MUPC Estate Administration Procedural Guide: Formal Proceedings

Section 4 of the MUPC Estate Administration Procedural Guide, Second Edition, a guide to estate administration practices & procedures in the Probate and Family Court.

A formal testacy proceeding is an action to establish a will or determine intestacy. MUPC at § 1-201(52). It is conducted before a judge with notice, by citation, to all interested persons. MUPC at §§ 1-201(18), 1-401, 3-401. The proceeding may be contested or uncontested. In certain circumstances, a formal testacy proceeding that is uncontested may be administratively allowed by a MUPC magistrate. See Rule 70 of the Supplemental Rules of the Probate and Family Court.

A formal proceeding may be required for several reasons, including if:

• an informal proceeding is unavailable;
• the original will is lost, destroyed or otherwise unavailable;
• the will has handwritten words added (interlineations) or crossed out (deletions);
• there is no official death certificate;
• the location or identity of any heir at law or devisee is unknown;
• the person to be appointed personal representative does not have priority for appointment by statute or by renunciation and/or nomination;
• an heir at law or a devisee is an incapacitated person, protected person, or a minor and is not represented by a conservator, or is only represented by a guardian who is also the petitioner;
• the personal representative to be appointed is an interested person solely due to his or her status as a creditor or as a public administrator;
• the estate of a since deceased heir at law or devise is not represented by a personal representative;
• supervised administration is necessary;
• a judge must sign an order or decree for any reason.

4.1 Statutory References- MUPC at §§:

• 3-401 through 3-414

4.2 Probate Court Jurisdiction

Pursuant to § 3-401, the court may accept a petition to formally:

1. admit a will to probate and determine the heirs at law;
2. determine that the decedent died without a will and determine the heirs at law;
3. appoint a PR to administer the estate, including a person designated as a public administrator, in a supervised or unsupervised administration;
4. determine the heirs at law of the decedent.

In addition to the above, the petitioner may request as part of the formal proceeding that the court:

5. set aside an informal probate of a will;
6. prevent informal probate of a will which is the subject of a pending petition;
7. confirm a prior informal appointment in a testate or intestate estate in a supervised or unsupervised administration;
8. appoint a SPR pending the appointment of the PR in the formal proceeding.

4.3 Formal Testacy Proceedings

If a decedent died with a will (testate) or more than one will, a formal petition may be filed to probate the will and determine the heirs at law with or without requesting the appointment of a PR. MUPC at § 3-401.

A petition may seek formal probate of a will, within the general time limit provided by § 3-108, without regard to whether the same or a conflicting will has been informally probated. MUPC at § 3-401.

If a decedent died without a will (intestate), a formal petition for an adjudication of intestacy and a determination of heirs at law may be filed with or without the request to formally appoint a PR. MUPC at § 3-401.

“Practice Alert: Unless a petition in a formal testacy proceeding also requests confirmation of any previous informal appointment, a previously appointed PR, after receipt of notice of the filing of a formal probate proceeding, must refrain from any further distribution of the estate. MUPC at § 3-401.”

4.4 Formal Appointment Proceedings

A formal proceeding to appoint a PR may be necessary to determine the priority or qualification of the person nominated for appointment as PR, or of one who previously has been appointed PR in an informal proceeding, if an issue concerning the testacy of the decedent is or may be involved. A formal proceeding to appoint a PR results in an adjudication by the court. MUPC at
§ 3-414.

A formal petition may also be filed for the formal appointment of a PR after the formal or informal probate of a will.

Pursuant to § 3-414, the court may accept a petition to formally:

1. determine who is entitled to appointment as PR under § 3-203;
2. appoint a PR in a supervised or unsupervised administration; and
3. if appropriate, terminate any prior appointment found to have been improper.

4.5 Filing for Formal Testacy and/or Appointment of PR

Court approved forms are available to petition to formally probate an estate and/or appoint a PR. Forms may be obtained:

1. the registry in each county Probate and Family Court; or
2. the MUPC Hub located on the Probate and Family Court website.

The following court approved forms and documents are required or may be needed for a formal proceeding depending on whether the decedent died with a will (testate) or without a will (intestate):

Formal Checklist

Decedent Dies with a Will (Testate)

Form/Document	Required or May Need
Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of PR (MPC 160)	Required
Surviving Spouse, Children, Heirs at Law (MPC 162)	Required
Devisees (MPC 163)	Required
Original Will, if available, if not, a copy or statement of Will contents	Required
Certified Copy of Death Certificate, if available or affidavit	Required
Citation - Return of Service (MPC 560)	Required
Decree and Order on Petition for Formal Adjudication (MPC 755)	Required
Bond (MPC 801)	Required (only if seeking the appointment of a PR)
Military Affidavit (MPC 470)	Required (unless the petition is assented to by all interested persons)
Authenticated Copy of Will and Appointment	Required (for ancillary probate proceedings only)
Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455)	May Need
Affidavit - as to cause of death (MPC 475), execution (MPC 480), domicile (MPC 485), or no conflict of a Conservator	May Need
Proof of Guardianship/Conservatorship	May Need
Uniform Counsel Certification Form (CCF 4/07)	May Need

