12.27.11
Posted in General, Probate at 4:23 pm by Mark Leahy
The Massachusetts House and Senate have voted to delay the implementation of the second phase of the MUPC until March 31, 2012. Governor Patrick will sign the bill on December 30. Technical changes to the MUPC and the Uniform Trust Code will wait as well. New probate forms had been posted on the Court’s website on December 19, but have been removed for the time being. Standing order 5-11 has been modified to reflect the new schedule and may be found at www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/mupchub.html
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12.10.11
Posted in General, Probate at 1:49 pm by Mark Leahy
Surprisingly, the topic which garnered the most interest at a recent seminar at Suffolk Law School was the personal representative’s power to direct the funeral of a decedent. Code section 3-701 permits a personal representative to “carry out written instructions relating to the decedent’s body, funeral and burial arrangements.” This authority is available to the person nominated in the Will, even before the Will is offered for probate. There is no guidance as to whether the instructions should be signed, witnessed, etc. Prior Massachusetts law gave the spouse, or if none, the next of kin control over funeral arrangements.
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10.31.11
Posted in Probate at 8:47 am by Mark Leahy
MUPC Informal accounting and closing options will not be available to estates and testamentary trusts which have bonds outstanding which were filed under the old law. Only the new MUPC bond filed after 1/2/2012 will enable executors, administrators, personal representative and trustees the option of sending inventories and accounts to beneficiaries and not filing with the Court. This is because the conditions of the old bonds required filing with the Court.
Newly appointed fiduciaries should plan ahead to be able file the new bond, especially if a Citation’s return date is after the effective date of the MUPC. This could be done if a MUPC Supplemental Notice (MPC 591) is served and published in the same manner as the Citation issued in the case. For the notice form and instructions go to: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/mupcforms.html#transitional
Older estates and testamentary trusts which wish to make informal reporting and closing options available, may have to petition to modify the bond by substituting a new bond.
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10.28.11
Posted in Probate at 9:43 pm by Mark Leahy
Personal Representatives in Massachusetts have authority to pay to a widow(er) and children up to $18,000 free of claims in the year after death. 2-403 The Probate Court may alter the amount of the allowance and, if the estate is solvent, extend the payments during the period of administration even beyond the 1 year limitation on claims by creditors. 2-402, Matter of Dandrea’s Estate, 40 Colo.App. 547, 577 P.2d 1112 (Colo.App. 1978) Thanks to Jennifer R-U for getting me to focus on this issue.
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Posted in Probate at 9:16 pm by Mark Leahy
Real estate and personal property devolve to devisees under a probated Will, if any, otherwise to a decedent’s heirs. The descent of property is effective as of the time of death, though the identity of the devisees or heirs may not be established until a later time. 3-101 If there is no probated Will, must the heirs be established by a determination of heirs by a probate court? Actually no, persons entitled to property may establish title by proof of their relationship. 3-901 While a decree of the Probate and Family Court may be the best method, proof may be by other means. Petition of Beachside I Homeowners Association, No. A11-180, Court of Appeals of Minnesota, July 18, 2011.
There is no time limit for the determination of heirs by the Court as there is for the probate of a Will. 3-108 Note that under the former Massachusetts procedure, decrees appointing administrators of intestate estates did not include an actual determination of heirs. One could assume those listed in an uncontested petition are the heirs by virtue of a conveyancer’s standard. Under the MUPC any formal probate or appointment proceeding must include a determination of heirs, even if all probate property passes by Will. 3-409 In addition, heirs may be determined as part of a formal closing procedure. 3-1001 Thanks to Evelyn P for pointing me in the right direction.
