The New Massachusetts Uniform Probate Code, Discussion Part 1

In Assets, Estate Planning, Probate by John Tramontozzi

The New Massachusetts Uniform Probate Code, Discussion Part 1

By: John N. Tramontozzi, Esq.

When it comes to wills and the administration of Estates Massachusetts now follows the new Uniform Probate Code adopted in March of 2012. This statute was a complete revision and rewrite of the probate laws. The MUPC makes it easier and quicker for an estate to be Probated.

Open an estate, Wills and Decedent’s estates. Massachusetts has completely overhauled its probate laws—some of which dated back to the earliest days of the Commonwealth. Massachusetts has evolved with the adoption of the Uniform Probate Code, a model statute propounded by a national board of experts, so as to reform some of the cumbersome practices which have until now burdened lawyers and citizens of the Commonwealth. The new law, referred to as the “MUPC”, affects almost every aspect of the law of wills and the administration of estates. It would be impossible in a publication of this type to detail every change, but below I digest the more important changes of which layperson and lawyer alike should be aware.

  1. Changes in the Administration of Estates. Personal Representative. The law does away with the confusing classifications of executors, temporary executors, administrators, special administrators and the like by adopting the one-size-fits-all title of “personal representative.” The personal representative, once appointed by the Court, will stand in the shoes of a person who dies with a will (“testate”) or without a will (“intestate”).
  2. Choice by Survivors of Formality of Administration. As an initial matter, the decedent’s survivors will choose between three degrees of formality as they proceed to settle the estate via the terms of a will or according to the intestacy laws if there is no will.
  3. Of most interest to the general public are changes in the administration of estates.
  1. Informal Administration. In many cases, the administration of an estate may proceed informally. Under this type of administration, the personal representative may be appointed as soon as seven (7) days after the person applying for appointment sends notice by mail to the interested persons specified in the statute. Once appointed, the personal representative may begin collection of the assets and immediately attend to other administration matters. This eliminates the weeks-long waiting period under the former law. It is going to prove to be the speediest and least expensive type of administration to pursue, where appropriate, because once appointed, the personal representative will not be under Court supervision (although supervision can be chosen for a particular part of the administration, if desired). While certain procedures remain, such as preparing an inventory, publishing notice in the newspapers and circulating accounts, these are not under the mandatory supervision of the Court; rather, the law depends on the personal representative to privately conduct these functions. Once complete, the estate may be informally closed as well. Estates of any size may proceed informally.
  2. This type of administration will be the best when the beneficiaries are harmonious and the circumstances of the estate are non-controversial. If a controversy arises, a beneficiary (or the personal representative) can file with the Court to begin a “formal” administration. That option can also be chosen from the outset. If no formal administration is commenced within three (3) years of death, that opportunity is foreclosed and the informal administration becomes final for all purposes.
  1. Formal Administration. Formal administration looks very much like the system under our former law. In this proceeding, the administration requires the filing of a petition resulting in formal notice to be ordered by the Court, with an opportunity to object. Thus, a waiting period for objections, generally several weeks long, will ensue, at the end of which the Court will formally allow the will or, in intestacy, rule that the persons named in the petition are the heirs. If there is no objection, the administration can proceed on a non-supervised or court-supervised basis, as the personal representative decides. However, the determination of the heirs, or the finding that the will on file is the decedent’s last will, cannot be disturbed except in very unusual circumstances. This type of administration will be best when there is some legal question about the proceedings, the possibility of controversy among the survivors, or if questions about a previously commenced informal administration arise.
