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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09.19.11
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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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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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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