Beyond The Will, Client Compass

Who Can Participate in a Probate or Trust Litigation Case?

January 31, 2020


In prior blogs, we discussed what probate litigation is and where and when to file such cases.  To complete my introductory series on probate litigation, this blog will focus on who can participate in such cases.  A person must have an interest in the trust or estate in order to have standing to appear in the case.  The Massachusetts Uniform Probate Code and the Massachusetts Uniform Trust Code define “interested person” to include:

  • heirs,
  • devisees,
  • children,
  • spouses,
  • creditors,
  • beneficiaries,
  • any others having a property right in or claims against a trust estate or the estate of a decedent, ward, or protected person, and
  • persons having priority for appointment as personal representative, and other fiduciaries representing interested persons.

Importantly, the definition also explicitly states that its meaning “may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.”  While helpful to enumerate the types of interested parties, this definition aptly leaves some room for expanding the definition when needed.  For instance, the Supreme Judicial Court did so in In re: Guardianship of B.V., 474 Mass. 315 (2016) when it reversed a Probate Court Order and remanded the case back to the Probate Court in order to allow a maternal grandfather to intervene as an interested person in a guardianship action involving his adult granddaughter.  Similarly, in the guardianship and conservatorship cases, “any person interested in the welfare of the person alleged to be incapacitated,” including the “incapacitated person” themself, may petition for a determination of incapacity, pursuant to the Massachusetts Uniform Probate Code.  The “any interested person” standard allows, for instance, a neighbor, caretaker, or hospital to file a petition requesting that the Court appoint a guardian over someone.

In formal probate proceedings (for instance, of a Will or appointment of a Personal Representative), the governing statute requires that notice be given to the surviving spouse, heirs, devisees, any person having a prior or equal right of appointment to serve as Personal Representative, and any person who was previously appointed as Personal Representative and whose appointment has not been terminated.  If a party is incapacitated, notice must be given to that person and their guardian or conservator.  If a charity is involved, notice must be given to the Attorney General’s Office.  In addition, notice is required by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.  Lastly, notice must be given to the Division of Medical Assistance.  Upon notice, such person has a right to appear in the action.

In equity matters, the plaintiff must have an interest in the estate or trust at issue.  Often the plaintiff is a family member asserting claims against siblings or the fiduciary of an estate or trust.  Such defendants are brought into the lawsuit voluntarily or involuntarily as defendants.  The number of defendants could be broader if the plaintiff is requesting that the court enter a declaratory judgment, such as to declare that title of property should be held in their name or to invalidate a trust.  In such a case, the plaintiff is obligated to name all necessary parties, meaning “all parties who have or claim any interest which would be affected by the declaration.”

It is critical to give notice to all of the interested parties in the case.  Even if such interested parties decide they do not want to participate in the action, they must receive notice and have an opportunity to participate.  The Massachusetts Uniform Trust Code makes clear that “[a] decree or judgment shall be valid only to those who are given notice of the proceeding.”  Thus, as a petitioner or plaintiff, you do not want to inadvertently fail to give notice to somebody, realize the mistake during (or worse after!) the litigation, and need to serve another party.  If you are involved in probate litigation, it is crucial to involve all of the interested parties at the outset in order to save time and expenses.  As always, if you have any questions on how to proceed, who needs to receive notice, or whether you have standing to appear in an action, it is important to consult a skilled attorney.

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