The MUPC (G. L. c. 190B) applies to the property of nonresidents located in Massachusetts or to the property coming into the control of a fiduciary who is subject to the laws of Massachusetts. MUPC at § 1-301.
Article III governs the procedure for original and ancillary proceedings in Massachusetts. Article IV establishes a simplified procedure for administering a decedent’s personal property located in Massachusetts without appointment by the court. Article IV is substantially similar to G. L. c. 199A which is now repealed.
“Practice Alert: G. L. c. 202, § 32 remains in effect with respect to a Foreign PR’s ability to obtain a license to sell a non-resident decedent’s real property located in Massachusetts.”
11.1 Statutory References – MUPC at §§
- 1-201
- 1-301
- 3-201
- 3-202
- 3-203
- 3-307(a)
- 3-308
- 3-611(b)
- 3-803(a)
- 3-815
- 3-816
- Article IV and
- G. L. c. 199
- G. L. c. 202, § 32
11.2 General Terms and Abbreviations
A “Domiciliary Foreign Personal Representative” (“DFPR”) is a foreign PR appointed under the law of the jurisdiction of a decedent’s domicile. MUPC at § 4-101(2).
A “Foreign Personal Representative” (“FPR”) is a PR appointed by a jurisdiction other than Massachusetts or the decedent’s state of domicile. MUPC at § 1-201(17).
A “Local Administration” is administration by a PR appointed in Massachusetts pursuant to appointment proceedings described in Article III. MUPC at § 4-101(4).
A “Local Personal Representative” (“LPR”) is any PR appointed in Massachusetts pursuant to appointment proceedings described in Article III and excludes FPRs who acquire the power of a LPR pursuant to § 4-205. MUPC at § 4-101(6).
A “Non-Resident Decedent” (“NRD”) is a decedent who was domiciled in another jurisdiction at the time of death. MUPC at § 1-201(32).
A “Resident Creditor” is a person domiciled or doing business in Massachusetts who is or could be a claimant against the estate of a NRD. MUPC at § 4-101(9).
11.3 Original and Ancillary Proceedings
For a NRD, the provisions of Article III of the MUPC govern (1) original and ancillary proceedings, if any, in a Massachusetts court for probate of the will, appointment, removal, supervision, and discharge of the LPR and any other order concerning the estate; and (2) the status, powers, duties and liabilities of any LPR and the rights of claimants, purchasers, distributees and others in regard to a local administration. MUPC at § 4-207.
11.3.1 Time Limits
The general 3 year time limit provided by § 3-108 to commence an estate in Massachusetts applies to an original informal or formal proceeding for a NRD. MUPC at § 3-108. The time limits of § 3-108 do not apply to an ancillary proceeding to probate a will previously probated at the testator’s domicile or appointment proceedings relating to an estate in which there has been a prior appointment. MUPC at §§ 3-108, 3-303(d).
11.3.2 Original Proceedings
There is no requirement under the MUPC that a will first be probated or administration first be taken in the decedent’s state of domicile before a proceeding may be commenced in Massachusetts. The MUPC provides for both informal and formal original proceedings for a NRD. MUPC at §§1-301, 1-302, 3-108, 3-301, 3-303, 3-304, 3-307, 3-308, 3-311, 3-409, 3-816,
4-207.
For additional information regarding informal and formal proceedings, see Chapter 3 and Chapter 4 of this guide.
“Practice Alert: If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding filed in Massachusetts, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of Massachusetts must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in Massachusetts. MUPC at § 3-202.”
“Practice Alert: A will from a place that does not provide for probate of a will after death may be informally or formally probated in Massachusetts upon receipt by the court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place. MUPC at §§ 3-303(e), 3-409.”
11.3.3 Ancillary Proceedings
An ancillary proceeding is not an original proceeding, but is a second or subsequent probate proceeding that is commenced in a state other than the state of the decedent’s domicile. An ancillary proceeding may be necessary when the decedent owned real estate in a state other than the state of domicile. An ancillary proceeding is required because the court of the state of domicile does not have jurisdiction over real property located outside of its borders.
