Massachusetts Will and Inheritance Contest Guide

Prepared by Will Contest Attorney Alan S. Fanger

www.lawfang.com   |   111 Speen Street, 2^nd Floor, Framingham, MA 01701   |   617-332-3456

 

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This guide is intended for general informational purposes only and does not constitute legal advice. Every matter is different, and the law as applied to your specific situation may differ from the general principles described here. If you are involved in a will contest, inheritance dispute, or any matter involving a Massachusetts estate, you should consult a qualified attorney as soon as possible. Nothing in this guide creates an attorney-client relationship.

 

A Note from Boston Will Contest Attorney Alan S. Fanger

I have spent nearly 40 years years representing clients in contentious will contest matters and estate disputes in Massachusetts. In that time, I have seen nearly every kind of inheritance dispute there is, from will contests driven by genuine questions about mental capacity to trust litigation rooted in years of family conflict, to inheritance fights that arose simply because a decedent did not recognize the ramifications that would result if they died without a will.

What I have also seen, consistently, is that the people who seek legal advice early in a will contest or estate dispute fare better than those who wait. Deadlines in Massachusetts inheritance litigation are strict, evidence can disappear, and estate assets can be depleted while parties are deciding what to do. This guide is intended to give you a thorough grounding in how will contests and inheritance disputes work in Massachusetts so that if you are facing one, you can make informed decisions quickly.

This guide covers legal frameworks, procedural requirements, evidentiary standards, and strategic considerations that frequently arise. My goal is to demystify a complex area of law and give you the foundation you need to understand your situation and work effectively with counsel.

This guide, however, is not a replacement for seeking advice from an experienced will contest lawyer or probate dispute attorney. Further, this guide is intended to provide a general overview of the matters addressed, and is not legal advice. Your situation may have will have specific facts and circumstances, which is why it is critical to contact an estate contest lawyer.

If you are interested in discussing your situation, I invite you to call me directly at 617-332-3456 to schedule a free consultation to get your questions answered and to learn about the legal options that might be available.

I represent clients seeking to gain their fair inheritance, and generally represent clients on a contingency fee basis. This means that I only receive a fee for legal services if a client is successful in obtaining an inheritance. I also advance litigation costs and expenses (these costs and expenses are normally repaid from a settlement or verdict).

Part One: The Legal Framework for Will and Inheritance Contests in Massachusetts

How Did the Massachusetts Uniform Probate Code Change Will Contests and Inheritance Litigation?

Massachusetts adopted the Massachusetts Uniform Probate Code, commonly known as the MUPC, effective March 31, 2012. The MUPC represents the most significant overhaul of Massachusetts probate law in generations, and introduced several changes that directly affect will contests and inheritance litigation.

Before the MUPC, Massachusetts probate proceeded under a single formal process that required court supervision at every stage. The MUPC introduced two tracks: informal probate, which allows estates to proceed without ongoing court supervision, and formal probate, which involves the court at key stages and provides stronger protections for those involved in a dispute. The track chosen has significant implications for anyone seeking to contest a will or challenge an inheritance, particularly with respect to deadlines.

The MUPC also modernized the rules governing who has standing to participate in probate proceedings, clarified the duties of personal representatives, and updated the standards for determining heirship in complex family situations, including blended families, posthumously conceived children, and children whose parentage is disputed. Understanding how the MUPC applies to a specific estate is one of the first things I evaluate when a new client contacts me about an inheritance matter.

What is the Difference Between Formal and Informal Probate in Massachusetts?

Under the MUPC, when a will is filed for probate in Massachusetts, the person filing has the option of proceeding through informal or formal probate. The choice between these tracks has real consequences for anyone who may want to contest the will or challenge some aspect of the estate.

Informal probate is an administrative process supervised by a magistrate rather than a judge. It proceeds without notice to most interested parties at the outset, which means potential contestants may not learn that a will has been filed until after the process is already underway. An informally probated will can later be challenged, but the time limits are longer and the process is different from a formal contest.

Formal probate, by contrast, involves judicial supervision and requires that a citation be served on all interested parties. The citation sets specific deadlines for filing a Notice of Appearance and an Affidavit of Objections. These deadlines are strictly enforced, and missing a deadline can permanently bar a person from contesting a will, regardless of the merits of their claim.

