10.1 Statutory References-MUPC at §§
For a PR, Successor PR, and SPR:
- 3-703
- 3-704
- 3-706
- 3-1001
- 3-1003
- 3-1204
For supervised administration:
- 3-505
“Practice Alert: For purposes of the Inventory, Accounts and closing an estate, a Voluntary PR is not considered a PR.”
10.2 Preparing an Inventory
A PR must prepare an inventory within 3 months of appointment listing all personal property wherever located and all real property located in Massachusetts owned by decedent at the time of death stating values as of date of death. MUPC at § 3-706.
A successor PR must prepare an inventory of the estate within three (3) months of the date of appointment stating values as of date of appointment. MUPC at § 3-706.
“Legislative Change: The above was revised by Chapter 140 of the Acts of 2012. A successor personal representative is statutorily required to prepare an inventory within 3 months of his/her appointment, listing inventory values as of date of appointment, not date of death.”
An inventory must indicate:
- The property’s fair market value at the date of decedent’s death for a PR, but for a successor PR, as of date of appointment; and
- The type and amount of any encumbrance on the property listed.
MUPC at § 3-706.
“Practice Alert: Unless otherwise ordered or required by statute, there is no requirement for a PR appointed under the MUPC to file an inventory with the court. If an inventory is filed with the court, the court promulgated form, (MPC 854) Inventory or (MPC 854(a)) Inventory (without schedules) must be used. If the court-promulgated form is being filed by a successor PR, the form should indicate in the space provided that the Inventory is being filed by a successor PR. Either form is available on-line or at the registry.”
“Practice Alert: A Public Administrator continues to be obligated to file the Inventory with the court. G. L. c. 194, § 2.”
10.2.1 Serving and/or Filing an Inventory
A PR is required to:
- mail a copy of an inventory to all interested persons whose addresses are reasonably available; or
- file the original or a copy of (MPC 854) Inventory or (MPC 854(a)) Inventory (without schedules) with the court.
“Practice Alert: The court shall require that an inventory on a court approved form be filed with the court in connection with a Petition for License to Sell, Petition for Allowance of Account or Petition for Order of Complete Settlement.”
“Practice Alert: Failure to serve all interested persons with a copy of an inventory or to timely file an inventory with the court is grounds for removal of the PR. MUPC at § 3-611.”
Note: A fiduciary may choose to file an inventory with the court where there are a large number of interested persons and the burden of sending an inventory to all would be significant.
10.3 Filing of Accounts
Chapter 206, §§ 2 - 6, §§ 8-15 and 17 are still in effect and govern accounts as does Rule 72 and Rule 72a of the Supplemental Rules of the Probate and Family Court (2012) and Uniform Practice XVIA (16A) and XVII (17) of the Probate Court.
A PR appointed after the effective date of the Code (3/31/2012) with a MUPC bond, is not required to file an account with the court unless otherwise required by law or court order. An interim or a final account may be filed voluntarily with the court by the PR with the appropriate fee.
“Practice Alert: Accounts of a PR may be filed with the court without a petition for allowance provided the appropriate fees for the accounts are paid. Accounts will not be allowed unless the appropriate petition is filed.”
A pre-MUPC executor or administrator continues to be obligated to file an annual account with the court until the final account is allowed unless a Decree and Order on a Petition to Modify a Bond has entered excusing the fiduciary from this obligation. See Standing Order 5-11 (as amended).
“Practice Alert: A Public Administrator continues to be obligated to render (“file”) an annual account with the court until the final account of his/her administration is allowed. G. L. c. 194, § 2.”
10.3.1 The Account Form (MPC 853 or MPC 853(a))
If an account is filed with the court, it must be on one of the court promulgated forms. See (MPC 853) Account (with schedules) or (MPC 853(a)) Account (without schedules). The Account form promulgated by the court details the activities of the fiduciary by the use of schedules A, B, C. The Account form lists the estate’s income, gains from sales and property received, payments, distributions, losses and the balance, if any, remaining at the end of the accounting period. See generally, G. L. c. 206, § 2.
Fee Alert: To determine the fee to file the Account, see the category, “Accounts”, in the Probate and Family Court Uniform Fee Schedule. The Account fee is in addition to the petition fee for its allowance.
