On Jan. 15, 2009, Governor Deval Patrick signed into law the new Massachusetts Uniform Probate Code (MUPC), which significantly reformed Massachusetts probate practice and procedure. On March 31, 2012, the second set of reforms, which governs estate administration and intestacy law, are slated to go into effect.
The first set of MUPC reforms, implemented in July 2009, dealt with the abuse of incapacitated persons by increasing the amount of court control and reporting. Conversely, the March 2012 set of reforms is designed to modernize and streamline the probate portion of estate administration, while at the same time removing the court from oversight in the majority of estates.
Informal Probate
The MUPC recognizes that the vast majority of estates proceed without controversy. As a result, the court generally won’t intervene in an estate administration unless requested by an interested party. If all parties agree, except in certain circumstances, an estate can generally proceed through an administrative process known as informal probate. Theoretically, under informal probate, a Magistrate can appoint a fiduciary (known as a personal representative) to administer the estate within seven days of death. If any interested party so desires, or a minor or incapacitated person is involved, formal probate is required. Formal probate requires having a judge determine the validity of a will and takes between two to three months for appointment of a personal representative.
Less Court Supervision
Under the MUPC, whether informal or formal, estate administration becomes an “in” and “out” process, without continuing court supervision. Parties can come to the court if authority is needed for any specific aspect of the estate. For example, if a person died without a will and the personal representative needs to sell real estate, the personal representative could present a License to Sell Real Estate to the court for the court to authorize the sale. If court supervision isn’t needed after the initial appointment of the personal representative, the court wouldn’t be involved again. If the estate is problematic or contested, on the other hand, the court can order supervised administration, meaning the court would oversee almost every aspect of the estate administration, from the appointment of the personal representative to the ultimate distribution of the assets.
No Formal Accounting for Bond
One major change under the MUPC is that the bond filed by the personal representative with the court no longer requires a formal accounting for the personal representative to be discharged. Instead, an informal form of accounting can be given to estate beneficiaries (and not be filed with the court) Similarly, filing an inventory detailing the estate assets is no longer necessary in all circumstances.
Other Significant Changes
Other significant changes in the MUPC include:
· All permanent fiduciaries presiding over an estate are now known as the unisex personal representatives, with a temporary fiduciary known as a special personal representative. These titles replace all previous titles, including executor, executrix, administrator, administratrix, special administrator and temporary executor. The term “issue” will be replaced with the more commonly used term “descendant,” and the term “devise” is now used to convey tangible, intangible and real property.
· The surviving spouse inherits 100 percent of the probate estate under intestacy law if: (1) all the children of the both the surviving spouse and the decedent are the only children of each individual; or (2) there are no surviving descendants or parents of a decedent.
· The appointment of a guardian ad litem to represent the interests of minor, incompetent, unborn and unascertained beneficiaries is no longer presumed. In general, a competent beneficiary with a substantially identical interest can represent the interests of an incapacitated beneficiary through the concept of virtual representation.
· Separate memorandums disposing of tangible personal property become legally binding even if they’re executed after the will.
· Pour over trusts (a revocable trust that is structured to receive and dispose of assets at death) no longer need to be executed prior to the will.
· By right of representation changes from a modified per stirpes (by the stocks at the first generation with living descendants) to the more modern approach of per capita at every generation (equal shares at equal generations).
· Upon divorce, trust provisions and beneficiary designations in favor of an ex-spouse are revoked.
· Massachusetts didn’t adopt the Uniform Probate Code provisions relating to the sale of real estate. As a result, a License to Sell Real Estate is still required for an intestate decedent or if there’s no power of sale under the will.
Note: This article has summarized highlights of important changes made by the MUPC, but this list is by no means comprehensive.