The key practical difference is this: under informal probate, a will contest may generally be initiated within three years of the decedent’s death or 12 months after the will was informally allowed, whichever is later. Under formal probate, the citation process controls, and the return date on the citation is your critical deadline. I have seen clients lose viable claims simply because they did not understand which track applied to their situation and waited too long to act.

What Happens When a Will Contest is Initiated?

If the will was initially filed under the informal probate process, it may be converted to the formal probate process, in which a judge will oversee all aspects of estate administration, including any challenges that are made.

Who Has Legal Standing to Contest a Will in Massachusetts?

Not everyone who is unhappy with the terms of a will has the legal right to contest it. In Massachusetts, you must have standing, meaning a recognized legal interest in the outcome of the proceeding, in order to participate in a will contest.

Standing in a Massachusetts will contest generally includes those who are:

• Heirs at law, meaning those who would inherit from the decedent’s estate under the Massachusetts intestacy statutes if no valid will existed.
• Beneficiaries named in a prior will of the decedent who stand to receive more under that prior document than under the will being submitted to probate
• Beneficiaries named in the will being offered for probate who are challenging some aspect of its terms or validity
• Creditors of the estate whose interests may be affected by the outcome
• A trustee or other fiduciary whose rights or obligations depend on which version of a will governs (or if there is intestacy)

What Types of Claims Do Not Have Standing?

Suppose your mother told you that you were to inherit all of her jewelry, but in her will she left the jewelry to your sister. Can you contest the will?

In this case, the will cannot be contested solely because jewelry was bequeathed to your sister and not you. Instead, you could only contest the will if there was undue influence, your mother lacked testamentary capacity when executing the will,  there was fraud in the execution of the will or the signature will is a forgery.  If none of these situations occurred, then unfortunately you will not be entitled to the jewelry.

If instead you were a close friend of the decedent and they told you that you would receive their jewelry upon their death, you would not have standing. The reason for this is that even if one of the situations noted above actually occurred, the result is that the will would be declared invalid and the decedent would have been deemed to have died intestate. Under Massachusetts law, there are no provisions to give the assets of a decedent to a friend in cases of intestacy, even if a decedent clearly had expressed such desire. Thus you would not have standing to challenge the will.

What Are the Requirements for a Valid Will in Massachusetts?

A will is a legal document, and like all legal documents, it must satisfy specific formal requirements to be enforceable. Under Massachusetts law, in order to be valid a will must:

• Be in writing
• Be signed by the testator (or by another person in the testator’s presence and at the testator’s direction if the testator is physically unable to sign the will)
• Be signed by at least two witnesses who observed the testator sign the will
• Have been made by a person who was at least 18 years of age at the time of execution
• Have been made by a person who possessed testamentary capacity at the time of execution
• Not have been made under duress or as the result of fraud.

Does Massachusetts Recognize Holographic Wills?

Holographic wills are those that are made in writing and signed by the testator without any (or the required number) of witnesses. Holographic wills are not valid in Massachusetts, except under one exception.

Massachusetts does recognize holographic wills if they were executed in another state where the testator lived at the time of execution, and if such state recognizes holographic wills as being valid. Thus a will that was valid where executed may be admitted to probate in Massachusetts even if it does not strictly comply with Massachusetts execution requirements, but this involves a separate legal analysis.

When any of the formal requirements described above are not satisfied, the will may be challenged on the ground of improper execution or other grounds. If the challenge succeeds, the will may be declared invalid, regardless of whether it accurately reflects the decedent’s wishes. When a will is declared invalid, estate distribution is done in accordance with a previous will (if there is one and it has not been revoked), or in accordance with intestate law.

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Part Two: Proving Your Case in a Massachusetts Inheritance Contest

How Does the Burden of Proof Work in Massachusetts Will Contests and Inheritance Litigation?

The allocation of the burden of proof is one of the most strategically important aspects of Massachusetts inheritance litigation, and it varies depending on the specific claim being made.

In a will contest based on improper execution, the initial burden falls on the proponent of the will, meaning the person seeking to have it admitted to probate, to demonstrate that the formal requirements were satisfied. Generally, this is easy to show, because all that is initially required is showing that the will was properly executed and witnessed, and that the testator was at least 18 when the will was created. Once that initial showing is made, the burden shifts to the contestant to prove the grounds they are alleging.

