Probate and Guardianship Reform

MUPC will go into effect 3/31/12

Mark Leahy — Tue, 20 Mar 2012 13:25:15 +0000

The long delayed Massachusetts Uniform Probate Code will go into effect for estates on March 31, 2012. Many new probate forms are available now on the Court’s website and additional forms will be posted shortly. Filing fees will be set, on an interim basis, by the Probate and Family Court, Administrative Office.

MUPC Delayed

Mark Leahy — Tue, 27 Dec 2011 21:23:38 +0000

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

Funeral Instructions

Mark Leahy — Sat, 10 Dec 2011 18:49:20 +0000

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.

MUPC Supplemental Notice

Mark Leahy — Mon, 31 Oct 2011 13:47:34 +0000

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.

Family Allowances

Mark Leahy — Sat, 29 Oct 2011 02:43:04 +0000

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.

Devolution of Title

Mark Leahy — Sat, 29 Oct 2011 02:16:09 +0000

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.

Deeds of Distribution

Mark Leahy — Tue, 11 Oct 2011 19:56:45 +0000

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.

Cross Reference Tables

Mark Leahy — Sun, 25 Sep 2011 01:21:30 +0000

I hesitate to publish my handy cross reference tables between Code and old or related General Laws. I built them years ago while it was easy, as we worked our way through the Code. But they haven’t been vetted, so their accuracy is suspect. Since the few I’ve shared these with seem to value them, I’ll put them out for all to enjoy. Please report back any inaccuracies or missed references.

Probate Court to Issue Transitional Rule

Mark Leahy — Mon, 19 Sep 2011 22:16:49 +0000

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.

New and Revised Guardian Forms

Mark Leahy — Thu, 02 Jun 2011 14:29:39 +0000

The Probate and Family Court has posted many revised and a few new guardianship and conservatorship forms on its website. They include a new Motion for Temporary Conservator and revised Petitions to Expand/Modify/Limit Powers and Petitions to Remove/Terminate/Resign. The forms can be saved and printed in Adobe Reader and can be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html