The Special Personal Representative: A Useful Tool in Will Contests in Massachusetts

Whenever a challenge is made to a will in Massachusetts, it essentially “freezes” the administration of the estate. In other words, nothing can be done to gather together the assets, pay the estate’s debts, sell assets or distribute property or assets to persons named under the will until the challenge has been either concluded by a trial or settled.

However, this “freeze” can be “thawed” through the appointment of a special personal representative, or SPR. An SPR is someone who is usually appointed from a list of qualified persons (generally attorneys) kept by each court’s administrative office. Appointment of an SPR occurs as a result of the motion of either the person(s) challenging the will or the person nominated by the will to be the executor, or what is now known as the personal representative (PR) of the estate.

The advantage of having an SPR appointed is that he/she can “keep the ball moving” with respect to the administration of the estate while the parties work through the litigation process on the question of whether the will is valid and/or whether the nominated PR is fit to serve. SPRs can market and sell property, invest and/or the “liquid” assets of the estate, and can use assets of the estate to pay liabilities. SPRs can even file accounts for the estate, though they are not permitted to file the final account.

SPRs are particularly effective tools when it comes to real estate. I have been involved in numerous cases where real estate sits empty as a result of the decedent’s death. Where SPRs have been appointed, they have gotten properties repaired and ready for sale and have maximized the sales price of the property, That’s a “win-win” for all of the parties.

The downside, of course, is that the SPR obviously is paid for his/her work, with the funds typically coming from the estate. But where the estate has a meaningful amount in assets—even a few hundred thousand dollars of real estate or liquid assets—it is well worth having the SPR appointed.

Of course, not every judge will reflexively allow an SPR to be appointed. Some judges take the position that an SPR is unnecessary, and in many instances a PR nominated in the will who is particularly power-hungry will want to resist appointment of an SPR. But where administration of an estate can be substantially done at the same time as the litigation over the will, it is well worth the effort for the party challenging the will to seek an SPR.

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