Challenging a Will Based Upon the Lack of Testamentary Capacity

In a will contest based on lack of testamentary capacity, the contestant bears the burden of proof. The law presumes that a person who signed a will had the capacity to do so, and the challenger must overcome that presumption with evidence. However, a sufficient preliminary showing of incapacity can shift the burden to the proponent (the one asserting the validity of the will) to prove testamentary capacity. What constitutes a sufficient preliminary showing is a judgment call that experienced probate litigation attorneys navigate regularly.

Challenging a Will Based Upon Undue Influence

“Undue influence” in a will contest refers to a situation in which a person in a position of power or trust over the testator substitutes their own will for that of the testator, thus causing the testator to abandon their true wishes in the will and instead substitute the wishes of the person in power.

Massachusetts courts consider undue influence to be involvement that:

• Destroys or overcomes a testator’s free will at the time of execution, often through coercion, domination, or manipulation
• Results in a will that reflects the influencer’s wishes instead of those of the testator

Undue influence can cover a wide range of situations, including:

• Caretakers who have control over the physical care of an invalid
• Those with financial control over the affairs of a person
• A child who may cut off a parent’s interaction with other brothers and sisters, and who may lie to the parent in order to get the parent to disinherit the other brothers and sisters. (It should also be noted that if one child is assuming the primary caretaker role for an elderly parent and the parent gives the child more in the will, this does not necessarily mean that there is undue influence. A parent may want to recognize the sacrifice by that child through a larger inheritance.)

This is only a small sampling of circumstances that may indicate the presence of undue influence.

What Are The Elements Frequently Considered By Massachusetts Courts in Finding Undue Influence?

Massachusetts courts often look for evidence of the following:

1. A susceptible testator. Courts believe that a person can be more susceptible if they are:

• • Of advanced age
  • Suffering from Physical illnesses or frailty
  • Are experiencing cognitive issues such as dementia
  • Are isolated from others
  • Under the influence of medication that can impair their judgment
  • Experiencing substance abuse

2. A person has the opportunity to exert influence over the testator. This can include:

• • Caretakers
  • Those who have control over the testator’s finances
  • Those in a position to isolate the testator, such as controlling who they can talk to or visit, or controlling those with whom they can communicate

3. The alleged influencer had motivation to manipulate the testator, and also stood to gain by a change in the testator’s will. Often, this includes circumstances in which: 

• • The influencer may have been in debt or other poor financial circumstances, or have a lifestyle in which they cannot afford
  • The influencer (or those close to the influencer) were primary beneficiaries under the will
  • The influencer initiated the making of the will, often by hiring the drafting attorney and getting witnesses for the execution of the will 

4. A result that appeared to be the outcome of undue influence. This can include: 

• • A dramatic change from the beneficiaries set forth in a previous will
  • The disinheritance of family members without any obvious reason or explanation
  • An unlikely large benefit that accrued to the influencer or others in the influencer’s circle
  • The execution of a will under circumstances that suggest that the execution may not have been entirely voluntary
  • Statements from the testator before or after the execution of the will that seem to go against the distribution provisions of the will.

Who Has the Burden of Showing Undue Influence in a Massachusetts Will Contest?

In a will contest based on undue influence, the burden of proof is more nuanced.

The person contesting the will generally bears the burden of proving undue influence based upon the facts and circumstances of the conduct, as well how the influencer stood to gain. It’s important to note that the influencer does not need to be the direct recipient of the benefits; it can be that others preferred by the influencer (such as another child of the testator who is a close friend or a member of the influencer’s family) gained as the result of the influence.

A critical exception to the burden of proof applies when the person accused of undue influence stood in a “fiduciary “relationship to the testator and benefitted from the will. In that situation, the burden of proving the absence of undue influence shifts to the person alleged to have exerted it. This shifting of the burden can be enormously significant in litigation, because proving a negative is far harder than establishing a positive case.

Challenging a Will Based Upon Fraud

In a will challenge based upon fraud, a person must show deception involving the execution of a will.

For example, a person seeking to gain an inheritance may tell another person that the document to be signed is only a power of attorney or maybe a document to transfer title to a vehicle. If the person in fact signed the document not realizing that it is a will, the will may be declared to be invalid.

What Evidence is Often Introduced in a Massachusetts Will Contest?

After nearly 40  years of handling will contests and inheritance disputes in Massachusetts, I can say with confidence that the cases that succeed are almost always built on contemporaneous documentation, credible witnesses, and medical or expert evidence that corroborates the central theory of the case.

