01.30.09
Posted in Probate at 4:53 pm by Mark Leahy
Representation per capita at each generation reflects the notion that family equally near are equally dear. In an estate, unless otherwise provided for in a will, all grandchildren receive equal shares, even if they are descended through different predeceasing parents. So, imagine an estate in which there are 3 children, only one of which is alive, another deceased leaving 2 children and another deceased leaving 4 children. The living child gets 1/3. The 6 grandchildren share the other 2/3 equally. [2-106]
The Massachusetts Probate Code is not so different as it may appear. While prior law claims to require distribution by right of representation (per stirpes), it actually applies per capita distribution if all issue are in the same degree of kindred. [G.L. c. 190, s. 3]
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Posted in Probate at 4:50 pm by Mark Leahy
Most estate planners would agree that most married couples want to leave their entire estate to each other. Yet the Massachusetts rule has been to give the surviving spouse only 1/2 for those who don’t bother to make a Will.
The new Massachusetts Uniform Probate Code will give the spouse the entire estate if all of their children are of that marriage. The spouse would get $100,000 and 1/2 of the rest if the spouse has children who are not children of the decedent. Likewise, if the decedent left children who are not children of the surviving spouse. The spouse would get $200,000 and 3/4 of the remainder if the decedent left a parent, but no children. [2-102] The children of the decedent take the rest of the estate, and if there are no descendants, parents take. [2-103]
Note that the term “issue” is no longer used as it has a biological connotation. The term descendants is used to make clear the status of adopted children. An adopted child is the child of the adopting parents and not the natural parents, except when the spouse of a natural parent adopts which will have no effect on the right of the child to inherit from either natural parent. [2-114]
The new Code should more nearly reflect the expectations of most people if they had gone to the trouble to declare their intent by making an estate plan and it adjusts to accommodate blended families which are so much more common today.
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01.23.09
Posted in Guardianship at 10:59 am by Mark Leahy
In furtherance of the objective to protect the liberties of a disabled person and encourage limitations on orders restricting those liberties, the new Massachusetts Probate Code distinguishes between conservators and guardians. After the effective date (July 1, 2009) guardians may be appointed only for protection of the person. A conservator must be appointed to protect property and business affairs. If both are needed, 2 petitions and 2 appointments are required, though they may be consolidated. [1-302(d)]
A guardian may be appointed for an incapacitated person “who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance”. [5-101(9)]
A conservator may be appointed for a person to be protected if “the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money”. [5-401(c)]
Note the difference in terminology. Guardians are appointed for incapacitated persons and conservators are appointed for persons to be protected. Only minors are wards.
Conservators must file an inventory and accounts in the traditional manner, but they must add to the account a listing of services provided and a recommendation as to the continued need or changes in the scope of the conservatorship. [5-418(b)] Guardians, on the other hand, must provide within 60 days of appointment and annually thereafter a report of the condition of the person. The report will include the current mental, physical and social condition; living arrangements, services provided, summary of guardian visits, comment on treatment, plans for future care and a recommendation as the continuation and scope of the guardianship. [5-309(b)] The court is mandated to establish a system to monitor accounts and reports.
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Posted in Guardianship at 10:17 am by Mark Leahy
All too often plenary guardianship appointments are made when a person’s incapacities are only in some areas of diminished functionality. The new Massachusetts Probate Code should change this tendency by requiring information which will highlight functional incapacities and promote creation of limited guardianships.
A court may limit the powers of a guardian and create a limited guardianship with the limitations endorsed on the order, [5-306(c)] the purpose being to “enclourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s limitations or other conditions”. [5-306(a)] However broad or limited the guardian’s powers, he or she should encourage the person to act, participate and develop capacities to manage his or her own affairs. [5-309(a)] Indeed, the guardian should report changes status of the incapacitated person which may lead to refinement in the scope of the guardianship. [5-309(b)(7)] A ward’s liberties must be held in the highest regard and orders limiting those liberties should be made only to the extent absolutely necessary to protect the individual from harm.
The more extensive information available to the court through the new petitions and medical certificates (already required) will permit implementation of the new standard.
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01.21.09
Posted in Probate at 12:26 pm by Mark Leahy
Privacy has been a hot button issue in recent years for good reason, yet the probate process opens all the intimate financial details of a deceased person’s property to public scrutiny. Well, now it’s possible to avoid publicity under the new Massachusetts Probate Code.
Certainly a personal representative is required to inform the estate beneficiaries. He or she must prepare an inventory within 3 months after appointment and mail it to the beneficiaries. It MAY also be filed with the court. [3-706] Thus public disclosure of assets may be avoided. Conveyancers may object and request an inventory to connect the chain of title for real estate. However, title issues should be satisfied by a deed of distribution under 3-907. Deeds of distribution are uncommon under the old practice in Massachusetts, but may become common under the code.
