Section Review

Joblin C. Younger

Public administrators (“PA” or “PAs”) are governed by Mass. Gen. Laws ch. 194, and have been a part of probate administration in Massachusetts for over 200 years. Each county is allotted up to five PAs (six in Suffolk and Middlesex). PAs are appointed by the governor, subject to the advice and consent of the Governor’s Council, and serve a five-year term. 

The role of a PA was incorporated into the Massachusetts Uniform Probate Code in § 3-203 under the rules for priority for appointment of a personal representative (“PR”) of an estate. Thus, service as a PA grants to them priority for appointment as PR of an estate, but only in limited circumstances: (1) if there is no last will and testament left by the decedent, and (2) if there are no heirs-at-law located within the commonwealth. 

However, a third circumstance for appointment exists: (3) a PA may be nominated by the Division of Medical Assistance (MassHealth) if the heirs-at-law (within the commonwealth or otherwise) fail to timely administer the estate (often, developers, tenants and others seek this route as well). But, if a PA files a petition for administration, and an heir-at-law thereafter claims the “right of administration,” the PA must step aside if the heir-at-law pursues the estate administration, but if the heirs-at-law fail to pursue the estate administration in a timely manner, the PA may proceed. 

Although a PA’s appointment as PR of an estate is governed by its own chapter of the general laws, their duties are largely the same as PRs of estates. Where they differ is interesting: a PA’s service as PR is almost always under a bond with sureties; an inventory is required; an annual account is required; the state treasurer must be made a party to the petition and be given due notice of all subsequent proceedings; a PA may not file a probate petition within 10 days of the death of the decedent; the time limits for licenses to sell real estate do not generally apply; if there are no known heirs-at-law, the balance of the estate is paid to the state treasurer; and if a PA fails to file an inventory or account, or turn the balance of funds over to the state treasurer, they “shall” be prosecuted by the district attorney. 

In my practice, every PA case I have administered came across my desk as a referral from MassHealth’s Estate Recovery Unit (but not all), and there were known heirs-at-law. In about half of the cases, there were funds in excess of the MassHealth claim, which was paid to the heirs-at-law. I have always been able to find the heirs-at-law, with thanks to the ability to research extensive databases online. PAs are paid from the assets of the estate they administer, subject to Supreme Judicial Court Rule 1:07, and accordingly can only be paid with the assets they administer if judicial approval is granted. 

If you are aware of property owned by someone who died and their estate has not been timely administered, you should contact a PA. You can find all PAs listed by county here: https://appointments.state.ma.us/. First, select “Miscellaneous” in the “Policy Area” dropdown, and then select the PA role by county. 

Moreover, if you are interested in becoming a PA, you can indicate your interest by clicking on “Apply for this Board/Commission” on the same page indicated above. Thereafter, the governor’s Boards and Commission Office will ask you to complete a full application (due within three days), and once reviewed and preliminarily approved, you will then receive a background check application (also due within three days). Once cleared (which often takes several months), the governor’s nomination is sent to the Governor’s Council for advice and consent, which is typically called for a vote within two weeks.