10.3.2 Allowance of an Interim Account
An interim account is not an annual account and may cover any discrete period of time which may be less than or more than one year. No interim account of a PR who is not a SPR shall be allowed by the court until the expiration of one year from the Decedent’s date of death. See Uniform Practice XVII (17) of the Probate Court.
An interim account may be allowed by the court only if requested by the filing of (MPC 857) Petition for Allowance of Account at any time prior to the allowance of a final account by Decree and Order of Complete Settlement.
When a Petition for Allowance of Account is filed, a citation shall issue from the registry for service on all interested persons who have not assented or waived notice. See Rule 72 of the Supplemental Rules of the Probate and Family Court and section 10.8 of this guide.
“Practice Alert: The court shall require that the Inventory be filed with the court in connection with a Petition for License to Sell, Petition for Allowance of Account or Petition for Order of Complete Settlement.”
Fee Alert: The fee to file (MPC 857) Petition for Allowance of Account is $75.00 in addition to any account or citation fee.
“Practice Alert: The allowance of an interim account does not close the estate but only determines the items as stated on the interim account.”
“Practice Alert: A final account may be allowed by the court only if requested in (MPC 855) Petition for Order of Complete Settlement. MUPC at § 3-1001. See section 10.6 of this guide.”
10.3.3 Allowance of a Final Account
See section 10.6 of this guide.
10.4 Petition to Render Inventory/Account (MPC 856)
If there is no court order requiring a PR to file an inventory or account with the court, any person interested in the estate may file (MPC 856) Petition to Render Inventory/Account requesting that the PR render an inventory, and if more than one year has passed since the date of appointment, an account.
After filing the Petition, the court shall issue a citation to be served in-hand on the PR, unless otherwise ordered. If no objection is filed by the return date, the court shall issue to the PR (MPC 754) Order to Render by mail. A PR who objects to the petition, must follow the procedure set forth in section 10.9 of this guide. MUPC at § 1-401 (d)-(e). Thereafter, the court shall schedule a hearing and allow or disallow the petition.
If the court orders the PR to file an account, the PR must file a court approved inventory and appropriate petition to allow the account.
“Practice Alert: Any inventory filed in response to an Order to Render must be on the court promulgated form. See (MPC 854) Inventory or (MPC 854(a)) Inventory (without schedules). Any account filed in response to an Order to Render must be on the court promulgated account form, (MPC 853) Account (with schedules) or (MPC 853(a)) Account (without schedules) and must be accompanied by (MPC 854) Inventory or (MPC 854(a)) Inventory (without schedules) and the appropriate petition, (MPC 857) Petition for Allowance of Account or (MPC 855) Petition for Order of Complete Settlement and filing fees.”
10.5 Methods for Closing an Estate
A PR appointed under the MUPC (except a Public Administrator) is not required to close an estate unless ordered by the court or the estate is proceeding under supervised administration. See Chapter 5 of this guide.
Note: Closing procedures do not apply to Voluntary PRs because VPRs are not defined as PRs in the Code. MUPC at § 1-201(37).
To close the estate, whether testate (with a will) or intestate (without a will), a PR may file a:
- Form (MPC 850) Closing Statement. MUPC at § 3-1003;
- Form (MPC 851) Small Estate Closing Statement. MUPC at § 3-1204; or
- Form (MPC 855) Petition for Order of Complete Settlement including a final account on a court approved form. MUPC at § 3-1001; see section 10.3.1 of this guide.
Any person interested in the estate may file (MPC 855) Petition for Order of Complete Settlement, including a request to consider and rule on the PR’s final account that is on file with the court.
Note: Unless a Closing Statement is filed, or a Decree and Order for Complete Settlement allowing the final account is obtained, the PR is not protected from later claims that the PR breached a fiduciary duty. A PR (and any surety) may be released from his or her bond and discharged only by a Decree and Order of Complete Settlement (MPC 790).
10.5.1 Closing by Sworn Closing Statement (MPC 850)
A PR may close the estate by filing with the court a sworn (MPC 850) Closing Statement, if all of the following requirements are met:
- The estate is not being administered by a Supervised PR (MUPC at § 3-505);
- There is no court order requiring a formal closing proceeding;
- Six months have passed since the date of the original appointment;
- The time for creditor’s claims has expired (MUPC at § 3-803);
- The PR has fully administered the estate by:
- distributing the estate to the persons entitled AND
- making payment, settlement or other disposition of: all claims presented, all expenses of administration, and estate, inheritance and death taxes, except as may be specified in the statement;
- The PR has sent a copy of the sworn Closing Statement to all distributees and to all creditors/claimants who have unbarred claims which have not been paid; AND
- The PR has furnished an accounting to the distributees whose interests are affected.