In a capacity challenge, the most powerful evidence typically includes:

• Medical records from the period surrounding the will’s execution, including records reflecting diagnoses of dementia, Alzheimer’s disease, delirium, or other cognitive impairments
• Hospital and rehabilitation records if the testator was recently hospitalized or in a care facility
• Nursing home records, care plans, and notes by medical staff about the testator’s cognitive condition
• Statements and observations by family members, neighbors, clergy, and others who interacted with the testator around the time the will was signed
• Prior and subsequent wills, to establish whether the challenged will represented a significant and unexplained departure from a consistent testamentary pattern
• Expert testimony from a geriatric psychiatrist, neurologist, or neuropsychologist who can interpret the medical evidence and render an opinion on capacity at the time of execution

In an undue influence case, the most powerful evidence tends to include:

• Communications between the accused influencer and the testator, including emails, text messages, and letters
• Evidence of the accused influencer’s control over the testator’s daily life, finances, housing, medical care, and access to other people
• Evidence of isolation, including testimony from family members or friends who were suddenly cut off from the testator
• Testimony from the attorney who drafted the will about the circumstances of its preparation, the instructions they received, and whether the accused influencer was present during meetings
• Financial records showing unusual transfers, changes to beneficiary designations, or shifting of assets to the accused influencer around the time the will was changed
• Prior wills or estate plans reflecting that the testator’s intentions were different before the accused influencer became involved

What is the Role of the Drafting Attorney in a Massachusetts Will Contest?

The attorney who drafted the challenged will often become a central figure in Massachusetts will contest litigation. Their testimony about the circumstances of the will’s preparation, the instructions they received from the testator, their observations of the testator’s mental state, and their notes and files can significantly affect the outcome of a case.

When the drafting attorney had a longstanding relationship with the testator and observed them in a competent and deliberate manner during the preparation of the will, that testimony tends to support the validity of the challenged will. Massachusetts courts have given substantial weight to the presence of independent counsel as a factor negating undue influence, on the theory that an attorney who is exercising their independent professional judgment acts as a check on improper outside influence.

Conversely, when the drafting attorney’s notes are sparse, when they met with the testator only briefly, when they were asked to draft the will by the person who is the primary beneficiary, when the accused influencer was present during their meetings with the testator, or when the attorney departed from their usual practice in ways that cannot be well explained, these facts can support a challenge. The drafting attorney’s deposition is frequently one of the most important pieces of discovery in a Massachusetts will contest.

Are No-Contest Clauses Enforceable in a Massachusetts Will Contest?

A no-contest clause, also known as an “in terrorem” clause, is a provision in a will that states that any beneficiary who contests the will forfeits their inheritance if the contest is unsuccessful. The purpose of these clauses is to deter litigation and preserve the testator’s expressed intentions.

Massachusetts courts have generally enforced no-contest clauses, subject to important limitations. A court will not apply a no-contest clause to bar a contest that was brought in good faith and with probable cause. If a beneficiary had a reasonable factual and legal basis for the challenge, the forfeiture provision will typically not be enforced against them even if the contest ultimately fails. This is an important protection that allows legitimate claims to proceed without the contestant automatically losing their inheritance if they are unsuccessful.

The existence of a no-contest clause in a will is something that should be discussed carefully with a Massachusetts will contest attorney before any litigation strategy is decided upon. The risks and benefits of proceeding in the face of such a clause depend heavily on the specific facts and the strength of the available evidence.

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Part Three: The Litigation Process in Massachusetts Will Contests and Inheritance Disputes

What Happens in a Massachusetts Will Contest?

The formal will contest process in Massachusetts Probate and Family Court proceeds through several distinct stages, each with its own requirements and strategic considerations.

