Beyond The Will, Client Compass

Where Do I File My Probate or Trust Litigation Case?

October 30, 2019


There are three trial courts in Massachusetts that have jurisdiction to hear probate or trust litigation cases: the Probate and Family Court, the Fiduciary Litigation Session of the Probate and Family Court, and the Superior Court.

Probate and Family Court

By statute, the Massachusetts Legislature authorized the Probate and Family Court to have jurisdiction concurrent with the Superior Court to hear cases in which equitable relief is sought relating to wills, trusts, guardianships, and conservatorships.  An equity complaint is styled with plaintiff(s) and defendant(s), similar to most other types of litigation.  An equity complaint can include numerous types of claims, such as, a request for instructions filed by the fiduciary; a request for declaratory judgment, such as claiming that a trust is invalid due to undue influence or lack of capacity; and trust modification, reformation, or termination claims, depending on the circumstances of the trust, settlor, and beneficiaries.  The procedure of an equity complaint follows the familiar process of the plaintiff filing the complaint, the court issuing a summons, the plaintiff serving the summons on the defendant, and the defendant filing an answer or other responsive pleading to the complaint within 20 days.  Parties can conduct discovery, such as obtaining documents from other parties and third-parties, asking parties questions to be answered under oath through interrogatories, and taking depositions of parties and third-parties, pursuant to the Massachusetts Rules of Civil Procedure.

The second type of contested proceeding in Probate and Family Court starts with a petition.  This is a relatively new procedural process that began with the enactment of the Massachusetts Uniform Probate Code in 2009 and the Massachusetts Uniform Trust Code in 2012.   My colleague Patricia Malley’s post explained the types of petitions filed in the Probate and Family Court relating to a Will.  There are also petitions relating to trusts, guardianships, conservatorships, and partitions.  The petition process uses different terminology:  there is a “petitioner” (rather than a “plaintiff”) and an “objector” (rather than a “defendant”).  Also there is a significant difference in procedure:  upon filing a petition, the Probate and Family Court issues a citation (rather than a “summons”) that the petitioner is required to serve on all “interested persons,” a term that generally includes heirs, devisees, children, spouses, creditors, beneficiaries, or others having a property right in a trust or estate (but the statutory definition recognizes that the term varies depending on the purposes of and matter involved in the proceeding).  If an “interested person” disagrees with the relief that the petitioner is requesting, they are obligated to file and serve a Notice of Appearance and Objection by a certain date (the “return date”) written on the citation and then file and serve a detailed Affidavit of Objections within 30 days thereafter.  When an interested person objects to the petition, the proceeding becomes “contested.”  Pursuant to Rule 27A of the Supplemental Rules of the Probate and Family Court, the parties can conduct the same discovery as in equity actions.

With both types of cases (equity action or contested petitions), the judge overseeing the case sits in a division of the Probate and Family Court and hears all types of cases relating to family and probate law, such as divorce, modification, custody, paternity, adoption, guardianships (contested and uncontested), conservatorships (contested and uncontested), and probate (contested and uncontested).  Probate and Family Courts generally have large caseloads, especially the counties near Boston.

Fiduciary Litigation Session of the Probate and Family Court

About two years ago, the Fiduciary Litigation Session (“the FLS”) was created within the Probate and Family Court Department to hear complex probate and trust litigation cases.  This specialized forum hears complex cases involving estates, trusts, conservatorships, contested estate and trust accounts, and recently petitions to partition.  Such cases can be styled as equity complaints or petitions.  The case must be “complex” not necessarily “contested.”  Over the past two years, the FLS has expanded in several meaningful ways to better serve litigants and the judiciary.  First, the FLS now hears cases from all counties in Massachusetts, so cases from the Berkshires to Barnstable can request a reassignment.  Second, the FLS now sits in two sessions, one in Norfolk Probate & Family Court and one in Marlborough District Court, and a third session will begin next year in Hampshire Probate & Family Court.  The goals of the FLS are to have better case management in order to resolve the case quicker and to reduce the costs of litigation.  The two presiding judges are experienced to hear these types of complex probate and trust cases.

To move a case to the FLS, the case need to be filed in the venue with jurisdiction over the case, and then the assigned judge, a party’s attorney, or a pro se party files a Request for Reassignment (after the answer period or return period expires), providing notice of the filing to the Administrative Office and all attorneys/parties in the case.  This allows another party to object to the reassignment within a short 10-day period, although I recently learned that only 8-10% of the Requests are contested.  Joint applications are encouraged.  Both the assigned judge and the FLS judge must both approve the reassignment.

The benefits of seeking reassignment to the FLS are that (1) smaller caseloads, so the case moves quicker through litigation, starting with a required case management conference to be held within thirty days of the transfer; (2) increased flexibility and access to the court, including filing certain pleadings by email, receiving email notifications from the FLS, and staggering court appearances at scheduled times; (3) the cases are decided by judges experienced on these types of legal issues.

Superior Court

The Superior Court has jurisdiction to hear equity cases, tort cases seeking damages, and breach of contract cases.  The Probate and Family Court does not have jurisdiction to award damages or hear breach of contract cases, so there may be jurisdictional reasons to file the lawsuit in Superior Court.  But one example of a type of case that could be filed in Superior Court is an equity action involving whether a deceased former spouse violated the terms of a separation agreement by failing to name their surviving former spouse as a beneficiary of a life insurance policy.  Although this type of case involves a prior divorce (probate court) of a deceased person (probate court), the issue of whether the deceased person violated the terms of a separation agreement (a contract) is an issue within the jurisdiction of Superior Court.  Similar to an equity action filed in Probate and Family Court, the complaint is styled with plaintiff(s) and defendant(s), and follows the same procedure above relating to an equity action.  Parties can conduct the same discovery as in the other two courts, pursuant to the Massachusetts Rules of Civil Procedure.  If there is a discovery dispute, Superior Court Rule 9C requires a discovery conference to occur.  Also, there are procedural differences with filing motions, which are governed by Superior Court Rule 9A, and any dispositive motion requires a conference, pursuant to Superior Court Rule 9C.  Unlike in Probate and Family Court, the Superior Court issues a tracking order so that the parties know certain major deadlines at the outset of the case.  The judges sitting in Superior Court rotate and hear all types of criminal and civil cases.

In sum, these three courts provide options for a person to decide where to file their probate or trust case.  The facts of each probate and trust case are very unique, thereby requiring a sophisticated legal analysis to determine the types of potential claims to assert and where and when to do so.

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