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10.11.11
Posted in Probate at 2:56 pm by Mark Leahy
Under the new MUPC a probated will or an appointment of a personal representative (PR) in intestacy confers authority on a formally or informally appointed PR to administer and distribute estate assets. (3-703) The PR may distribute in cash or in kind, but if in kind the PR should sign an instrument or deed of distribution assigning, transferring or releasing the asset to the heirs or devisees as evidence of their title. (3-907) The instrument or deed is conclusive evidence that they have succeeded to the interest of the estate against all persons interested in the estate. (3-908) Though rarely used in prior Massachusetts probate practice, deeds of distribution may become commonplace.
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09.25.11
Posted in General at 1:21 am by Mark Leahy
I hesitate to publish my handy cross reference tables between Code and old or related General Laws. I built them years ago while it was easy, as we worked our way through the Code. But they haven’t been vetted, so their accuracy is suspect. Since the few I’ve shared these with seem to value them, I’ll put them out for all to enjoy. Please report back any inaccuracies or missed references.
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09.19.11
Posted in General, Probate at 10:16 pm by Mark Leahy
The Probate and Family Court will soon issue a Transitional Rule to govern how estates and testamentary trusts filed and opened before the effective date of the MUPC will be treated after the effective date. See a link to the Rule in the side bar. Of particular interest is that bonds filed under the old law will not entitle fiduciaries to utilize informal closing procedures under the new law. A petition to substitute a new bond may be required of pre-2012 estates and trusts to take advantage of new accounting and closing procedures.
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06.02.11
Posted in Guardianship at 2:29 pm by Mark Leahy
The Probate and Family Court has posted many revised and a few new guardianship and conservatorship forms on its website. They include a new Motion for Temporary Conservator and revised Petitions to Expand/Modify/Limit Powers and Petitions to Remove/Terminate/Resign. The forms can be saved and printed in Adobe Reader and can be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html
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05.20.11
Posted in Probate at 4:51 pm by Mark Leahy
After you pass to your great reward can your personal representative reach your digital assets? Some internet providers make this difficult by maintaining that the digital content of your online account belongs to them and that only the subscriber has authorized access. This is particularly difficult if the family doesn’t have usernames or passwords. Senate Bill 754 would authorize a personal representative to access the contents of an email account and remedies for failure to comply. However the bill does not address other common internet accounts, such as social media or even digital assets such as PayPal accounts. It also does not address activities like posthumous messaging or maintaining a site as an online memorial. A good introduction to this issue can be found in Your Digital Afterlife by Evan Carroll and John Romano.
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Posted in General, Probate at 4:29 pm by Mark Leahy
The Judiciary Committee heard testimony from the proponents of the Uniform Trust Code on May 19. The UTC would replace Article VII of the MUPC with a much more extensive codification of trust law in Massachusetts. Senate Bill 688 may be found at http://www.malegislature.gov/Bills/187/Senate/S00688. The UTC has been adopted in 21 states already. The bill includes provisions for pet trusts. It is supported by both the Massachusetts and Boston Bar Associations.
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Posted in General, Guardianship, Probate at 4:14 pm by Mark Leahy
On May 19 the Joint Senate and House Committee on the Judiciary held a hearing on, amongst many matters concerning the Probate and Family Court, Senate Bill 704 which sets forth a number of technical changes to the Massachusetts Uniform Probate Code. Included with the purely technical changes are provisions expanding the exceptions allowing probate after 3 years following death and also the extension of sharing “per capita at each generation” on distributions to rules of construction as well as the rules of intestacy. Also included is the authority for a guardian to authorize a short term nursing home placement if the incapacitated person and family do not object, the person is represented by counsel or counsel is appointed and the medical certificate recommends placement. It also expands the number of medical professionals who may sign medical certificates in protective proceedings. The full text of the bill and explanation are available in the side bar. Chief Justice Carey testified to the need for these changes to be in place when the Code becomes fully effective in January 2012.
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01.05.11
Posted in Probate at 4:11 pm by Mark Leahy
The effective date of the estate provisions of the Massachusetts Uniform Probate Code was extended from July 1, 2010 to January 2, 2011. At the request of the Courts, the legislature voted to delay the effective date to permit more time for the Probate and Family Court to put in place procedures, forms and rules for the many changes in estate administration brought by the Code. The extension was signed by the Governor on January 3, 2011.