1. The will is filed for probate. When a formal probate petition is filed, the court appoints a personal representative (formerly called an executor) to administer the estate and issues a citation that is served on all interested parties.
2. Interested parties receive the citation and must read it carefully. The citation specifies the return date, which is the deadline by which anyone wishing to contest the will must file a Notice of Appearance with the court.
3. The Notice of Appearance is filed. This is a relatively brief document, downloadable from the Probate Court web site, stating that the contestant intends to participate in the proceeding. It must be filed before the “return” date on the citation. Missing this deadline can bar a contestant from the proceeding entirely.
4. The Affidavit of Objections is filed within 30 days after the return date. This is a sworn statement identifying the specific grounds for challenging a will and the material facts supporting each ground. It is more than a formality. It is the formal legal pleading that defines the scope of the will contest, and it should be prepared carefully with the help of an experienced will contest attorney.
5. The case enters the discovery phase. Both sides are entitled to gather evidence through written discovery requests, depositions, and subpoenas to third parties. Discovery in will contests often includes obtaining medical records, financial records, the drafting attorney’s file, and depositions of witnesses and the drafting attorney.
6. Motion practice may occur. Either party may file motions seeking rulings on specific legal questions, including motions to dismiss particular claims or motions for summary judgment seeking a ruling in their favor without a trial.
7. The case proceeds to mediation or trial. Most will contests in Massachusetts resolve before trial through negotiated settlements. When settlement is not achievable, the matter is tried by a judge in the Probate and Family Court.

What is Discovery and Why Does it Matter in a Will Contest or Inheritance Dispute?

Discovery is the formal process by which each party in a Massachusetts will contest or inheritance dispute gathers evidence from the other side and from third parties. It is one of the most important phases of any contested inheritance matter because it is where the facts that will determine the outcome of the case are developed.

The primary tools of discovery in Massachusetts inheritance litigation include:

• Interrogatories, which are written questions that the opposing party must answer under oath
• Requests for production of documents, which require the opposing party or a third party to provide specific categories of documents
• Depositions, which are oral examinations of witnesses or parties conducted under oath before a court reporter
• Subpoenas to third parties, which can require hospitals, financial institutions, and other entities to produce records relevant to the dispute

In a typical Massachusetts will contest or inheritance dispute, the discovery process might involve obtaining the decedent’s full medical records for several years before the will was executed, the drafting attorney’s entire file, financial account records, communications between the accused influencer and the testator, and depositions of key witnesses including family members, caregivers, and the drafting attorney.

Discovery is expensive, which is one of the reasons why so many inheritance disputes settle before trial. However, the information gathered through discovery is often what enables parties to evaluate their positions realistically and reach a fair resolution. In cases where one side has been concealing important information, discovery can be the mechanism that exposes the misconduct and forces a more equitable resolution.

When and How are Expert Witnesses Used in Massachusetts Will Contests or Inheritance Litigation?

Expert witnesses play a significant role in many Massachusetts inheritance disputes, particularly those involving claims of lack of testamentary capacity or complex financial misconduct.

Capacity Challenges

In a capacity challenge, the most commonly used expert is a medical specialist, typically a geriatric psychiatrist, neurologist, or neuropsychologist, who reviews the available medical records and other evidence and forms an opinion about whether the testator had the requisite testamentary capacity at the time the challenged will was executed. This type of retrospective capacity assessment requires significant professional skill, because the expert must form a reliable opinion based on records and witness accounts rather than direct examination of the patient.

Forgery or Document Alteration

In cases involving suspected forgery or document alteration, a forensic document examiner may be retained to analyze the signature on the will, compare it to known exemplars of the testator’s handwriting, and offer an opinion about authenticity. These experts use specialized scientific techniques to detect alterations, dating inconsistencies, and signature irregularities that would not be apparent to the untrained eye.

In cases involving complex financial misconduct, a forensic accountant may be engaged to trace the movement of estate or trust assets, identify irregular transactions, and quantify the amount of any misappropriation.

Using expert witnesses effectively requires careful preparation. An expert who has not been well briefed on the legal standards applicable to the case, or who has not had access to the full body of available evidence, will be a less effective witness. I work closely with all experts I retain to ensure that their opinions are grounded in a thorough review of the available evidence and properly framed for the legal issues in the case.

What Remedies are Available if an A Will Contest or Inheritance Contest is Successful?

The remedies available in a successful Massachusetts inheritance dispute depend on the nature of the claim and the stage at which the matter is resolved.

When a Challenged Will is Declared Invalid

If a will contest succeeds and the challenged will is declared invalid, the estate is distributed either under a prior valid will of the decedent or, if no prior valid will exists, under Massachusetts intestacy statutes. The successor beneficiaries or heirs then receive the distributions they would have been entitled to under the applicable governing document or law.

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Part Four: Massachusetts Trust Contests

How are Trust Contests Different from Will Contests in Massachusetts?

