On March 31, 2012 Massachusetts entered into a new era of estate planning and administration. Massachusetts has totally revamped its probate laws by adopting the Massachusetts Uniform Probate Code (MUPC). The changes to te law are vast and this article in no way addresses each change. The purpose of this article is to briefly cover the more important changes.
Administration of Estates
Previously, many people were confused by the jargon used in the administration of estates. What is the difference between executors, temporary executors, administrators, and special administrators? Worry no more! These terms have been done away with and all replaced by the simplier title of personal representative.
In addition to the title change, there are now more ways in which the estate can be administered:
1. Informal Administration : this option is the simpliest and allows for a personal representative to be appointed as soon as seven (7) days after the person applying for appointment sends notice by mail to the interested persons specified in the statute. This is the fastest and least expensive form of administration because it does not require court supervision. The personal reqpresentative is still required to prepare an inventory, publish notice in the newspapers and circulating accounts, etc., this does not need to be done under the supervision of the court. Informal administration is available to estates of any size; however, this form of administration is the best option when the beneficiaries are in agreement regarding the distribution of the estate.
2. Formal Administration : As its name suggests, this form of administration is more formal and more closely resembles estate administration under the old law. Formal administration requires the filing of a petition resulting in formal notice to be ordered by the Court, with an opportunity to object. This of course means that this process takes more time. This type of administration is the better option when there are legal questions about the proceedings, the possibility of controversy, or if questions about a previously commenced informal administration arise.
3. Supervised Administration : Supervised administration should only be used for the most controversial and complicated estates as it requires constant supervision by the court.
4. Voluntary Administration : The final type of administration is available only to estates valued at less that $25,000, plus the value of one vehicle and includes no real estate. This administration has very little court involvement. If no probate is commenced, after thirty (30) days a statement may be filed with the Court. The signatory on the statement gives an oath that s/he will administer the estate according to the will, or as provided under the intestacy law.
Guardians and Conservators
Under MUPC the law distinguishes between a guardian and a conservator of a minor child. A guardian has control over the person and the conservator has control over the minor’s property. A parent should still name a person or persons to fill these rolls in the will, and the same person can be named as both the guardian and conservator. MUPC also allows a parent to name a guardian and conservator in a separate document so long as the separate document is witnessed by two people.
Disposition of Tangible Personal Property
One of the most substantial changes brought about by MUPC is the ability for a testator to leave a memorandum of tangible personal property and the recipients of such property. This document can be separate from the will and can be changed without disrupting the will. The memorandum must describe the property and recipients with reasonable certainty and be signed. This document can be created either before or after the will as it is now a totally separate and binding document.
The Effect of Marriage and Divorce
Pre-MUPC, any existing will was automatically revoked upon marriage unless it is clear that the will was made in contemplation of the marriage. MUPC does require such automatic revision. Rather, the will survives and any bequests to descendants of the decedent are preserved. If any part of the estate was left to non-descendants of the decedent, these assets are used to satisfy the surviving spouse’s intestate share. This may be avoided, however, if it can be shown that the decedent otherwise provided for the surviving spouse in another manner, such as through a life insurance policy.
Previously, the law stated that divorce partially revoked wills and unfunded revocable trusts of divorcing spouses so that property transfers to the ex-spouse, as well as nominations appointing the ex-spouse as executor or trustee, are cancelled. MUPC broadens this rule to have the same canceling effect on non-probate assets, such as life insurance policies. MUPC also revokes bequests to relatives of the ex-spouse. If the parties re-marry, the revoked provisions are revised; however, it is always advisable to update your estate planning documents after any major life event, including divorce and marriage.
As mentioned above, this article is not intended to be exhaustive of the changes to probate law in Massachusetts since the adoption of MUPC. The above-mentioned is a brief overview of some of the changes that will have the greatest impact on the greatest number of people.