MUPC at § 3-1003.
The MUPC defines “distributee” as “any person who has received property of a decedent from the decedent’s personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining is such trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.” MUPC at § 1-201(13).
Note: “Except as may be specified in the statement,” means that if any claims remain un-discharged, the statement must state whether the PR has distributed the estate subject to possible liability with agreement of the distributees or state in detail other arrangements that have been made to accommodate outstanding liabilities. MUPC at § 3-1003(a)(2).
“Practice Alert: The sworn Closing Statement must be signed by the PR. It may not be signed by counsel on behalf of the PR.”
If no proceedings involving the PR are pending in the court one year after the Closing Statement is filed, the PR’s Closing Statement may not be challenged except for fraud or manifest error. MUPC at § 3-1003(b).
“Practice Alert: A Closing Statement must be accepted for filing even if it appears from a prior petition that an interested person is under a legal disability.”
10.5.2 Closing by Sworn Small Estate Closing Statement (MPC 851)
An estate qualifying as a small estate may be closed by filing with the court a sworn (MPC 851) Small Estate Closing Statement. The estate is considered a “small estate” if:
[the value of the entire estate] – [liens and encumbrances] is less than or equal to the total of [the family allowance; MUPC at § 2-404] + [exempt property; MUPC at § 2-403] + [costs & expenses of administration] + [reasonable funeral expenses] + [reasonable and necessary medical and hospital expenses of the last illness of decedent].
The following additional requirements must be met:
- There is no court order requiring a formal closing proceeding;
- The estate is not being administered by a Supervised PR (MUPC at § 3-505);
- The PR has disbursed or distributed the estate to persons entitled thereto;
- The PR sent a copy of the sworn Small Estate Closing Statement to all distributees AND to all creditors/claimants who have unbarred claims which have not been paid; AND
- The PR has furnished a written accounting to the distributees whose interests are affected.
MUPC at § 3-1204. For a definition of “distributee”, see section 10.5.1 of this guide.
“Practice Alert: The sworn Small Estate Closing Statement must be signed by the PR. It may not be signed by counsel on behalf of the PR.”
If no proceedings involving the PR are pending in the court one year after the Closing Statement is filed, the PR’s Small Estate Closing Statement may not be challenged except for fraud or manifest error. MUPC at § 3-1003(b).
“Practice Alert: If no actions or proceedings involving the PR are pending in the court one year after the Small Estate Closing Statement is filed, the appointment of the PR terminates. MUPC at § 3-1204(c).”
“Practice Alert: A Small Estate Closing Statement must be accepted for filing even if it appears from a prior petition that an interested person is under a legal disability.”
10.5.3 Notice
A copy of (MPC 850) Closing Statement or a copy of (MPC 851) Small Estate Closing Statement must be given by the PR to all distributees and to all creditors or other claimants of whom the PR is aware whose claims are neither paid nor barred. MUPC at §§ 3-1003, 3-1204. Additionally, notice must be given to the Attorney General of Massachusetts if there is no spouse or heir at law of the decedent or any devisee is a charity. See Uniform Practice XXXIV (34) of the Probate Court.
10.6 Closing by Petition for Order of Complete Settlement (MPC 855)
10.6.1 Requesting Approval of a Final Account and to Close the Estate
A final account may be allowed by the court only if requested by filing (MPC 855) Petition for Order of Complete Settlement along with the account. MUPC at § 3-1001. See section 10.3.1 of this guide for details regarding the account form that must be filed.
A Petition for Order of Complete Settlement filed to close the estate shall request approval of the final account and all of the following requirements must be met:
- One year has passed since the date of the original appointment, or the petitioner is the PR;
- The time for creditor’s claims has expired (see MUPC at § 3-803);
- The final account is filed with the Petition for Order of Complete Settlement or on file with the court at the time of filing the petition;
- All interested persons have assented to the petition or have been given notice.
MUPC at § 3-1001(a)-(c); Uniform Practice XVII of the Probate Court.
