Massachusetts Land Court: What is a Petition to Sell and When do You Need It?

Massachusetts is one of only a handful of states that has a dedicated Land Court. The Land Court is a department of the Massachusetts Trial Court that has state-wide jurisdiction over real property and any subsequent disputes arising from real property ownership, development, or utilization. The Land Court system derives its roots all the way back to Australia in the 1850’s when Sir Robert Torrens established what is known today as the Torrens System of Land Registration. The Massachusetts Land Court was officially established in 1898. This system involves the government itself certifying the legal state and location of all property ownership interests. It is for this reason that many property owners in the Commonwealth choose to register their property with the Land Court, since it gives them assurances that the State would be directly involved to settle any disputes, such as the misunderstanding of a property’s boundary line.

There are other benefits to having property registered with the Land Court as well, such as the fact that registered land cannot be adversely possessed. Sometimes land is filed both with the Land Court and the Registry of Deeds, and sometimes it is filed in one or the other. Accordingly, land filed in the Land Court is referred to as “registered land” whereas land filed in the Registry of Deeds is referred to as “recorded land.” But there are issues that can arise when you or a family member dies and owns real estate that is registered with the Land Court. Such issues can seriously delay the sale of real estate. Below we discuss these issues and how proper estate planning can ensure your heirs and loved ones receive your property in a timely manner after your death.

What Happens When You Die Without a Will and Own Real Estate?

In Massachusetts if you die without a Will, your assets will be distributed through intestate succession as determined by the Massachusetts Uniform Probate Code (G. L. c. 190B). These laws begin with distribution to your closest living relatives and work their way through your lineal descendants from there. For a full overview of Massachusetts Intestacy laws and what hapens when you die without a Will, please read our full legal blog here. For many people, their home or any real estate that they own is their largest and most valuable asset. If real estate is owned in the decedent’s individual name, then the property will have to go through the Massachusetts Probate process. Getting property through the Probate Court can be a long and complex process, and requires the expertise of a knowledgeable Probate Attorney, such as the expert Attorneys at Lane, Lane & Kelly, LLP in Braintree, Massachusetts. Things can get even more complex when the decedent does not have a Will or a Trust in place to outline the beneficiaries and who should receive ownership of their assets. Click here to read our full guide outlining the benefits of creating a Will and a Trust to guarantee your loves ones are taken care of after your death.

When you die without a Will and you own real estate in your own individual name, the real estate passes through the Massachusetts Probate process. When this happens the heirs of the decedent will inherit all assets based on Massachusetts Intestacy Laws. These laws first look to see if the decedent has a surviving spouse. If not, the next legal heirs are any surviving children, parents, siblings, and other close relatives that are further down the line of lineage. Because there is no Will to outline your wishes, this is the only legal alternative that is available to the Court during the Probate process when it comes to disbursing your assets.

Unlike probating an asset such as a bank account or a retirement account, real estate is an illiquid asset. Most heirs that are eligible to inherit property from the decedent will want to sell the asset immediately and collect their share of the sale proceeds. At times a beneficiary may want to keep the property, and can work with a probate attorney to buy out the shares of any other beneficiaries. Sometimes issues can arise when there are several heirs that are set to inherit real estate from the decedent, especially if those heirs are scattered across the United States and do not live in the same state where the property is located.

How to Receive Probate Court Approval to Sell Property

When the decedent dies, a petition for probate is filed with the Probate Court within one year of the death and the Personal Representative must pay the probate bond (this can be waived in one’s Last Will and Testament). If the decedent died without a Will or the Will doesn’t grant the Personal Representative the power to sell real estate, then the Personal Representative must file a petition for the sale of the real estate. This is the official request to the Probate Court for permission to sell the real estate and disburse the sale proceeds accordingly. If there are several beneficiaries that are scheduled to receive an ownership right in the real estate, then all parties involved are required to sign an assent to the petition for the sale of real estate.

