Bar News - March 16, 2012
Elder, Estate Planning and Probate Law: Estate Planning and Probate Practitioners: Are You Ready for MUPC?
By: Candice M. OíNeil
Effective March 31, 2012, the Massachusetts Uniform Probate Court ("MUPC") will substantially change estate planning and probate administration within the state. MUPC was designed to speed up the lengthy probate process, reduce expenses, and protect the beneficiaries of trusts and those under guardianship. For New Hampshire Bar members who practice in Massachusetts, it is vital to be aware of these changes. In addition to becoming familiar with the new probate procedures, practitioners should also review existing estate plans to ensure that client goals will still be accomplished under the new law.
The following is an overview of some of the key areas of change that practitioners should prepare for:
1. Distribution to some heirs under MUPC will have very different results than under the old intestacy statute.
Under the new law, surviving spouses and children of the decedent from prior relationships may receive different distributions than they would under the old law. The surviving spouse will now receive the entire estate if the only children of the decedent were born of that relationship. However, if there were children of the decedent from a prior relationship, those children and the surviving spouse will each take one half of the estate, after an initial distribution to the surviving spouse of $100,000. Where there are no children born of the relationship between the surviving spouse and the decedent, but there are living parents, the surviving spouse will receive $200,000 plus 75 percent of the estate. The surviving parents will receive the remaining 25 percent.
2. Finally! Informal probate proceedings will now be available even for large estates.
Under MUPC, "informal probate" is now available to estates regardless of size, provided there are no contested issues. An administrator or executor, now collectively referred to as a personal representative, can petition for appointment as soon as seven days after the death of the decedent. If there are no objections from interested parties after written notice is given, the appointment can be allowed prior to publication. After March 31, only seven states in the nation will still require publication before appointment.
For practitioners, these changes are a much welcomed improvement. The current procedure can take several months before an appointment is allowed.With regard to who can petition for personal representative of an informal probate proceeding, MUPC provides a statutory order for the priority of appointments.
Another advantage of the new informal probate proceedings is that the inventory and account do not have to be filed with the court if none of the interested parties object. As a result, financial information can be kept private. In order to close an estate, the personal representative must file a statement verifying that an account was given to all interested parties. If there are no objections, the estate closes automatically one year later.
3. Formal probate proceedings are still available.
Formal probate proceedings are still an option for personal representatives or interested parties. The filing can happen immediately after the date of death. Informal probates can also be converted to formal probates at any time. If a personal representative was already appointed, he or she will continue to serve unless removed by the probate judge. However, the personal representativecannot make distributions once notice of the formal proceedings is received. In addition, an interested party can petition the court at any time to require a bond, formal inventory, accounts, or a determination pertaining to distributions. If the absolute strictest level of court involvement is desired or required, this is now call "supervised administration."
4. Voluntary administration is now available for small estates that contain one vehicle and up to $25,000 worth of personal property.
This is an increase over the previous limit of $15,000.
5. Clients can now leave legally binding memoranda to their wills pertaining to their personal property.
As long as the memoranda are executed and properly describe both the donees and the items being given away, the memoranda will be given legal weight. The memoranda does not have to be executed at the same time that the will is signed.
6. Pay on death accounts resolve the problem of interested parties contesting the intention of joint accounts.
MUPC establishes pay on death joint accounts. For clients taking advantage of this provision of the new law, there is no longer any ambiguity as to whether the decedent intended for ownership of the account to transfer to the joint account holder upon his or her death.
7. Statutes of limitations must be carefully observed.
All probates must be commenced within three years afterthe death of the decedent. Under the informal probate procedure, will contests must commence within one year of the willís allowance. Any claims of fraud must be brought within two years of discovery, or within five years of when the alleged fraud was committed. Creditors still have a year to bring a claim against an estate; however, the personal representative may make distributions to heirs within six months absence any notice of claim. Thereafter, a creditor can seek to have the distributions put back. However, this action is barred if the distribution was made more than a year prior, or if three years have passed since the decedent died.
Practitioners should be aware that the new probate court forms will be required for estates filing after March 31. For more information, the Massachusetts Bar Association has a section on its website dedicated to MUPC. It can be found at www.massbar.org/legislative-activities/mupc.
|Candice M. OíNeil
Candice M. OíNeil is an estate planning, probate administration, and corporate law attorney at Hudkins Law, P.L.L.C., in Windham. The firm also focuses its practice in real estate and bankruptcy matters.