Massachusetts Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: the Petition for Informal Probate of Will and/or Appointment of Personal Representative (MPC 150), decided by a magistrate, or the Petition for Formal Probate of Will and/or Appointment of Personal Representative (MPC 160), heard by a judge. Both go to the Probate and Family Court in the county where the decedent lived, or in any county where a nonresident decedent had property. The court's form controls over any draft.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period has run.

3. 3

   Timing: no informal or formal testacy or appointment proceeding may be commenced more than 3 years after death, subject to listed exceptions (M.G.L. c. 190B, §3-108). A person with custody of a will must deliver it within 30 days after notice of the death to a person able to secure its probate and, if none is known, to an appropriate court, or risk liability for damages (§2-516). An informal appointment can issue if at least 7 days have passed since death, but for a nonresident decedent the order is delayed until 30 days after death unless the domiciliary personal representative is the petitioner or the will directs Massachusetts law (§3-307(a)).

4. 4

   Who may serve: the person with priority under a probated will, then a surviving spouse who is a devisee, other devisees, a surviving spouse, other heirs, and last a public administrator (M.G.L. c. 190B, §3-203(a)). No one under 18 is qualified, and the court may refuse an appointment it finds in formal proceedings to be contrary to the best interests of the estate (§3-203(f)). The court decides who serves, and appointment is not guaranteed.

5. 5

   Notice: for an informal petition, written notice goes to all heirs and devisees, anyone with prior or equal right to appointment, and any existing personal representative 7 days before petitioning, and a copy of the petition and death certificate goes by certified mail to the Division of Medical Assistance (MassHealth) 7 days before petitioning (M.G.L. c. 190B, §3-306(a), (g)). Publication follows within 30 days after informal probate or appointment (§3-306(b)). A formal petition has its own notice and publication rules (§3-403).

6. 6

   Creditors: Massachusetts has no published notice-to-creditors statute. A personal representative is not held to answer to a creditor action unless it is commenced within 1 year after the date of death and process is served or a notice is filed with the register before that year ends, with listed exceptions (M.G.L. c. 190B, §3-803(a)). Bond: a bond must be filed before letters issue, and sureties are required unless excused, for example by the will, by a written waiver from all heirs or devisees, or by the court (§§3-601, 3-603(a)).

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate. Massachusetts also has a voluntary personal representative statement for some small personal-property estates (M.G.L. c. 190B, §3-1201), covered on DocDraft's small-estate-affidavit page, and informal probate is unsupervised administration with no dollar cap. A will contest or dispute over who should serve is a separate proceeding.

Massachusetts Requirements for Petition for Probate

• Two Petitions: MPC 150 and MPC 160

  Massachusetts offers an informal petition (MPC 150) processed by a magistrate and a formal petition (MPC 160) heard by a judge. Each can seek probate of the will and/or appointment of a personal representative (M.G.L. c. 190B, §§3-301, 3-401). The court's form controls.

• Probate and Family Court Where Decedent Lived

  The petition is filed in the county where the decedent lived, or, for a nonresident decedent, in any county where the decedent had property when they died.

• Three-Year Outer Limit

  No informal or formal probate or appointment proceeding may be commenced more than 3 years after death, subject to listed exceptions (M.G.L. c. 190B, §3-108).

• Will Custodian Delivery Duty

  A person with custody of a will must deliver it within 30 days after notice of the death to a person able to secure its probate or, if none is known, to an appropriate court (M.G.L. c. 190B, §2-516).

• Order of Priority for Appointment

  Priority runs from the person under a probated will, to a surviving spouse who is a devisee, other devisees, a surviving spouse, other heirs, then a public administrator. No one under 18 is qualified (M.G.L. c. 190B, §3-203).

• Seven-Day Notice Before Informal Petition

  Written notice goes to heirs, devisees and others with prior or equal right 7 days before petitioning, with certified-mail notice to MassHealth, and publication follows no more than 30 days after informal probate or appointment (M.G.L. c. 190B, §3-306).

• One-Year Creditor Action Limit

  A personal representative is not held to answer to a creditor action unless commenced within 1 year after the date of death and, before that year ends, process is served on the personal representative or a notice is filed with the register (M.G.L. c. 190B, §3-803(a)).

• Bond Before Letters Issue

  A personal representative files a bond with the appointing court before receiving letters. Sureties are required unless excused under M.G.L. c. 190B, §3-603(a); the official form is MPC 801.

• Petition Contents and Verification

  The informal petition is verified by the petitioner as accurate and complete to the best of their knowledge and belief and states the decedent, will, heirs, devisees and time-limit facts (M.G.L. c. 190B, §3-301(a)).