Fee Alert: The fee to file (MPC 855) Petition for Order of Complete Settlement is $75.00 in addition to the account fee. To determine the fee to file a final account, see the category, “Accounts”, in the Probate and Family Court Uniform Fee Schedule. The final account fee is in addition to the petition fee for its allowance.
10.6.2 Other Permissible Requests for Relief
In addition to requesting the approval of a final account to close the estate, a Petition for Order of Complete Settlement may request that the court:
- make a final determination of testacy, if not previously determined;
- make a final determination of the decedent’s heirs at law, if not previously determined;
- determine and approve a proposed distribution; AND/OR
- construe the will as proposed.
MUPC at § 3-1001(a)-(c).
“Practice Alert: Even when made in a Petition for Order of Complete Settlement, the request to determine testacy is subject to the time limits provided by § 3-108. See section 1.2 of this guide.”
“Practice Alert: The court shall require that the court approved Inventory form be filed in connection with (MPC 857) Petition for Allowance of Account or (MPC 855) Petition for Order of Complete Settlement.”
10.6.3 Requesting a Determination of Testacy
Pre-MUPC Cases
Petition for Administration. A pre-MUPC decree on a Petition for Administration did not per se formally adjudicate the testacy status of an estate. Therefore, you MAY request, as part of a Petition for Order of Complete Settlement, that the court determine (confirm) intestacy. For all requests to formally determine intestacy, a publication is required. See section 10.8.3 (d) of this guide.
Probate of Will. A pre-MUPC decree on a Petition to Probate a Will did per se formally adjudicate the testacy status of an estate. Therefore, you may not request, as part of a Petition for Order of Complete Settlement, that the court re-determine testacy.
MUPC Cases
Petition for Formal. A MUPC Decree and Order on a Petition for Formal did formally adjudicate the testacy status of an estate. Therefore, you may not request, as part of a Petition for Order of Complete Settlement, that the court re-determine testacy.
Petition for Informal. A MUPC informal Order did not formally adjudicate the testacy status of an estate. Pursuant to § 3-108, there is a general three (3) year time limit to determine testacy. Provided the time limit under § 3-108 has not expired, you may request, as part of a Petition for Order of Complete Settlement, that the court determine the testacy status of an estate. For all requests to formally determine testacy, a publication is required. See section section 10.8.3 (d) of this guide.
10.6.4 Requesting a Determination of the Decedent’s Heirs at Law
Pre-MUPC Cases
Petition for Administration OR Petition to Probate a Will. A pre-MUPC decree on a Petition for Administration or a Petition to Probate a Will did not formally adjudicate the heirs at law of an estate. Pursuant to § 3-108, there is no time limit to determine the heirs at law. Therefore, you MAY request, as part of a Petition for Order of Complete Settlement, that the court determine the heirs at law. The heirs at law will be determined as of date of death. See generally, G. L. c. 190. For all requests to formally determine the heirs at law, a publication is required. See section section 10.8.3 (d) of this guide.
MUPC Cases
Petition for Formal. A MUPC Decree and Order on a Petition for Formal did formally adjudicate the heirs at law of an estate. Therefore, you may not request, as part of a Petition for Order of Complete Settlement, that the court re-determine the heirs at law.
Petition for Informal. A MUPC informal Order did not formally adjudicate the heirs at law of an estate. Pursuant to § 3-108, there is no time limit to determine the heirs at law. Therefore, you may request, as part of a Petition for Order of Complete Settlement, that the court determine the heirs at law. The heirs at law of an estate will be determined as of date of death. See generally, G. L. c. 190B. For all requests to formally determine the heirs at law, a publication is required. See section 10.8.3 (d) of this guide.
