Lawyers Journal

Overview of the Massachusetts Uniform Probate Code, part 1

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.

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