Probate Litigation

Lack of Testamentary Capacity in Massachusetts Will Contests

Showing a lack of testamentary capacity in Massachusetts will and trust litigation is not easy. In Joseph A. Haddad, et. al. v. Marcel A. Haddad, et. al., the Massachusetts Appeals Court recently reversed a decision by the Massachusetts Superior Court by finding that a father who changed his estate planning documents to leave everything to only one of his three sons while likely suffering from the early stages of dementia-did not lack testamentary capacity to do so.

As a Personal Representative, Do You Have to Sell Real Estate?

The largest asset in an estate is often real estate, such as the family home. Sometimes the decedent owns additional real estate, such as a vacation home or an income-producing rental property. What happens to such property varies in every situation and poses different risks for the Personal Representative. The most straightforward situation is when the decedent leaves real estate through a Will to a devisee, such as a parent leaving the family home to their children. Upon the parent's death, the real estate transfers to the children to whom it was devised through the Will, subject only to certain allowances, rights of creditors, elective share of a surviving spouse, and administration. See M.G.L. c. 190B, § 3-101.

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.

MUTC Allows Co-Trustees to Act by Majority Decision

Many individuals serve as a co-trustee of a trust, such as a family trust holding real estate or a trust of a parent or close friend after their death. Individuals who serve as a co-trustee or, more importantly, are contemplating serving as a co-trustee or successor trustee should be aware of a significant change since the enactment of the Massachusetts Uniform Trust Code ("MUTC") on July 8, 2012, specifically a change concerning the number of trustees that must agree to act when performing their fiduciary duties.

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