10.6.5 Filing Requirements
The following court approved forms and documents are required or may be needed for a Petition for Order of Complete Settlement to close an estate:
Personal Representative's Petition for Order of Complete Settlement Checklist
Decedent Died With or Without a Will
| Form/Document Name | Required or May Need |
|---|---|
| Petition for Order of Complete Settlement (MPC 855) | Required |
| Decree and Order on Petition for Order of Complete Settlement (MPC 790) | Required |
| Citation - Return of Service (MPC 570) | Required (unless the petition is assented to by all interested persons including any trust beneficiaries and publication is not required) |
| Military Affidavit (MPC 470) | Required (unless the petition is assented to by all interested persons) |
| Final Account (MPC 853 or MPC 853a) | Required (if requesting the allowance of PR's final account) |
| Inventory (MPC 854 or MPC 854a) | Required (if requesting allowance of PR's final account) |
| Surviving Spouse, Children, Heirs at Law (MPC 162) | Required (if requesting a formal determination of heirs) |
| Statement of proposed will construction | Required (if requesting will construction) |
| Affidavit - as to execution (MPC 480), domicile (MPC 485), or no conflict of a Conservator | May Need |
| Assent and Waiver of Notice/Reunification/Nomination/Waiver of Sureties (MPC 455) | May Need |
| Copy of Trust and Affidavit re: Trust Beneficiaries | May Need (if the PR and the trustee are identical, to identify for notice purposes each trust beneficiary including any unborn and unascertained and whether any beneficiary is under a legal disabilty) |
| Proof of Guardianship/Conservatorship | May Need |
| Motion of Petitioner and Affidavit of parent or virtual representative to waive appointment of Guardian ad Litem (GAL) | May Need (if an unrepresented heir or devisee is under a legal disability, to request waiver of GAL based on parental or virtual representation) |
| Copy of Power of Attorney | May Need (if requesting the allowance of the PR's final account, to confirm agent's authority to receive property for an adult principal) |
| Motion of the accounting PR and Affidavit of a non-accounting co-fiduciary to waive appointment of Guardian ad Litem (GAL) pursuant to Uniform Practice XVIA (16A) | May Need (if requesting the allowance of the PR's final account, to request waiver of GAL based on independent co-fiduciary representation for an otherwise unrepresented interested person(s) under a legal disability) |
10.7 Court Appointment of a Guardian Ad Litem
A GAL must be appointed for a spouse, heir at law, or devisee who is an IP, PP or a minor unless any of the following apply:
- The spouse, heir at law, or devisee is represented by a conservator;
- The spouse, heir at law, or devisee is represented by a guardian who is not the petitioner;
- The court has allowed a motion to waive the appointment of a GAL based on parental, virtual, or other representation as provided by § 1-403, § 3-915, or for any other reason.
MUPC at §§ 1-403, 1-404, 3-915; see also section 10.7.2, section 10.7.3, section 10.7.4 and section 10.7.5 of this guide.
10.7.1 Statutory References- MUPC at §§
- 1-403
- 1-404
- 3-915
- Rule 5 and Rule 72 of the Supplemental Rules of the Probate & Family Court
10.7.2 Statutory Waivers of Appointment Pursuant to § 1-403
Pursuant to § 1-403, to the extent there is no conflict of interest between them or among persons represented, the following fiduciaries represent an heir at law or devisee who is an IP, PP, or a minor. no motion to waive the appointment of a GAL is necessary.
- Conservator. If an individual is a represented by a conservator, the conservator may represent and bind the person whose estate the conservator controls.
- Guardian. If an individual is represented by a guardian, and no conservator has been appointed, the guardian may represent and bind the incapacitated person or minor.
- Independent Trustee of Trust. An independent trustee of a trust may represent and bind the beneficiaries of the trust in a proceeding to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in a proceeding involving creditors and other third parties. See Practice Alert below when the PR and Trustee are identical.
- Personal Representative. A personal representative of a decedent’s estate may represent and bind persons interested in the undistributed assets of a decedent’s estate. See Practice Alert below when an heir at law or devisee is since deceased.
“Practice Alert: If there is a trust, notice shall be given to the trustee. The trustee represents the beneficiaries of the trust UNLESS the trustee and the PR are identical. MUPC at §§ 1-201(10), 1-403. If the trustee and the PR are identical, notice also must be given to the trust beneficiaries, unless all beneficiaries have assented and waived notice. MUPC at §§ 1-201(24), 3-1001; see also section 10.8 of this guide.
The PR shall provide a copy of the trust and an affidavit identifying each trust beneficiary and stating whether there are unborn or unascertained beneficiaries and whether any named beneficiary is under a legal disability. The trust and the affidavit shall be returned upon entry of the decree. Neither the trust nor the affidavit shall be entered on the docket or scanned unless otherwise ordered by the court.”
“Practice Alert: In a proceeding for allowance of an account or a Petition for Order of Complete Settlement, if an heir at law or devisee is deceased at the time court proceedings are commenced, notice must be given to the PR of the since deceased person’s estate. MUPC at §§ 1-201(24), 3-1001; see also section 10.8 of this guide. If no PR has been appointed, publication is required. Assents of the presumptive heirs at law are NOT sufficient. In addition to notice by publication, the court may appoint a GAL or take other appropriate action.”
