Highlights
HIGHLIGHTS OF THE PROPOSED
MASSACHUSETTS PROBATE CODE
The following is a synopsis of the important provisions of the probate reform bill sponsored by the Massachusetts Bar Association and Boston Bar Association. The bill codifies existing statutes, case law and court rules. It also adopts procedures which will promote efficiencies for the Court, timely appointments of fiduciaries and greater protections for incapacitated persons and persons aggrieved in the administration of estates.
Informal Probate
Application for informal probate of a will or appointment of a personal representative may be made as soon as 7 days after a decedent’s death and 7 days after written notice to all interested persons.
Magistrates appointed in each Probate Court may immediately grant informal probate without the need for a hearing.
Informally appointed personal representatives will have full powers to administer an estate unless and until a formal probate is filed.
Any will probated informally becomes final after 3 years.
Formal Probate
Petitions for formal probate may be filed any time after death, even if an informal probate was previously filed.
Formal filing will prevent filing of any new informal probate and stay distribution under any previous informal probate.
The formal process follows present procedure of notice by citation and allowance only after a return date set by the Probate Court.
Unsupervised Administration
After formal or informal appointment a personal representative must settle an estate without delay and without supervision by the Court.
The personal representative may request instructions from the Court at any time.
Interested persons may apply to the Court to restrain the personal representative’s acts and powers.
An inventory of estate assets need not be filed in Court if it is sent to all interested parties.
Supervised Administration
If the Court finds it necessary, it may subject the administration of an estate to its own direction in any degree it finds necessary to protect the interests of the interested parties.
Formal Closing
A formal closing petition may request final adjudication, after citation and notice, of an accounting, testacy, determination of heirs or any other matter.
Thus, a previously informal proceeding may obtain the security of final judgment while not suffering delayed appointment at the beginning of the process.
Informal Closing
After the time for creditor claims has expired, a personal representative may file a statement that the estate has been administered and send an accounting to interested parties.
Accountings need not be filed with the Court.
If no objections are filed within one year the estate closes.
Surviving Spouse’s Share Increased
If a decedent leaves no will a surviving spouse receives the entire estate if all children are children of that marriage.
A will executed prior to marriage remains valid, but the spouse first takes an intestate share.
A spouse is entitled to tangible personal property up to $10,000 plus a reasonable amount for support during estate administration.
Children’s Share
Family relations of different generations share per capita at each generation - equal shares to those equally related.
Children omitted in a will take a proportionate part of the gifts to other children.
If no children are mentioned they take intestate shares.
Will Formalities
A memorandum separate from a will gifting tangible personal property is given binding effect.
Signature on a self-proving affidavit establishes due execution of a will.
If a decedent left a memorandum showing intent, a lifetime gift is considered satisfaction of a gift in a will.
Guardians and Conservators
Limited guardianships and conservatorships are favored.
Guardians will be appointed for the care of the person only, Conservators must be appointed if there is a need for management of property.
Medical certificates must contain description of limitations, evaluations and prognosis.
Definitions of incapacity and disability focus on functional limitations.
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.
Guardians will not have authority to consent to medical treatments for which substituted judgment determinations may be required (not limited to anti-psychotic medications).
The Probate Court will not have power to commit to a mental health facility, District Court procedures apply.
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.
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.
Protective orders will be authorized without appointment where ongoing management is not needed.
Sureties on conservator bond may be waived by nomination in power of attorney.
Motions for temporary appointments must be supported by affidavit.
Prudent Investor Act rule for delegation by conservators will be adopted.
Trust Administration
Testamentary trust accountings will no longer require Probate Court proceedings for settlement.
Trustees will be required to notify beneficiaries of accountings and acceptance of appointment.