Legal Question in Wills and Trusts in Massachusetts

Re: non filing of will

See Massachusetts General Laws, chapter 191, sections 13-14 (available on the Internet at http://www.mass.gov/legis/laws/mgl/). Section 14 provides the procedure for forcing your brother to produce the will. The first step is probably to phone the Probate Court for the county in which your mother resided and find out what kind of complaint they would need under Section 14. Presumably it would be a general petition in Probate rather than a complaint in Equity, but an assistant registrar of Probate at the courthouse would be the best person to ask.

Re: non filing of will

If your brother has not filed the will and conducted probate, then we can petition on your behalf to appoint

you as executor on the basis that he failed in his duties. Please contact me to discuss the particulars.

Re: failure to file will

It depends how much money is in your mother's estate. If it is worth doing, then you can force the issue in probate court. As Mr. Weicker said, you can seek to be named as an executor, and you will need to name a resident agent, since you are out of the state. The difficulty of the process depends on what assets exist, and if your brother or someone else did something with the estate's assets.

If you need more iormation or assistance, contact me.

Re: non filing of will

Under MA law, a person in possession of the will has 30 days after death to file it and a death certificate with the court, even if there are no assets to probate.

Since your brother has failed to act, you can file a general petition in the probate court to demand its production. The court will then issue an order requiring its production within a certain number of days. It's quite possible that the order will push your brother to get the probate going.

Once you have the will in your possession, you can file the probate. Alternately, if you have a copy of the will, you may sometimes be able to file a copy of the will, accompanied by an affidavit explaining why you can't get your hands on the original. In either case, you should retain an attorney to assist you -- this kind of probate work is really beyond the level of a do-it-yourselfer.

Please feel free to contact me if the estate is located in Suffolk, Middlesex or Norfolk Counties.