Decedent Died Without a Will (Intestate)

Form/Document	Required or May Need
Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of PR (MPC 160)	Required
Surviving Spouse, Children, Heirs at Law (MPC 162)	Required
Certified Copy of Death Certificate, if available or affidavit	Required
Citation - Return of Service (MPC 560)	Required
Decree and Order on Petition for Formal Adjudication (MPC 755)	Required
Bond (MPC 801)	Required (only if seeking the appointment of a PR)
Military Affidavit (MPC 470)	Required (unless the petition is assented to by all interested persons)
Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455)	May Need
Affidavit - as to cause of death (MPC 475), domicile (MPC 485), or no conflict of a Conservator	May Need
Proof of Guardianship/Conservatorship	May Need
Uniform Counsel Certification Form (CCF 4/07)	May Need

4.5.1 Submitting Court Pleadings

The petitioner must submit to the registry, either by e-filing (if available), by mail, or in person, (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative (hereafter “Petition”), the will (if applicable) and death certificate, with the appropriate fee in the form of a check or money order. Cash or credit cards will not be accepted unless the pleadings are delivered in person.

Fee Alert: The total filing fee is $405.00. The fee is broken down as follows: $375 for the filing of the Petition, including all required forms/documents, a $15.00 surcharge fee to assign a docket number, and a $15.00 citation fee. The filing fee of $405.00 includes the initial appointment bond, citation, and initial court issued Letters of Authority but does not include publication costs.

Fee Alert: The total filing fee for a Public Administrator is $130.00. The fee is broken down as follows: $100.00 for the filing of the Petition, a $15.00 surcharge to assign a docket number, and a $15.00 citation fee. The filing fee of $130.00 includes the initial appointment bond, citation, and the initial court issued Letters of Authority, but does not include publication costs.

The forms should be filed in the Registry of Probate for the county Probate and Family Court where the decedent was domiciled at the time of death; or if the decedent was not domiciled in Massachusetts, in any county where property of the decedent was located at the time of death. See also section 1.6 of this guide. For a listing of Massachusetts counties and the cities and towns within, see the Secretary of the Commonwealth of Massachusetts' website. 

Pleadings will not be returned by the registry nor will filing fees be refunded once the case is docketed. It shall be the responsibility of the petitioner to correct any and all defects. Registry personnel shall not make any edits or corrections to the pleadings.

The registry shall docket the following pleadings and applicable documents:

1. Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative (MPC 160);
2. Surviving Spouse, Children, Heirs at Law (MPC 162);
3. Devisees (MPC 163), if applicable;
4. Death certificate, unless already in the division's possession and filed;
5. Decedent’s will, unless already in the division's possession and filed;
6. Authenticated copy of will and appointment, for ancillary proceedings only;
7. Military Affidavit (MPC 470), if necessary;
8. Bond (MPC 801), if applicable;
9. Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455), if any;
10. Any required Affidavits;
11. Proof of Guardianship/Conservatorship.

The proposed Decree and Order on Petition for Formal Adjudication (MPC 755) (hereafter “Formal Decree”) shall not be docketed.

4.5.2 Issuing a Docket Number

See section 3.3.2 of this guide.

4.6 Required Elements of the Formal Petition (MPC 160)

Section 3-402 outlines the required contents of (MPC 160) Petition for Formal Probate of Will/ Adjudication of Intestacy/Appointment of a Personal Representative. Instructions have been developed to assist the petitioner. See (MPC 963) Instructions. The Petition must be verified by the petitioner to be accurate and complete to the best of the petitioner’s knowledge and belief. MUPC at § 1-310.

Note: The Petition must be signed under the penalties of perjury by the petitioner. If there is an attorney, the attorney also must sign. MUPC at § 1-310 and Rule 28 of the Supplemental Rules of the Probate and Family Court (2012).

A complete and verified Petition must contain the following information:

4.6.1 Court Caption

All sections of the caption box should be completed including the name of the estate, date of death and the applicable division in which the Petition is to be filed. Put an “X” next to “Original Form” if this is the first time you are filing this form; put an “X” next to “Amended Form” if you have previously filed this form with the court and are now changing the information.

Note: A formal petition may be amended as a matter of course prior to an appearance being timely filed. Thereafter, a motion must be filed requesting court approval along with an amended petition. See section 4.20 of this guide.

4.6.2 Section I - General Information

4.6.2.1 Information about the Decedent

A death certificate issued by a public officer must be on file with the court or accompany the Petition OR the circumstances which make it impossible for a death certificate to be provided must be listed. MUPC at §§ 3-402(b), 1-107.

1. Name of decedent/Address -- The name of decedent should be listed and match the name on the death certificate. Any other name by which decedent was known should also be listed. The address listed should be that of the decedent at the time of death.
2. Age at death –The age of the decedent at death must be listed and match the information listed on the death certificate.
3. Domicile -- The city/town and state of decedent’s domicile must be listed and the domicile must be located within the county of filing unless the decedent was not domiciled in Massachusetts but had property located in that county.

Note: The death certificate is a good way to check all of the above information about the decedent. If the address of the decedent is recorded differently on the death certificate (MPC 485) Affidavit of Domicile must be filed.

