Petition to Probate a Will Requirements in Massachusetts

At a glance

Requirements one by one

Governing law and proceeding type

Massachusetts uses a petition for both tracks. Informal proceedings occur before the Probate and Family Court or a magistrate without general adjudicatory notice; formal proceedings occur before a judge with notice to interested persons. A formal testacy petition may request appointment of a personal representative, but admission and appointment remain separable requests.

Court and venue

The governing court is the Probate and Family Court Department. The first informal or formal testacy or appointment proceeding belongs in the county of the decedent's domicile at death. For a nondomiciliary decedent, venue lies in any Massachusetts county containing the decedent's property. An interested person may seek transfer of an informal case after notice to the original proponent if venue belongs elsewhere.

Who may petition

Both tracks use the interested-person standard. Informal probate requires the court or magistrate to find from the petition that the petitioner is an interested person, and § 3-401 uses the same threshold for formal testacy. Section 1-201(24) includes heirs, devisees, children, spouses, creditors, beneficiaries, people with estate property rights or claims, appointment-priority holders, and fiduciaries representing interested persons.

Petition contents

Under § 3-301, an informal petition is verified as accurate and complete to the petitioner's best knowledge and belief. It states the petitioner's interest; the decedent's name, death, age, and address; known spouse, children, heirs, devisees, and minor ages; potentially incapacitated spouse or heirs; nondomiciliary venue; existing personal representatives; certified transmission of the petition and death certificate to the Division of Medical Assistance; and why the three-year limit has not expired. The will-specific statements cover the original's location, valid execution, reasonable diligence for revocation or a later will, and the death certificate. A joined appointment request adds the will's date and probate status plus the nominee's name, address, and priority.

Under § 3-402, a formal petition requests a judicial testacy and heir order. It adopts the core informal facts and the valid-execution and no-known-revocation statements, then addresses the original will separately. Unlike informal probate, a formal petition may proceed without a death certificate if the court orders a diligent search and report concerning the alleged decedent.

Original will, copies, and lodging

For ordinary informal probate, the original must be in the court's possession or accompany the petition. An authenticated copy of a will already probated in another jurisdiction is an express substitute; § 3-303 also permits that prior- probate route at any time with the foreign probate statement.

Formal probate is the route for an unavailable original. If neither the original nor an authenticated foreign-probate copy is with the court or attached, the petition must state the will's contents and identify it as lost, destroyed, or otherwise unavailable.

Filing or production deadline

Under § 3-108, Massachusetts generally bars starting informal probate or appointment, formal testacy, or formal appointment more than three years after death. The section contains exceptions, including the later of twelve months after informal probate or three years after death for a contest, and a limited late proceeding when no succession or administration proceeding occurred during the three years.

The will-delivery clock is separate and shorter. Under § 2-516, a custodian who has notice of the testator's death must deliver the will within thirty days to a person able to secure probate or, if none is known, to an appropriate court.

Proof and self-proving route

Under § 3-303(c), an informal will that appears signed and contains an attestation clause showing compliance with § 2-502 is probated without further proof. In other cases the magistrate may assume execution if the will appears properly executed.

Under § 3-405, when formal execution evidence is necessary, one attesting witness's affidavit or testimony is enough, with other evidence or affidavit available if witness proof cannot be obtained. In a contested case under § 3-406(a), an in-state, competent, available attesting witness must testify if execution evidence is necessary for a non-self-proved attested will. Section 3-406(b) makes all self-proof execution presumptions rebuttable and preserves a fraud-or-forgery challenge to the acknowledgment or affidavit.

Notice, hearing, and objections

Massachusetts informal probate is not a no-notice filing. Under § 3-306, the petitioner must give written notice seven days before petitioning to all heirs and devisees, each unwaived prior or equal appointment claimant, and any existing personal representative. The petitioner must also send the petition and death certificate to MassHealth by certified mail seven days before filing. A designated newspaper notice follows no more than thirty days after informal probate or appointment. Additional notice goes to the Attorney General for the specified no-spouse/heir or charitable-devisee cases and to both a minor or incapacitated person and the person's guardian or conservator.

Formal recipient requirements come from § 3-403, and § 1-401 supplies a court-set return date and citation. Mail or personal delivery ordinarily must occur at least fourteen days before the return date, while publication must occur at least seven days before it. An opponent must enter a written appearance before 10:00 a.m. on the return date and file a fact-specific affidavit of objections within thirty days afterward. If nobody opposes and notice is proved, the court or magistrate may rule on the pleadings or conduct a hearing and require proof.

Executor qualification, bond, and letters

The person with priority under a probated will ranks first. A proposed personal representative must be at least eighteen and may not be appointed if the court finds the appointment contrary to the estate's best interests. Informal appointment under § 3-307 ordinarily waits until seven days after death; for a nondomiciliary decedent it ordinarily waits thirty days unless the domiciliary representative is the petitioner or the will selects Massachusetts law.

Massachusetts requires a bond in every case. Under § 3-603, sureties on that bond may be waived by the will, all devisees, a qualifying bank or trust company, or the court's best-interests conclusion. Before letters issue, § 3-601 requires the appointee to accept appointment and file the bond.

What trips people up

• Informal does not mean file first and notify later. The core recipients and MassHealth receive notice seven days before the petition; publication is the step that follows informal probate or appointment.
• A bond and a surety are different. Massachusetts always requires the bond, while the will, recipients, fiduciary status, or court may remove the surety requirement.
• Three years and thirty days answer different questions. Three years is the ordinary outer proceeding limit; thirty days after notice of death is the custodian's will-delivery deadline.

Common questions

Can a previously probated foreign will be filed after three years?

Yes. Section 3-303(d) permits informal probate at any time on an interested person's written petition with an authenticated will copy and the foreign probate statement.

Does missed informal notice invalidate the probate or appointment?

No. Section 3-306(f) treats the omission as a breach of duty to the affected people but says it does not affect the validity of the probate, appointment, powers, or other duties.

Must every unopposed formal case have a live hearing?

No. After notice time expires and proof of notice is filed, § 1-401(g) permits an order on the pleadings if the conditions are met; the court may instead hold a hearing and require proof.

Statutes and sources

• G.L. c. 190B, § 1-201 — court, proceeding, interested-person, letters, and petition definitions. Official state judiciary text (accessed 2026-08-03).
• G.L. c. 190B, §§ 3-201, 3-301, 3-303, and 3-306 — venue, verified informal contents, original, proof, death certificate, MassHealth, and notice. Official section 3-201, General Court section 3-301, official section 3-303, and official section 3-306 (accessed 2026-08-03).
• G.L. c. 190B, §§ 3-401 through -403; § 1-401 — formal petitioner, contents, unavailable-will route, citation notice, return date, objections, and unopposed orders. Official section 3-401, section 3-402, section 3-403, and section 1-401 (accessed 2026-08-03).
• G.L. c. 190B, §§ 3-405 and 3-406 — formal will proof and self-proof presumptions. Official section 3-405 and section 3-406 (accessed 2026-08-03).
• G.L. c. 190B, §§ 3-108 and 2-516 — three-year proceeding limit, exceptions, and thirty-day custodian delivery. Official section 3-108 and section 2-516 (accessed 2026-08-03).
• G.L. c. 190B, §§ 3-203, 3-307, 3-601, and 3-603 — priority, qualifications, appointment timing, bond, sureties, acceptance, and letters. Official section 3-203, section 3-307, section 3-601, and section 3-603 (accessed 2026-08-03).