Note: An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise virtually represented. MUPC at § 1-403.
10.7.3 Permissive Waivers of Appointment Pursuant to § 1-403
Pursuant to § 1-403, the following persons may represent an heir at law or devisee who is an IP, PP, or a minor. A motion to waive the appointment of a GAL is required.
- Parent of a Minor. To the extent there is no conflict of interest, a parent may represent his/her minor child if a guardian or a conservator for the child has not been appointed and parental representation is pre-approved by the court.
- Holder of a Power of Appointment. A holder of a non-testamentary general power of appointment or the holder of a broad special power of appointment may represent and bind all potential appointees.
- Virtual Representative. A party who has a substantially identical interest may represent and bind an unborn or unascertained party who is not otherwise represented, if the virtual representation is pre-approved by the court.
“Practice Alert: Unborn and unascertained beneficiaries may arise when a class of beneficiaries has not yet closed at the date of death of the testator. For example, if there is a devise or gift to the testator’s “grandchildren” and some grandchildren are living on the testator’s date of death but there is a possibility of more being born, then unborn and unascertained beneficiaries exist. The petition must identify the known members of the class in order to confirm notice and/or assents and must also list “unborn and unascertained beneficiaries.””
“Practice Alert: For a permissive waiver of the appointment of a GAL based on § 1-403, a motion must be filed and supported by an affidavit of the representative setting forth sufficient facts for consideration by the court. An affidavit from counsel for the petitioner is not sufficient. A motion to waive a GAL supported by an affidavit may be allowed without a hearing in the discretion of the court; provided, however, that the filer shall be given an opportunity to be heard before such motion is denied.”
Note: An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise virtually represented. MUPC at § 1-403.
Note: Section 1-108 also permits the court, in its discretion, to waive the appointment of a GAL in a proceeding for allowance of an account where a person entitled to notice has a general power of appointment or the power to appoint among a class of appointees which is broader than the class of persons who would take in default of the exercise of the power.
10.7.4 Permissive Waivers of Appointment Pursuant to § 3-915
Pursuant to § 3-915, a PR may distribute to an heir at law or devisee who is under a legal disability as follows provided there is no conflict of interest. A motion to waive the appointment of a GAL is required.
- Express Terms of Will. A PR may discharge his/her obligation to distribute to any person under legal disability by distributing in a manner expressly provided in the will.
- Chapter 201A or Other Statute. Unless contrary to the express provision in the will or if a conservator has been appointed or a proceeding to appoint a conservator is pending, a PR may discharge an obligation to distribute to a minor or person under disability as authorized by Chapter 201A or any other statute (e.g., G. L. c. 190B, § 5-102, G. L. c. 215, § 41A, G. L. c. 203B).
- Agent under Power of Attorney. If an heir at law or devisee is under disability other than minority, a PR is authorized to distribute to an agent under a power of attorney who has authority to receive property for that party.
- Spouse/Parent/Other Close Residential Relative. If an heir at law or devisee is under disability other than minority, a PR is authorized to distribute to a spouse, parent or other close relative with whom the party resides if the distribution is of amounts not exceeding $10,000 a year, or property not exceeding $10,000 in value, unless the court authorizes a larger amount or greater value.
MUPC at § 3-915.
“Practice Alert: For a permissive waiver of the appointment of a GAL based on § 3-915, a motion to waive a GAL must be filed and supported by an affidavit of the representative. An affidavit from counsel for the petitioner is not sufficient. A motion to waive a GAL supported by an affidavit may be allowed without a hearing in the discretion of the court; provided, however, that the filer shall be given an opportunity to be heard before such motion is denied.”
“Practice Alert: In a proceeding for approval of an account or a distribution, the court shall require a copy of any necessary document to confirm the identity of the representative and the power to distribute in accordance with that document. If requested, the document shall be returned upon entry of the decree. The document shall not be scanned unless otherwise ordered by the court.”
“Practice Alert: Persons receiving money or property for a legally disabled person are obligated to apply the money or property to the support of that person, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the support of the legally disabled person. Excess sums must be preserved for future support of the disabled person. The PR is not responsible for the proper application of money or property distributed pursuant to this subsection. MUPC at § 3-915.”
