«INSTRUCTIONS FOR LATE AND LIMITED FORMAL TESTACY AND/OR APPOINTMENT These general instructions are for informational purposes only and do not ...»
INSTRUCTIONS FOR LATE AND LIMITED FORMAL TESTACY AND/OR APPOINTMENT
These general instructions are for informational purposes only and do not constitute legal advice. Please consult an
attorney if you have specific questions. Court staff cannot provide legal advice or assist you with legal decisions.
A Petition for Late and Limited Formal Testacy and/or Appointment is a formal proceeding and may involve one or more
hearings before the court. The court may accept a petition to:
1) admit the decedent’s will to formal probate and determine both the heirs and devisees;
2) determine that the decedent died without a will and determine the heirs;
3) appoint a personal representative to administer the estate, including a person designated as a public administrator, in a supervised or unsupervised administration;
4) appoint a special personal representative pending the appointment of the personal representative in the formal proceeding.
A Petition for Late and Limited Formal Testacy and/or Appointment may be required for several reasons, including if:
the Decedent died on or after March 31, 2012; and NO original proceeding relative to the estate has occurred within the three (3) year period after death; and a formal testacy or appointment proceeding is necessary for the limited purpose of confirming title in the successors to estate assets.
ALERT: A late and limited appointed personal representative may not seek a license to sell real estate of the decedent.
The personal representative’s authority is limited to confirming title to estate assets in the successors and paying expenses of administration, if any.
FILING FEES The total fee required to file a formal late and limited petition is $405.00. The fee is broken down as follows: $375.00 for the filing of the petition, a $15.00 surcharge to assign a docket number, and a $15.00 citation fee. The filing fee of $405.00 includes the initial appointment bond, citation, and initial court issued Letters of Authority, but does not include publication costs.
The total fee to file a formal late and limited petition by a Public Administrator is $130.00. The fee is broken down as follows: $100.00 for the filing of the petition, a $15.00 surcharge to assign a docket number, and a $15.00 citation fee.
The filing fee of $130.00 includes the initial appointment bond, citation, and the initial court issued Letters of Authority, but does not include publication costs.
The following court fees are optional and will only be assessed upon request:
□ Additional Letters of Authority = $25 each □ Copy, attested = $2.50 per page; □ Copy, unattested = $1.00 per page
COMMON TERMSDocket Number: The number the court assigns to your case.
Petitioner: Interested persons identified by Massachusetts law who can file a petition.
Decedent: The person who died.
MPC 964 (4/15/16) Heirs at Law: At the time of the decedent’s death, persons who are entitled to receive the decedent’s property under the intestacy succession laws if there is no will. For more information, see the Intestate Succession Charts at the end of these instructions.
Devisees: Persons, entities, charitable organizations, or trusts designated in a will to receive the decedent’s personal or real property. 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.
Probate Estate: All of the real and personal property the decedent owned in his or her name alone on the date of death that is subject to probate.
Interested Persons: Persons identified by Massachusetts law who can file a petition and who also must be notified of the court proceeding. The term may include a surviving spouse, children, heirs at law, devisees, creditors, fiduciaries representing interested persons and persons having priority for appointment as personal representative, depending on the circumstances.
Intestate: An estate in which the decedent did not leave a will.
Testate: An estate in which the decedent did leave a will.
Letters of Authority: A document issued by the court evidencing the personal representative’s authority to act.
Nominee: The person seeking to be appointed personal representative.
Personal Representative: A person at least 18 years of age who has been appointed to administer the estate of the decedent.
1) from the registry in each county Probate and Family Court; or
2) from the MUPC Hub located on the Probate and Family Court’s website at http://www.mass.gov/courts/forms/pfc/pfc-mupc-forms-generic.html You may complete a form online and print or you may print the form and type or print legibly in black or blue ink. The following court approved forms and documents must be filed depending on whether the decedent died with a will (testate) or without a will (intestate):
MPC 964 (4/15/16)
STEPS TO FILING YOUR CASESTEP 1: Complete All Forms You must complete all applicable sections of each form. If you are unsure how to complete a form, see the Instructions associated with that form or see the MUPC Estate Administration Procedural Guide located at http://www.mass.gov/courts/docs/courts-and-judges/courts/probate-and-family-court/mupc-procedural-guide.pdf □ Petition for Late and Limited Formal Testacy and/or Appointment of Personal Representative (MPC 161) Complete all applicable sections of this form.
MPC 964 (4/15/16) Pay careful attention to the caption. 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. ALERT: A party may amend a formal petition once as a matter of course prior to an appearance being filed before 10:00 a.m. on the return day. Thereafter, a party may amend only by leave of court or by written consent of all parties. See Rules 3 and 7 of the Supplemental Rules of the Probate and Family Court and Rule 15 of the Massachusetts Rules of Civil Procedure.
ALERT: The petitioner must certify on the petition that the petitioner will give notice once by citation to the Division of Medical Assistance. To do so, the petitioner shall send a copy of the citation when issued by the court together with a copy of the petition and death certificate by certified mail at least fourteen (14) days before the return day to the Division of Medical Assistance, Estate Recovery Unit. As of the time of this publication, the address is P. O. Box 15205, Worcester, MA 01615-0205. The Division of Medical Assistance is NOT the court. For additional notice requirements, see Step 3 below.
