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Probate-Getting Started

To begin probate, first determine if there is an original signed Will.  If so, the Will should be filed in the probate court in the County where the deceased lived at the time of his or her demise.  In Massachusetts you should include a certified copy of the death certificate when the Will is filed with the court. MGL Ch. 190B

commerce-acts-books-477966-mThe next step is for the probate court to assign a docket number to the Estate.  This will trigger certain legal requirements which may include notice to all potential heirs, notice to creditors and notice to all persons or parties named in the Will.  The purpose of this notice is to allow any interested party an opportunity to become involved in the probate.  It also allows interested parties to question the Will, contest the Will or be more actively involved as a Fiduciary or Personal Representative of the Estate.

After a Will is filed for probate in Massachusetts, regardless of the county (could be in Middlesex, Essex, Suffolk, or any other county) the probate court will issue a Citation.  The Citation is the legal notice that is to be served upon all heirs at law and those named in the Will and is also to be published in a newspaper that is locally distributed in the area where the deceased last lived.  The Citation will contain information about the deceased and include a return date or the deadline by which an objection to the Will must be filed.  Anyone who has an objection to the Will and who does not appear and raise the objection before the return date, will be deemed to have waived their rights.

If an objection is filed, the next step is an “Affidavit of Objections”.  The Affidavit of Objections must be filed within 30-days of the return date.  It is in the form of an Affidavit or witness statement that is subject to the penalties of perjury and must set forth facts based upon the contestant’s personal knowledge.  If the court finds these facts to be true, it can result in the invalidation of the Will or portions of the Will.

The standard set by Massachusetts probate to effectively contest a Will are difficult to meet.  Generally, Massachusetts law prefers to validate a Will over resorting to intestacy law.  Common grounds to challenge a Will include:

  1. Undue influence, where the deceased was unable to make his or her own decisions or judgment after being influenced by another party;
  2. The deceased lacked mental capacity to understand the significance of or the statements in the Will itself; and
  3. The Will was not properly signed, executed and/or witnessed.

A legally sufficient contestant’s affidavit is difficult to draft and must present sufficient facts to show a true and meaningful objection or controversy to the validity of the Will.  If the Court finds the Affidavit sufficient, a Will contest then moves forward into formal litigation.

The death of a family member can bring emotional pain and financial challenges.  Families that often got along well find the stress from personal loss and financial difficulty can cause fights over the Will or the rights of family members to the Estate.  Pre-planning can reduce or prevent Will contests.  For example, after you prepare your Will you may wish to speak to family members about what your estate plans are and what your Will holds.  It is not necessary to be specific, but rather just discuss in general terms your estate plan.  Also, after the estate is opened and a personal representative appointed, the personal representative should have open lines of communication with all interested parties and keep them informed as the Massachusetts probate moves forward.  Regular and open communication is an effective means to prevent suspicions that can give rise to Will contests.

Attending to the practical necessities of Estate administration can be a daunting task.  With patience and skilled legal assistance, probate of an Estate, including any challenges to the Will can be managed and resolved.  Keep in mind that it is the decedent’s wishes as to where the property should go that usually carries the day.

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