What are the Procedural Differences Between a Probate and Equity Case?

With the recent enactment of the Massachusetts Uniform Trust Code (“MUTC”) and the Massachusetts Uniform Probate Code (“MUPC”), several procedural differences have become more prominent between probate and equity cases pending at the Probate and Family Courts.

First, there is a difference between what needs to be filed. With a probate case, the MUPC requires a party (the petitioner) to file a petition in order to initiate the case. The petition is a court form available on the Probate and Family Court’s website. On the other hand, an equity case begins by a plaintiff filing a complaint and receiving a summons from the court. There is no court form, and the plaintiff is responsible for researching and drafting the substantive complaint and requested equitable relief.

Second, there is a difference between what parties receive notice of the lawsuit. With a probate case, the petitioner is required to give notice to all “interested persons,” as defined by the MUPC. The notice requirement is satisfied either by (1) obtaining and filing the assents of the interested parties, or (2) by mailing the court citation to all interested parties and publishing it in the local newspaper within a time designated in the court citation. Interested parties then have the opportunity to voluntarily participate in the case by filing with the court an appearance with or without an objection by a certain date (the “return date,” which is stated in the court citation). If any interested party files an objection, the case is considered contested.

On the other hand, the only party that receives notice of an equity case is the defendant. The defendant receives notice when the plaintiff serves the defendant with a copy of the complaint and summons. The defendant must respond to the complaint by filing with the court either an answer (with or without counterclaims) or a motion, and this must be completed within twenty days of service. If a response is not filed, the defendant is subject to default. Thus, unlike an objection in a probate case, the defendant’s participation in an equity case is mandatory.

Third, there is a difference in the timeframe that the court will process the case. If a probate case is uncontested (i.e., the petitioner has filed all of the assents of the interested parties or, after receiving notice through the citation, no interested party files an appearance and objection to the petition by the return date), the court assigns the case to a three to six month track. This timeframe applies to the probate of wills, administration of estates, accounts, and all other probate cases except for guardianships and conservatorships. If the probate matter is contested (i.e., an interested party files an appearance and objection to the petition by the return date), the court assigns the case to an eight month track.

On the other hand, the court assigns a complaint in equity to a fourteen month track. See Probate and Family Court Standing Order 1-06: Case Management and Time Standards for Cases Filed in the Probate and Family Court Department (eff. Apr. 3, 2006).

In sum, a litigant should consider these procedural differences when deciding whether to file a probate or equity case with the Probate and Family Court and what relief to seek from the court. While some types of cases must be filed as either a probate or equity case, other types of cases – such as termination of a trust or removal of a trustee – could be filed either as a probate or equity case. The above differences concerning the type of pleading filed, notice, and timeframe should factor into a litigant’s overall case strategy.


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.