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