This process must be completed within a 1-year deadline. If the sale process is not completed within one year following the death of the decedent, the only available alternative is a subsequent petition (known as a S-Petition). At that point the Land Court grants authority on how the decedent’s real estate is conveyed. This S-Petition process can take several years to receive the express approval from the Land Court to sell the property.

Overall, this can be a very long and drawn-out process, tying up the real for years before the property can ultimately be sold, and the rightful beneficiaries receive their shares of the sale proceeds.

There are other pitfalls that arise from the real estate being tied up in the Land Court and the probate process. While the real estate is held up in the Court system, the property is likely going unoccupied which results in issues in keeping the house properly insured. Additionally, the beneficiaries will be forced to pay property taxes from the period that the decedent died until the house is ultimately sold. Not to mention any other carrying expenses of the property such as electric bills, gas bills, maintenance costs, etc. This can result in thousands of dollars being taken out of the value of the estate in fees and property taxes that otherwise could have been avoided had the decedent created a Will and/or put their property into a Trust.

Why Proper Estate Planning Matters

The aforementioned scenarios can be completely avoided with a proper estate plan. You can read our full guide which breaks down the benefits of both Wills and Trusts and how they should be utilized in your estate plan here. Below we summarize some of the key benefits of creating an estate plan and how it can save your family from messy property disputes after you die:

• Creating a Will allows you to definitively outline and select your beneficiaries, whether they are a blood relative or not. This ensures that the distribution of your estate is not left up to Massachusetts Intestacy laws.
• Properly drafted Wills and/or Trusts ensure that your Personal Representative has authority to sell real estate, without seeking any Court authorization whatsoever.
• Trusts can be used to hold your real estate. This allows the real estate to bypass the probate process entirely, streamlining the transfer of your property to your beneficiaries without the delay of waiting for court approval.
• Certain Trust agreements can minimize your estate tax.
• Certain Trusts, like an Irrevocable Trust, can put your property out of reach from creditors or a MassHealth lien.
• Probate proceedings are a matter of public record. Creating a Trust ensures that your wishes are carried out privately, keeping your property details and conveyances out of the public domain.

A Real Life Example

Let’s use an example to highlight the vastly different outcomes that can result depending on whether someone dies with a Will and a Trust vs. someone who dies without any estate plan at all.

1. 1. Because there is no Will, the property must go through Norfolk County Probate Court. Based on Intestacy Laws, the four children will be the beneficiaries of the estate. Since no children live in Massachusetts and Paul has not named a Personal Representative in a Will, the Probate Court will appoint one to represent the estate. In order to sell the property, the Personal Representative will have to file a petition to sell, and get assents for the sale from all four kids. Since Deborah was not fond of her father, she doesn’t respond to communications and it takes a full year before she agrees with her siblings to sign the assent to sell. As a result of the delay, the children have missed the one-year window to file a petition to sell with the Probate Court, and now their only alternative is filing a S-Petition with the Land Court. The Land Court process further delays the sale of the real estate for another full year. During the delay, the real estate market hits a downturn and the house is now appraised at only $800,000. Also during that time, the siblings are responsible to pay the Court fees, bond, property taxes, legal fees, and other maintenance costs for the real estate for the entire period that the property was held up. They then hire a broker and sell the house. Next, the sale proceeds will be paid to all four children minus the aforementioned fees. Each child receives their ¼ interest ($200,000 minus the aforementioned fees) after significant delays and plenty of headaches.
   2. Now let’s say Paul had setup a Will and a Revocable Trust before he died. As Settlor and initial Trustee of the Trust during his life, Paul placed his primary residence in the Trust. Paul knows that Colin is the most responsible child, and names him as Personal Representative in his Will, and as the successor Trustee in the Trust to serve upon Paul’s death. Since Paul no longer speaks with Deborah, he only names Abby, Brandon, and Colin as beneficiaries of the Trust. When Paul dies, title of the home immediately passes to Colin as the successor Trustee. Colin immediately has the authority to sell the home, without needing any approvals from his siblings or the Probate Court, and he sells it within a month for $900,000. The assets are then disbursed as outlined in the Trust, with only Abby, Brandon, and Colin as beneficiaries. Each receives their 1/3 share ($300,000), and they all benefit from the substantial savings in regard to property taxes and maintenance costs as a result of selling the property quickly.