Note: An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise virtually represented. MUPC at § 1-403.
10.7.5 Permissive Waiver of Appointment Based on Uniform Practice XVIA: Co-Fiduciary Accounts
Pursuant to Uniform Practice XVIA (16A):
If a non-accounting co-fiduciary of an accountant, who has received or waived notice relating to the allowance of the account(s), currently represents the interests of a person or persons, the court may waive the appointment of a GAL for such person or persons upon motion of the accountant brought ex parte.
Such motion shall be accompanied by an affidavit of the co-fiduciary representing:
- that such co-fiduciary has received or waived notice relating to the allowance of the pending account(s);
- that such co-fiduciary is not aware of any conflict of interest which would prevent him/her from representing the person or persons whose interest would otherwise require appointment of a GAL;
- that such co-fiduciary has a duty to account in his/her capacity as a fiduciary;
- that such co-fiduciary recognizes that he/she has a fiduciary duty to review such pending accounts with due care and has done so; and
- that such fiduciary assents to the allowance of the pending account(s).
Such motion may be allowed without a hearing in the discretion of the court; provided, however, that the accountant shall be given an opportunity to be heard before such motion is denied.
“Practice Alert: Failure to provide any of the requirements provided by Uniform Practice XVIA (16A) shall result in the appointment of a GAL or other appropriate action by the court.”
10.8 Notice Requirements (MPC 570)
Unless the written assents and waivers of notice of all persons interested in the proceeding are filed, after the filing of a Petition for Order of Complete Settlement, the registry shall fix a return date and issue a citation. MUPC at §§ 1-401, 1-403, 1-404, 3-1001; see also Rule 6 and Rule 72 of the Supplemental Rules of the Probate and Family Court; (MPC 570) Citation on Petition for Order of Complete Settlement of Estate; (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties and (MPC 941) Instructions.
Fee Alert: It is the responsibility of the petitioner to submit the appropriate fee for the registry to issue a citation. The fee for a citation is $15.00 in addition to any other filing or court fees.
“Practice Alert: If the only relief requested in the Petition for Order of Complete Settlement is the allowance of the final account, Rule 72 of the Supplemental Rules of the Probate and Family Court applies and no citation need be issued if the written assents and waivers of notice of all persons interested in the account are filed. See Rule 72(b) of the Supplemental Rules of the Probate and Family Court and form MPC 455, Assent and Waiver of Notice/Renunciation/Waiver of Sureties.”
10.8.1 Persons Entitled to Notice
The petitioner shall provide notice to all interested persons. MUPC at § 3-1001. 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.
Depending upon the particular relief requested, persons who may be interested in the Petition for Order of Complete Settlement may include the following:
- heirs at law;
- devisees (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;
- persons having a property right in or claims against the estate of the decedent;
- an attorney of record who has been designated by the client to receive notice;
- any GAL appointed;
- a fiduciary or other representative pursuant to § 1-403;
- any representative pursuant to § 3-915 on behalf of a legally disabled person and the person represented regardless of age.
MUPC at §§ 1-201(24); 1-401, 1-403, 1-404, 3-915, 3-1001; Rule 5 and Rule 72 of the Supplemental Rules of the Probate and Family Court.
If the proceeding affects a charitable interest or beneficiary, the petitioner must give notice to the charity and to the Attorney General of Massachusetts. The Attorney General must also be provided notice if there is no spouse or heir at law of the decedent. Uniform Practice XXXIV (34) of the Probate Court.
In certain circumstances, the Veterans Administration must be notified. See MUPC at § 2-105.
“Practice Alert: In a proceeding for allowance of an account or a Petition for Order of Complete Settlement, if an heir at law or devisee is deceased at the time court proceedings are commenced, notice must be given to the PR of the since deceased person’s estate. MUPC at §§ 1-201(24), 3-1001. If no PR has been appointed, publication is required. Assents of the presumptive heirs at law are NOT sufficient. In addition to notice by publication, the court may appoint a GAL or take other appropriate action.”
Note: An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise virtually represented. MUPC at § 1-403.
10.8.2 Military Affidavit (MPC 470)
See section 3.10.2 of this guide.
