Legal Memorandum: Powers of Executor and Administrator

Issue: Under Massachusetts law, may executors desiring construction of a will petition the Probate Court for instructions?

Area of Law: Estate Planning & Probate
Keywords: Powers of executor; Petition the Probate Court for instructions; Construction of a will
Jurisdiction: Massachusetts
Cited Cases: 51 N.E.2d 441; 228 N.E.2d 732; 665 N.E.2d 29
Cited Statutes: Mass. Laws ch. 195, § 5A (1994)
Date: 09/01/2000

Several of the cases involving construction of a will were based upon a petition to the probate court for instructions brought by the executors or trustees under the will.  See, e.g., Merrimack Valley Nat’l Bank v. Grant, 353 Mass. 145, 228 N.E.2d 732, 733 (1967) 228 N.E.2d at 733 (appeal from a final decree in the probate court upon a petition for instructions brought by the trustees under a will to determine to whom and in what proportion the estate was distributable); Gray v . McCausland, 314 Mass. 743, 51 N.E.2d 441, 442 (1943) (petition for instructions by the executors of a will to determine whether a gift included the proceeds of certain investments); see also Shawmut Bank v. Buckley, 422 Mass. 706, 665 N.E.2d 29, 32 (1996) (in case involving federal tax consequences of a will, executors brought action in probate court seeking instructions concerning construction of the will; state supreme court heard case without decision by probate court due to concern IRS might not accept decision of a lower state court). 

In addition, the Massachusetts statute governing the powers of executors and administrators allows an executor or administrator to “obtain specific authority from the probate court to exercise the powers . . . set forth.”  Mass. Laws ch. 195, § 5A (1994).  The statute gives the executor and administrator certain powers, except as restricted or otherwise provided for by the will or by order of the probate court, including the […]

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