Pursuant to § 3-614, the court may accept petitions for appointment of a Special Personal Representative (“SPR”). Also pursuant to § 3-614, the court may appoint a SPR sua sponte (of its own initiative), without petition from any person.
6.1 Statutory References – MUPC at §§
- Statutes which positively express the law governing SPRs: 3-614
- 3-615
- 3-617
- 3-618
- Statutes which create exceptions to general rules for SPRs: 1-201(37) (Note that SPRs are “PRs” but not “general PRs”) 3-203(h)
- 3-301(a)(1)
- 3-715(b)
- Statutes expressing general rules which apply to SPRs:
- 3-603 through 3-607
6.2 Preliminary Considerations
6.2.1 When a SPR May be Sought
A (MPC 350) Petition for Appointment of Special Personal Representative (hereafter, “Petition for Appointment of SPR”) cannot be filed unless there is an underlying (MPC 150) Petition for Informal Probate of Will and/or Appointment of Personal Representative, (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative or (MPC 280) Petition for Supervised Administration, with one exception: a SPR may be appointed without an underlying probate petition for the limited purpose of obtaining access to a decedent’s safe deposit box to conduct a will search. A SPR may also be requested by motion as part of an original (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of PR. See Chapter 4 of this guide.
The formal appointment of a SPR by the court may be necessary in order to:
- preserve an estate;
- secure its proper administration; OR
- perform an act that a general PR cannot or should not perform because of a conflict of interest.
MUPC at § 3-614.
Note: The expedited informal appointment process may eliminate the need to seek a formal appointment of a SPR. A PR may be administratively appointed by a magistrate as early as seven (7) days after the decedent’s death, if the decedent was domiciled in Massachusetts. See Chapter 3 of this guide.
“Practice Alert: The appointment of a SPR may result in increased legal fees to the estate and creates an accounting requirement. The need for the appointment should be clearly articulated in any petition or motion filed.”
6.3 Required Elements of the Petition for Appointment of SPR (MPC 350)
All paragraphs of (MPC 350) Petition for Appointment of SPR must be completed by the petitioner.
If the SPR is requested for any reason other than to conduct a search for a will or codicil in a safe deposit box of the decedent, the petitioner must list the reasons the SPR is necessary in order to preserve the decedent’s estate or secure its proper administration. If the appointment sought is without notice, the petition must explain the emergency which exists.
If additional powers are requested, they must be specified in the request found at the end of the petition.
6.3.1 Information about the Decedent
See section 3.5.1 and section 4.6.2.1 of this guide.
6.3.2 Information about the Petitioner(s)
See section 3.5.2 and section 4.6.2.2 of this guide.
6.3.3 Venue
See section 1.6 of this guide.
6.3.4 Information Regarding Other PRs
See section 3.8.1 of this guide.
6.3.5 Information Regarding the Proposed PR
“Any suitable person may be appointed special PR.” MUPC at § 3-615. The general rules governing priority among persons seeking appointment as PRs do not apply to SPRs. MUPC at § 3-203(h).
6.3.6 Information Regarding the Bond
See section 1.7 of this guide.
6.3.7 Information Regarding the Division of Medical Assistance
See 3.5.5 of this guide.
6.3.8 Requests
The petitioner must indicate if the bond of the SPR will be with or without sureties as set forth in the petition. The petitioner may further request that the SPR’s powers be expanded by court order. MUPC at § 3-715(b).
6.4 Additional Required Forms
6.4.1 Death Certificate
See section 4.11.1 of this guide.
6.4.2 Bond (MPC 801)
See section 1.7 of this guide.
6.4.3 Docketing and Assignment of Hearing Date
If a Petition for Appointment of SPR is filed solely to conduct a will search, then a docket number will be assigned to the case. Otherwise, an informal or formal proceeding must be filed simultaneously or on file and the Petition for Appointment of SPR will take the same docket number as the underlying informal or formal petition.
The petitioner is responsible for obtaining a hearing date and time from the court.
6.5 Notice Requirements for a Petition for Appointment of a SPR
6.5.1 Notice
If the underlying petition is a Petition for Appointment of SPR, motion notice must be given by the petitioner unless the assents and waivers of notice of all heirs at law, devisees, and other interested persons are filed with the Petition for Appointment of SPR or the court otherwise orders. See Rule 3, 7A and 8 of the Supplemental Rules of the Probate and Family Court (2012); see also (MPC 455) Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties and (MPC 941) Instructions. No citation will be issued pursuant to § 1-401.
If the underlying petition is (MPC 280) Petition for Supervised Administration, a SPR may be requested by motion at any time. See Chapter 5 of this guide.
