees of the estate can convey title to the real estate as soon as the court issues the Order confirming the heirs/devisees, appointing a Personal Representative can be unnecessary and create unnecessary delays, costs, and complications when selling real estate in a late and limited probate scenario.
If you have any questions about any aspect of the estate administration process, please reach out to us so we can assist you. Whatever your unique situation, the Trust and Estates attorneys in the Private Client Services practice at Wilchins Cosentino & Novins can guide you through the necessary steps to ensure compliance with Massachusetts probate laws.