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12.17.09
Posted in General at 2:10 pm by Mark Leahy
The Wall Street Journal reported today that the U.S. Senate will not vote to extend estate taxes before they are scheduled to go away (for a year) on January 1. As a result, under the 2001 tax reform, there will be no federal estate tax due for deaths in 2010, but in 2011 they will return at a 55% top rate on estates over only $1 million. All is not grand for taxpayers since the 2001 law also limits step-up in basis on death to $3 million on assets passing to a spouse and $1.3 million on assets passing to anyone. Planning for capital gains may become more complex than planing for estate taxes was.
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12.04.09
Posted in General at 8:04 am by Mark Leahy
The House of Representative voted on Dec. 3 to permanently extend the current $3.5 million estate tax threshold and 45% tax rate on estates exceeding that amount. The Senate has until Dec. 31 before federal estate taxes go away for a year and then come back with an exemption of only $1 million. http://voices.washingtonpost.com/capitol-briefing/2009/12/house_votes_to_make_current_es.html?hpid=topnews
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10.22.09
Posted in Guardianship at 8:19 am by Mark Leahy
Guardians don’t have authority to admit their incapacitated persons to nursing facilities without specific authority from the Probate and Family Court. But, what if a hospital needs to discharge a patient under guardianship to short term rehab? The definition of “nursing facility” in the Code would seem to include rehabilitation and prevent the guardian from authorizing the admission. This could lead to hospitals having to hold patients until a court hearing can be arranged or discharging people to their home without needed rehab, neither in the best interests of the patient.
Should this be changed so that guardians would have the authority to make short term placements in nursing and rehabilitation facilities? But, if so, what is short term, 30 days, 60 days? Or, is there a guideline somewhere in the insurance or health regulations that this could be keyed to?
Shouldn’t a written notice of placement be sent to the nursing home and the appointing court? Then, if the placement needed to become long term, the guardian would have time to file a petition to modify his or her authority.
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10.17.09
Posted in Guardianship at 10:20 am by Mark Leahy
In Massachusetts medical certificates have a life of 30 days. One must be filed with a guardianship/conservatorship petition and one must be on file at the time of hearing. If either is stale, the case cannot go forward. As an aside, our new certificate is being touted to other states as the new gold standard.
But some say that now that the MC is so much more detailed, it’s much more difficult and/or expensive to obtain, making it near impossible to get a permanent appointment without a second doctor visit and MC.
Should the rule be changed to 60 days for the hearing, or 60 days for both filing and hearing? How about 90 days? Or should the strict limit of 30 be for only filing and let the court determine if another is needed at hearing? In acute care situations, the shorter limit might be appropriate as dramatic improvement could occur before hearing. But for prolonged illness, a new MC might be unnecessary. How to know the difference - another checkbox on the certificate?
Or, would the long awaited added protections brought by the Code be diluted by changing this policy which has been in place for many years?
This is an active topic among the courts and the guardianship bar. Opinions seem to be all over the place. If you have an opinion, please post your comments here. We’ll monitor and report to the MUPC Implementation Committee.
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09.29.09
Posted in Guardianship at 10:54 pm by Mark Leahy
A special conservator can be appointed in either of 2 situations. First, when the appointed conservator or temporary conservator is not performing duties (5-412A(c)). If a conservator has abandoned the protected person or is not attending to his funds, or not filing proper accounts, the court has this power which it may exercise any time after finding tha the welfare of the person required immediate action. This is a mirror of 5-308(b) for special guardians.