Trust contests and will contests share many of the same legal grounds, including lack of capacity, undue influence, and fraud. However, the procedures for pursuing them are substantially different, and understanding those procedural differences is critical for anyone considering a challenge to a Massachusetts trust.

A will contest is initiated within the probate proceeding itself, through the citation and appearance process described above. A trust challenge, by contrast, requires filing a separate lawsuit in either the Probate and Family Court or the Superior Court, depending on the nature of the claims. There is no built-in citation process for trust contests, which means that the statute of limitations applicable to the specific claims being made governs the time within which the lawsuit must be filed.

Because trust assets can be moved, invested, or distributed much more quickly than a probate estate, an early and important consideration in Massachusetts trust litigation is whether to seek an injunction or temporary restraining order to prevent the trustee from transferring assets while the litigation is pending. This often requires filing an emergency motion at the outset of the case, and it must be supported by a sworn affidavit demonstrating why immediate relief is necessary. The decision whether to seek emergency injunctive relief is one of the most consequential early judgments in trust litigation.

Unlike will contests, trust challenges do not automatically result in the halting of administration of the trust  pending the outcome of any related probate proceeding. The two cases can proceed simultaneously, and coordinating strategy across both the will contest and the trust challenge, when both are present, requires careful planning.

If a trustee misconduct claim succeeds, the available remedies may include removal of the trustee and appointment of a successor, an accounting of all trust transactions, recovery of misappropriated assets or their equivalent value, a “surcharge” against the trustee for losses caused by the breach of fiduciary duty, and in cases involving bad faith or fraudulent conduct, potentially an award of attorney fees.

If a personal representative misconduct claim succeeds in a probate administration dispute, similar remedies are available, including removal, surcharging for losses caused to the estate, and recovery of improperly distributed assets.

In some cases, the successful contestant may also be entitled to recover from the wrongdoer personally, rather than simply from the estate, if the misconduct rises to the level of individual tortious conduct. The availability of personal liability depends on the specific facts and the legal theories pursued.

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Part Five: Protecting Your Interests and Practical Steps to Take

What Actions Should I Take if I Am Concerned About Being Wrongly Disinherited?

If you have reason to believe that a loved one may have been coerced into creating a will because of a vulnerability, that an estate is being mishandled, or that you may have been wrongfully excluded from an inheritance, the steps you take in the first days and weeks after the death can significantly affect the outcome of any subsequent legal proceeding.

The following are the most important immediate steps to take:

1. Contact a Massachusetts inheritance litigation attorney as soon as possible. As described throughout this guide, deadlines in Massachusetts probate proceedings are strict. Delay can cost you rights that cannot be recovered. Once assets are transferred they are difficult to recoup. An initial consultation costs you nothing and can provide enormous clarity about what options are available to you.
2. Preserve all documents and communications. Do not delete texts, emails, or voicemails. Do not destroy correspondence. Gather any documents you have access to that are relevant to the estate, the decedent’s mental condition, their relationship with the people involved, and any changes to their estate planning documents in the period before their death.
3. Identify potential witnesses. People who knew the decedent, observed their condition, or were present during important events can be critical witnesses. Their memories are sharpest immediately after the relevant events. As time passes, recollections fade and people become harder to locate. To the extent that you are able to identify witnesses for your attorney, this will be helpful in the litigation process.
4. If you are able to do so, obtain copies of the will and any related estate planning documents. If you are a named heir or beneficiary, you may have a right to obtain copies of the estate planning documents. As an estate contest attorney, I can advise of how to obtain these documents if they are not voluntarily provided. In litigation, these documents can also be obtained.
5. Request medical records if capacity is at issue. Because of the strict requirements concerning the release of medical documents, it is often difficult to obtain these documents unless a person already has access to the same. As with other documents and records, medical documents and records can be subpoenaed in will contest litigation.

What Happens to Estate Assets During a Contested Probate Proceeding?

This is one of the most practical and urgent questions in any contested inheritance matter, and the answer depends on which track of probate is being used and what stage the proceedings have reached.

In a formal probate proceeding, once a Notice of Appearance is filed by a contestant, the estate is essentially frozen for most aspects.  There are frequently instances in which the proponent or contestant asks the court to appoint a “special personal representative” for particular purposes, particularly when real estate owned by the testator needs to be sold.