The provisions of Article III govern the procedure for an ancillary proceeding in Massachusetts. MUPC at § 4-207; see also section 11.5 of this guide for proof of authority over personal property only.
11.3.3.1 Informal Ancillary Proceedings
Any person interested in the estate may petition to informally probate the NRD’s will at any time by filing (MPC 150) Informal Petition to Probate a Will and/or Appoint a PR accompanied by an authenticated copy of the will and an authenticated copy of the order, decree or judgment issued by the court where it was first probated. MUPC at § 3-303(d); see Chapter 3 of this guide for more information.
A will from a place that does not provide for probate of a will after death may be informally probated in Massachusetts upon receipt by the court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place. MUPC at § 3-303(e).
A DFPR (or his or her nominee) may petition for informal appointment in Massachusetts in an intestate (or testate) estate. MUPC at § 3-308(b); see Chapter 3 of this guide for more information.
“Practice Alert: A DFPR (or his or her nominee) is the only person who has standing to petition for informal appointment in Massachusetts when an appointment has been made in the state of domicile. MUPC at § 3-308(b).”
“Practice Alert: A DFPR has priority for appointment over all other persons except where the decedent’s will nominates different persons to be PR in Massachusetts and in the state of domicile. The DFPR may nominate another, who shall have the same priority as the DFPR. MUPC at § 3-203(g). Unless a decedent’s will appoints a different person to serve as PR in Massachusetts, the DFPR may obtain removal of anyone else appointed in Massachusetts. MUPC at 3-611(b).”
11.3.3.2 Formal Ancillary Proceedings
A person interested in the estate may petition to formally probate the NRD’s will at any time by filing (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of PR accompanied by an authenticated copy of the will probated in another jurisdiction and an authenticated copy of the final order, decree or judgment issued by the foreign court. MUPC at § 3-402(a); see Chapter 4 of this guide for more information.
“Practice Alert: A final order, decree or judgment of a court of another state determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as binding by a Massachusetts court if it includes, or is based upon a finding that the decedent was domiciled at death in the state where the order was made. MUPC at § 3-408.”
A will from a place that does not provide for probate of a will after death may be formally proved for probate in Massachusetts upon receipt by the court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become effective under the law of the other place. MUPC at § 3-409.
A person interested in the estate may also petition to formally appoint a DFPR in Massachusetts in an intestate (or testate) estate. MUPC at §§ 3-402, 4-207; see Chapter 4 of this guide for more information.
“Practice Alert: A DFPR has priority for appointment over all other persons except where the decedent’s will nominates different persons to be PR in Massachusetts and in the state of domicile. The DFPR may nominate another, who shall have the same priority as the DFPR. MUPC at § 3-203(g). Unless a decedent’s will appoints a different person to serve as PR in Massachusetts, the DFPR may obtain removal of anyone else appointed in Massachusetts. MUPC at 3-611(b).”
11.4 Final Distribution to DFPR
The estate of a NRD being administered by a LPR shall, if there is a DFPR willing to receive it, be distributed to the DFPR for the benefit of the successors of the decedent unless:
- by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of Massachusetts without reference to the local law of the decedent's domicile;
- the LPR, after reasonable inquiry, is unaware of the existence or identity of a DFPR; or
- the court orders otherwise in a proceeding for a closing order under § 3-1001 or incident to the closing of a supervised administration. In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of Article III.
MUPC at § 3-816. See also, G. L. c. 199, § 2.
“Practice Alert: Chapter 199, § 1 remains good law and provides that if administration is taken in Massachusetts on the estate of a person who was an inhabitant of any other state or country, the estate found here shall, after payment of debts, be disposed of according to the last will, if any; otherwise real property shall descend according to the laws of Massachusetts, and personal property shall be distributed and disposed of according to the laws of the state or country of which the decedent was an inhabitant.”
