Section 3-401
A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in section 3–402(a) in which that person requests that the court enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending petition, or a petition in accordance with section 3–402(b) for an order that the decedent died intestate.
A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
During the pendency of a formal testacy proceeding, the magistrate shall not act upon any petition for informal probate of any will of the decedent or any petition for informal appointment of a personal representative of the decedent.
Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, shall refrain from exercising the power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of office and requesting the appointment of a special personal representative. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
Comment
The word “testacy” is used to refer to the general status of a decedent in regard to wills. Thus, it embraces the possibility that the decedent left no will, any question of which of several instruments is the valid will, and the possibility that the person died intestate as to a part of the estate, and testate as to the balance. See Section 1-201(51).
The formal proceedings described by this section may be: (i) an original proceeding to secure “solemn form” probate of a will; (ii) a proceeding to secure “solemn form” probate to corroborate a previous informal probate; (iii) a proceeding to block a pending petition for informal probate, or to prevent an informal petition from occurring thereafter; (iv) a proceeding to contradict a previous order of informal probate; (v) a proceeding to secure a declaratory judgment of intestacy and a determination of heirs in a case where no will has been offered. If a pending informal petition for probate is blocked by a formal proceeding, the petitioner may withdraw the petition and avoid the obligation of going forward with prima facie proof of due execution. See Section 3-407. The petitioner in the formal proceedings may be content to let matters stop there, or the petitioner can frame the petition, or amend, so that the petitioner may secure an adjudication of intestacy which would prevent further activity concerning the will.
If a personal representative has been appointed prior to the commencement of a formal testacy proceeding, the petitioner must request confirmation of the appointment to indicate that the petitioner does not want the testacy proceeding to have any effect on the duties of the personal representative, or refrain from seeking confirmation, in which case, the proceeding suspends the distributive power of the previously appointed representative. If nothing else is requested or decided in respect to the personal representative, the distributive powers are restored at the completion of the proceeding, with Section 3-703 directing the petitioner to abide by the will. “Distribute” and “distribution” do not include payment of claims. See 1-201(13), 3-807 and 3-902.
Massachusetts comment
See 3-614 for appointment of a special personal representative after initiation of a proceeding.