As we noted in our Part 1 assessment of the new Massachusetts Uniform
Probate Code (a.k.a. "MAUPC"), the legislation has been delayed yet
again by the Massachusetts Legislature, this time until April 1 of 2012.
Still, there has been no shortage of talk relating to the expected
effects of these laws among Massachusetts probate attorneys in anticipation.
The delays stem from unresolved ambiguities that the courts will need
to address when implementing the code, but this article will only talk
about the basics. Generally, the purpose of this new probate regime is
to integrate the efficiencies in probate law that have developed
throughout the United States. In the end, the goal is to ensure that the
process is not too costly or burdensome for the Massachusetts Probate
Courts and families alike.
So the MAUPC's provisions aim to make a number of improvements in
order to achieve this goal. Some changes deal merely with inflation,
like the increases in family exemption and involuntary probate
thresholds noted in Part 1 Massachusetts Uniform Probate Code
Assessment. An example of a more complex change is the distinction
between "informal" and "formal" probate, where the probate court very
minimal role with fewer technical requirements in uncontested estates.
Below we have noted some more of the changes to take place.
Adjustments in the New Massachusetts Uniform Probate Code - Who Takes?
As a general overview the order of inheritance from an decedent's
(deceased person) estate will pass as follows 1) The spouse, 2) Any
descendants, 3) Parents, 4) To parents' descendants (decedent's brothers
and sisters) and 5) Next of kin (closest blood relations).
The new MAUPC seems to not only account for the modern costs
attributed to family and probate, but also for the modern family itself.
In essence it simplifies the older law that relied on a formula to
divide the inheritance among spouse and children. At the same time, it
creates exceptions for distributions when a family is comprised of
children from other relationships.
In many instances, e.g. when the decedent leaves no children or
parents, or if all children left were had between the decedent and
spouse, the entirety of the estate will go to the surviving spouse. In
other instances the spouse's share will be reduced, to a small extent if
the decedent leaves parents behind, and to a greater extent if either
the decedent or surviving spouse have children from both within and
outside the marriage.
Adjustments in the New Massachusetts Uniform Probate Code - How Much?
A minor adjustment to the laws of intestacy (meaning death without a
will) in Massachusetts is the manner by which later generations will
take a share in the estate. Under the traditional "Per Stirpes" system
each child would take an equal share, and any grandchildren of a
deceased child would take an equal share of that share. So if there were
3 children, and one of the children was already deceased leaving 2
grandchildren to inherit, each grandchild would take a 1/6 share of the
A good and memorable phrase that describes the new system is "Equally
Near is Equally Dear." It is similar to the old system, except that
after shares are distributed to the survivors of the first generation,
they are pooled together and then distributed equally again to any
survivors of successive generations. So if 2 of the original 3 children
were already deceased under this system, and had left a total of 3
grandchildren to inherit, those 3 grandchildren would take an equal
share of the 2/3 pooled from the deceased children (1/3 x 2/3 = 2/9, so
each child gets a 2/9 share under this system). This new system is
called "Per Capita at each Generation."
Priority for Appointment
If a will exists, or even if there is no will, the Massachusetts Uniform Probate Code
has in place a "ladder" or a prioritized list of people who may be
appointed as the personal representative. This person is necessary in
both formal and informal probate proceedings, and the ladder is in place
in the event that the named person in a will is unable or unwilling to
Generally the order is as follows: 1) The nominated person under a
will, 2) The surviving spouse of the decedent who is also a devisee
(receiving a gift) in the will, 3) Other devisees in the will, 4) The
surviving spouse in the will, 5) Other heirs of the decedent, 6) If all
else fails, the court will appoint a public administrator.
Exemptions and Allowances
The new Massachusetts Uniform Probate Code incorporates additional
provisions that operate to protect the spouse and family immediately
after the time of death. These protections are enhancements to earlier
laws that provided merely a basic level of sustenance to surviving
An example of this protection is the spousal exemption for up to
$10,000 of personal property owned by the decedent. Just as it sounds,
the surviving spouse (or child, if no surviving spouse) may retain
personal property (e.g. furniture or vehicles) valued up to that amount
of money regardless of other claims on the estate.
In addition, the personal representative can make use of what is
called a "discretionary family allowance." This allowance provides for
up to $18,000 in a lump sum or $1500 per month to be paid to the spouse
or child during the first year of administration.
Unresolved Issues and Delay for Implementation
Unfortunately many of the new provisions are so far untested within
the State of Massachusetts, so that local practitioners are not yet sure
how actual probate cases will play out under the new Massachusetts
Uniform Probate Code. While most, (like the Cape Cod probate attorneys
at this particular office), would like to see the law passed as soon as
possible in order to iron out the kinks, the Massachusetts legislature
has delayed the MUPC enactment on 2 different occasions already.
The issues that need resolution before the bill goes into effect
mainly involve the passage of the Massachusetts Uniform Trust Code
(MUTC). Like the MUPC, the MUTC implements well thought out measures to
significantly overhaul existing State laws for better accessibility and
understanding to the public. Because these codes overlap with one
another, the legislature and many practitioners would prefer to pass the
whole bill all at once. We shall see.
View more from Timothy McNamara on the Probate Process, Estate Planning, and Medicaid Planning.
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