11.5 Proof of Authority
11.5.1 Registering a DFPR’s Proof of Authority
As an alternative to an ancillary proceeding, if a NRD owned personal property located in Massachusetts and authority is needed in Massachusetts to transfer such personal property only, a DFPR may use a simplified procedure known as proof of authority pursuant to § 4-204. To use this procedure, there must be no local administration or pending petition for local administration in Massachusetts. The DFPR files in the court in any division where personal property belonging to the NRD is located:
- Authenticated copies of the DFPR’s appointment;
- Authenticated copies of the official bond, if any; and
- Form (MPC 180) Foreign Personal Representative’s Sworn Statement.
MUPC at § 4-204.
Upon the payment of the appropriate fee, the registry shall file and docket these pleadings.
Fee Alert: The filing fee is $90.00. The fee is broken down as follows: $75 for the filing of the Statement and a $15.00 surcharge fee to assign a docket number. The $90.00 filing fee includes one (1) attested copy of the Statement issued by the Register of Probate. Additional attested copies cost $20.00 each.
“Practice Alert: A DFPR may file proof of authority in any county where personal property belonging to the decedent is located and gain authority over all personal property of the decedent in Massachusetts.”
Proof of authority does not involve opening a full probate. No order or decree is issued by the court and no Letters are granted. The registry shall issue an attested copy of (MPC 180) Foreign Personal Representative’s Sworn Statement as evidence of the DFPR’s authority to act.
“Practice Alert: Filing proof of authority in Massachusetts does NOT give the DFPR authority to transfer real estate located in Massachusetts. For authority to transfer real estate, see Chapter 14 of this guide.”
11.5.2 Effect of Registration-Power of a DFPR to Act in Massachusetts
Provided there is no local administration or petition for local administration pending in Massachusetts, a DFPR who has registered his proof of authority in accordance with § 4-204 may exercise as to the decedent’s personal property in Massachusetts, all of the powers of a local PR acting in a similar capacity and may maintain actions and proceedings in Massachusetts subject to any conditions imposed upon nonresident parties generally. MUPC at § 4-205. See also MUPC at §§ 3-715(22), 3-703(c), 3-916(h).
A petition for local administration terminates the power of a DFPR to act but the court may allow the DFPR to exercise limited powers to preserve the estate. MUPC at § 4-206.
11.5.3 Registering a FPR’s Proof of Authority
If there is no local administration or pending petition for local administration in Massachusetts and no DFPR or proceedings for appointment of a PR are pending in the state of domicile, a FPR who is the PR first appointed in a proceeding in any jurisdiction, may file in any division in Massachusetts where tangible personal property belonging to the NRD is located or where the NRD had a permanent or temporary residence at any time during the 12 months preceding the date of death:
- Authenticated copies of the FPR’s appointment;
- Authenticated copies of the official bond, if any; and
- Form (MPC 180) Foreign Personal Representative’s Sworn Statement.
MUPC at § 4-201(c).
Upon the payment of the appropriate fee, the registry shall file and docket these pleadings.
Fee Alert: The filing fee is $90.00. The fee is broken down as follows: $75 for the filing of the Statement and a $15.00 surcharge fee to assign a docket number. The $90.00 filing fee includes one (1) attested copy of the Statement issued by the Register of Probate. Additional attested copies cost $20.00 each.
“Practice Alert: A FPR who files proof of authority pursuant to § 4-201(c) must provide a copy of the above documents to the Commissioner of Revenue. MUPC at § 4-201(c).”
Proof of authority does not involve opening a full probate. No order or decree is issued by the court and no Letters are granted. The registry shall issue an attested copy of (MPC 180) Foreign Personal Representative’s Sworn Statement as evidence of the FPR’s authority to act.
11.5.4 Effect of Registration - Power of a FPR to Act in Massachusetts
A FPR who has registered his proof of authority in accordance with § 4-204 may accept payment or delivery of personal property pursuant to § 4-201(c) no earlier than one month after filing proof of authority to act with the court. MUPC at § 4-201(c).