If the underlying petition is (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative the appointment of a SPR may be requested by motion. Motion notice must be given by the petitioner unless the assents of all heirs at law, devisees, and other interested persons are filed with the petition or the court otherwise orders. See Rule 3, 7A and 8 of the Supplemental Rules of the Probate and Family Court (2012); see also section 6.6 of this guide below.
6.5.2 Certification of Notice
Before (MPC 560) Order Appointing SPR is issued, the petitioner must file a Certificate of Service stating that all parties have either assented and waived notice or been served in hand or by first class mail as provided in Rule 3, 7A and 8 of the Supplemental Rules of the Probate and Family Court (2012), unless an emergency exists. See section 6.6 of this guide below.
6.6 Ex-Parte Hearing
A SPR may be appointed without required assents or notice if an emergency exists. To request the emergency appointment of a SPR without required assents or notice, a motion to waive or shorten notice must be filed along with Petition for Appointment of SPR or with the motion for appointment of a SPR submitted with (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative.
An affidavit stating the emergency also shall be filed unless the petition or motion requesting to waive or shorten notice is verified and includes a statement of the emergency. The court may waive the notice requirement and act on the petition or motion for appointment, or may enter an order for shortened notice. MUPC at § 3-614.
6.7 Duration of Order
An order appointing a SPR should be for no longer than 90 days, unless the court has found “extraordinary circumstances” and ordered an appointment for a longer period. MUPC at § 3-617.
On a duly-noticed motion, the court may extend the appointment for additional periods of up to 90 days. MUPC at § 3-617. See also section 7.2 of this guide.
6.8 Order Appointing SPR (MPC 650) and Letters (MPC 752)
The registry shall check the Order Appointing Special Personal Representative to confirm that an expiration date has been stated. The registry shall issue (MPC 752) Letters of Special Personal Representative. See section 1.12 of this guide.
6.9 Effect of Appointment of a SPR
A SPR proceeding is, by definition, a formal proceeding as long as the SPR continues to serve. This means that the appointment of a SPR transforms the case into a formal proceeding for the duration of the SPR's appointment. Upon termination of the SPR’s appointment, the proceeding will be informal, formal or supervised, depending on the nature of the prior proceeding.
The authority of any PR previously appointed by the court or magistrate shall be suspended for as long as a SPR has authority. MUPC at § 3-617(c).
“Legislative Change: Chapter 140 of the Acts of 2012 added section 3-617(c). The amendment makes it clear that the authority of any previously appointed PR shall be suspended upon the appointment of a SPR.”
6.10 Powers of a SPR
Under § 3-617, a SPR appointed by the court has many, but not all, of the powers granted to a permanent PR under § 3-715(a). These powers are enumerated in § 3-715(b) and, in general, are limited to collecting and preserving assets of the estate. Powers related to selling and distributing assets are specifically excluded by statute. See MUPC at § 3-715, with particular attention to the powers excluded by § 3-715(b). However, a SPR’s powers may be expanded by will, or by court order in a formal proceeding. MUPC at § 3-715(b).
Except as restricted or otherwise provided by the terms of the Will, the SPR is authorized to:
- Retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment. 3-715(a)(1)
- Receive assets from fiduciaries, or other sources. 3-715(a)(2)
- Perform, compromise or refuse performance of the decedent’s contracts that continue as obligations of the estate, as he may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the PR, among other possible courses of action, may: (i) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser’s note for the sum remaining due secured by a mortgage or deed of trust on the land; or (ii) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement. 3-715(a)(3)
- If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally. 3-715(a)(5)
- Make repairs or alterations in buildings or other structures, demolish any improvements, structures, raze existing or erect new party walls or buildings. 3-715(a)(7)
- Vote stocks or other securities in person or by general or limited proxy. 3-715(a)(12)
- Insure the assets of the estate against damage, loss and liability and the PR against liability as to third persons. 3-715(a)(15)
- Pay taxes, assessments, compensation of a PR other than a special PR, and other expenses incident to the administration of the estate. 3-715(a)(18)
- Sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise. 3-715(a)(19)
- Allocate items of income or expense to either estate income or principal, as permitted or provided by law. 3-715(a)(20)
- Employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the PR, to advise or assist the PR in the performance of administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary. 3-715(a)(21)
- Defend and prosecute claims, or proceedings in any jurisdiction for the protection of the estate and of the PR in the performance of duties. 3-715(a)(22)