Court Note: The court shall determine the decedent’s domicile at death. MUPC at § 3-409.

Note: If conflicting claims as to the domicile of a decedent are made in a formal proceeding filed in Massachusetts and in a proceeding after notice pending at the same time in another state, the court shall stay, dismiss, or permit suitable amendment in the Massachusetts proceeding unless it is determined that the Massachusetts proceeding was filed before the proceeding elsewhere. The determination of domicile in the proceeding first commenced shall be accepted as determinative in the proceeding pending in Massachusetts. MUPC at § 3-202.

4.6.2.2 Information about the Petitioner(s)

See section 3.5.2 of this guide.

“Practice Alert: If the PR to be appointed is an interested person solely due to his or her status as a public administrator pursuant to G. L. c. 194, a formal testacy proceeding must be filed. An informal proceeding is not available. All pre-MUPC forms designated for use solely by a public administrator, including the pre-MUPC public administrator bond, shall no longer be accepted for filing or approved by the court. A public administrator appointed as PR under the MUPC continues to have his or her statutory obligations under the bond as a public administrator to file an inventory and annual account. See G. L. c. 194, § 2. See also section 1.5 of this guide regarding priority for appointment of a public administrator.”

“Practice Alert: If the PR to be appointed is an interested person solely due to his or her status as a creditor, a formal testacy proceeding must be filed. An informal proceeding is not available. The creditor must demonstrate that there is no conflict of interest. A Petition filed by a creditor must be presented to a judge. An uncontested Petition wherein the creditor is seeking appointment as PR cannot be allowed administratively by a magistrate. See generally MUPC at § 3-203 regarding priority for appointment of a creditor.”

Court Note: The court shall make a finding that the petitioner appears to be an interested person as defined in § 1-204(24). MUPC at § 3-401. If a petitioning creditor is seeking appointment, the court must be satisfied that there is no conflict of interest.

Note: Even if assented to in writing, or even if there is no objection to it, a Petition requesting the appointment of a creditor as PR may not be allowed by a magistrate but must be adjudicated by a judge.

4.6.2.3 Time Limits

The Petition must be filed within the time period permitted by law. MUPC at § 3-108.

For a list of exceptions to the general 3 year rule, see section 1.2 of this guide.

“Practice Alert: If the decedent died prior to the effective date of the MUPC (i.e., March 31, 2012), the time limits in effect at the time of death shall control. See generally G. L. c. 193, § 4.”

Court Note: The court must make a finding that the Petition was filed within the time period permitted by law. MUPC at § 3-409.

“Practice Alert: If a late appointment or testacy proceeding is filed pursuant to § 3-108(4), (MPC 161) Petition for Late and Limited Formal Testacy and/or Appointment must be used. An informal proceeding is not available. See section 4.19 of this guide.”

4.6.2.4 Venue

See section 1.6 of this guide.

Court Finding: The court must make a finding that venue is proper. MUPC at § 3-409.

Note: The death certificate is a good way to verify that venue is proper. If the address of the decedent is recorded differently on the death certificate, (MPC 485) Affidavit of Domicile must be filed.

4.6.2.5 Notice to the Division of Medical Assistance ("DMA")

The petitioner must give notice once by citation to DMA. To do so, the petitioner must send a copy of the citation when issued by the court together with a copy of the signed Petition and death certificate by certified mail at least fourteen (14) days before the return date to the Division of Medical Assistance, Estate Recovery Unit. As of the time of this publication, the address is: P.O. Box 15205, Worcester, MA 01615-0205. MUPC at § 3-306(g).

“Legislative Change: The above procedure was revised by Chapter 165 of the Acts of 2014.”

4.7 Section II - Persons Interested in the Estate

4.7.1 Surviving Spouse, Children, Heirs at Law and Devisees

The petitioner is required to certify on the Petition that the decedent’s surviving spouse, children, heirs at law and devisees (if any), so far as known or ascertainable with reasonable diligence by the petitioner are as stated in form (MPC 162) Surviving Spouse, Children, Heirs at Law and if the decedent died with a will, form (MPC 163) Devisees. Instructions are provided to assist the petitioner in completing these separate forms. See (MPC 958) Instructions and (MPC 959) Instructions. Examples of completed forms and training materials on new and revised forms are also available. For more information on heirs at law and devisees, see section 1.3 and section 1.4 of this guide.

Failure to submit (MPC 162) Surviving Spouse, Children, Heirs at Law, and if applicable, (MPC 163) Devisees, will result in a delay in processing the case.

“Practice Alert: Children of the decedent (adopted or biological) must be listed on (MPC 162) Surviving Spouse, Children, Heirs at Law even if the decedent’s children are not otherwise an heir at law. See section 1.3 of this guide.”

“Practice Alert: In the case of a devise to an existing trust or trustee, or to a trustee or trust described by the will, the trust or trustee is the devisee and must be listed on (MPC 163) Devisees. The beneficiaries of the trust are NOT devisees. MUPC at § 1-201(11).”

“Practice Alert: If an heir at law or devisee of the decedent’s estate is since deceased (i.e. died after the death of the decedent), and if no PR is appointed for that estate, publication is required.”