In an informal probate proceeding, the protections are less automatic. If assets are at risk of being distributed or misappropriated while you are pursuing a challenge, emergency relief can be sought from the court, which can include a motion to convert the proceeding to formal probate or a motion to appoint a Special Personal Representative.

The special personal Representative, or SPR, is an independent attorney appointed by the court to administer the estate while the will contest is pending. The SPR can collect assets, pay debts, and take other necessary administrative steps without being aligned with either side of the dispute. Seeking the appointment of an SPR can be an important protective measure in cases where the nominated personal representative has a personal financial stake in the outcome or where assets need active management during the pendency of the litigation.

How Does Mediation Work in Massachusetts Inheritance Disputes?

Mediation is a voluntary process in which a neutral third party, typically an experienced attorney or retired judge, works with the parties and their counsel to explore whether a negotiated resolution is achievable. It is distinct from litigation because the mediator does not decide anything and does not represent any particular party.  The parties retain complete control over whether and on what terms they settle.

Mediation has become an important tool in Massachusetts inheritance disputes for several reasons.

• Family relationships, even strained ones, are often worth preserving where possible.
• The expense and emotional toll of full litigation can be devastating for everyone involved. In particular, litigation can deplete the assets of an estate quickly, in which case no one wins.
• The outcome of litigation is always uncertain, which means that both sides typically have something to gain from a negotiated resolution that gives each party more certainty than a trial would.

Effective mediation in an inheritance dispute requires thorough preparation. Going into mediation without a well-developed understanding of the facts, the applicable law, and the realistic range of outcomes at trial puts a party at a significant disadvantage.

As a Massachusetts inheritance dispute attorney, I prepare every client for mediation as carefully as I would prepare them for trial, because the groundwork laid in mediation often determines whether a fair settlement can be achieved.

When mediation fails and trial is the only path forward, I am prepared to see the matter through. Having established a strong factual record and a well-developed legal theory before mediation actually strengthens a party’s position in litigation if mediation does not succeed.

How Long Does a Massachusetts Will Contest or Inheritance Dispute Typically Take?

The timeline of a Massachusetts inheritance dispute depends on several factors, including the complexity of the legal and factual issues, the number of parties involved, the volume of documents to be reviewed, whether expert witnesses are needed, and whether the matter ultimately resolves through settlement or requires a trial.

As a general guide, the following timelines reflect typical experience:

• A matter that resolves through early negotiation before discovery, such as a case where the facts are relatively clear, the stakes are relatively low, and the parties are motivated to settle, may conclude within three to twelve months of the initial filing.
• A matter that proceeds through discovery and resolves through mediation before trial may take anywhere from one to two years, depending on the court’s scheduling the pace of discovery, and the motivation of the litigants.
• A matter that goes through full discovery and proceeds to trial is typically a two-to-three-year process, and in complex cases involving multiple parties or substantial financial assets, it can take longer.

Overall, the more money that is at stake, the longer it is likely to take for a case to settle or be resolved.

The timeframes note above should be viewed as only a general guide, not how long a specific case will take.

Once I learn about the nature of a case, I can provide an honest assessment of the likely timeline and the factors that will affect it. Even with the knowledge of the critical matters of a case, neither I nor any attorney can provide an exact timeline (or even a time range) with respect to how long a case take. Clients who understand what they are committing and understand the inherent uncertainty in any litigation are better positioned to make informed decisions throughout the process.

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Part Six: Special Topics in Massachusetts Inheritance Law

How are Inheritance Rights Affected by Divorce and Remarriage in Massachusetts?

Divorce and remarriage can significantly affect inheritance rights in Massachusetts, and the interplay between estate planning documents and changes in marital status is a frequent source of confusion and dispute.

Under the MUPC, a divorce in Massachusetts automatically revokes any provisions in a will that benefit the former spouse, as well as any appointments of the former spouse as personal representative, trustee, or agent. This revocation takes effect on the date the divorce is final. However, a subsequent will executed after the divorce can reinstate those provisions if the testator chooses to do so.

Beneficiary designations on financial accounts, retirement accounts, and life insurance policies are generally not automatically affected by divorce under Massachusetts law. This means that a former spouse who was named as beneficiary on a retirement account or life insurance policy may still receive those assets after the divorce if the beneficiary designation was never updated. This is a common source of inheritance disputes that arises when a person remarries but fails to update their beneficiary designations before their death.