In addition, the court may appoint a special conservator to assist in implementation of a single transaction or protective arrangement where a continuing permanent conservator appointment is not necessary (5-408). It’s likely that many single transactions will require someone with authority to sign off on the transaction. This is not an emergency appointment and thus the term “temporary conservator” is not used. It doesn’t have to be requested in the petition. The role of the special is only to carry out the functions directed by the court and report back. Formal acceptance by the court of the report may be necessary to permit any sureties to be canceled.
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Posted in Guardianship at 10:41 pm by Mark Leahy
The Code makes it clear that guardians are for the care of the person and conservators are to manage their the property. But it also says that anyone having money or personal property due a minor can pay up to $5,000 to a guardian (among others) if he is not aware of any conservator appointment (5-102). So, does this mean a guardian of a minor can manage up to $5,000? I dont’t think so. 5-102 provides a safe haven only for the payor. That could be a bank, insurance company or executor, but it doesn’t say the guardian can handle it on an ongoing basis. The guardian can apply the money to the ward’s current needs (5-209(b)(4)) and conserve any excess for future needs. The funds might be periodic income like SSI which the guardian can accept and apply to immediate expenses. The guardian of a minor or adult can also seek, receive and apply support payments from a parent, trust, public entitlement, etc. (5-209(c)). But, if any money has to be deposited to a bank account such that a fiduciary has future access to it, that fiduciary needs to be a conservator.
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08.13.09
Posted in Guardianship at 1:46 pm by Mark Leahy
This year a major reform of probate and guardianship law was enacted in Massachusetts. Aside from its major target of simplifying probate and providing more protection for incapacitated persons, the new Massachusetts Uniform Probate Code brings some subtle changes which should be understood by the retail banking community.
Beginning July 1, 2009 guardians will be appointed for personal decision making only and new appointees will not have authority over the incapacitated person’s property, including bank accounts. Conservators must be appointed to manage any property and bank accounts.
Since any appointment may be limited in its scope, it becomes important for the Letters of Conservatorship to be examined to determine if a conservator has authority appropriate to a particular transaction. For instance, the Letters may permit the protected person to continue managing some accounts. Or, some accounts may be restricted to prohibit withdrawals (except transfers to take advantage of interest rates) except by court order.
Any person who in good faith assists of deals with a conservator is protected except as to limitations endorsed on Letters of Conservatorship and certain transactions which require court approval.
A conservator may expend funds for the support, education, care or benefit of the protected person. The new Probate Code includes a list of powers which are conferred on a conservator (unless limited by the Letters). They include authorization to invest and reinvest funds of the protected person as would a trustee and, more specifically, depositing funds in any single state or federally insured bank, not in excess of the amount protected by federal or state insurance. A conservator may also borrow money to be repaid from estate assets. But, a conservator may not sell real estate without a license granted by the Probate and Family Court.
Old plenary (general) guardianships and guardianships of the estate will still confer authority over the person’s property and they will be automatically considered to be conservatorships. New appointments of guardians will not include power over property, including bank accounts. After June 30 new appointments will have to be of conservators if there is property to be managed. Anyone with a new or old appointment with powers over property can get Letters of Conservatorship from the Probate and Family Court. The old appointment remains in effect and the guardian or conservator is not required to make any new filings for continuation of authority.
A bank may pay funds of a protected person to a conservator or guardian of the estate appointed in another state after receiving proof of appointment and an affidavit of the guardian or conservator that no conservator proceeding is pending in this state and that the foreign conservator or guardian of the estate is entitled to receive the funds. If the bank is not aware of any pending proceeding, it is discharged of liability.
The new law provides that a durable power of attorney will not be affected by subsequent disability or incapacity of the person making the power, or lapse of time unless it states a time of termination. A new provision provides that any person relying in good faith on a durable power of attorney will not be liable for action taken in such reliance. However, unreasonable refusal to honor a durable power of attorney can result in a suit for damages.
The Probate Code also introduces new procedures which will enable quicker and more efficient probate of estates of deceased persons. It will also permit more privacy relative to estate assets. However, these provisions will not be effective until 2011.
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