- Continue any unincorporated business or venture in which the decedent was engaged at the time of death (i) in the same business form for a period of not more than 4 months from the date of appointment of a general PR if continuation is a reasonable means of preserving the value of the business including good will, (ii) in the same business form for any additional period of time that may be approved by Order of the Court in a formal proceeding to which the persons interested in the estate are parties; or (iii) throughout the period of administration if the business is incorporated by the PR and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate. 3-715(a)(24)
- Provide for exoneration of the PR from personal liability in any contract entered into on behalf of the estate. 3-715(a)(26)
- Any other power authorized by the terms of the will. 3-715(b)
The SPR needs a specific court order to do any of the following:
- Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims. 3-715(a)(4)
- Acquire or dispose of tangible and intangible personal property for cash or on credit, at public or private sale; and manage, develop, improve, exchange, change the character of, or abandon an estate asset. 3-715(a)(6)
- Subdivide, develop or dedicate land to public use; adjust boundaries; or adjust differences in valuation by giving or receiving considerations; or dedicate easements to public use without consideration. 3-715(a)(8)
- Enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration. 3-715(a)(9)
- Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement. 3-715(a)(10)
- Abandon property when it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate. 3-715(a)(11)
- Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims. 3-715(a)(13)
- Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the PR is liable for any act of the nominee in connection with the security so held. 3-715(a)(14)
- Borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate. 3-715(a)(16)
- Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew or in any manner modify the terms of any obligation owing to the estate. If the PR holds a mortgage, pledge or other lien upon property of another person, the PR may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien. 3-715(a)(17)
- Sell, or lease any personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances. 3-715(a)(23)
- Sell, lease or encumber to an arm’s length third party any real estate of the estate, or an interest in that real estate, for cash, credit, or for part cash and part credit, with or without security for unpaid balances and whether the personal representative has been appointed formally or informally; the sale, lease or encumbrance shall be conclusive notwithstanding section 3-302 or any contest of the informal probate proceeding, provided that: (i) if the decedent died without a will, a license has been issued under chapter 202; or (ii) if the decedent died with a will, either: (a) the will, probated formally or informally, empowered the personal representative to sell, lease or encumber that real estate or an interest in that real estate, or (b) a license has been issued under chapter 202. 3-715(a)(23 ½)
- Incorporate any business or venture in which the decedent was engaged at the time of death. 3-715(a)(25)
- Satisfy and settle claims of the estate as provided in this code. 3-715(a)(27)
- Distribute the estate as provided in this code. 3-715(a)(27)
“Legislative Change: Chapter 140 of the Acts of 2012 added § 3-715(23 ½) to clarify that a PR appointed formally or informally may sell real estate pursuant to a power contained in a will or by license to sell. A SPR has no authority to sell real estate under a power contained in a will unless the will has been admitted to informal or formal probate. A SPR however may seek authority of the court by license.”
Note: Pursuant to § 3-715(21), a PR previously appointed either informally by a magistrate or formally by the court may delegate his or her powers should the need arise because of a temporary absence, anticipated incapacity or conflict of interest, etc. MUPC at § 3-715(21). See also the Comment to MUPC at § 3-614.
6.10.1 Expanding and Modifying a SPR's Powers
At Appointment
To expand or modify a SPR’s basic powers before the appointment is made, the desired expansion or modification should be listed on the motion or petition seeking the appointment.
After Appointment
To expand or modify a SPR’s powers after appointment, the petitioner may file a motion requesting the desired expansion or modification. The same notice requirements for the initial petition apply.
6.11 Inventory and Accounts
6.11.1 Inventory
Unless otherwise stated in the Order Appointing SPR, the SPR’s duties with respect to filing an inventory are the same as a PR’s duties under § 3-706. See Chapter 10 of this guide.
6.11.2 Accounts
Unless, otherwise stated in the Order Appointing SPR, a SPR does not have a duty to file accounts with the division. MUPC at § 3-617(a). See also MUPC at § 3-403(c).
A SPR may seek to have an account, including a final account stating transfer of all assets under management to a duly appointed PR, adjudicated as an interim account of the estate in a formal proceeding in order to limit the SPR's future liability. A SPR whose final account distributes pursuant to a court order all assets to anyone other than a duly appointed PR may use any of the estate closing procedures available to a PR. A SPR may request a discharge of liability on an Interim account. See Chapter 10 of this guide.
6.12 Examples
Example 1
Donna dies leaving two children, Andy and Debra. Andy believes that Donna executed a will prior to her death. Donna has a safe deposit box at Big Bank. To date, a proceeding to probate the will of Donna or appoint a general PR has not been commenced. May Andy file (MPC 350) Petition for Appointment of SPR seeking to be appointed SPR for the sole purpose of accessing the safety deposit box and conducting a will search?