10.8.3 How Notice is Given
The petitioner shall give notice of the proceeding as provided in the citation’s Order of Notice and in accordance with Rule 6 of the Supplemental Rules of the Probate and Family Court.
a. Service within Massachusetts
Service of a citation within Massachusetts shall be given by delivering in hand or by mailing by certified, registered or ordinary first class mail at least fourteen (14) days before the return date.
b. Service outside of Massachusetts
If it shall appear from the petition that there is anyone interested who is outside of Massachusetts in any part of the United States, its Commonwealths or territories, service of the citation shall be given by delivering in hand or by mailing by certified, registered or ordinary first class mail at least fourteen (14) days before the return day; if in other parts, one (1) month.
c. Service when Whereabouts are Unknown
If it shall appear from the petition that a person is of parts unknown, service of the citation shall be given by delivery or mailing to the last known address at least one (1) month before the return day. See also Service by Publication below.
d. Service by Publication
In addition to the service requirements above, publication shall be required if a person’s whereabouts, address or identity is unknown. Publication shall also be required if a Petition for Order of Complete Settlement requests a formal determination of testacy or a formal determination of the decedent’s heirs at law (see section 10.6.3 and section 10.6.4 of this guide). A copy of the citation shall be published once in a newspaper designated by the Register of Probate at least seven (7) days before the return day.
10.8.4 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.
10.9 Contesting the Allowance of an Account or a Petition for Order of Complete Settlement
Any party 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).
10.9.1 Filing a Written Notice of Appearance and Objection (MPC 505a)
Objecting to a formal 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 formal petition.
10.9.2 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); see also Rule 72 of the Supplemental Rules of the Probate and Family Court (2012).
10.9.3 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).
10.9.4 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 court’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.
10.10 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 1.11 and section 10.6.5 of this guide.
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).
10.11 Settlement, Termination and Discharge from Liability
Settlement: Settlement of an estate includes the full process of administration, distribution, and closing by a PR.
Termination: Termination ends the rights and powers pertaining to the office of a PR. If a PR’s rights and powers are not terminated, the PR’s authority over the estate continues. Termination of a PR’s appointment is discussed at sections 3-608 through 3-612. See Chapter 7 of this guide.
Discharge: A discharge forever exonerates the PR and his or her sureties from further claim or demand of any interested person and from all liability under a decree discharging the PR unless his or her Account is impeached for fraud or manifest error. MUPC at § 3-1001(b).
| When PR Files: | Estate is Settled | PR's Authority is Automatically Terminated | Closing Statement May Not Be Challenged Except For Fraud or Manifest Error | PR is Discharged |
|---|---|---|---|---|
| Nothing | No | No | No | No |
| Small Estate Closing Statement §3-1204 | Yes | Yes, one year after the closing statement is filed provided no actions or proceedings involving the PR are pending in the division. | Yes | No |
| Closing Statement §3-1003 | Yes | No | Yes | No |
| Petition for Complete Settlement of Estate §3-1001 | Yes | No | Yes | Yes, if final settlement of the estate is approved. |
10.12 Discovery of Additional Assets
If additional estate assets are discovered after the court enters a Decree on a Petition for Order of Complete Settlement discharging the PR and sureties from liability, the PR shall use the following procedure to administer the additional estate assets:
- File an “Affidavit of Additional Assets” listing the value of the additional assets along with a Certificate of Service acknowledging that the Affidavit was sent to all persons interested in the estate, including the Division of Medical Assistance, Estate Recovery Unit and the Attorney General of Massachusetts, if applicable.
- File a subsequent (MPC 801) Bond to cover the amount of the additional assets. For surety requirements, see section 1.7 of this guide. Form (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties may be filed for each person interested in the estate to waive sureties on the PR’s subsequent bond. For instructions on completing this form, see (MPC 941) Instructions.
- If requested, new Letters may be issued from the registry after the affidavit is filed and the bond has been approved.
Fee Alert: The fee to file a subsequent bond is $75.00. The fee for each Letter requested is $25.00.
- A PR may close the estate as to the additional assets under any of the available MUPC options (e.g., Petition for Order of Complete Settlement or Closing Statement).
Fee Alert: The filing fee for all accounts of additional assets filed shall be in accordance with the Uniform Fee Schedule based on the value listed in Schedule A and not the $75.00 fee for an “Amended/Substituted” Account.
| Date published: | June 1, 2016 |
|---|---|
| Last updated: | December 2, 2025 |