Supplemental Rules of the Probate and Family Court Supplemental Probate and Family Court Rule 72: Allowance of accounts
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Table of Contents
(a) Scope and applicability of rule
This rule shall govern the procedure for the allowance of all accounts filed in the Probate and Family Court except those for which allowance is sought pursuant to G. L. c. 215, § 6.
(b) Accounts with written assent
If a fiduciary files his or her interim or final account with: (1) the proper petition; (2) the filing fee(s); (3) the written assent or waiver of every person interested in the account; and (4) all tax receipts or tax waivers required by law, the court or magistrate may allow the account without further notice. If any interested person is, as defined in G.L. c. 190B, an incapacitated person, a protected person or a minor, then the person's conservator, or if none, the person's guardian, shall sign any assent, unless the account is the conservator's own account.
(c) Accounts without written assent
(1) Notice: form
If the interim or final account of a fiduciary is filed for allowance with the proper petition, filing fee(s) and all tax receipts or tax waivers required by law, but without the written assent or waiver of every person interested in the account, notice of the proceeding for allowance of a fiduciary account or the account of a common trust fund shall be served in accordance with the procedure set forth in G.L. c. 190B, § 1-401 on all interested persons, including the Veterans Administration, Department of Developmental Services or Attorney General, if interested. An account is deemed to be filed for allowance when it has been filed with the court along with the proper petition, filing fee(s) and a citation, as described below, has been issued by the court. The notice, in the form of a citation issued by the court, shall specify a return date as set forth in Rule 6 of the Supplemental Rules of the Probate and Family Court and shall provide that any person having an interest affected by the account:
(A) may file an appearance and objection to oppose the account in accordance with the procedure set forth in G.L. c. 190B, § 1-401;
(B) may, except in a proceeding to allow an account of a common trust fund, obtain, at no cost to himself or herself, a copy of the account by sending a written request, by certified or registered mail, to the petitioner, accountant (fiduciary) or counsel. In a proceeding for the allowance of an account of a common trust fund, the notice, in the form of a citation issued by the court, shall provide that any person so requesting may obtain without cost to himself or herself a copy of the annual report of said common trust fund for the period of the account, and may obtain a copy of the account on request, subject to such terms, if any, as to costs, which the court may determine upon application of the accountant.
(2) Guardian ad litem
If the court appoints a guardian ad litem to represent an individual or class interested in the account, the petitioner or accountant shall serve forthwith upon the guardian ad litem a copy of the petition, account and the citation. Such copies shall be without cost to the guardian ad litem. The guardian ad litem shall file his or her report within sixty days following the return date, or as otherwise allowed by the court, and shall serve a copy of the report upon the petitioner, accountant, and any person interested who has filed an appearance in the proceeding. The court may, upon ex parte application or such notice as the court may require, extend the time for the filing such report.
(3) Objection: effect
If, at any time, there shall have been filed either: (A) an appearance and objection pursuant to par. (c)(1)(A) of this rule; or (B) a guardian ad litem's report containing an objection, the account shall thereafter be regarded as contested and further proceedings shall be governed, in addition to this rule, by the Supplemental Rules of the Probate and Family Court and any other rule as provided by law.
(4) Objection: withdrawal
Any objection filed, whether by an interested person or a guardian ad litem, may be withdrawn by filing a statement to that effect, signed by the person or the guardian ad litem, or counsel, and served on any person (including, as necessary, the guardian ad litem) whose appearance is then on file. The conservator or if there is no conservator, the guardian of an interested person shall sign any withdrawal for the ward, incapacitated or protected person.
(5) Objection: striking
Objections may be stricken by the court, if appropriate.
(6) Contested accounts: hearings
The petitioner, accountant, any person whose appearance and objection is then on file, or the guardian ad litem may request that the court assign a hearing date or the court may, on its own motion, assign a hearing date.
A Decree and Order entered after hearing shall be subject to the provisions of Rule 60 of the Supplemental Rules of the Probate and Family Court (except that the standard governing any relief under Rule 60(b) shall be fraud or manifest error and Rule 60(b)(3) shall not apply).
(7) Uncontested accounts
An account shall be regarded as uncontested if:
(A) It has been filed pursuant to par. (b) of this rule; or
(B) After 10:00 a.m. on the return day (i) either no appearance and objection is filed to oppose the proceeding or any appearance and objection previously filed shall have been withdrawn or stricken; and (ii) the report of the guardian ad litem, if any, is on file and contains no objection.
A Decree and Order on any uncontested account may be entered forthwith subject only to the provisions of Rule 60 of the Supplemental Rules of the Probate and Family Court (except that the standard governing any relief under Rule 60(b) shall be fraud or manifest error and Rule 60(b)(3) shall not apply).
(2012) Rule 72 has been added to the Supplemental Rules of the Probate and Family Court and is intended to replace former Rule 72 of the Massachusetts Rules of Civil Procedure. Supplemental Rule 72 was drafted to be consistent with the provisions of the Massachusetts Uniform Probate Code, G. L. c. 190B ("Code"). Supplemental Rule 72 shall be applicable to all actions in the Probate and Family Court seeking the allowance of an account, except actions filed pursuant to G. L. c. 215, § 6, which shall continue to be governed by Mass.R.Civ.P. For proceedings involving the allowance of an account of a common trust fund, Supplemental Rule 72 incorporates and makes applicable the procedures set forth in Code section 1-401. Rule 72 of the Supplemental Rules eliminates the prior references to specific Rules of Civil Procedure applicable in contested account proceedings, as those specific references are no longer necessary due to the adoption of the Supplemental Rules of the Probate and Family Court making the Rules of Civil Procedure more broadly applicable to probate proceedings.