FAQs
Massachusetts Probate Code
Frequently Asked Questions
ESTATES
• How long does it take to get an Executor or Administrator appointed in the ordinary course in Massachusetts?
Six weeks to five months depending on the county.
• How soon could a personal representative be appointed under the MPC?
Seven days after the date of death
• What sort of prior notice is required under the present system of probate?
Publication once and mailing at least 14 days before a return date set by the Court
• How many other states require publication of notice prior to appointment?
7 states
• How many states allow appointment without ANY prior notice to interested parties?
25 states
• How many states permit appointment with no publication and 15 day prior notice or less?
39 states
• How many days prior notice would the MPC require?
7 days.
• What sort of information does the MPC notice contain?
Notice identifies the petitioner, Court, that the estate is being administered informally, that inventory and account don’t have to be filed and that the recipient may start formal proceedings and ask to restrict the informally appointed PR’s powers.
• Must a copy of the will be sent with the notice?
No, not under present procedure and not under the MPC.
• After appointment is an objecting party prevented from contesting the appointment?
Under the present system, yes.
Under the MPC, not for informal appointments.
• Will the MPC create more work for the Probate Court for administration of estates?
No, many fewer citations, returns of service, inventories and accounts will have to be processed by Court personnel and Judges.
• Will the Probate Court suffer the loss of estate filing fee revenues?
No, more informal administrations should be expected as the public realizes there is no need to avoid the delay, publicity or expense of probate.
• Can anyone still proceed under the present formal system?
Yes, following a similar procedure.
• How long must one wait to start a formal proceeding?
No wait. Any subsequent informal proceeding would be prevented and any prior informal proceeding would be stayed.
• Will Citations and publication and return dates still be required?
For formal appointment, formal accountings, etc, yes.
Publication required after informal probate
• Under the MPC must the estate inventory and account be filed for public record?
No, the financial information may be kept private, if the personal representative supplies the information to the interested parties and no one objects.
• Will a license to sell real estate still be required if there is no power of sale in a will?
Yes, the current license to sell procedure is retained.
• How can an estate be closed if no account is filed?
The personal representative may file a statement that the estate has been administered and that an accounting has been sent to all parties. The estate closes automatically one year later if no objection has been filed.
• Can an informal probate be converted to a formal probate to gain the protection of a judgment after notice?
Yes, the personal representative might, for instance, open the estate informally, administer it without supervision and before distribution file a formal accounting asking for a formal judgment after notice concerning the account, testacy, heirs or any other matter.
• Is the creditor’s claim procedure changed?
No, the current procedure is retained.
• How will a surviving spouse’s rights be changed?
In the case of no will, the spouse gets the entire estate if the children are all of the marriage. If the will was executed prior to the marriage, the spouse takes an intestate share.
• How are children’s shares affected?
Family of different generations share per capita at each generation – equal shares to those equally related. Children omitted take a proportionate part of the gifts to other children or an intestate share if no children are mentioned in the will.
• Are will formalities changed?
A memorandum separate from a will gifting tangible personal property is given binding effect. If a decedent left a memorandum showing intent, a lifetime gift is considered satisfaction of a gift in a will.
GUARDIANSHIPS
• Are the rights of incapacitated persons given respect in Article V of the MPC?
Yes, limited guardianships and conservatorships will be favored to preserve rights in matters which the individual is capable of making decisions
• How is incapacity defined?
The definition of incapacity focuses on function limitations based upon diagnosed conditions.
• What evidence of incapacity is required?
Medical certificates must contain a description of limitations, evaluations and prognosis.
• Will parents have authority to pick guardians and conservators for their children?
Parents and spouses will be able to appoint a guardian for an incapacitated person regardless of age, subject to Court confirmation. Delegation of powers for 60 days allowed for parents and guardians.
• Will guardians be able to consent to extra-ordinary treatment?
Guardians will not have authority to consent to medical treatments for which substituted judgment determinations may be required (not limited to anti-psychotic medications)
• Will the Probate Court still be able to commit an individual to a state mental institution?
No, only District Court procedures will apply.
• What ongoing protections does the MPC provide?
Guardians will be required to report the condition, living arrangements, services, visits, care plan annually. Courts will be mandated to establish a system to monitor guardianships and conservatorships.
• Will monitoring create a burden on the Probate Court?
Yes, however the efficiencies in the estate administration workload will outweigh the burden.
• How does the MPC affect Health Care Agents under Proxies?
Health care proxies will take precedence and may not be revoked by guardian without Court order. The existence of health care proxies and durable powers of attorney must be disclosed by a petitioner.
TRUSTS
• Will trust account procedure change?
Testamentary trust accountings will no longer require Probate Court proceedings for settlement.
• Does the MPC provide any greater protections to trust beneficiaries?
Trustees will be required to notify beneficiaries of accountings and acceptance of appointment.