My father died in June of 2007. I have been checking with the appropriate probate court for the county, but my father’s will has not been filed. I have not seen my fathers will nor have I been contacted by my stepmother’s attorney. I have been told verbally that my father left all assets to her. My father had siblings and a living parent, so I do not believe this to be true. Is there anything I can do under Massachusetts law to force her attorney to file the will so it is a public record? Regardless of assets, I would like to see my father's final wishes. -- (Posted on the Chat Room by McKenna)
(The following response was posted by Attorney Peter Bernardin.) Under Massachusetts law, a person in possession of the original Will is obligated to deliver the Will to either the Probate Court, or to the named executor (who is then obligated to deliver the Will to the Probate Court). You may want to review Massachusetts General Laws chapter 191, section 13. There is a procedure by which the Probate Court will require the delivery of the Will - so I am confident that if there is a Will, you will be able to get it produced (even if it means hiring an attorney to force the issue). That is the easy part.
The more difficult issue is that a Will only controls what happens to your father's "probate assets" - and it would not surprise me to learn that your father did not have any probate assets at his passing. It is very common for spouses to hold all their assets in joint name, and for each spouse to name the other as the beneficiary of retirement plans and insurance policies. So quite often there are NO probate assets on the death of the first spouse, and therefore the Will really is not a factor. But by all means, either you or your attorney can make an informal phone call to your father's attorney. If there is a Will, then it will need to be delivered. Good luck.
Update re new Probate Code
The new Massachusetts Probate Code, at Massachusetts General Laws Chapter 190B, Section 2-516, says this about delivering a will to the probate court: "After the death of a testator a person having custody of a will of the testator shall deliver it within thirty days after notice of the death to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court."