  2. Supervised Administration. This type of administration requires continued supervision by the Court of the activities of the personal representative. As such it is best for the most complicated and controversial estates, where continual access to the Court will be a necessity.
  3. Voluntary Administration. The new law also continues a fourth type of administration, voluntary administration, but increases the size of the estate eligible for this proceeding. It is only available to estates where the property subject to administration does not exceed $25,000 in value plus the value of one automobile and contains no real estate. If no probate is commenced, after thirty (30) days a statement may be filed with the Court in which the signatory states under oath he or she will administer the estate according to the will attached, or as provided under the intestacy law, as the case may be. There is no further involvement by the Court.
  1. Changes to Wills Guardians of Adult Incapacitated Persons.Disposition of Tangible Items by Memorandum. A testator now has the option of leaving a binding memorandum outside the will to dispose of tangible items of personal property (other than money). The memo may be executed before or after the will and must be signed and describe the items disposed of with reasonable certainty. Thus, a change of intent about a certain item or items of tangible property will not require the testator to make a change to the will to effect such change. Prior to this law, no such memorandum would have the binding effect of law.
  2. Individuals may want to have their wills updated to address one or more of these issues.
  3. A parent may now nominate the guardian of an adult incapacitated child in a will or by a separate writing, and a spouse may do the same for an incapacitated spouse.
  4. Guardians of Minors. The MUPC now distinguishes between guardians and conservators of minors, the latter having power of the property of the minor, and the former having powers over the person. A parent may still make the appointment in a will, and should designate a person or persons for both offices (it can be the same person or persons). The MUPC also allows the appointment to be made in a separate writing witnessed by two persons. The appointed guardian can file an acceptance in Court when there is no parent of legal capacity, making the appointment effective. Thus, the guardianship can become effective prior to the death of the surviving parent when one or both parents are incapacitated.
  1. Changes to the Intestacy Law.Surviving Spouse’s Share. Under certain circumstances, the surviving spouse’s intestate share is considerably enlarged from prior law. In other cases, the interests of modern “blended family” members are taken into account for the first time.
  2. The MUPC changes the “default” provisions of inheritance for persons dying without a will. Following are the highlights of the new law:
  • If the decedent is not survived by any descendant or parent, the surviving spouse now takes the entire probate estate. This is a major change to the current intestacy laws.
  • If the surviving spouse is also the parent of all the surviving descendants, the surviving spouse also now takes the entire probate estate. This too is a major alteration to the former law, which gave a share of the estate to surviving children. For instance, now if a husband dies and leaves a spouse with minor children all born of that marriage, the spouse will take the whole estate. However, if the surviving spouse has other living children from another marriage or relationship who have not been adopted by the decedent, or the decedent has children by another marriage or relationship, the surviving spouse will not take the entire probate estate, as detailed below.
  • If the surviving spouse has any living children from another marriage or relationship in addition to living children of the marriage to the decedent, the surviving spouse now takes the first $100,000 of the probate estate, plus one-half (½) of the balance. The decedent’s children take the rest (see Intestate Shares of Other Heirs below.)
  • Similarly, if there are surviving children of the decedent from another marriage or relationship, the surviving spouse now takes the first $100,000 of the probate estate, and one-half (½) of the balance of the estate, if any. The decedent’s children from all marriages or relationships take the rest (see Intestate Shares of Other Heirs below.)
  • If the decedent has no descendants, but is survived by a parent or parents, the surviving spouse takes the first $200,000 of probate property, and takes three-quarters (¾) of the balance of the probate estate (an increase from one-half of the balance under former law). The surviving parent(s) will take the rest.

