Lawyers Journal

Overview of the Massachusetts Uniform Probate Code, part 2


Remedies and protections under the MUPC

Unfortunately, not every estate will be completely free from controversy. As a result, any interested person (heir or beneficiary) may petition the court to review his grievances. At the outset, if the question involves the validity of the will, an interested person may file a Petition for a Formal Testacy Proceeding. Following the "in and out" pattern of the MUPC, the formal testacy proceeding allows the court to determine the validity or existence of a will and to then step back. Thus, a full blown will contest would result in the determination of the validity of a will.

Once that point is established, the court would have no further involvement. No inventory would necessarily need to be filed and no account would be necessary unless further court involvement was specifically requested by an interested party. Currently, an appearance by an interested party is considered an objection. But, it is not a formal objection. Thus, one can get in and begin discovery without formally contesting a will. Massachusetts decided to alter this scheme with the MUPC. The result is that a formal objection must be made and an affidavit of objections must be filed within 30 days to contest a will. The result is that in terrorem clauses will be strictly enforced.

Moving through the probate process, any interested party may petition the court to provide whatever protection is desired. Thus, a bond may be requested, formal inventories and accounts may be requested, or determinations regarding management and distributions may be requested. The strictest level of control is called supervised administration. In the event of supervised administration, the personal representative will file an inventory and accounts with the court and must obtain a court order before making distributions.

In those cases where the heirs have serious disputes, a Petition for Special Administration may be filed. The special personal representative need not be one named in a will or who otherwise has priority by means of his relationship to the deceased. Generally, the special personal representative will have all of the powers granted a personal representative, except the power to distribute. In addition to those cases where the estate is in dispute, a special personal representative may be appointed for a particular matter where the personal representative has a conflict of interest.

Limitations

This more flexible scheme of administration comes with a greater need for vigilance by persons interested in the estate. There are strict statutes of limitations. All probates must be commenced within three years of death. Thus, a will cannot be accepted for probate after three years. In the case of an informal probate, a will must be contested within one year of its allowance.

Claims of fraud must be made within two years after discovery. Such claims are strictly barred, regardless of discovery, five years after the fraud was committed.

Creditors also need to be vigilant. While the period for bringing claims against the estate remains one year, the personal representative may, without liability, distribute to the heirs within six months if he has not been given notice of the claim. The creditor or the personal representative may seek to have funds returned by the distributee, but, those claims are barred if more than one year has elapsed since the distribution or three years have elapsed after death.

Family allowances

There is a $10,000 exempt property allowance in favor of the spouse, or, if no spouse, the children of a decedent who was domiciled in Massachusetts. This value comes first from household furniture, automobiles, furnishings, appliances and personal effects, provided these items are not specifically devised and the estate is sufficient.
In addition, there is a discretionary family allowance which the personal representative may pay the spouse or children (whether a minor or adult) during the period of administration. This allowance may not exceed a lump sum of $18,000, or $1,500 per month, for a period of one year without court approval.

In the event of a supervised administration, the discretionary family allowance requires specific court approval.

Drafting and planning considerations

Currently, most wills contain long sections granting executors broad authority to deal with the estate. The MUPC provides personal representatives those broad powers. Thus, fiduciary powers sections in wills may no longer be necessary. The exception is that unless the will specifically grants the personal representative the power to sell real estate, a license to sell is necessary.

Memoranda outside of the will concerning tangible personal property (like jewelry, furniture, tools, etc.) have often been used. But, such memoranda were not previously enforceable. They are now enforceable, whether drafted before or after the will, as long as the possible existence of such a memo is mentioned in the will and the document is signed by the testator.

The MUPC changes the law of intestacy to per capita at each generation. The result is that members of each generation receive the same as other members of that generation. Thus, if one deceased parent leaves two children, and another leaves three children, the children will each get a one-fifth share.

Estate taxes are chargeable in proportion to the interest inherited. The MUPC gives the personal representative standing to bring an action against the recipient for contribution, even where the interest inherited is not part of the probate estate.

Personal representatives named in the will take priority. If the named representative chooses not to serve, she has the ability to nominate her replacement. If there is not a named representative, the representative will be appointed from a rigid list, starting with a surviving spouse who is a devisee of the decedent, other devisees of the decedent, etc.

When two or more persons have the same priority, they must concur on the appointment of the personal representative, renounce their right to appointment, or serve jointly. If that agreement isn't reached, formal proceedings will be necessary. A nominated personal representative with priority may nominate another to serve for him and that nominated individual will take his 
priority.

If the testator has desires judicial oversight, he may ask for supervised administration in the will.

Summary

Overall, the MUPC will make the administration of uncontested wills easier, less expensive and less public. At the same time, the MUPC preserves the rights of individuals to invoke judicial oversight where necessary. This article has been a very brief outline. Virtually every aspect of probate administration has undergone some change. Thus, practitioners should take advantage of at least one of the numerous in-depth programs being offered by groups like the Massachusetts Bar Association.

Timothy D. Sullivan is president of AndoverLaw PC in Andover, where he focuses his practice on wills, trusts, estates and fiduciary litigation. He sits on the MBA's Probate Law Section Council and is a director of the Massachusetts Family and Probate American Inn of Court and the Merrimack Valley Estate Planning Council.

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