Note: If any devisee is a charity, list the name of the charity and provide notice to the charity and to the Massachusetts Attorney General. See G. L. c. 190B and Uniform Practice XXXIV. MUPC at §§ 2-105, 3-306(d), G. L. c. 12, § 8G and Uniform Practice XXXIV of the Probate Court.

“Practice Alert: An informal or formal proceeding may be used to probate a will that contains a testamentary trust or pours over into an inter vivos trust where the petitioner is also the trustee, even if there may be trust beneficiaries who are minors, incompetent or unascertained. The trust beneficiaries (adult or otherwise) do not need to be listed on the Petition unless they are otherwise devisees or heirs at law. No GAL need be appointed. See Practice Tip Memorandum, dated May 23, 2012.”

“Practice Alert: If the conservator of an IP, PP, or a minor also has an interest in the decedent’s estate as an heir at law or devisee, the conservator must file an affidavit stating specific facts to warrant a conclusion by the magistrate or court that a conflict of interest does not exist between the conservator and the person(s) represented in order to proceed administratively on a formal petition. Failure to submit an affidavit or to state sufficient facts to support the conclusion that a conflict of interest does not exist may result in a denial.”

If the petitioner does not know the name or whereabouts of an heir at law, he or she has a duty to perform a reasonably diligent search for the information. MUPC at § 3-301 (a)(1)(ii). If the name or whereabouts of an heir cannot be ascertained, the petitioner must state this fact on the Petition. In addition to notice by publication, the court may appoint a GAL or take other appropriate action.

“Practice Alert: Unless a surviving spouse, heir at law or devisee who is an IP, PP, or a minor is represented by a conservator, or if not a conservator, a guardian who is not the petitioner, the court must appoint a GAL unless a motion to waive the appointment is allowed by the court. MUPC at §§ 1-403, 1-404. See section 1.10 of this guide.”

Court Note: The court shall determine the decedent’s heirs at law in a formal testate (will) or intestate (no will) proceeding. MUPC at §§ 3-402 and 3-409.

4.8 Section III - Testacy Status

The petitioner must indicate whether or not the decedent died intestate (without a will) or testate (with a will).

Court Note: The court shall determine the status of testacy in a formal proceeding. MUPC at § 3-409.

“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.”

4.8.1 Intestate (without a will)

If the decedent died without a will and the petitioner is unaware of any unrevoked will of the decedent, the petitioner may represent the estate as intestate. If the petitioner knows of a will, but is not offering it for probate, the petitioner must attach a statement of why such an instrument is not being probated.

4.8.2 Testate (with a will)

If the decedent died with a will and the petitioner is offering the decedent’s last will and any codicil(s) for probate, the petitioner may represent the estate as testate.

The petitioner must state on the Petition:

1. The date of the decedent’s last will and any codicil(s).
2. That the will submitted for probate is:
   1. the original will, or if not,
   2. that the original will is lost, destroyed or otherwise unavailable and either:
      1. a copy of the original will accompanies the Petition; OR
      2. a statement of its contents is attached and incorporated therein.
         For an ancillary proceeding, the petitioner must state that the will submitted for probate is:
   3. an authenticated copy of the will probated in another jurisdiction accompanied by proof of its probate.

“Practice Alert: A formal petition must be filed to probate a copy of a will or a will with cancellations or interlineations. MUPC at § 3-402(a)&(b).”

“Practice Alert: To probate a copy of a signed will that was executed in accordance with § 2-502, the proponent must prove by a preponderance of the evidence that the original will was not revoked by the decedent.”

“Practice Alert: To probate a copy of an unsigned will, the proponent first must prove by a preponderance of the evidence that the document is a copy of an original will that was executed in accordance with § 2-502. Thereafter, the proponent must prove by a preponderance of the evidence that the original will was not revoked by the decedent.”

Note: A will from a place which does not provide for probate of a will after death may be proved for probate in Massachusetts by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place. MUPC at § 3-409.

If two or more instruments are offered for probate before a decree is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. MUPC at § 3-410.

If more than one instrument is probated, a decree shall indicate what provisions control in respect to the nomination of a PR, if any. The decree may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. MUPC at § 3-410.

If it becomes evident in the course of a formal testacy proceeding that although one or more instruments are entitled to be probated the decedent’s estate is or may be partially intestate, the court shall enter a decree to that effect. MUPC at § 3-411.

“Practice Alert: After a decree has been entered in a formal testacy proceeding, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate the decree, subject to the time limits of § 3-412. MUPC at § 3-410.”

Court Note: The court must find that the will is valid and unrevoked in order to admit the will to formal probate. MUPC at § 3-409. See section 1.14 of this guide.

“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.”

4.9 Section IV - Appointment of a PR (if requested)

To acquire the powers and undertake the duties and liabilities of a PR of a decedent, a person must be appointed by order of the court or magistrate, qualify and be issued Letters. Administration of an estate is commenced by the issuance of Letters. MUPC at § 3-103.

A person with or without statutory priority may be appointed PR in a formal proceeding. MUPC at § 3-203.

