Legal Question in Wills and Trusts in Massachusetts

Missing will/duties of executrix in tis instance

I am inquiring as to how best to proceed regarding a situation whereby my great aunt passed away in December 2002. My mother was named executrix of her estate a long time ago but was never furnished a copy of the will, nor does anyone know who the attorney who drafted the will is. The decedent's son was, and still is, living in the property. It is my understanding that wills are public record in Massachusetts but the probate court has no record of any will in any name even resembling the decedents. The property was held solely in the name of the decedent, so what action can be taken to either produce the will, which all concerned believe is being withheld, or will the matter eventually work itself out as various agencies' records catch up and notice that the house is listed solely in the name of a deceased person. Of possible note is that the decedent co-signed a mortgage with her son (the one occupying the property) in the year prior to her death. If he is not listed on the deed (he isn't) can he sell the property or even refinance it? Is there some point at which probate will step in to allocate the estates assets? It's a small estate, probably about $400K, not counting any possible life insurance, etc.

Thank you.


Asked on 3/19/04, 11:07 am

1 Answer from Attorneys
Robert Trant Law Office of Robert R. Trant

Re: Missing will/duties of executrix in tis instance

A will is only a public record after it has been offered in the Probate Court. When a person dies, the executor named in the will will file a petiton in the Probate Court to be appointed executor and a copy of the will is filed. Notice is then sent to all interested parties (heirs) regarding a date to file any objections. If the will was not offered for Probate, then the court will not have any record. You would need to locate a copy of the will. You may want to place an ad in a legal newspaper requesting that if any attorney has a copy they should contact you. I am not sure if she had any dealings in the past with an attorney. You could contact this person.

You could also file a petition to probate the estate assuming that there is no valid will and requesting the appointment of an administrator, perhaps your mother. If there is a will then it would be in the son's interest to produce the will. Otherwise, you will need to search the deceased home to try to locate a copy. As for the property, if title was solely in her name then the son could not further mortgage the property without her signature. You would need to perform a search at the Registry of Deeds to see how title to the property is held. The matter will not work itself out since the city/town may not get notice the person is deceased.

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Answered on 3/19/04, 12:36 pm


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