The Massachusetts Probate Code: Coming changes

Issue Vol. 10 No. 1 January 2008 By Raymond H. Young

The MBA/BBA sponsored Massachusetts Probate Code is pending in the Joint Committee on the Judiciary as House Bill 1652 and Senate Bill 843. Much of this bill is a codification of present Massachusetts law and practice, making the law easier to find and apply. It is a reworking of the Uniform Probate Code to conform with what is best in prior Massachusetts practice and law. This specific tailoring makes it appropriate to call this bill the Massachusetts Probate Code.

There are also significant and helpful changes and improvements included in the MPC. This article reviews for the benefit of Massachusetts practitioners some of the more important of the coming changes.

Informal Probate. The greatest improvement is informal probate. 96% of all probate filings are uncontested, 2% are contested, and another 2% have enough assets or serious enough issues to warrant formal procedure in any event. The problem of our present practice in Massachusetts is that, apart from voluntary probate for small estates, all those uncontested probates or administrations have to endure the formal procedure with the result, depending on luck and counties, of a 3 to 5 months delay before formal appointment can be obtained. The estate must get a citation with a return date, arrange service and publication, and get action after the return date. Meanwhile, due to privacy laws, collecting the basic information is not possible until there is a certificate of appointment. The procedure causes friction between clients and lawyers, and creates problems for the Registries in dealing with complaints and inquiries from lawyers and petitioners. The Registries get blamed for delays, but it is not their fault. The problem is the antiquated law.

The solution can be corrected with the MPC informal probate. Application may be made seven days after a decedent’s death and seven days after written notice to all interested parties. The initial filing will be reviewed by an Assistant Register or other person appointed by the Court, much as in the present initial review by an Assistant Register upon filing. The difference is that upon that initial review by the authorized Assistant Register the appointment can be effective immediately. The job is done. The appointed personal representative can proceed.

Where there is opposition the opportunity for contest is not lost. A request for formal procedure may be filed by any interested person with the request that the informal proceedings be terminated. Thereupon the informal appointment powers are at an end. This formal procedure request would be the equivalent of filing a contest. The Rule 16 provisions would thereafter apply. The opportunity to contest is not lost but is protected.
Testamentary trust liberation. Massachusetts lawyers largely avoid testamentary trusts because their clients wish to avoid the continuing formality and expense required with accounts, filing fees and guardians ad litem. “Avoiding probate” has been a great slogan for the trust mills which attack lawyers and courts as enemies, and promote their boilerplate “living trusts”. The sensible approach here is to parallel the informal probate approach. Why force the formal procedure upon the 98% of the cases where it is not needed? The MPC follows just that approach, namely, there is no requirement for accounting to the Court for testamentary trusts, but rather a requirement to account to the beneficiaries. Any party who wishes court action for protection or to challenge what has been done is free to bring a probate proceeding wherever it is necessary, where everyone’s rights can be determined and protected. But the unnecessary burden of filing and storing accounts where there is no question is avoided.

Guardianship and conservatorship. Guardianship is the area where the MPC improvements are on the side of more protection rather than less. These provisions were carefully worked out after intensive review with a committee of probate judges. Incapacitated persons are particularly vulnerable. They may not have family members or known beneficiaries who can protect them. Necessary safeguards are required to prevent railroading of elderly and incapacitated persons without adequate protection. Reforms are badly needed, have been agreed upon by all concerned for a long time, but have not as yet been adopted. They are at last provided in the MPC guardianship and conservatorship provisions.

POD accounts. Presently in Massachusetts joint bank accounts are used as “poor man’s wills”. But we have all seen that the most disruptive, emotionally searing and expensive litigation can occur over whether the account was intended to transfer ownership at death or whether it was merely a convenience account to permit payment of bills, with no intent to transfer ownership. The unnecessary disruption and litigation is avoided by the MPC providing for the establishment of pay-on-death accounts making it clear that the intent is to transfer ownership where that is in fact the case.

Spousal elective share. There has been contention for years about determination of the share which a surviving spouse takes on election against the will of the deceased spouse. Because of that contention the pending MPC does not contain any provisions for an elective share. Present Massachusetts law is continued until there is agreement. The MBA, the BBA and the Women’s Bar Association all agree that consideration of the MPC should not be delayed pending a resolution of spousal elective share. The good news is that there may in time be an agreement on the elective share. There is an interbar committee, including representatives of the MBA, the BBA and the WBA, which has been considering the question for close to 2 years. That committee is now starting an intensive analysis of resolution of this question in Massachusetts. That committee’s estimate is that it will take two more years to explore all questions and gain insights from the practical application of enactments in other states. All the bar associations agree that the consideration of the MPC should not be delayed to await this result.

Intestacy: surviving spouse. The surviving spouse under present Massachusetts law, where there is no will and no issue, takes the first $200,000 plus one-half of the balance. The MPC increases the surviving spouse’s intestate share in most cases to all of the intestate estate. This is consistent with the experience lawyers have in drawing wills. In most cases the intention is that the entire estate goes to the surviving spouse where there is no issue.