Information about the PR may be omitted if the petitioner is confirming a prior informal appointment of a PR or is not requesting the appointment of a PR in either a testate or intestate estate.

“Practice Alert: A Petition filed by a creditor must be presented to and heard by a judge. An uncontested Petition cannot be allowed administratively by a magistrate. See section 1.5 of this guide regarding priority for appointment of a creditor.”

“Practice Alert: If someone other than, or in addition to, the petitioner is being nominated for appointment as PR, the petitioner must state the name, address and telephone number of the nominee(s). If there are persons with higher or equal rights to appointment, the petitioner must state this information.”

Note: An Appointment of Agent form is no longer necessary for the appointment of a PR who resides outside of Massachusetts. G. L. c. 195, § 8 repealed by 2008, 521, Sec. 14.

“Practice Alert: After the initial appointment, the PR must report any change of address to the appointing court. MUPC at § 3-602.”

Court Note: If the nominee does not have the highest statutory priority or priority resulting from appropriate renunciation(s)/nomination(s), then the court shall determine who is entitled to appointment as provided by § 3-203. If appropriate, any prior appointment may be terminated. MUPC at § 3-414(b). In addition, the court must make a finding that any will to which the requested appointment relates has been formally or informally probated. MUPC at § 3-308(5).

Note: Even if assented to in writing, or even if there is no objection to it, a formal petition requesting the appointment of a creditor as PR may not be allowed by a magistrate but must be adjudicated by a judge.

4.9.1 Information about Other PRs

See section 3.8.1 of this guide.

4.9.2 Information about the Bond

The petitioner must indicate if a bond with or without sureties is required and the reasons for any request to waive sureties. If a bond with sureties is required, the petitioner must state the penal sum in a dollar amount. Failure to state a dollar amount subjects the sureties to unlimited liability. For additional information regarding bonds, see section 1.7 of this guide.

4.9.3 Unsupervised/Supervised Administration Request

If the petitioner is requesting the appointment of a PR, the petitioner must indicate whether the PR shall serve in an unsupervised or supervised administration and the reasons for the request. See Chapter 5 of this guide.

4.9.3 Appointment of a SPR

If the petitioner is requesting the appointment of a SPR, the petitioner must state so on the Petition and submit a separate motion and affidavit to warrant a conclusion by the court that the appointment is necessary. MUPC at § 3-614. The motion must be presented to a judge for allowance. See generally Chapter 6 of this guide.

“Practice Alert: For the appointment of a SPR, proper motion notice is required unless waived or shortened by the court upon a finding that an emergency exists. See Chapter 6 of this guide for specific notice requirements and request for an ex-parte hearing.”

4.10 Section V – Relief Requested

The petitioner may request that the court/magistrate enter a decree to:

1. Admit the decedent’s will to formal probate and determine the heirs at law;
2. Determine that the decedent died without a will and determine the heirs at law;
3. Determine the heirs at law of the decedent;
4. Appoint the nominee as PR, in an unsupervised or supervised administration to serve without sureties on the bond or to serve with sureties on the bond in a specified amount; and that Letters be issued;
5. Set aside an informal order probating a will;
6. Set aside a prior informal appointment.

Note: No Letters shall issue without an approved bond.

4.10.1 Verification

See section 3.9.1 of this guide.

4.10.2 Appearance by Attorney

See section 3.9.2 of this guide.

4.11 Additional Required Forms

4.11.1 Death Certificate or Proof of Death

A certified copy of the death certificate must be filed with the Petition unless it is already on file with the division, or a determination of death must be made by the court.

“Practice Alert: The date of death on the death certificate and the date of death on the Petition must match. If the cause of death is listed as “pending,” the petitioner must file (MPC 475) Cause of Death Affidavit (formerly known as a Suspicious Death Affidavit). MUPC at § 2-803.”

A certified or authenticated copy of a death certificate issued by an official or agency or a record or report of death by a governmental agency is prima facie evidence of death. MUPC at § 1-107. In the absence of prima facie evidence, the fact of death may be established by evidence, including circumstantial evidence. If a death certificate issued by a public officer is not filed with the Petition, the court may direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable. MUPC at § 3-402(b).

Note: It shall be the petitioner’s responsibility to redact the first five (5) numbers of the decedent’s social security number from the death certificate filed with the court. The filer also must redact other personal identifying information pursuant to any Supreme Judicial Court rule protecting such information.

Note: A redacted death certificate may not be sufficient for the Division of Medical Assistance.

Court Note: The court must make a finding that the testator is dead. MUPC at § 3-409.

4.11.2 Military Affidavit (MPC 470)

See section 3.10.2 of this guide.

4.11.3 Proposed Formal Decree (MPC 755)

The petitioner must submit a proposed (MPC 755) Decree and Order on Petition for Formal Adjudication prior to allowance. The petitioner is required to complete all applicable sections in preparation for the court’s signature.

4.12 Additional "May Need" Forms

4.12.1 Bond (MPC 801)

See section 1.7 and section 3.8.2 of this guide.

If the petitioner is seeking the appointment of a PR (MPC 801) Bond shall be required. No bond is necessary if the petitioner is requesting only to probate a will or determine heirs at law.

