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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01.21.09
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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