Estate and Elder Law

The New Uniform Probate Code | A Cape Cod Probate Attorney Assessment Pt. 1

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 to inherit.

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 involvement.

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 arise.

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

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