MPC applies the same rule where all issue is issue of the marriage. This is distinguished from the present Massachusetts provision that where there is issue the surviving spouse takes one-half and the issue take the other half. There is a practical reason for the MPC change, where the children are young the most reasonable provision is to provide everything for the surviving parent, whose interest is in taking care of those children as well as of himself or herself. This is particularly important in modest size estates. It accords guardianship for minor children with the attendant extra expense and delay. This is the provision which most clients choose to write into their wills. It therefore is also the disposition which should be effected by the intestacy laws.
If either spouse has issue from a prior marriage, the rule is different. Then there is a 50-50 allocation between the surviving spouse and the issue. This protects against what could otherwise be a conflict of interest on the part of the surviving spouse.

Intestacy: issue of different generations. Lawyers learn about “per stirpes” distribution in law school and tend to believe that is the proper form of distribution. But this is a question for clients to decide. Lawyers should talk with their clients about this question before drawing the will. They may be surprised by their clients’ choice. The question can be asked in terms of the client’s own family patterns of children and grandchildren. In simplified form, suppose the client has three children, child A has three children, child B has one child, and child C has two children. Suppose two of your three children, A and B, die before you but your other child C survives you. Presumably you want C, the surviving child, to take one third. Now comes the significant question. How should the property go among your four grandchildren who are descendants or your two deceased children? One-ninth each to the three surviving children of deceased child A and one-third to the child of deceased child B? Or one-sixth to each of the four grandchildren? Over 75% of clients questioned in a survey of ACTEC members chose the equal sharing, “equally near, equally dear”, rather than the per stirpetal approach of per capita at each generation. One ACTEC Fellow reported

“[my clients] unanimously selected [per capita at each generation]. In my estate planning practice over the years all of my plans have been drawn to have a [per stirpes at the first generation] distributon . . . I have reluctantly come to the conclusion that I have been inadvertently influencing the decision, as my personal very strong preference is for [per stirpes at the first generation]”

The MPC follows the wishes of most clients, as is the appropriate rule for intestacy. In the meantime, before the MPC becomes effective, lawyers should discuss this question with their clients to find out what it is they want to do, the object of drafting.

Premarital will. We all know that marriage revokes a prior will unless the will was executed in contemplation of marriage. Generally speaking, this has the beneficial effect of allowing the spouse to receive an intestate share. But that result is overbroad in some instances. A superior court malpractice action charged a lawyer should have found out his client had gotten married, and should have advised the client of the need for a new will. The factual situation was instructive. The marriage, kept private, occurred while the new wife was terminally ill. The husband had a prior will providing a substantial trust for one of his nephews with special needs. That careful provision was obliterated by the overbroad application of invalidity. The MPC to the contrary provides a more carefully tailored provision. It does not invalidate the prior will, but in the event of a subsequent marriage the surviving spouse takes an intestate share of so much of the estate as is not devised to a child of the testator by a prior marriage.

Effect of divorce. By Massachusetts statute divorce revokes a prior will provision for the divorced spouse. This is a rule which is not broad enough. Much of wealth currently passes outside the probate estate, by insurance beneficiary designation, by retirement plan beneficiary designation, and by funded revocable trusts. The Massachusetts statutory provision does not apply to those assets. The case of Clymer v. Mayo, 393 Mass. 754 (1985), allowed the revocation to extend to an unfunded revocable trust but on the limited ground that it was part of the testamentary plan. The MPC provision extends the sensible rule to all non-testamentary transfers, retirement plans, insurance, and funded trusts.

Omitted children. Under present Massachusetts law the pretermitted child takes an intestate share unless the omission was intentional. The more narrowly tailored MPC provision is that the omitted child takes the intestate share if there is no issue living at the time of the will. If there is issue living at the time of the will then the omitted child, unless the omission is shown to be intentional, takes a proportionate share of the part devised to children. This more narrowly tailored approach prevents unnecessary disruption of the overall testamentary plan.

Memorandum. The precatory memorandum many lawyers use in connection with tangibles is given binding effect, provided the writing is signed, and describes the donees and the items with reasonable certainty. The writing may be referred to as one to be in existence at the time of death and may be prepared before or after the execution of the will.

Anti-lapse. The benefits of the anti-lapse provision, that on the death of a relative a legacy or devise to that relative if no other provision is made in the will, passes to the surviving issue of the relative. But, that beneficial provision does not extend to trusts, to retirement plans, to insurance, or other non-probate transfers. The MPC extends the anti-lapse rule to all these non-probate transfers.

Conclusion. The pending Massachusetts Probate Code will bring many benefits.It is well that we all keep in mind the coming changes and benefits provided by the pending Massachusetts Probate Code. We also want to speed up enactment of the MPC. The members of the legislature do not feel the urgency that we do about the need for this legislation. You can help by contacting your state representative and state senator to let them know that this is legislation about which you feel strongly. Please convey to them your sense of urgency so that we will all get the benefit of this legislation sooner rather than later.