Beyond The Will, Client Compass

When Do I File My Probate or Trust Litigation Case?

December 30, 2019


We previously discussed what “probate litigation” is and where such cases can be filed, and now we will focus on when to file such cases.  Timing is important to ensure that claims are not time-barred and that the Court hears your case.

With respect to Wills, a petition to probate a Will or to appoint a Personal Representative needs to be filed with the Probate and Family Court within three years after the decedent’s death.  There are a few exceptions to this general, three-year rule that are rare and will not be covered here.  After a formal petition is filed, an interested party must act quickly if they want to object to such petition:  first, an interested party must file a Notice of Appearance and Objection by the “return day,” which is a date listed in the Court-issued Citation that the petitioner must serve upon all interested parties; and second, an interested party must file an Affidavit of Objections within 30 days after the “return day.”  These two filings are statutorily required to challenge a Will, Personal Representative appointment, or any other relief requested in the pending petition.  If either filing is not completed, the Court will move the probate matter forward and allow the petition.

With respect to Trusts, section 604 of the Massachusetts Uniform Trust Code (“MUTC”) contains a tight timeframe to contest the validity of a revocable trust:  a person must commence a judicial proceeding within the earlier of (1) one year after the settlor’s death; or (2) 60 days after the trustee sent the person a copy of the trust and notice of the trust’s existence, trustee’s name and address, and time for commencing a proceeding.  In practice, most cases follow the one-year timeframe.  This means that all cases that involve the validity of a revocable trust, including any amendments thereto, must be filed within one year of the settlor’s death, if notice was not provided.  I have even seen one trust case in which a Superior Court applied this one-year timeframe contained within the MUTC to a claim for tortious interference with inheritance, which typically has a three-year statute of limitations.  Given that the MUTC was enacted and effective relatively recently on July 8, 2012, this is an interesting statute of limitations issue that will continue to evolve as more cases are litigated.

With respect to tort-based claims (such as claims for breach of fiduciary duty, undue influence, tortious interference with inheritance, and unjust enrichment), a three-year statute of limitations applies pursuant to M.G.L. c. 260, § 2A.  The question becomes when does the three-year period begin to run?  For a beneficiary of an estate or trust who is asserting claims against a fiduciary, Massachusetts courts have held that the limitations period does not commence until the beneficiary knows that they have been injured and that their injury was caused by the fiduciary.  This rule recognizes how beneficiaries are legitimately dependent upon fiduciaries for information concerning an estate or trust.

Massachusetts courts, however, have declined to extend the same rule to successor trustees asserting claims against a prior trustee.  For a successor trustee who is asserting a breach of fiduciary duty or breach of trust claim against a prior trustee, such a claim begins to run when the successor trustee knows, or through reasonable diligence should know, of the breach.  Massachusetts courts have reasoned that, based on public policy and fiduciary obligations, a different analysis applies because successor trustees are responsible for gathering all records and accountings from prior trustees, and uncovering and redressing any breaches of trust committed by a prior trustee, otherwise they themselves are potentially liable.

As with other types of litigation, probate and trust litigation cases are very fact-specific.  If you have any issue with respect to an estate or trust matter, it is important to consult with a skilled attorney as soon as possible so that you can timely pursue or defend your case.

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