□ Surviving Spouse, Children, Heirs at Law (MPC 162) This form must be filed in ALL cases to identify a decedent’s surviving spouse, children and heirs at law.
Complete all applicable sections of this form. For line by line instructions, see the Instructions (MPC 958).
Failure to submit this form will result in a delay in processing your case.
ALERT: If there are heirs at law who are not known to the petitioner, a guardian ad litem will be appointed by the court to represent unascertained heirs. To waive the appointment based on virtual representation, a motion and affidavit must be filed with the petition. Virtual Representation (VR) permits someone to whom notice has been given to represent the interests of unborn or unascertained person with a substantially identical interest in the proceeding.
MUPC at § 1-403(2)(iii). VR may eliminate the need for a guardian ad litem for unborn and unascertained persons who have substantially identical interests to one who has received notice in a formal proceeding if the court is satisfied that there will be adequate representation. The determination of whether VR is appropriate is made by the court.
□ Devisees (MPC 163) This form must be filed if the petitioner is seeking to probate the decedent’s will.
Complete all applicable sections of this form. For line by line instructions, see the Instructions (MPC 959).
Failure to submit this form will result in a delay in processing your case.
□ Bond (MPC 801) This form must be filed if the petitioner is requesting the appointment of a personal representative.
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.
Complete all applicable sections of this form. This form must be signed by the personal representative.
MPC 964 (4/15/16) □ Military Affidavit (MPC 470) This form must be filed UNLESS the written assents and waivers of notice (MPC 455) of all interested persons are filed.
□ Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties (MPC 455) This form must be filed if a person entitled to notice wants to assent and waive his/her statutory right to notice.
See MPC 455, Section I.
This form must be filed if a person with statutory priority for appointment as personal representative wants to renounce (decline) his/her right to appointment, renounce (decline) his/her right to appointment and nominate another to serve in his/her place, or when priority for appointment is shared, assent to the nomination of another to serve as co-personal representative or for the nominee to individually petition for appointment. See MPC 455, Section II and the Alert below.
This form must be filed if an heir or devisee wants to assent to the personal representative serving without sureties on the bond. See MPC 455, Section III and the Alert below.
Complete all applicable sections of this form. For instructions, see the Instructions (MPC 941).
ALERT: To proceed administratively on a formal petition, all required renunciations/nominations must be filed with the petition if the petitioner is requesting the appointment of a personal representative who does NOT have statutory priority for appointment and there is no need for a court hearing on that issue.
ALERT: A bond without sureties is permissible only if the will of the decedent expressly waives sureties on the bond and no interested person has demanded that a bond with sureties be filed, or if the will does not expressly waive sureties, all devisees named in the will, assent to the personal representative serving without sureties on the bond. If the estate is intestate (no will), a bond without sureties is permissible only if all heirs assent to the personal representative serving without sureties on the bond.
□ Affidavit as to Cause of Death (MPC 475) This form must be filed if the decedent’s cause of death is listed on the death certificate as “homicide” or “pending”. Other causes of death do not require the Affidavit.
□ Affidavit of Witness to Will (MPC 480) This form must be filed if evidence concerning the execution of a will is necessary.
□ Affidavit of Domicile (MPC 485) This form must be filed if the address of the decedent is incorrectly listed on the death certificate.
□ Uniform Counsel Certification (CCF 407) This form must be filed by the attorney for the petitioner, if represented.
□ Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment (MPC 757) This form must be filed in ALL cases prior to allowance.
The petitioner is required to complete all applicable sections in preparation for the court’s signature.
STEP 2: Obtain Other Documents for Filing □ Certified Copy of the Death Certificate MPC 964 (4/15/16) A certified copy of the decedent’s death certificate must be filed.
Death certificates of Massachusetts residents can be obtained from the Town Hall where the person was residing at the time of death or from the Registry of Vital Records and Statistics. For information, see http://www.mass.gov/eohhs/gov/departments/dph/programs/admin/dmoa/vitals/obtaining-certified-copiesof-vital-records.html.
If the decedent’s death certificate is unavailable, a certified or authenticated copy of a death certificate issued by an official or agency or a record or report of death by a governmental agency may be filed. The fact of death may be established by other evidence, including circumstantial evidence.
□ Original Will The original will must be filed if the decedent died with a will and the petitioner is offering the decedent’s last will and any codicil(s) for probate.
If the original will is unavailable, a copy may be filed or a statement of its contents.
□ Proof of Guardianship/Conservatorship If a guardian or conservator is already appointed, the petitioner shall be required to present proof in the form of a docket number if appointed within the division in which the filing is being made or, if appointed from another division or from a court outside of Massachusetts, a certified copy of Letters of guardianship or conservatorship.
ALERT: Minor children of the decedent do not require the appointment of a guardian or conservator UNLESS they are also heirs or devisees.
□ Affidavit of Conservator If a conservator of an incapacitated person, protected person or a minor also has an interest in the decedent’s estate as an heir or devisee, the conservator must file an affidavit stating specific facts to warrant a conclusion by the court that a conflict of interest does not exist between the conservator and person(s) represented.
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 the appointment of a guardian ad litem.
STEP 3: File Papers with the Court Provide the court with the required forms and documents completed above and pay the filing fee.
The form and documents should be filed in 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.