Beyond The Will, Client Compass

This is a continuation of my previous blog post providing a comprehensive discussion of the probate process.  We previously addressed information the attorney for a decedent’s estate will require in order to complete the probate forms and facilitate the process of probating a will and/or obtaining the appointment of a personal representative.  The purpose of this post is to address the requirements for providing notice of the probate proceeding to interested parties.

Notice, whether under an informal or formal proceeding, is intended to advise interested parties that the personal representative will administer the decedent’s estate without supervision by the Probate Court, and that interested parties are entitled to petition the Court for protection of their interest or to restrict the powers of the personal representative.

Under an informal proceeding, once the attorney for the estate completes the probate forms, the Petitioner must give at least seven (7) days advance notice of the proceeding to all interested parties who have not otherwise assented to and waived notice of the Petition for Informal Probate of a Will and/or Appointment of Personal Representative.  Notice is provided to interested parties on Form MPC 550, Notice of Informal Probate, and must be delivered in-hand or sent by ordinary first-class mail.

In addition, the Petitioner is required to give at least seven (7) days advance notice of the proceeding to the Division of Medical Assistance by certified mail.  The Division of Medical Assistance is the Office of Medicaid in Massachusetts which administers MassHealth programs.  The Division of Medical Assistance is required to receive such notice regardless of whether a decedent was receiving Medicaid benefits prior to death.

A Petitioner may also be required to give notice to the Office of the Attorney General, Division of Public Charities in Massachusetts.  In accordance with Uniform Probate Court Practice XXXIV, notice to the Attorney General is required where: (i) there is no spouse or heir of the decedent, (ii) any devisee under the decedent’s will is a charity, or (iii) a will contains a devisee to the trustee(s) of an inter vivos (lifetime) trust, where the trust provides for one or more charitable bequest(s) and the personal representative(s) and trustee(s) are the same persons or entities or the trustee or one of the trustees has a beneficial interest in the estate or trust.  Notice will need to be accompanied by a copy of the will and where the charitable bequest is through a trust, a copy of the trust instrument or summary of the charitable bequests.

In very limited circumstances, a Petitioner may be required to give notice to the Department of Veterans Affairs.

As part of filing the Petition for Informal Probate and/or Appointment of Personal Representative, the Petitioner is required to file with the Probate Court a return of service along with the notice identifying the interested parties to whom notice was given or who signed assents and waivers of notice.

After allowance of the will and/or appointment of the personal representative by the Probate Court, the Petitioner is required to publish notice within thirty (30) days from informal probate and/or appointment in the applicable newspaper designated by the register of probate in the county where the proceeding was filed.  Proof of publication does not need to be filed with the court.

Unlike with an informal proceeding, as part of the formal process, the Petition is filed with the Probate Court prior to providing notice to interested parties.  After the Petition is filed, the Probate Court will fix a return date and issue a citation.  The Petitioner is required to provide a copy of the citation by in-hand delivery or registered, certified or ordinary first-class mail to all interested parties at least fourteen (14) days prior to the return date.  The Division of Medical Assistance must receive a copy of the citation by certified mail.  The Attorney General or the Department of Veterans Affairs may be entitled to receive a copy of the citation as an interested party depending on the circumstances as discussed above.

In addition, the Petitioner is required to publish a copy of the citation in the applicable newspaper designated by the register of probate in the county where the proceeding is pending at least seven (7) days prior to the return date.

The Petitioner must file with the Probate Court the return of service identifying the interested parties who were served with a copy of the citation along with any assents and waivers of notice signed by interested parties.  The Petitioner must also include proof of publication.

After the return of service is filed and the return date has passed, and assuming no objections to the probate of the will and/or appointment of personal representative have been filed (to be addressed in a subsequent blog post), the Probate Court will issue its Decree and Order and Letters of Authority.

The process for probating a will and obtaining the appointment of a personal representative can be complicated and overwhelming.  It is important to engage experienced counsel to assist with the process in order to ensure procedures are properly followed and deadlines are met.