If a bond with sureties is required, the petitioner must state the penal sum in a dollar amount. Failure to state a dollar amount subjects the sureties to unlimited liability.

4.12.2 Assent and Waiver of Notice (MPC 455)

See section 3.10.2 and section 4.14.2 of this guide.

4.12.3 Renunciation/Nomination (MPC 455)

A renunciation/nomination is required prior to allowance if the petitioner is seeking the appointment of a PR who does not have statutory priority for appointment and there is no need for a court hearing on that issue. MUPC at § 3-203(a) 2-5. See section 1.5 of this guide.

4.12.4 Affidavits

See section 3.11.4 of this guide.

4.13 Proof of Guardianship/Conservatorship

If a spouse, heir at law or devisee is an incapacitated person, protected person, or a minor, and is represented by a conservator, or if none, a guardian who is not the petitioner, no guardian ad litem is necessary. MUPC at 1-403(2)(ii). See section 1.10 of this guide.

Minor children of the decedent do not require the appointment of a guardian or conservator unless they are an heir at law or a devisee.

The appointment of a guardian ad litem may be waived by the court upon a motion filed with the Petition. See section 1.10 of this guide.

If a guardian or conservator is already appointed, the petitioner shall be required to present proof in the form of a docket number if appointed within the division in which the filing is being made or, if appointed from another division or from a court outside of Massachusetts, a certified copy of Letters of guardianship or conservatorship.

4.14 Notice Requirements for a Formal Proceeding

4.14.1 Citation for Formal Adjudication (MPC 560)

After the filing of the Petition, the court shall fix a return date and issue a citation. See (MPC 560) Citation for Formal Adjudication. MUPC at § 1-401. See also Rule 6 Supplemental Rules of the Probate and Family Court (2012).

Fee Alert: It is the responsibility of the petitioner to submit the appropriate fee in order for the registry to issue a citation. The fee for a citation is $15.00 in addition to any other filing or court fees.

4.14.2 Persons Entitled to Notice

The petitioner shall be responsible for providing notice to the following interested persons, who have not assented and waived notice in writing:

1. surviving spouse;
2. children;
3. heirs at law;
4. devisees, including any devisee that is a charity, (in the case of a devise to an existing trust or trustees, or to a trustee or trust established by the will, the trust or trustee is the devisee and the beneficiaries are not devisees);
5. any PRs named in any will that is being, or has been probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere;
6. any PR of the decedent whose appointment has not been terminated;
7. a conservator or guardian appointed to represent a spouse, heir at law or devisee who is an incapacitated person, protected person, or a minor, and the person represented regardless of age;
8. the Attorney General of Massachusetts, if there is no spouse or heir at law of the decedent or any devisee is a charity;
9. any other person as the petitioner elects.

MUPC at § 3-403. See also MUPC at §§ 1-401, 1-404 and Uniform Practice XXXIV (34) of the Probate Court.

Note: Notice may be served upon an interested person’s attorney, if the attorney has filed an appearance in the matter, or if the interested person has requested that notice be sent to the attorney. MUPC at § 1-401(a), Rule 2 of the Supplemental Rules of the Probate and Family Court (2012).

An interested person entitled to notice (or his/her attorney, if represented) including a GAL, conservator or other fiduciary, may waive the right to notice by filing a written assent and waiver of notice. MUPC at § 1-402; see (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties and (MPC 941) Instructions. A minor or an incapacitated or protected person may not waive notice.

4.14.3 Notice by In-Hand Delivery or Mail

If an interested person’s identity and whereabouts are known, the petitioner shall provide notice by:

1. mailing a copy of the citation at least 14 days before the return date by certified, registered or ordinary first class mail; OR
2. by delivering a copy of the citation in-hand at least 14 days before the return date.

MUPC at § 1-401(a)(1)(2). See Rule 6 of the Supplemental Rules of the Probate and Family Court (2012).

4.14.4 Notice by Publication

The petitioner shall give notice by publication by publishing a copy of the citation once in a newspaper designated by the register of probate having general circulation in the county where the proceeding is pending, at least 7 days prior to the return date. MUPC at §§ 1-401(a)(3), 3-403(b), Rule 6 of the Supplemental Rules of the Probate and Family Court (2012).

“Practice Alert: All formal testacy proceedings require publication in accordance with Rule 6 of the Supplemental Rules of the Probate and Family Court (2012). A formal petition will not be allowed without a prior publication.”

“Practice Alert: If an heir at law or devisee of the decedent’s estate is since deceased (i.e., died after the death of the decedent), a PR does not have to be appointed in a formal proceeding to represent the estate of the since deceased heir at law or devisee. An affidavit of the since deceased’s heirs at law is not required. Notice of the proceeding by publication is all that is required unless the court orders otherwise. In addition to notice by publication, the court may appoint a GAL or take other appropriate action.”

4.14.5 Proof of Notice

The petitioner shall provide the court with proof of notice by filing the complete citation with a completed Return of Service on or before the hearing or return day.

To insure that proper notice was given, the court shall cross reference the names listed in the Petition, and the names of any persons interested in the estate who have filed a written assent and waiver of notice with the names listed on the citation Return of Service.

