Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Massachusetts for guidance on your unique situation.
Detailed Answer
1. How Certain Real Property Passes Automatically at Death
In Massachusetts, some real estate interests transfer outside of probate by operation of law. Common methods include:
- Joint Tenancy with Right of Survivorship: When two or more people hold property as joint tenants, the survivor automatically owns the decedent’s share at death. (See Mass. Gen. Laws ch. 183, § 6: § 6.)
- Tenancy by the Entirety: A form of joint ownership available only to married couples. When one spouse dies, the other owns the entire property automatically. (Mass. Gen. Laws ch. 183, § 6: § 6.)
- Transfer-on-Death Registration: Massachusetts allows nonprobate transfer of real estate if the owner records a deed naming a beneficiary who inherits the property when the owner dies. (Mass. Gen. Laws ch. 183C: Chapter 183C.)
These mechanisms bypass probate because title passes immediately by statute. You then record an affidavit of death rather than open a probate estate.
2. Why You Must Probate a Will to Transfer Solely Held Real Property
If the decedent owned real estate in their sole name or as tenants in common, the will’s provisions cannot operate until a probate court:
- Validates the will is properly executed under Mass. Gen. Laws ch. 190B, § 3-401 (Formal Requirements for Wills).
- Appoints a Personal Representative to manage the estate and distribute assets per the will.
- CLEARLY transfers legal title to real property. The court issues a certificate of appointment that your local Registry of Deeds accepts to record the new owner’s deed.
Without probate, the Registry rejects deeds conveying property from a decedent’s sole estate. Probate also ensures creditors can make claims and that the estate settles fairly under the Uniform Probate Code (Mass. Gen. Laws ch. 190B).
Helpful Hints
- Review your deeds to confirm ownership type—joint tenancy or tenancy by the entirety avoids probate.
- Consider a Transfer-on-Death deed (M.G.L. ch. 183C) if you want to avoid probate but keep sole ownership during your life.
- Locate the decedent’s will and file it promptly in Probate & Family Court in the county where they lived.
- Work with a Probate Clerk to estimate fees and file required forms (e.g., Petition for Formal Probate).
- Keep copies of death certificates, wills, and deed records organized; courts and registries require certified copies.
- Seek professional guidance early if the estate includes multiple properties or creditors.