Explanation of Technical Changes
Explanation of Proposed Changes to
the Massachusetts Uniform Probate Code
Attached is a proposed bill to make changes to chapter 521 of the Acts of 2008, which enacted the Massachusetts Uniform Probate Code (“MUPC”). The proposed changes are as follows (and the section numbers below refer to the proposed bill):
Section 1 For subsequent proceedings, the Respondent may no longer live in the county where the action is pending and therefore the publication should be in a newspaper in the county where the Respondent now resides. Changing (a)(3) still allows the Register to pick the newspaper but the Court will designate the county in which the paper is circulated.
Section 2 Under Article V there may be objecting parties who are unable to file Affidavit of Objections. Counsel for the person should be permitted to file the Affidavit in their stead.
Section 3 This provision streamlines the language of MUPC § 1-404 and makes it consistent with the terminology of the MUPC.
Section 4 This change would require a guardian ad litem if the guardian or conservator of a spouse, heir or devisee is also the petitioner for probate or appointment.
Section 5 This provision adds to MUPC § 2-114 a sentence currently in G.L. c. 210, § 7 that gives a court discretion in decreeing an adoption to provide in the decree that the adopted person’s rights as to succession of property vest as of the date of the filing of the petition for adoption. Section 43 (described below) repeals G.L. c. 210, § 7, and this preserves the only provision in that section not already provided for in the MUPC.
Section 6 This provision corrects a technical error resulting from the fact that MUPC § 2-709 defines “by representation” to mean per stirpes while the version of the UPC from which this provision was taken defined “by representation” to mean “per capita at each generation” (which was the intended result).
Section 7 The reference to TOD transfers was an unintended holdover from the version of the UPC from which this provision was taken.
Section 8 The definitions are eliminated as unnecessary, and the term “by representation” is changed for the reasons described above with respect to section 6.
Section 9 Same as section 8.
Section 10 This corrects a clear typographical error and also deletes an unintended reference to the spousal elective share provision of the UPC, which was not included in the MUPC.
Section 11 This change replaces clause (4) of MUPC § 3-108 with clauses (4) and (5) from the current version of the UPC, which extends the three-year deadline for probate proceedings where appropriate.
Section 12 This section clarifies that informal probate is available if persons with equal or higher priority for appointment renounce appointment or nominate the person to be appointed personal representative.
Section 13 This corrects reference to a section which is proposed in Section 15 below.
Section 14 This change reflects the fact that a bond is mandatory under the MUPC, and that an interested person may request sureties (but not the bond itself).
Section 15 This reinstates a portion of UPC § 3-610 which was inadvertently removed.
Section 16 This change makes it clear that a personal representative’s authority is curtailed during the appointment of a special personal representative.
Section 17 This change clarifies that a successor personal representative must also prepare an inventory of estate assets.
Section 18 This change is made to make the terminology consistent with the terms “resided” and “residence” used elsewhere in MUPC § 3-1201.
Section 19 This definition comes from Amendments to Uniform Probate Code Article 5- Guardianship by the National Conference of Commissioners on Uniform State Laws. It should be noted that the term “Respondent” is used in Article V in sections 5-209(b)(6), 5-209(e) and 5-411(a)(3).
Section 20 This corrects a typographical error in MUPC § 5-105(a)(2).
Section 21 This change clarifies that where the person subject to proceedings is indigent, counsel fees will be paid by either the commonwealth or the petitioner as the court may determine.
Section 22 This conforms the language of MUPC § 5-107 to the terminology of the MUPC.
Section 23 This conforms the language of MUPC § 5-204(d) to the terminology of the MUPC.
Section 24 This conforms the language of MUPC § 5-206(a) to the terminology of the MUPC.
Section 25 This change to MUPC § 3-303(c) clarifies that while the petitioner must file copies of any durable power of attorney and health care proxy with the petition, those documents are not attached to and do not become part of the petition.
Section 26 This change reflects an addition to G.L. c. 201 made in 2002 and adds nurse practitioners to the list of medical professionals who may sign a medical certificate.
Section 27 This will preserve the court’s power to order further medical tests formerly in M.G.L. c 201, § 6.
Section 28 This change to MUPC § 5-304(a) clarifies that separate notice provisions apply to petitions for appointment of temporary guardians and conservators.
Section 29 This change will remove the requirement of notice or guardianship to a minor under age 14.
Section 30 This change to MUPC § 5-305(c)(1) clarifies that the mechanism for appointment is the same as set forth in MUPC § 5-301(b).
Section 31 This clarification to MUPC § 5-306A reflects that the court may take testimony or the affidavit of a licensed physician or certified psychiatric nurse clinical specialist and that a minor may be the subject of a substituted judgment proceeding.
Section 32 This change underscores the fact that there is a reporting requirement and that the monitoring requirement only appears in 5-309(c) and 5-418(f) but does not appear in 5-209(b)(6).
Section 33 This reflects the intent to allow for placement in a “nursing facility” for short term rehabilitation without the need for court authorization for up to 60 days.
Section 34 This change clarifies that a medical certificate is not required in a guardianship or conservatorship of a minor and that a clinical team report is required for a guardianship of an adult mentally retarded person.
Section 35 This change conforms the section to MUPC § 5-306(b)(5) and applies the rules for clinical team reports to conservatorships as well as guardianships.
Section 36 This change corrects a typographical error in MUPC § 5-411(a).
Section 37 This change to MUPC § 5-413 reflects that the party charged with paying compensation may not necessarily be the petitioner only.
Section 38 This change includes in MUPC § 5-418 the same protective language found in the parallel provisions that apply to a personal representative’s account.
Section 39 This change corrects a typographical error in MUPC § 5-423.
Section 40 This change corrects the incorrect term. Guardianships are for incapacitated persons and Conservatorships are for disabled persons.
Section 41 This change strikes the repeal of G.L. c. 196, § 9, which is a helpful provision applicable to small estates; other provisions like it were not repealed upon enactment of the MUPC.
Section 42 This change strikes a reference in chapter 203A (dealing with common trust funds) to G.L. c. 206, § 24, which was repealed upon the effective date of the MUPC.
Section 43 This change repeals G.L. c. 210, § 7, which deals with the rights of adopted persons with respect to intestate succession. The provision is generally consistent with the MUPC, but the rule as it applies in the case of step-parent adoption conflicts with, and is less flexible than, the rule in the MUPC. Section 5 (described above) incorporates into the MUPC the only provision from § 7 not otherwise covered by the MUPC.
Section 44 This change repeals G.L. c. 210, § 8, which deals with the rights of adopted persons relative to their inclusion in class gifts to “children”, “grandchildren”, “issue” and similar terms in a will, trust or similar instrument where the meaning of the term is not clear in the instrument. This section conflicts slightly with the MUPC, because under § 8 adopted persons are presumed to be included in all cases, while under the MUPC there is an exception for persons who were adopted by someone other than the person making the instrument after reaching the age of majority.
Section 45 This eliminates a provision inconsistent with MUPC § 3-812, which forbids execution against probate assets on unsecured claims. It would be inconsistent to allow trustee process attachment of such assets on unsecured claims.
Section 46 This provision clarifies that Article VII of the MUPC, which relates to administration of trusts, applies to all instruments as of its effective date. Without this change, Article VII would not clearly apply to trusts that became irrevocable before the effective date.