This article is presented in two parts as a brief overview of
the Massachusetts Uniform Probate Code (MUPC). It follows generally
the outline of a five-part series of seminars by the Probate Law
Section Council of the Massachusetts Bar Association. Attorneys who
regularly engage in estate planning or administration are strongly
advised to attend this in-depth series. The next MUPC seminar is
Nov. 15, and continues through Feb. 7.
The MUPC becomes effective on Jan. 2, 2012. The law replaces most
of the statutory provisions controlling the probate of estates.
However, it leaves in place our rich body of case law.
Incorporated in the MUPC, but not covered by this summary, is
Article V regarding guardianships and conservatorships (The bulk of
Article V became effective in July of 2010. Part 5 of Article V
incorporates the Massachusetts Durable Power of Attorney Act
essentially without change.)
Also, given at best short shrift will be Article VII of the MUPC.
Article VII ties together various stray provisions regarding
trusts, including jurisdiction, administration, trustee duties and
liabilities, and statutory custodianship trusts. With a little
luck, the Massachusetts Uniform Trust Code will soon replace
Article VII with a much clearer and more robust statutory
framework.
Informal probate and appointment
proceedings
Conceptually, the MUPC offers more choices to parties
negotiating the probate process. It is designed to let the parties
determine and select the level of judicial intervention which they
require. In the case of simple estates, where there are no
contested issues, the parties can be in an out quickly, with very
little judicial interference. However, where the issues are more
complicated, or the matters are contested, the parties may select
from a palette of options, up to a full and entirely supervised
administration.
Some new terms must be immediately addressed. The estate will no
longer be administered by an executor or administrator. That
position will be filled by a "personal representative." Similarly,
decrees will no longer be issued. Replacing them are
"letters."
Informal proceedings may be instituted as early as seven days
after death. The procedure involves mailing, on a court promulgated
form, a notice to those persons interested in the estate. In
general, those persons interested would be any devisee under the
will, the heirs, any person having an equal or greater right to
appointment, and any personal representative who has previously
been appointed. The Petition for Informal Probate itemizes the
facts necessary to determine venue and jurisdiction, the heirs, the
devisees and the priority of the petitioner.
A "devise" is no longer limited to real estate. Article 1-201(10)
of the MUPC defines devise to include both real and personal
property.
"Priority" is another new concept. As always, a person nominated
in a will shall be appointed unless he declines or is found
unsuitable. (If a will names an executor, the presumption will be
that person is intended to be the personal representative.)
However, Article 3-203 of the MUPC introduces a strict statutory
order for the priority of appointments following the nominated
personal representative.
In order, priority is given to 1) the personal representative
named in the will, 2) the surviving spouse who is also a devisee,
3) other devisees under the will, 4) the surviving spouse who is
not a devisee, 5) other heirs of the decedent and if no next of
kin, and 6) a public administrator.
A personal representative may be given the right to nominate a
replacement in the will. Individuals having levels 2-5 of priority
may nominate someone to serve in their stead. If there is more than
one person at a given level of priority, all will be appointed
unless all agree to a different arrangement. Of course, the court
may be asked in formal probate proceedings to find an individual
unsuitable, and the judge retains broad discretion in making that
determination.
Do we need a judge? For informal proceedings, the probate and
family courts will have magistrates. While these individuals have
not yet been appointed, they will presumably come from the ranks of
the judicial case managers and assistant judicial case
managers.
In the case of informal proceedings, the magistrate will review
the petition. If the petition appears in order, and the petition
has been filed within three years of death, the magistrate will
appoint a personal representative and/or probate the will. Within
30 days after the appointment of a personal representative and/or
the probate of the will, the petitioner must publish once in a
newspaper designated by the register of probate. That's it - no
formal court hearing.
Formal administration
Formal administration will be sought where the petitioner
expects problems administering the estate, where there are
irregularities which the magistrate determines require judicial
review, or where some contest develops. In case of formal
administration, any previously appointed personal representative
continues to serve, unless and until removed by the probate
judge.
However, the personal representative may not continue to make
distributions after receipt of notice of formal proceedings.
Formal proceedings will address the panoply of contested matters
which might normally be addressed, including determination of any
issue related to the determination of the validity of the will, the
ability of the personal representative to serve, or any breaches of
fiduciary duty by the personal representative.
Voluntary administration
of small
estates
MUPC Section 3-1201 provides for the inexpensive administration
of small estates. This is very similar to the prior voluntary
administration statute. While a voluntary personal representative
is appointed, this is not a true probate action. The will is
accepted by the court for filing, but not for probate. This
procedure allows an efficient way to process estates where the
assets are limited to a car and not more than $25,000 in personal
property (up from $15,000 in the prior statute).
Powers and duties of a personal
representative
The personal representative is now authorized (and obligated) to
take and administer the estate according to its terms. The personal
representative has all the powers which we traditionally gave to an
administrator or executor, along with some expanded powers,
including the authority to settle claims, continue an
unincorporated business for four months, incorporate a business,
and distribute cash or assets in kind.
If assets are distributed in kind, the personal representative
will distribute them by means of a deed of distribution. However,
this only applies to personal property. The personal representative
still requires a license to sell real estate and that proceeding,
if necessary, remains the same.
The personal representative must still fill out an inventory
within three months of the appointment. However, this is served on
the interested persons, it need not be filed with the court unless
a license to sell real estate is sought or the court otherwise
orders its filing. Similarly, annual accounts to the interested
persons are still required on the court promulgated form. However,
they need not be filed with the court unless the allowance of the
accounts is sought or the court otherwise orders filing.
The second part of this article will run in the December issue and
review remedies and protections under the MUPC and estate planning
and drafting considerations.
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.