THE NEW MASSACHUSETTS UNIFORM PROBATE CODE. March, Webinar Handouts Chicago, Ticor, Lawyers and Commonwealth Title

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1 THE NEW MASSACHUSETTS UNIFORM PROBATE CODE March, Webinar Handouts Chicago, Ticor, Lawyers and Commonwealth Title I. OVERVIEW a. Effective July 1, 2011 (Guardianship provisions were effective July 1, 2009) b. Code is designed to simplify handling decedent s intentions. Sec c. Intent is to keep the Court passive until called upon to act. d. Informal (when no controversy) and formal proceedings (when there is) e. Informal can be used in both testate and intestate estates. f. 7 day notice to heirs and devisees of the petition by personal representative. g. Petition granted if satisfactory. h. PR then can administer estate with little Court supervision. i. Closing is by sworn statement to Court that debts, expenses and taxes paid and distributions made to those entitled. j. Matters handled independently of each other ( in and out ) without necessity of global orders. k. All documents filed with court deemed verified and subject to penalties of perjury. Sec l. Code now has definitions i.e. Personal Representative, Informal Proceedings, etc. II. GENERAL PROVISIONS a. Probate Court granted subject matter jurisdiction over all matters relating to: 1. Estates of decedents including determination of heirs and successors, interpretation of wills, estates of protected persons. 2. Protection of minors and incapacitated persons. 3. Trusts. 4. Other matters pursuant to G.L. c. 215, Sec, 6 (equity). b. The individual Court s jurisdiction is determined by: 1. Domicile or presence in the Commonwealth; 2. Location of property in the Commonwealth; 3. Fiduciary being subject to the laws of the Commonwealth; 4. Trust being subject to administration in the Commonwealth. Sec c. Upon death the decedent s real and personal property passes to those devised by the last will. 1. If no will, then to decedent s heirs. Sec Will must be declared valid by order of informal probate by magistrate or adjudication of probate by the Court. Sec PR must be appointed by court order or magistrate, qualify and be issued letters. Sec

2 4. In absence of administration, heirs and devisees entitled to estate under terms of probated will or intestacy laws. Sec d. Written notice given to interested persons 7 days prior to appointment or proceeding in informal proceeding. Sec (a)(1-3) e. PR must publish notice in designated newspaper of general circulation not later than 30 days after informal probate or appointment. Sec (b) f. In formal proceedings, notice given by citation to interested persons who did not assent by mailing copy at least 14 days prior to return day (at office or residence) or by personal delivery at least 14 days prior to return date or by publication at least 7 days before the return date. