An informal proceeding is an administrative proceeding allowed by a MUPC magistrate or a judge to probate a will or appoint a PR. MUPC at § 1-201(23).
If a decedent died with a will (testate), an informal proceeding may be filed to probate the decedent’s will with or without a request for the appointment of a PR. A proceeding may also be filed for the informal appointment of a PR after the formal or informal probate of a will. If the petitioner is requesting the appointment of a PR and the decedent died with a will that has not been probated, the petitioner must also request that the will be probated at that time.
If a decedent died without a will (intestate), a proceeding for informal appointment of a PR may be filed.
An informal proceeding is unavailable if:
- the original will is lost, destroyed or otherwise unavailable;
- the original 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 PR 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, a 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 PR 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 PR;
- supervised administration is necessary;
- a judge must sign an order or final decree for any reason.
Note: An adjudication as to the decedent’s heirs at law and testacy are made only in a formal proceeding. See Chapter 4 of this guide.
3.1 Statutory References- MUPC at §§
- 3-301 through 3-311
3.2 Probate Court Jurisdiction
Pursuant to § 3-301, the court may accept a petition to informally:
- admit a will to probate. MUPC at § 3-301(2);
- appoint a PR to administer an estate under a will. MUPC at § 3-301(3);
- appoint a PR in an intestate estate. MUPC at § 3-301(4).
3.3 Filing for Informal Probate and/or Appointment of PR
Court approved forms are available to petition to informally probate an estate and/or appoint a PR. All required forms must be submitted as a complete packet. Forms may be obtained from:
- the registry in each county Probate and Family Court; or
- the MUPC Hub located on the Probate and Family Court website.
A complete packet consists of the following court approved forms and documents depending on whether the decedent died with a will (testate) or without a will (intestate):
Informal Checklist
Decedent Dies with a Will (Testate)
| Form/Document | Required or May Need |
|---|---|
| Petition for informal Probate of Will/Appointment of PR (MPC 150) | Required |
| Surviving Spouse, Children, Heirs at Law (MPC 162) | Required |
| Devisees (MPC 163) | Required |
| Original Will | Required |
| Certified Copy of Death Certificate | Required |
| Notice of Informal Probate & Return of Service (MPC 550) | Required |
| Order of Informal Probate of Will and/or Appointment of PR (MPC 750) | Required |
| Bond (MPC 801) | Required (only if seeking a 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), domicile (MPC 485), or no conflict of a Conservator who is also an heir or devisee | May Need |
| Proof of Guardianship/Conservatorship | May Need |
Decedent Died Without a Will (Intestate)
| Form/Document | Required or May Need |
|---|---|
| Petition for informal Probate of Will/Appointment of PR (MPC 150) | Required |
| Surviving Spouse, Children, Heirs at Law (MPC 162) | Required |
| Certified Copy of Death Certificate | Required |
| Notice of Informal Probate & Return of Service (MPC 550) | Required |
| Order of Informal Probate of Will and/or Appointment of PR (MPC 750) | Required |
| Bond (MPC 801) | Required |
| 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 who is also an heir or devisee | May Need |
| Proof of Guardianship/Conservatorship | May Need |
3.3.1 Submitting Court Pleadings
The petitioner must submit to the registry, either by e-filing (if available), by mail, or in person, a complete informal packet of required forms and documents 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 $390.00. The fee is broken down as follows: $375 for the filing of the informal petition, including all required forms/documents and a $15.00 surcharge fee to assign a docket number. The $390.00 filing fee includes the initial appointment bond, notice forms and the initial court issued Letters of Authority but does not include any publication costs. Additional Letters are $25.00 each.
The complete packet 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:
- Petition for Informal Probate of Will and/or Appointment of a PR (MPC 150);
- Surviving Spouse, Children, Heirs at Law (MPC 162);
- Devisees (MPC 163), if applicable;
- Original will, unless already in the division's possession and filed;
- Death certificate, unless already in the division's possession and filed;
- Notice of Informal Probate & Return of Service (MPC 550);
- Bond (MPC 801), if applicable;
- Military Affidavit (MPC 470), if necessary;
- Authenticated copy of will and appointment, for ancillary proceedings only;
- Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455), if any;
- Any required affidavits;
- Proof of Guardianship/Conservatorship, if applicable.
The proposed Order of Informal Probate of Will and/or Appointment of Personal Representative (MPC 750) (hereafter “Informal Order”) shall not be docketed.
3.3.2 Issuing a Docket Number
After filing, a case number shall be initiated in MassCourts and all filed pleadings shall be docketed with the docket number written on all pleadings/documents. If a decedent’s original will has already been filed with the division, or a case has already been initiated for the decedent, the additional pleadings shall be filed in the case already established. Once pleadings are docketed, the case shall be forwarded to appropriate personnel to process the payment.
Note: There shall only be one docket number for a decedent.
Note: If it is determined that a file should be located in a Probate and Family Court of another county within Massachusetts, the case may be transferred in accordance with the MUPC at § 1-303(c).
3.4 Required Elements of the Informal Petition (MPC 150)
Section 3-301 of the MUPC outlines the required contents of (MPC 150) Petition for Informal Probate of Will and/or Appointment of Personal Representative (hereafter “Petition”). 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. For instructions on completing this form see (MPC 962) Instructions.
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, Rule 28 of the Supplemental Rules of the Probate and Family Court (2012).
A complete and verified Petition must contain the following information:
3.4.1 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: An informal petition can only be amended prior to allowance. See section 3.15 of this guide.
3.5 Section I - General Information
3.5.1 Information about the Decedent
A death certificate issued by a public officer must be on file with the court or accompany the Petition. The petitioner must also provide the following:
- 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.
- Age at death –The age of the decedent at death must be listed and match the information listed on the death certificate.
- 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 within 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.
3.5.2 Information about the Petitioner(s)
The petitioner is likely to be the same person as the PR but does not need to be. The petitioner's name, address, primary phone number and interest in the decedent’s estate (i.e., the reason the petitioner may have a right to petition to probate the estate) must be stated. The Petition can expand to add a co-petitioner.
“Practice Alert: An informal proceeding is unavailable if the PR to be appointed is an interested person solely due to his or her status as a creditor or as a public administrator.”
“Practice Alert: A guardian may represent an heir at law or devisee who is an IP, PP, or a minor, but a guardian cannot be the petitioner.”
Magistrate Finding: The magistrate must make a finding that the petitioner appears to be an interested person as defined in § 1-204(24). MUPC at §§ 1-204(24), 3-303(a)(3), 3-308 (a)(3).
3.5.3 Time Limits
The Petition must be filed within the time period permitted by law. See section 1.2 of this guide.
Compare the date the Petition is filed to the date of the decedent’s death.
- Have more than 3 years elapsed since the date of death?
- If no, the petitioner has commenced proceedings within the time limits required by law.
- If yes, the petitioner must provide an explanation as to why the action was not commenced within the time permitted by law and include the statutory reference for the exception authorizing a tardy proceeding.
“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.”
Magistrate Finding: The magistrate must make a finding that the Petition was filed within the time period permitted by law. MUPC at § 3-303(a)(7).
Note: The death certificate is a good way to verify that the Petition is filed within the time period permitted by law.
3.5.4 Venue
See section 1.6 of this guide.
Magistrate Finding: The magistrate must make a finding that venue is proper. MUPC at §§ 3-303(a)(4), 3-308(a)(4).
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.
3.5.5 Notice to the Division of Medical Assistance ("DMA")
The petitioner must give written notice at least seven (7) days prior to petitioning for informal probate or appointment by sending a copy of the signed Petition and death certificate by certified mail to the Division of Medical Assistance, Estate Recovery Unit, 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. The amendment now requires the petitioner to give the Division of Medical Assistance written notice 7 days prior to petitioning for informal probate or appointment by sending a copy of the signed Petition and death certificate by certified mail.”
3.6 Section II - Persons Interested in the Estate
3.6.1Surviving Spouse, Children, Heirs at Law (MPC 162) and Devisees (MPC 163)
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 (MPC 162) Surviving Spouse, Children, Heirs at Law and if the decedent died with a will, (MPC 163) Devisees. Instructions are provided to assist the petitioner in completing these two 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, 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 heirs 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), a PR must be appointed for that estate in order to proceed informally. See (MPC 162) Surviving Spouse, Children, Heirs at Law and (MPC 163) Devisees. If no PR is appointed to represent the since deceased’s estate, a formal proceeding must be filed.”
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 that a conflict of interest does not exist between the conservator and the person(s) represented in order to proceed administratively on an informal 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 by the magistrate.”
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 at law cannot be ascertained, an informal petition cannot be filed. A formal proceeding however may be commenced.
Magistrate Finding: The magistrate must make a finding that the spouse, heirs at law and any devisees are not incapacitated or protected persons or minors; or if they are, they are represented by conservators or guardians. See MUPC at §§ 1-3-303(a)(8), 3-308(a)(8).
“Practice Alert: A guardian of an heir at law or devisee who is an IP, PP, or a minor cannot be the petitioner.”
“Legislative Change: The above was revised by Chapter 140 of the Acts of 2012. The amendment to § 1-404(d) now allows the conservator of a spouse, heir at law or devisee who is an IP, PP, or a minor to be the petitioner in an informal proceeding. A guardian cannot be the petitioner.”
3.7 Section III - Testacy Status
The petitioner must indicate whether or not the decedent died intestate (without a will) or testate (with a will).
3.7.1 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 state his or her reasons in the space provided.
Magistrate Finding: The magistrate must decline the Petition if the Petition indicates the existence of a possible unrevoked will or codicil which is not filed for probate in this division. MUPC at §§ 3-301(4), 3-311.
3.7.2 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. If the petitioner is not offering for probate the decedent’s unrevoked last will, the petitioner must state his or her reasons in the space provided.
The petitioner must state on the Petition:
- the date of the decedent’s last will and any codicil(s); and
- that the will submitted for probate is the original will or for an ancillary probate proceeding, that the will is an authenticated copy of a will probated in another jurisdiction and is 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). See Chapter 4 this guide.”
Magistrate Finding: The magistrate must make a finding that (1) an original, properly executed and apparently unrevoked will is in the court's possession and that there are no known prior wills which have not been expressly revoked by a later instrument; or (2) an authenticated copy of the will and documents establishing probate in another state or country are in the court's possession. MUPC at §§ 3-303, 2-502, 2-504. See section 1.14 of this guide.
Note: The MUPC gives the magistrate two (2) separate methods by which to review the execution requirements. The will is considered properly executed if:
- It contains an attestation clause showing that the execution requirements of § 2-502 have been met; or if none,
- The magistrate may assume execution if the will appears to have been properly executed.
MUPC at § 3-303(c). See also section 1.14 of this guide.
“Practice Alert: A will is not required to be self-proved in order to admit to informal or formal probate. MUPC at § 2-504. See also section 1.14 of this guide.”
3.8 Section IV - Appointment of a PR (if requested)
To acquire the powers and undertake the duties and liabilities of a PR, 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.
In order to seek the appointment of a PR in an informal proceeding, the nominee must have either statutory priority for appointment or have obtained priority through appropriate renunciation(s)/nomination(s). MUPC at § 3-203. See section 1.5 of this guide.
“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. All required renunciations/nominations must accompany the Petition. See (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties and (MPC 941) Instructions.”
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.”
Magistrate Finding: The magistrate must make a finding from the statements in the Petition that the person whose appointment is sought has priority entitling that person to the appointment. MUPC at § 3-308(7). In addition, the magistrate must find that any will to which the requested appointment relates has been formally or informally probated. MUPC at § 3-308(5).
3.8.1 Information about Other PRs
The petitioner must disclose if a court has appointed a PR or if an appointment proceeding is pending in Massachusetts or elsewhere. If a PR has been appointed or an appointment is pending, the jurisdiction where the action occurred or is pending must be listed and the PR’s name and address identified.
Note: If a PR has been appointed in Massachusetts, and the appointment has terminated by death, disability, resignation or removal, a petition for appointment of a successor PR should be used. MUPC at § 3-609. See Chapter 8 of this guide.
Magistrate Finding: The magistrate must deny the Petition if it indicates that a PR has been appointed in Massachusetts or elsewhere and continues to serve, unless:
- the decedent was not domiciled in Massachusetts and the petitioner is the domiciliary PR or his or her nominee.
- the decedent was not domiciled in Massachusetts and the decedent’s will nominates different PRs to serve in Massachusetts and in the state of domicile.
- a PR is appointed informally and thereafter there is a change of testacy entitling a different PR to appointment and the different PR does not request appointment as part of the formal petition to change testacy but within 30 days brings an informal petition seeking appointment.
MUPC at §§ 3-308(b), 3-612. See also Chapter 11 of this guide.
3.8.2 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, see section 1.7 of this guide.
3.9 Section V - Relief Requested
The Petitioner may request that the court/magistrate order any or all of the following:
- Admit the decedent’s will to informal probate;
- Appoint the nominee as PR of the estate in an unsupervised administration to serve:
- without sureties on the bond; or
- with sureties on the bond, and that Letters be issued.
Note: No Letters shall issue by the court without an approved bond.
Note: Supervised Administration is not available in an informal proceeding.
3.9.1 Verification
The Petition must be verified. This means the petitioner must state, under oath, that the statements in the Petition are true to the best of petitioner’s knowledge. The petitioner, not the attorney appearing for the petitioner, must sign the verification. MUPC at § 1-310. See also, Rule 28 of the Supplemental Rules of the Probate and Family Court (2012).
Magistrate Finding: The magistrate must make a finding that the Petition is complete and that the petitioner has made oath or affirmation that the statements contained in the Petition are true to the best of the petitioner’s knowledge and belief. MUPC at §§ 3-303(a)(1)& (2), 3-308 (a)(1) &(2).
3.9.2 Appearance by Attorney
If the petitioner is represented by counsel, the attorney shall sign the Petition and provide his or her name, address, phone and BBO number. A separate appearance form (MPC 505a) is not required. See Rule 2 of the Supplemental Rules of the Probate and Family Court (2012).
3.10 Additional Required Forms
3.10.1 Death Certificate
A certified copy of the death certificate must be filed with the Petition unless it is already on file with the division. MUPC at §§ 3-303(9), 3-308(9).
“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 on the death certificate is listed as “pending,” the petitioner must also file (MPC 475) Cause of Death Affidavit (formerly known as a Suspicious Death Affidavit). MUPC at § 2-803.”
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.
Magistrate Finding: The magistrate must make a finding that the death certificate issued by a public officer is in the court's possession. MUPC at §§ 3-303(9), 3-308(9).
3.10.2 Military Affidavit (MPC 470)
Unless the Petition is assented to by all interested persons, (MPC 470) Military Affidavit must be filed stating whether or not an heir at law, devisee or other interested person is in the military service. If an heir at law, devisee or other interested person is in the military service, his or her written assent to the Petition must be filed or an informal proceeding is not available. Uniform Practice XXV of the Probate Court. A formal proceeding however may be commenced. See (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties and (MPC 941) Instructions.
3.10.3 Magistrate's Order (MPC 750)
As part of the complete packet, the petitioner must submit a proposed (MPC 750) Order of Informal Probate of Will and/or Appointment of Personal Representative (hereinafter “Informal Order”). The petitioner is required to complete all applicable sections in preparation for the magistrate’s signature.
If the petitioner is seeking to probate the decedent’s will, after making the findings required by § 3-303, the magistrate shall issue an Informal Order if at least seven (7) days have passed since decedent’s death. If not, the magistrate must delay issuing the Informal Order until 7 days have elapsed. MUPC at §§ 3-302, 3-303.
If the petitioner is seeking the appointment of a PR, after making the findings required by § 3-308, the magistrate shall appoint the petitioner or nominee(s), subject to qualification and acceptance (by executing a sufficient bond), if:
- at least seven (7) days have passed since decedent’s death. If not, the magistrate must delay issuing the Informal Order until 7 days have elapsed; OR
- at least thirty (30) days have passed since decedent’s death, if the petitioner is seeking the appointment of a PR and the decedent was a non-resident, unless one of the following exceptions apply:
- the PR appointed in the decedent’s domicile is the petitioner and nominee; OR
- the decedent’s will directs that the estate be subject to the laws of Massachusetts.
MUPC at §§ 3-307, 3-308.
“Practice Alert: For decedents domiciled both in and out of Massachusetts, the magistrate shall not issue an Informal Order appointing a PR unless at least seven (7) days have elapsed since the decedent’s date of date.”
Note: If an emergency exists requiring the immediate appointment of a PR, a Petition for Special Administration may be filed to protect the assets of the estate.
3.11 Additional “May Need” Forms
3.11.1 Bond (MPC 801)
See section 1.7 of this guide.
If the petitioner is seeking the appointment of a PR, (MPC 801) Bond shall be required and must be submitted with the informal packet. No bond is necessary if the petitioner is requesting only to probate an original will.
3.11.2 Assent and Waiver of Notice (MPC 455)
See section 3.13.2 of this guide.
3.11.3 Renunciation/Nomination (MPC 455)
If the petitioner is seeking to appoint a PR who does NOT have statutory priority for appointment, a renunciation and/or nomination by persons with statutory priority shall be required and must be submitted by filing (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties with the informal packet MUPC at § 3-203(a)(2-5). Instructions are provided to assist the petitioner in completing this form. See (MPC 941) Instructions. For additional information regarding priority for appointment, see section 1.5 and section 3.8 of this guide.
3.11.4 Affidavits
An affidavit is a written declaration or statement of facts made voluntarily. The Affiant certifies under the penalties of perjury that the statements made are true to the best of his or her knowledge and belief. Any of the following affidavits may be required.
3.11.4.1 Cause of Death Affidavit (MPC 475)
If the cause of death is listed as “homicide” or “pending,” the petitioner must file (MPC 475) Cause of Death Affidavit (formerly known as Suspicious Death Affidavit) stating whether or not the decedent’s death is the result of a felonious and intentional killing of the decedent by the PR or any person entitled to share in the decedent’s estate. MUPC at § 2-803. Other causes of death do not require the Affidavit.
3.11.4.2 Affidavit of Domicile (MPC 485)
If the address of the decedent is incorrectly listed on the death certificate (MPC 485) Affidavit of Domicile must be filed stating facts from the affiant’s personal knowledge.
3.11.4.3 Affidavit of Conservator
“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 that a conflict of interest does not exist between the conservator and the person(s) represented in order to proceed administratively in an informal proceeding. 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 by the magistrate. MUPC at § 1-404(d).”
3.12 Proof of Guardianship/Conservatorship
In an informal proceeding, a spouse, heir at law or devisee who is an IP, PP, or a minor must be represented by a conservator, or if not a conservator, a guardian who cannot be the petitioner.
If the appointment is/was within the court in which the filing is being made, the petitioner shall be required to present proof in the form of a docket number. If not, the petitioner must file a certified copy of Letters of guardianship or conservatorship or other proof of appointment.
3.13 Notice Requirements for an Informal Proceeding
No citation issues in an informal proceeding. Instead, an informal proceeding requires two types of notice:
- Notice prior to filing the Petition; AND
- Publication notice after the allowance of the Petition.
Alert: It is the responsibility of the petitioner to obtain and complete (MPC 550) Notice of Informal Probate and Return of Service and to provide notice to all interested persons who have not waived their right to notice. The court does not issue pre-filing or post publication notice in an informal proceeding.
3.13.1 Notice Prior to Filing the Petition
3.13.1.1 Notice of Informal Probate and Return of Service (MPC 550)
At least seven (7) days prior to petitioning, the petitioner must give written notice of the petitioner’s intent to file for informal probate and/or appointment of a PR. MUPC at § 3-306; see (MPC 550) Notice Informal Probate and Return of Service.
“Practice Alert: It is the responsibility of the petitioner to obtain and complete the Notice of Informal Probate and Return of Service and provide notice to all persons entitled unless a written assent and waiver of notice is on file. See (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties and (MPC 941) Instructions. The court is not responsible for issuing notice in an informal proceeding.”
3.13.1.2 Persons Entitled to Notice
Notice must be given either by in-hand delivery or first-class ordinary mail to:
- heirs at law;
- 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);
- any person having a higher or equal right to appointment not waived in writing and filed with the division;
- any PR of the decedent whose appointment has not been terminated;
- the Attorney General of Massachusetts, if there is no spouse or heir at law of the decedent or if any devisee is a charity;
- 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; AND
- any other person as the petitioner elects.
MUPC at § 3-306(a)(d)(e) and Uniform Practice XXXIV (34) of the Probate Court.
Any person or his or her attorney may assent and waive notice on (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties. Instructions for completing this form are available. See (MPC 941) Instructions. Assents are not required in an informal proceeding unless a person interested in the estate is on active duty in the military. See section 3.10.2 of this guide.
The petitioner need not provide notice to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. MUPC at § 3-306(f).
“Practice Alert: If it appears from the Petition that a spouse, heir at law or devisee is an IP, PP, or a minor, the petitioner shall give notice to that person and to that person’s guardian or conservator. MUPC at § 3-306(e). Notice to the parent(s) of an heir at law or devisee who is a minor is not adequate notice. A parent, however, may petition to be the minor child’s guardian or conservator. If a spouse, heir at law or devisee is an incapacitated person, protected person, or a minor, and is not represented by a conservator, or if not a conservator, a guardian who is not the petitioner, an informal proceeding is not available. MUPC at §§ 1-404(d), 3-303, 3-308. A formal proceeding may be filed. See Chapter 4 of this guide.”
Note: If the address of any interested person or the identity of any heir at law is unknown, an informal proceeding is not available and a formal petition must be filed. MUPC at § 3-301(a)(1)(ii).
“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 must be appointed to represent that estate in order to proceed informally. See (MPC 162) Surviving Spouse, Children, Heirs at Law and (MPC 163) Devisees. Notice of the informal proceeding must be provided to the appointed PR. If no PR is appointed to represent the since deceased’s estate, a formal proceeding must be filed.”
3.13.1.3 Proof of Service
The petitioner must submit, as part of the complete packet, a return of service stating the names of persons served, how served and the date of service. If a person entitled to notice has assented and waived their right to notice, the petitioner must provide this information along with the written assent and waiver of notice. See (MPC 550) Notice of Informal Probate and Return of Service (hereafter “Return of Service”) and (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties.
Note: Pursuant to Rule 28 of the Supplemental Rules of the Probate and Family Court (2012), an attorney may sign the Return of Service on behalf of his or her client.
Magistrate Finding: The magistrate must make a finding that notice required by § 3-306 has been given to or waived by each person entitled to notice under the law including any guardian or conservator. MUPC at §§ 3-303(a)(6), 3-308(a)(6).
3.14 Publication Notice after Informal Probate or Appointment
3.14.1 Informal Probate Publication Notice (MPC 551)
Within 30 days after allowance of the informal probate and/or appointment, the petitioner must publish a notice once in one of the newspapers designated by the register.
A list of newspapers designated by the register is available at each registry and on the Probate and Family Court website. The petitioner selects the newspaper from the list generally based on the city or town of the decedent’s last domicile and/or where the proceeding is pending. MUPC at § 3-306(b).
To assist the petitioner in providing the newspaper with the information to be published, a sample form is available that is intended for general use only. See (MPC 551) Informal Probate Publication Notice and the Instructions. The court is not responsible for the content or manner of publication. MUPC at § 3-306(c).
3.14.2 Proof of Publication
There is no general requirement to file proof of publication with the court. The petitioner's failure to give this notice does not affect the validity of the probate, appointment, powers or other duties. MUPC at § 3-306(f).
“Practice Alert: In most circumstances, the court will require proof of publication in a later formal proceeding such as a petition for license to sell real estate or an insolvency proceeding.”
3.15 Amending a Pleading in an Informal Proceeding
After the Petition is filed with the court and before it is acted on by a MUPC magistrate, a petitioner may amend the Petition, or form (MPC 162) Surviving Spouse, Children, Heirs at Law, or form (MPC 163) Devisees, without obtaining court permission in order to correct any errors or omissions. To do so, the petitioner must file a new Petition (MPC 150) or a new (MPC 162) Surviving Spouse, Children, Heirs at Law or new (MPC 163) Devisees, clearly designating it as “amended” in the caption. For additional forms that may be required or needed as a result of an amended Petition, see the Informal Checklist in section 3.3 of this guide. A motion to amend is not required.
Fee Alert: No fee shall be charged for the filing of an amended form.
Notice of an amended Petition, or of an amended (MPC 162) Surviving Spouse, Children, Heirs at Law or amended (MPC 163) Devisees, using (MPC 550) Notice of Informal Probate, must be provided to persons interested in the estate. See section 3.13 of this guide. A person entitled to notice may waive such right by filing (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties. An assent to a Petition as originally filed will not be deemed an assent to an amended Petition.
Note: The time limit for filing an original pleading shall not apply to the filing of an amended Petition if the original pleading was filed within the time limit provided by § 3-108.
“Practice Alert: Once an Informal Order has entered, an informal petition cannot be amended.”
3.16 Magistrate’s Approval
The magistrate shall review the informal packet for substantive errors. The magistrate may approve the Petition if all statutory requirements are met. See generally, MUPC at §§ 3-303, 3-308. The magistrate shall or may deny/decline the petition based on the following: The Petition shall be denied/declined if:
- the petition indicates that a PR has been appointed in another county in Massachusetts. MUPC at §§ 3-303(b), 3-308(b). A formal proceeding may be available. See MUPC at § 3-414.
- it appears that the will offered for informal probate or another will of the decedent has been the subject of a previous probate order unless the previous probate order relates to a will that has been probated in another state or country and the petition is filed by an interested person. MUPC at §§ 3-303(b), 3-303(d). A formal proceeding may be available. See MUPC at §§ 3-401, 3-414.
- the petition for appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of Massachusetts, and which is not filed for probate in this court. MUPC at § 3-311. In this case, an informal appointment is unavailable. A formal proceeding may be available. See MUPC at § 3-402(a).
- the petition for probate relates to one or more of a known series of testamentary instruments (other than a will and one or more codicils), the latest of which does not expressly revoke the earlier. MUPC at § 3-304. In this case, informal probate is unavailable. A formal proceeding may be available. See MUPC at §§ 3-410; see also MUPC at §§ 2-507, 2-509, 2-513.
The Petition may be declined if:
- the magistrate is not satisfied that a will is entitled to be probated in an informal proceeding for any reason. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings. MUPC at § 3-305.
- the magistrate is not satisfied that a requested informal appointment of a PR should be made for any other reason. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings. MUPC at § 3-309.
“Practice Alert: The declination of informal probate of a will or the declination of informal appointment of a PR is not an adjudication and does not preclude a timely filed formal probate or appointment proceeding. MUPC at §§ 3-305, 3-309.”
Once approved or denied/declined, an Informal Order shall be docketed in MassCourts and a copy forwarded to the petitioner by mail or in person. The file shall then be forward to the registry to issue Letters (if applicable).
If an informal appointment has been approved, the registry shall be responsible for providing a copy of the Letters to the petitioner either in hand or by mail. No fee shall be charged for the initial letter. If the registry is requested to issue additional copies, a fee shall be charged and collected at the time of the request.
Note: A magistrate does not have authority to preside over a contested case. A magistrate shall not act on any informal petition when a formal testacy proceeding is pending. MUPC at § 3-401.
3.17 Letters of Authority for Personal Representative (MPC 751)
The registry will no longer issue Certificates of Appointment, but will now issue (MPC 751) Letters of Authority for Personal Representative (hereafter “Letters”). Letters are evidence of the PR’s appointment and proof of authority to act on behalf of the estate and shall issue only if a PR is appointed and a bond is approved. The register for each division is responsible for the issuance of Letters. G. L. c. 217, § 22. See section 1.12 of this guide.
“Practice Alert: If the magistrate denies or declines the request to appoint a PR, Letters shall not issue.”
| Date published: | June 1, 2016 |
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| Last updated: | December 2, 2025 |