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The new set of laws, scheduled for adoption by Massachusetts starting
April 1, 2012 (pushed back from Jan 2), are known as the Uniform
Probate Code (or "MAUPC" or "UPC"). They are designed to clarify the law
and to incorporate the more useful advancements in probate law made
over the years throughout the United States. Overall, the adoption of
these laws should promote a speedier and more efficient liquidation of
estates, cutting both time and cost for the benefit of those who stand
In order to achieve these objectives, the MAUPC provides for a
variety of useful options. One example is that in an uncontested estate
(where no interested parties disagree), the probate court will have a
very minimal role with fewer technical requirements. Other changes deal
more with inflation, such as the increase in family exemption and
involuntary probate thresholds. And while Massachusetts probate
attorneys are generally optimistic about these changes, the new laws
still leave many left for the courts to decide. Here are some of the
more important changes to note.
Difference between Informal and Formal Probate or Appointment in Massachusetts
One of the biggest and most obvious changes that the Uniform Probate
Code will make to probate process in Massachusetts is the dual "formal"
and "informal" processes. As we mentioned above, the courts wanted to
foster a less invasive alternative to traditional probate. Doing so
would save time and money for families, but also for court staff. So
where there are no expected disagreements in an estate, families can opt
for the informal process. Characteristics of this process include
reduced filings, fewer notice requirements, and little need for judicial
On the other hand for those estates with a greater need for court
intervention or supervision, any interested party may petition for a
formal proceeding in Massachusetts probate court. This might occur for
many reasons: e.g. where there are competing claims to the estate, or
with a contest to the appointment of a personal representative.
Expanding Duties of the "Executor" as a Personal Representative
Another obvious change the MAUPC makes is to cease using the label of
"Executor" in favor of the more descriptive "personal representative."
This not only removes the confusing distinctions previously made between
administrator and executor, but also the gender references (i.e.
execu-tor vs. execu-trix). Now that the personal representative is the
sole label for the administrator of an estate, the potential for
ambiguities is greatly resolved.
On a related note, the default powers of a personal representative
have been expanded to allow for greater autonomy in managing assets and
paying claims. The personal representative therefore now has authority
without any additional court approval to: settle claims, to continue an
unincorporated business for up to 4 months, to incorporate a business,
and to distribute cash and assets in kind. Notably, however, a license
is still required to sell real estate.
Statutes of Limitations under the Massachusetts Uniform Probate Code
But with the new powers and freedoms granted under the UPC, personal
representative and families also have greater responsibility. Coupled
with these enhancements are the changes the UPC makes to Massachusetts
probate timelines and statutes of limitations. These are naturally also
designed to streamline the probate process.
The general rule is that a will can be probated for up to three years
from the date of death. This greatly reduces the time previously
allowed, since a will in Massachusetts could be probated up to 50 years
after the date of death! The result of this significant reduction will
be to increase the certainty of ownership of assets distributed from an
estate. There are exceptions to this rule, for example when assets of
the estate are later discovered, but as Cape Cod Probate Attorneys
we typically advise families to be vigilant about 1) making sure a will
is discoverable upon death and 2) understanding that the probate
process should be initiated with some expediency.
For Small Massachusetts Estates, A Voluntary Probate Expansion
Both old and new Massachusetts probate codes provide for "Voluntary
Administration," for smaller estates. Somewhat confusingly, the statute
previously labeled the process as "informal," but it is now known as
"Collection of Personal Property by Affidavit," and the administrator is
known as the "voluntary personal representative." The threshold for
filing is now significantly higher consistent with inflation.
The provision is meant primarily for estates that do not contain real
estate, and the threshold for filing is basically up to $25,000 in
assets plus one vehicle. And although the will is still filed with the
probate court, voluntary administration is not considered a true probate
action. Many families who have made efforts to avoid probate
by placing most estate assets in trust or with beneficiary designations
can take advantage of this low cost alternative to traditional probate.
Massachusetts Uniform Probate Code Delays
While these laws were scheduled to go into effect on several
occasions already over the past year, the Massachusetts State
Legislature has chosen to delay their implementation. The issue is that
these laws will eclipse a solid body of case law made by the
Massachusetts Courts over the years that resolved uncertainty in
statutory interpretation. We will continue to cover the new
Massachusetts Uniform Probate Code as these developments continue to
View more from Timothy McNamara on the Probate Process, Estate Planning, and Medicaid Planning.
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