A formal closing of an estate would require filing of an accounting and inventory for public record. However, if the personal representative does not feel the need of a final judgment before distribution, he or she can make an informal closure by filing a closing statement under 3-1003. The personal representative must make a verified statement that an accounting has been sent to interested parties, that the time for filing claims by creditors has expired and that the estate has been full administered. Six months after filing objections are barred. In a simple situation with the personal representative being a family member, the informal process may suffice. An independent personal representative may want the comfort of a formal judgment on closing and may forgo the privacy protection.
So, by sending an inventory and accounting to the beneficiaries and closing by a sworn statement, privacy of family finances can be preserved under the new code.
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Posted in Probate at 11:30 am by Mark Leahy
One of the great advances the new Massachusetts Probate Code introduces is informal probate. It not really new, its been around since the time of sir William Blackstone and you can read about it in his Commentaries, Book II, Chapter 32. “The executor… must prove the will… either in common form, which is only upon his own oath before the ordinary or his surrogate, or per testes, in more solemn form of law in case the validity of the will be disputed.”
Solemn form is basically our current formal procedure to obtain a final judgment after notice and proof of the will by the witnesses (per testes). Informal probate (common form, as it is still called in some states) permits immediate appointment of a personal representative without waiting for a final judgment allowing the will or determining heirs. This leaves open the opportunity for anyone to contest the will or heirship while allowing someone to get to work right away to marshal assets. Actually, 7 days prior notice must be mailed to interested parties. Publication is still required, but not until after informal appointment. This procedure can be found in the Code at 3-301.
If probate is opened informally, any interested party may still file a formal probate resulting in an automatic suspension of the personal representative’s power to distribute plus any other limitations the court wishes to impose.
The new code still allows one to probate formally in the old fashion by requesting a citation, giving notice and wating for a return date to request an appointment and allowance of the will. This will be preferred when a contest is anticipated or by the cautious person who wants the protection of a judgment before undertaking the responsibility. The formal filing may be made immediately after death and prevents a later informal filing. The formal procedure is at 3-401.
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01.16.09
Posted in Guardianship at 2:59 pm by Mark Leahy
A new caregiver authorization was signed into law on January 14. New MGL c. 201F permits a parent to authorize another to exercise concurrent rights and responsibilities over the education and healthcare of a minor. Authorization is by notarized affidavit with 2 witnesses . The authorization is revocable and may be for as long as 2 years. This will greatly reduce the need of guardianships for minors. It is Chapter 511 of the Acts of 2008 and may be found at http://www.mass.gov/legis/laws/seslaw08/sl080511.htm.
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Posted in General at 9:59 am by Mark Leahy
On January 15 Gov. Deval Partick signed into law the long-awaited Massachusetts probate and guardianship law reform and codification. The official designation is Chapter 521 of the Acts of 2008. The enactment came on the last possible day for the 2008 legislative session.
The effective dates are delayed to give the courts, lawyers and the public time to adjust to the changes from current procedures. The guardianship section of the code (Article V) will become effective on July 1, 2009. The remaining parts relating to estates and trusts will become effective on July 1, 2011.
There will be many opportunities to get up to date on the changes through CLE before the effective dates and we’ll review as many of the new features of the Code as we can right here. Please give us your comments and questions and we’ll try to respond to all.
And a big thank you to all (and there are many) who made this possible.
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01.15.09
Posted in General at 1:56 pm by Mark Leahy
Estate and guardianship law and procedure in Massachusetts have been significantly modernized by the enactment on January 15, 2009 of the first comprehensive codification of probate law in the Commonwealth.
The new Massachusetts Probate Code introduces a flexible system for administering estates of deceased persons, permitting as little or as much oversight by the Court as may be appropriate for the needs of families inheriting wealth.
The time needed to open a probate will be shortened while at the same time the protections available for beneficiaries will be increased by enactment of a new optional informal probate system currently available in many other states. Estates may be more quickly and efficiently administered in the vast majority of situations where no controversy exists. Privacy of family financial information will also be protected. Surviving spouse’s rights are improved while also protecting shares of estates for children of prior marriages.
Guardianships for incapacitated persons will be more protective of their individual rights. Individuals subject to guardianship proceedings will no longer be stigmatized by reference to a “mentally illness” and loss of personal rights will be limited as circumstances require. Greater disclosure of a person’s needs and limitations will be needed before a guardian may be appointed and guardians will be required to make regular reports of the care and condition of their wards.
The Massachusetts Probate Code was drafted and sponsored by the Massachusetts Bar Association and the Boston Bar Association and is a joint effort of judges, Registers of Probate and guardianship public interest groups.
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