In all of the examples above, if a child is deceased and has left descendants, the surviving descendants of the deceased child would take some share of the estate, as described below.

Intestate Shares of Other Heirs: The way property is distributed to other relatives of the intestate decedent is also affected by the new law:

  • Descendants: Any portion of the estate which passes to the decedent’s descendants will pass under a new system of distribution called “per capita at each generation.” Under this rule, living children inherit equally. With respect to deceased children, if only one child is deceased, and has living children, those children take an equal share of the deceased parent’s share. The change brought about by the new law occurs when more than one child is deceased with living children. Under the new rule, the shares of all the deceased children are combined and divided equally among all the surviving children. This changes the method under the old system; in which each deceased parent’s share is divided equally among only the children of that parent, which can yield unequal shares for descendants of the same generation where deceased parents have different numbers of children. For instance, under the new system, if a person who had four children dies, and two of those children have predeceased the decedent, one of them leaving two children and one of them leaving three children (in other words, five grandchildren of the decedent), the estate would be divided as follows: the two living children would each get an equal 1/4 share of the estate; and the two 1/4 shares allotted to the deceased children would be combined and the five grandchildren would each take 1/5 of this combined amount. (Under the old system, the two children of one deceased child would split their parent’s 1/4 share equally, and the three children of the other deceased child would split their parent’s share equally, giving them a smaller share).
  • Parent(s) But No Descendants: No change from current law. If the decedent is survived by parents but no descendants the property passes in equal shares to the decedent’s surviving parents, or all to the surviving parent.
  • No Descendants or Parents: If the decedent is not survived by descendants or parents, such portion or all, as the case may be, passes to the surviving descendants of the decedent’s parents, who take per capita at each generation.
  • No Descendants, Parents or Descendants of Parents: No change from current law. The estate will pass in equal shares to the decedent’s next of kin in equal degree, as determined by a genealogical chart.
  • Not Survived by Spouse or Kindred: No change from current law. The decedent’s probate estate goes to the Commonwealth.
  1. Other Important Changes.The best practice is to update the will after a divorce. As mentioned previously, this rule can be avoided by updating the will after marriage, or providing beforehand that it is made in contemplation of marriage, or will be effective notwithstanding a subsequent marriage. Also, if it can be shown by evidence that the testator provided for the new spouse otherwise as a substitute for changing the will, the rule may be avoided.Exempt Property and Allowances. The MUPC contains certain relief provisions meant to assist with the maintenance and support of surviving spouses and children. The surviving spouse has the right to remain in the decedent’s house for a period not to exceed six (6) months after the decedent’s death. Also, in a new provision, the surviving spouse, or children if there is no surviving spouse, have a guaranteed right of up to $10,000 of value in property of a decedent’s probate estate. This property is called the “exempt property,” and it is in addition to any benefit or share passing to the surviving spouse or children by will or intestate succession. Exempt property will be made up, in the first instance, of a decedent’s household furniture, automobiles, furnishings, appliances, and personal effects, and if such property does not exceed $10,000, other probate property.
  2. The MUPC creates further rights for the surviving spouse and minor children in addition to the rights to exempt property. The new law provides for “a reasonable allowance in money out of the estate” during administration of the estate for maintenance of a decedent’s surviving spouse and a decedent’s minor and dependent children. The period of this allowance is limited to one (1) year if the estate is inadequate to discharge allowed claims. This law benefits a decedent’s minor children, whether or not there is a surviving spouse, but it does not benefit a decedent’s adult children unless they are supported by the decedent.
  3. Omitted Children. The MUPC changes the law concerning inheritance by children and other descendants omitted from wills. Prior to the MUPC any omitted child, whether born before or after the testator’s death, and the omitted descendants of a deceased child, has the right to take the child’s or descendant’s intestate share of the testator’s probate estate, unless it is shown that the omission was not accidental or that the testator provided for the child or descendants during life. The new law narrows this rule, and applies only to a child born or adopted after execution of the testator’s will (a so-called “after-born” or “after-adopted” child) who will receive a portion of the probate estate. This will vary depending on the makeup of the decedent’s family, the provisions of the will and possibly other provisions which may have been made outside the will for the afterborn child. In one rare case, a child other than an afterborn child is entitled to some of the estate: a child who is omitted because the testator mistakenly believes that the child is dead when the will is executed.
  4. Effect of Marriage on Wills. Prior to the MUPC, marriage automatically revoked a prior will in its entirety, unless it appeared from the will that it was made in contemplation of the marriage. As a result the probate estate was distributed according to the laws of intestacy. The MUPC changes this harsh rule, and does not provide for such automatic revocation. Instead, the will survives, and any legacy to descendants of the decedent (who are not descendants of the new spouse) is preserved. If any part of the estate is left to persons other than such descendants, the new spouse would receive his or her intestate share under law, to be satisfied from the assets left to such other persons (and from any bequests made to the surviving spouse, if any, in the premarital will). The testator’s choice of personal representative and guardian of minor children is also preserved.
  5. Effect of Divorce on the Estate Plan. Divorce has long partially revoked the wills and unfunded revocable trusts of divorcing spouses so that property transfers to the ex-spouse, as well as nominations appointing the ex-spouse as executor or trustee, are cancelled. As a response to the modern trend to pass more property on death by way of non-probate transfers (ie: trusts), the MUPC broadens the current “divorce rule” so that it now expressly applies to non-probate transfers, such as life insurance policies and trusts, whether funded or unfunded, that an individual has the sole power to make certain changes to at the time of the divorce or annulment. The new law also operates to revoke bequests to relatives of the ex-spouse, as well as appointments of such relatives of executor or trustee under certain situations. If the parties reconcile and remarry, provisions revoked solely by the law are revived.

The MUPC makes many other technical changes affecting contested estates, trusts and