4.15 Contesting a Formal Petition

Any party to a formal proceeding, who opposes the proceeding for any reason, shall before 10:00 a.m. of the return date enter an appearance in writing. See (MPC 505a) Notice of Appearance and/or Objection. MUPC at § 1-401(d), Rule 2 of the Supplemental Rules of the Probate and Family Court (2012).

4.15.1 Filing a Written Notice of Appearance and Objection (MPC 505a)

Objecting to a Petition is time sensitive and requires two (2) steps: (1) filing a written Notice of Appearance and Objection before 10:00 a.m. of the return date and (2) filing a written affidavit of objections within 30 days after the return date.

Copies of both the Notice of Appearance and Objection and the written affidavit of objections must be sent to the petitioner and all interested persons. See Rule 3 of the Supplemental Rules of the Probate and Family Court (2012).

If the Notice of Appearance and Objection and the affidavit of objections is timely filed and meets the requirements of 1-401(e), the formal proceeding shall be considered contested.

Note: The return date listed in a citation is NOT a hearing date. It is the deadline date by which an interested party must file his or her written appearance if he or she wishes to contest a Petition.

4.15.2 Filing a Written Affidavit of Objections

An objecting party who has filed a timely Notice of Appearance and Objection is also required to file a separate written affidavit of objections, stating the specific facts and grounds upon which the objection is based within 30 days after the return date. MUPC at § 1-401(e).

4.15.3 Striking a Notice of Appearance and Objection/Written Affidavit of Objections

If an affidavit of objections is neither timely filed, nor states the specific facts and grounds upon which the objection is based, the affidavit and the Notice of Appearance and Objection of the party filing such affidavit, may be struck on motion, after notice and a hearing by the court. MUPC at § 1-401(f).

4.15.4 Establishing a Hearing Date After the Return Date

In order to request a hearing date to appear before the court on a contested Petition, the petitioner must file a Request for a Case Management Conference or other applicable form. The division’s judicial case manager may be consulted for further information regarding the scheduling of a hearing date.

Note: A contested Petition shall be heard by a judge of the court and not a magistrate. A magistrate has no authority to hear a contested matter.

4.16 Uncontested Cases

If the Petition is uncontested and a hearing is not required, the petitioner shall submit to the court, either in person at the registry or by mail, all necessary documents for allowance by the magistrate or court. See section 4.5 of this guide.

If a formal proceeding is uncontested, the court or the magistrate may enter appropriate orders after the return date on the strength of the pleadings if satisfied that all conditions are met or the court may conduct a hearing and require proof of the matters necessary to support the order sought. MUPC at § 1-401(g), Rule 70 of the Supplemental Rules of the Probate and Family Court (2012).

Magistrate Note: A magistrate may act on an uncontested formal petition and must indicate that the action was taken by the magistrate and not by a judge.

“Practice Alert: If a creditor is the petitioner or is seeking to be appointed PR, the Petition must be presented to a judge. A magistrate cannot act on the Petition.”

4.17 Letters of Authority of a Personal Representative (MPC 751)

See section 1.12 of this guide.

4.18 Effect of a Formal Decree

A formal testacy proceeding results in an adjudication by the court. A Formal Decree is reversible only on appeal and may be vacated only on limited grounds. MUPC at §§ 4-412 and 4-413. Unlike supervised administration, once a formal decree is issued, the court’s involvement ends as to that proceeding.

“Practice Alert: Any interested person aggrieved by the action of a magistrate in a formal proceeding may be heard by a judge provided that a motion for a hearing is filed within five days of the date of the entry of the magistrate’s formal decree and order. See Rule 70 of the Supplemental Rules of the Probate and Family Court (2012).”

“Practice Alert: If the formal proceeding precedes any appointment of a PR, any informal appointment proceedings pending or commenced thereafter is stayed. If the proceeding is commenced after an appointment, the previously appointed PR, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise. MUPC at § 3-401.”

4.19 Late and Limited Formal Proceeding

If the decedent died on or after March 31, 2012 and no proceedings were commenced within three (3) years from date of death, then a formal proceeding may be filed to:

• (a) admit the decedent’s will to formal probate and to determine both the heirs at law and the devisees;
• (b) determine that the decedent died without a will and determine the heirs at law;
• (c) appoint a PR to administer the estate, including a person designated as a public administrator, in a supervised or unsupervised administration;
• (d) appoint a SPR pending the appointment of the PR in the formal proceeding.

Any PR appointed under this exception shall have no right to possess estate assets as provided in § 3-709 beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate. MUPC at § 3-108(4). See section 1.2 of this guide.

A successor is defined as “persons, other than creditors, who are entitled to the property of a decedent under the decedent’s will or this chapter.” MUPC at § 1-201(49).

“Practice Alert: A late and limited appointed PR may not seek a license to sell real estate of the decedent. The PR’s authority is limited by statute to confirming title to estate assets in the successors and paying expenses of administration, if any. MUPC at § 3-108(4).”

