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Estate and Elder Law

Quicker Probate in Massachusetts? | Theory vs. Practice in the New MAUPC

By now Massachusetts estate planning and probate attorneys have had the chance to deal and work with the new Massachusetts Probate Code, first effective March 31, 2012. It has been said that no matter how long an attorney has practiced in Massachusetts probate law, all are now novices under the new code. But the much-anticipated Uniform Code brought with it many promises and assurances of a cheaper and faster probate process, more accessible to people in the Commonwealth of Massachusetts. And while many veterans have written how the New Massachusetts Probate Code should play out, actual practice of the code is only now being demonstrated. Below are a few examples of how the code speeds up and reduces fees in the process.

Fast Appointment of the Personal Representative - Informal Probate Process in Massachusetts -

Theory: The new code provides that there will be much faster appointment of the personal representative in a Massachusetts probate proceeding, due to the informal probate process option. Prior law presented a very cumbersome and lengthy process before appointment; Where the personal representative had to file with the court, then wait for the court to send a "citation," then send notice of the citation to all interested parties, then file proof of the notice back with the court, then wait for the appointment. An appointment in this timeline would normally take about 6 weeks. The new law cuts almost all of this out, requiring generally that the personal representative send notice out, then 7 days later submit his petition for appointment. An appointment now in theory can be finalized within 7 days from the date of death.

Practice: Actual timelines for an informal appointment may be a bit longer. Recent conversations at the Plymouth and Barnstable Probate courts, for example, have shown that the courts are still very much in the midst of trying to implement the new process. A petition may be submitted for approval on the seventh day, but the case itself will need to be placed in the queue of other probate cases that came before it. A reasonable expectation for an informal appointment is therefore probably more like 14 days - Perhaps not as quick as might be possible, but still about 3 times faster than the old law!

For Small Estates - A Cheaper Option in the Voluntary Administration Statement

Theory: A voluntary statement, also known as "Collection of Personal Property by Affidavit," allows for a more efficient procedure than even the informal probate appointment. Under the prior law, this affidavit was an available option for any estate under $15,000 plus a vehicle. The new Massachusetts Uniform Probate Code expands this value threshold another 33% up to $25,000 plus a vehicle. And although as before the filer must wait 30 days after the date of death to file the affidavit, the appointment itself may apparently issue on that day if the court will permit it.

Practice: In practice although the court will accept all papers for the appointment after the 30 day waiting period, the filer should again expect that the processing may take another week or two. Therefore this option for the personal representative doesn't provide any added benefits in terms of speed for the personal representative, but still offers the same more liberal alternative to regular informal & formal probate process. And of course, as mentioned, this alternative is now available to slightly larger estates. The voluntary affidavit route is likely cheaper than even the informal petition in practice because there are no notice requirements, and in certain situations the entire estate can be wrapped up almost immediately.

Protecting Assets from Probate Creditors - Property Exemptions and Family Allowances

Theory: Though former law made some considerations for survivors from the death of a family's primary earner, these provisions were not very clear. Labeling the law "necessaries," the legislature essentially allowed a judge to set aside some portion of an estate to temporarily maintain the spouse, or else up to $150 per child. Also included was the right to stay in the property for up to 6 months after the date of death. These exceptions to normal distribution procedures were quite small, but in reality the personal property of many modest estates is simply distributed to members of the household without the court's involvement.

The new law nevertheless provides far greater number values for "exempt property," where either the spouse or children may keep up to $10,000 outside the normal distribution, and thus the reach of creditors. For the family's maintenance, the law also creates a "discretionary family allowance" in a lump sum of $18,000 or $1500 montly.

Practice: These new provisions may not be very useful, except in the case of much smaller estates and those falling under voluntary administration statements (described above). If in such an estate, the only assets left (after administration expenses) were valued below the combined $10,000 property exemption and $18,000 family allowance, then technically the personal representative could distribute all remaining funds and file a sworn "closing statement" almost immediately to close the estate without notifying creditors.

But however convenient, our experience as Cape Cod probate attorneys does not support that clients should elect such a method to close the estate in practice. For technical reasons this closing statement opens up the personal representative to additional risk that would not be present in the traditional probate closing "complete settlement."

Ongoing Changes

These faster probate procedures in Massachusetts are still undergoing a great deal of testing, and the amount of time and money that will ultimately be saved is still up in the air. After enough time has passed, the learning curve for court staff and Massachusetts probate attorneys alike should flatten, letting the system return to its previous efficiency. But it's important to note that the results we've seen in the past month have certainly been promising.

View more from Timothy McNamara on the Probate Process, Estate Planning, and Medicaid Planning.  

Copyright © 2011 Law Office of William Yates. All rights reserved

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