Answer
Yes. Andy may file (MPC 350) Petition for Appointment of SPR and request to be appointed SPR for the sole purpose of conducting a will search. He may not request any other authority.
Example 2
Donna died with a will naming her surviving spouse, Harry, PR. Harry does not want to be appointed PR, but is willing to serve temporarily as a SPR. May Harry file an informal petition seeking to be appointed SPR?
Answer
No. A SPR may not be appointed in an informal proceeding. Harry would need to file a formal petition requesting appointment as a SPR or he may be appointed PR in an informal proceeding.
Example 3
Donna died in a work-related accident leaving her spouse, Harry and their two children, Andy & Debra. Donna had no will. Harry seeks to be appointed immediately as a SPR in order to initiate a wrongful death lawsuit and secure evidence that may be lost. There are no probate assets. May Harry be appointed SPR for this purpose?
Answer
Yes. Harry may be appointed SPR for this purpose by filing (MPC 160) Petition for Formal Probate of Will/Adjudication of Intestacy/Appointment of a Personal Representative along with a motion requesting his appointment as both SPR and PR. If it appears to the court that an emergency exists, the court may order the appointment without notice. MUPC at § 3-614.
Example 4
Donna dies without a will leaving her brother Bob. Bob wants to be appointed SPR for the sole purpose of obtaining medical records of Donna from a hospital/health care provider. There are no other probate assets. May Bob file a formal petition seeking appointment as a SPR for the sole purpose of obtaining medical records?
Answer
Yes. Pursuant to § 3-614, a SPR may be appointed formally by the court if it finds that “…the appointment is necessary to preserve the estate or secure its proper administration…” Pursuant to § 3-617, a SPR appointed by order of the court in a formal proceeding has a general PR’s power except as limited by § 3-715(b) and in the appointment and duties as prescribed in the Order. Section 3-709 [Duty of a Personal Representative; Possession of Estate] provides: “Except as otherwise provided by a decedent’s will, every PR has a right to, and shall take possession or control of the decedent’s property…” Therefore, a SPR appointed formally would appear to have the authority to obtain the decedent’s medical records, unless the ability to perform this act was specifically limited by the court. The court could issue Letters which limit the SPR’s powers to securing medical records.
Example 5
Donna dies with a will naming Harry, her surviving spouse, as PR. Overtaken with grief, Harry refuses to petition the court to probate the will and appoint a PR. Prior to her death, Donna hit the lottery for $1 million on a scratch ticket. May Bob, Donna’s brother, petition the court to be appointed SPR in order to have the authority to accept payment of the lottery winnings and prompt Harry to take action?
Answer
Yes. Pursuant to § 3-614, a SPR may be appointed formally by the court if it finds that “…the appointment is necessary to preserve the estate or secure its proper administration…” The general rules governing priority among persons seeking appointment as PRs do not apply to SPRs so Bob may be appointed as long as the court finds him suitable. MUPC at § 3-203(h). Pursuant to § 3-617, a SPR appointed by order of the court in a formal proceeding has a PR’s power except as limited by § 3-715(b) and in the appointment and duties as prescribed in the order. Section 3-715(2) specifically authorizes a SPR to “receive assets from fiduciaries, or other sources.” Harry may then be appointed PR on the same petition filed by Bob or he may file his own informal or formal petition for probate and appointment of a PR.
Example 6
Harry was appointed PR of Donna’s testate estate two months ago. Harry is currently incapacitated and can no longer act as PR and has filed a resignation. Donna’s will names her son, Andy, the alternate PR. Andy is currently on sabbatical in Indonesia and will not be able to file as successor PR until he returns four months from now. May Bob, Donna’s brother, petition to be formally appointed SPR in order to administer the estate until Andy can be appointed?
Answer
Yes. Pursuant to § 3-614, a SPR may be appointed formally by the court if it finds that “…the appointment is necessary to preserve the estate or secure its proper administration including its administration in circumstances where a general PR cannot or should not act.” Section 3-615 provides that “Any suitable person may be appointed special PR." As it appears that the appointment of a SPR is necessary to preserve the estate until Andy can be appointed successor PR, Bob may be appointed SPR. Pursuant to § 3-609, Harry is obligated to account for and deliver the estate assets to Bob as SPR upon his appointment and qualification. Bob, in turn, must do the same upon Andy’s appointment.
| Date published: | June 1, 2016 |
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| Last updated: | December 2, 2025 |