4.19.1 Filing for Late and Limited Formal Testacy and/or Appointment

The following court approved forms and documents must be filed depending on whether the decedent died with a will (testate) or without a will (intestate):

Formal Late and Limited Checklist

Decedent Died With a Will (Testate)

Form/Document Name	Required or May Need
Petition for Late and Limited Formal Testacy and/or Appointment (MPC 161)	Required
Surviving Spouse, Children, Heirs at Law (MPC 162)	Required
Devisees (MPC 163)	Required
Original Will, if available, if not, a copy or statement of Will contents	Required
Certified Copy of Death Certificate, if available or affidavit	Required
Citation - Return of Service (MPC 560)	Required
Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment (MPC 757)	Required
Bond (MPC 801)	Required (only if seeking the appointment of a PR)
Military Affidavit (MPC 470)	Required (unless the petition is assented to by all interested persons)
Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455)	May Need
Affidavit - as to cause of death (MPC 475), execution (MPC 480), domicile (MPC 485), or no conflict of a Conservator	May Need
Proof of Guardianship/Conservatorship	May Need
Uniform Counsel Certification Form (CCF 4/07)	May Need

Decedent Died Without a Will (Intestate)

Form/Document Name	Required or May Need
Petition for Late and Limited Formal Testacy and/or Appointment (MPC 161)	Required
Surviving Spouse, Children, Heirs at Law (MPC 162)	Required
Certified Copy of Death Certificate, if available or affidavit	Required
Citation - Return of Service (MPC 560)	Required
Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment (MPC 757)	Required
Bond (MPC 801)	Required (only if seeking the appointment of a PR)
Military Affidavit (MPC 470)	Required (unless the petition is assented to by all interested persons)
Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455)	May Need
Affidavit - as to cause of death (MPC 475), domicile (MPC 485), or no conflict of a Conservator	May Need
Proof of Guardianship/Conservatorship	May Need
Uniform Counsel Certification Form (CCF 4/07)	May Need

4.19.2 Petition for Late and Limited Formal Testacy and/or Appointment (MPC 161)

A person having a property interest in the estate of the Decedent (other than a creditor), a person having priority for appointment as PR, or a fiduciary representing an interested person may file (MPC 161) Petition for Late and Limited Formal Testacy and/or Appointment (hereafter “Petition”). Instructions have been developed to assist the petitioner. See (MPC 964) Instructions.

“Practice Alert: The time limits provided by § 3-108 do not apply to pre-MUPC deaths (deaths that occurred prior to 3/31/2012). Prior time limits control. See generally, G. L. c. 193, § 4 (repealed).”

The procedural requirements for the Petition are the same as filing (MPC 150) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative. Section 4.4 et seq., of this guide should be consulted for specific details.

4.19.3 Proposed Formal Decree (MPC 757)

The petitioner must submit a proposed (MPC 757) Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment prior to allowance. The petitioner is required to complete all applicable sections in preparation for the court’s signature.

Note: The Petition may be approved by a magistrate if assented to in writing, or if no objection to it has been filed.

4.19.4 Letters of Authority (MPC 751)

See section 1.12 of this guide.

The authority of any appointed PR under this exception is limited. A PR shall have no right to possess estate assets as provided in § 3-709 beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate. MUPC at § 3-108(4).

“Practice Alert: Pursuant to 3-108(4), the Letters for any PR appointed on a Petition for Late and Limited must indicate that the PR’s authority is limited.”

4.20 Amending a Pleading in a Formal Proceeding

4.20.1 Amending as a Matter of Course

In a formal proceeding, a party may amend the Petition or certain forms, (MPC 162) Surviving Spouse, Children, Heirs at Law or (MPC 163) Devisees, once as a matter of course at any time before an appearance has been timely filed. See Rules 3 and 7 of the Supplemental Rules of Probate and Family Court; Rule 15 of the Massachusetts Rules of Civil Procedure.

4.20.1.2 Amending Prior to Service of the Citation

If a pleading is being amended prior to service of the citation, no motion is required, but the petitioner must:

• (a) file the “amended” pleading designating it as such in the caption; and
• (b) serve the amended pleading with current citation and publish as ordered.

Fee Alert: No fee shall be charged for the filing of an amended form.

4.20.1.3 Amending After Service of the Citation

If a pleading is being amended after service of the citation, no motion is required, but the petitioner must:

• (a) file the “amended” pleading designating it as such in the caption;
• (b) request, pay for, and serve a new citation, including by publication if required by Rule 6, unless a motion to waive additional alternative service is allowed.

Fee Alert: No fee shall be charged for the filing of an amended form.

4.20.2 Amending by Leave of Court

A party may amend after an appearance has been filed only by leave of court, or with written consent of all parties. See Rules 3 and 7 of the Supplemental Rules of Probate and Family Court; Rule 15 of the Massachusetts Rules of Civil Procedure. To obtain leave of court, a motion must be filed and served on all interested persons. If the motion is allowed, the petitioner must:

• (a) file the “amended” pleading;
• (b) request, pay for, and serve a new citation, including by publication if required by Rule 6, unless a motion to waive additional alternative service is allowed.

Fee Alert: No fee shall be charged for the filing of an amended form.

Date published:	June 1, 2016
Last updated:	December 2, 2025