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When must will go to probate in MA?

My brother is the executor of my dad's will and he has the copy of the will. Based on some info I found on your site I told my brother he needs to deliver the will to the probate court and start the process of probate within thirty days. He says he has a year to probate the will but wouldn't tell me why. Can you tell me what the real answer is? Thanks.

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Let's give your brother the benefit of the doubt and assume he is thinking of the one year statue of limitations for creditors of the estate to make claims.  In other words, once the will is submitted to probate, the creditors have a year to make their claims or they are barred by law from collecting.  That, however, has nothing to do with your brother's obligation to deliver the will to the probate court in a timely manner.    Any person in possession of a will must deliver the will to probate court or to the named executor within thirty days.  If delivered to the executor he then must deliver it to the probate court.

Submitted Mon, 11/08/2010 - 08:10

I am happy to see that the site provided you with helpful information. MA law is very clear that a person in possession of the original Will of the decedent must take certain steps with 30 days of the decedent’s death. One of the approved steps is delivery of the Will to the appropriate probate court. If your brother refuses, then you can ask the probate court to intervene.
But before you go down that road, it sounds like your brother might be confusing a couple of different issues. Delivery of the Will does not mean that you actually have to start the probate process. You can deliver the Will (and an original death certificate) and NOT file the necessary petition to "allow" the Will and start the probate process. That can happen at any time - and sometimes does not happen for years. It really all depends on your specific situation. There is also some strategy involved with regard to the best time to start the process.
Creditors in MA have one year from the date of death to make a claim against the estate. It sounds like your brother might be confusing this creditor deadline, with the timing of the probate of the estate. Good luck.
Attorney Peter Bernardin

For this and other questions dealing with probate in Massachusetts, readers should be aware that Massachusetts has adopted the Uniform Probate Code.  Under the new Code, Massachusetts General Laws Chapter 190B, Section 2-516:  "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."

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