This illustration very clearly outlines the major benefits of setting up your estate plan. Not only will it streamline things for your heirs or beneficiaries, but it also guarantees that your wishes are carried out. By setting up a Will and/or a Trust, Paul ensured that he could name his beneficiaries rather than being subject to Massachusetts Intestacy laws. He also maximizes the value of his estate, minimizes potential estate taxes, and makes life on his children that much easier.

Updates to Registered Land Resulting from the 2024 Massachusetts Affordable Homes Act

On August 8, 2024, Governor Maura Healey signed into law an ambitious plan to combat housing prices across the state, known as the Affordable Homes Act. A part of this bill, there were a number of amendments made to M.G.L c. 185: which outlines laws applying to the Land Court and Registration of Title of Land. The most notable amendment now allows for the withdrawl of registered land as a matter of right for private owners. This means that if your home is currently registered with the land court, you have the option to "withdraw" it from Land Court and record it instead with the Registry of Deeds in your county. As discussed above, this could have unique estate planning implications should a family desire for propertyto stay out of Land Court in an effort to make a potential sale more streamlined. 

The notable Amendment to M.G.L. c. 185 from the Affordable Homes Act states in part: 

"Section 52.  (a) As used in this section, “notice of voluntary withdrawal” shall mean an instrument in writing signed and acknowledged by all owners of the land to be voluntarily withdrawn and that contains the following information: (i) names and addresses of all owners; (ii) the certificate of title number with the registration book and page numbers; (iii) a description of the land in the form contained in the certificate of title or a description incorporating by reference the lot numbers, if numbered and the land court plan, together with a reference to the certificate with which the plan is filed; and (iv) the street address of the land, if any. The notice of voluntary withdrawal shall include warning to all interest holders entitled to notice that any objection to the requested withdrawal shall be filed with the court not later than 30 days following the service of the notice or shall be waived."

There are several notable requirements to this amendment as well:

• The withdrawal must be filed with "clear and obvious ownership"
• If ownership is not clear and obvious (for example the death of an owner, trust issues, etc.) then the title to the property must be cleaned up first. This can be accomplished with the help of a real estate attorney or a title examiner.
• Withdrawal does not require a Land Court Examiner's Report, unless:
  • It is explicitly requested by the petitioner (the person seeking withdrawal);
  • The Court in reviewing the complaint determines that there is a "reasonable need" for a Land Court Examiner to be involved.
    • "Reasonable Need" can be found by the Court if there is a Pro Se petitioner (someone representing themself without an attorney) or if ownership is not clear and obvious.

Once all necessary assents are filed along with the petition, the Land Court Judge assigned to the case should endorse and approve the notice of voluntary withdrawal within 30 days after the filing of all required information and the receipt of all necessary documentation.

Consulting with an Experienced Estate Planning Attorney

Navigating the probate process, estate planning and property ownership can be complex, especially when considering potential legal speedbumps like petitions to sell or S-Petitions. Consulting with an experienced estate planning attorney can provide invaluable guidance in developing a tailored plan that aligns with your goals and helps protect your property interests.

In summary, understanding the implications of petitions to sell and S-Petitions in Massachusetts Land Court underscores the importance of proactive estate planning. By establishing a comprehensive estate plan and leveraging the benefits of a Will accompanied by a Trust, individuals can minimize the risk of property disputes and ensure a seamless transfer of assets to their loved ones.

Whether you are navigating the complex Probate process following the loss of a loved one, or you are looking to setup your estate plan to ensure the ultimate peace of mind, the experienced Attorneys at Lane, Lane & Kelly are here to guide you through the entire process from start to finish. Don’t trust just any lawyer when it comes to securing your family’s legacy. Lane, Lane & Kelly has specialized in probate administration, estate planning, and real estate law in Braintree, Massachusetts since 1938. Contact us today to learn more about how we can help you protect your property, and protect your loved ones for years to come.

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.