The power of a FPR under § 4-201 or § 4-205 shall be exercised only if there is no administration or petition pending in Massachusetts.
11.6 Creditor’s Claims; Administration in More than One State; Duty of PR
Unsecured creditor’s claims that are barred by the law of the state of domicile are also barred in Massachusetts. MUPC at § 3-803(c).
All assets of the estate being administered in Massachusetts are subject to all claims, allowances and charges existing or established against a PR wherever appointed. MUPC at § 3-815(a).
If the estate either in Massachusetts or as a whole is insufficient to cover all family exemptions and allowances (determined by the law of the decedent's domicile) and prior charges and claims, each claimant whose claim has been allowed either in Massachusetts or elsewhere, in administrations of which the PR is aware, is entitled to receive payment of an equal proportion of his claim, after satisfaction of the exemptions, allowances and charges. If a preference or security in regard to a claim is allowed in another jurisdiction but not in Massachusetts, the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit. MUPC at § 3-815(b).
In case the family exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately and Massachusetts is not the state of the decedent's last domicile, the claims allowed in Massachusetts shall be paid their proportionate share of total assets if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the DFPR. MUPC at § 3-815(c).
If local assets are not sufficient to pay all claims allowed in Massachusetts (the amount to which they are entitled) local assets shall be marshaled so that each claim allowed in Massachusetts is paid its proportion as far as possible, after taking into account all dividends on claims allowed in Massachusetts from assets in other jurisdictions. MUPC at § 3-815(c).
11.7 Proceedings to Determine Property Rights
In any proceeding in Massachusetts to determine rights in real or personal property
- located in Massachusetts; or
- administered by a fiduciary in Massachusetts; or
- under a will admitted to probate in Massachusetts
The interest of a NRD whose estate is not under local administration may be represented by any FPR of a decedent named a party to the proceeding and served in the manner provided by § 3-403 or by other lawful means. MUPC at § 4-302A.
11.7.1 Service of Process on a DFPR or FPR
Service of process may be made on a DFPR or FPR by:
- registered or certified mail to last reasonably ascertainable address requesting return receipt signed by addressee only; or
- ordinary first class mail if registered or certified mail is unavailable; or
- in the manner provided under other laws of Massachusetts for service on a DFPR, FPR or decedent immediately prior to death. MUPC at § 4-303(a).
Note: This provision is not intended to limit other provisions of law for service of process.
“Practice Alert: If service is made upon a DFPR or FPR in accordance with § 4-303(a), the DFPR or FPR shall be allowed at least 30 days within which to appear or respond. MUPC at § 4-303(b).”
11.8 Summary
For a summary of procedural options available to the estate of a NRD, see chart below.
Non-Resident Decedent
- Has a probate or administration case already been opened in another state?
- Yes
- If yes, is the case in the other state still open
- If yes, there are 3 options in MA
- Option #1: File Proof of Authority for personal property (only) located in MA. See § 4-204.
- Option #2: File Proof of Authority and see G. L. c. 202 § 32 for license to sell real estate located in MA.
- If additional authority is necessary, go to Option #3.
- Option #3: File an informal or formal ancillary proceeding (i.e. concurrent) in MA. See §§ 3-303(d), 3-308(b), 4-207. Note: The time limits § 3-108 shall not apply.
- If no, a Massachusetts case can be opened, informally or formally, in any county in MA where property is located. If there is a will, an authenticated copy of the probated will and order should be filed with the petition to probate the will in MA. See §§ 3-303(d), 3-308(b), 4-207
- If yes, there are 3 options in MA
- If yes, is the case in the other state still open
- No
- If no, an original informal or formal probate or administration case can be opened in any county in MA where property of the decedent is located at a time of the decedent's death. See § 3-201(a)(2). Note: The time limits of § 3-108 shall apply.
- Yes
| Date published: | June 1, 2016 |
|---|---|
| Last updated: | December 2, 2025 |