Blended family situations involving children from prior relationships present some of the most complex inheritance disputes I encounter. When a parent remarries and fails to update their estate plan, or when a surviving spouse and children from a prior relationship have conflicting interests in the estate, the potential for litigation is significant. The MUPC’s intestacy provisions and spousal share rules apply in ways that can produce surprising results for families who have not proactively addressed these issues.

What are a Surviving Spouse’s Rights in a Massachusetts Estate?

Massachusetts law provides a surviving spouse with a number of protections that cannot be overridden by a will, regardless of what the will says. These protections exist to prevent a testator from completely disinheriting their spouse.

The most significant of these is the elective share. Under Massachusetts law, a surviving spouse has the right to elect against the will and receive a portion of the estate defined by statute, rather than accepting whatever the will provides. The elective share calculation under the MUPC takes into account not just the probate estate but also certain non-probate transfers, making it a more comprehensive protection than it was under prior law.

A surviving spouse also has rights to a homestead allowance, an exempt property allowance, and a family allowance under the MUPC. These rights can provide meaningful financial protection even in cases where the estate is otherwise committed to other beneficiaries. Understanding and asserting these rights requires specific legal knowledge, and surviving spouses who believe they may have been inadequately provided for under a will should consult a Massachusetts inheritance attorney promptly.

How are Posthumously Conceived Children Treated under Massachusetts Inheritance Law?

Modern reproductive technology has created a category of inheritance question that the law has been slow to fully address. A child who is conceived after the death of a parent, using genetic material preserved before the parent’s death, may or may not have inheritance rights depending on the specific circumstances.

Massachusetts has addressed this issue through the MUPC, which provides that a posthumously conceived child may be treated as an heir for purposes of intestate succession if certain conditions are met, including that the deceased genetic parent had consented to posthumous conception in writing and that the child was in utero within 36 months of the genetic parent’s death or born within 45 months of the death. For inheritance purposes outside of intestacy, the treatment of posthumously conceived children depends on the specific terms of the will or trust and how they are interpreted under Massachusetts law.

Cases involving posthumously conceived children and inheritance rights are complex and evolving, and they require close attention to both the applicable statutes and the specific facts of each family’s situation.

About Attorney Alan S. Fanger

My practice is almost exclusively focused on contested estate matters, including will contests, inheritance disputes, trust litigation, and probate administration disputes. I do not practice estate planning. Instead, I represent people who are fighting over estates, not planning them, and that singular focus shapes everything about how I approach my clients’ matters.

I started my practice in 1989 and have spent nearly 40 years representing clients throughout Massachusetts in some of the most difficult and high-stakes disputes a family can face. I have been named a Massachusetts Super Lawyer for multiple consecutive years. I am also a member of the Massachusetts Academy of Trial Attorneys, the Massachusetts Bar Association, and the American Bar Association. I also have written and lectured on probate litigation topics and serve as an arbitrator in probate and condominium matters.

My office is located in Framingham at 111 Speen Street, 2^nd Floor, and I represent clients in inheritance disputes throughout Massachusetts, from Boston, Brookline, Dedham, Wellesley, Needham, Chelsea, Dorchester, and Brighton to communities in central and western Massachusetts, including Worcester, Springfield, Northampton, and beyond. I am admitted to practice before all Massachusetts courts, including the Supreme Judicial Court.

What distinguishes my practice is not the number of cases I have handled (although that experience matters); rather it the dedication that I have in seeking the very best result for every client. I work collaboratively with each client to develop a strategy that reflects their actual goals, their realistic assessment of the facts, and the cost-benefit calculation that any reasonable person in their position should make. I keep my clients informed, I give them honest assessments even when the news is not what they hoped for, and I treat every matter as if my own inheritance were at stake.

To schedule a free consultation, call 617-332-3456 or complete the contact form at www.lawfang.com/contact.

This guide is provided for general informational purposes only and does not constitute legal advice. The laws described in this guide are subject to change, and their application to any specific situation depends on facts and circumstances that vary from case to case. Attorney Alan S. Fanger, the Law Office of Alan S. Fanger, and lawfang.com make no representations about the accuracy or completeness of this guide as applied to any individual situation. If you have a matter involving a Massachusetts estate, will, trust, or inheritance dispute, please consult a qualified attorney. Call 617-332-3456 or visit www.lawfang.com to schedule a free consultation.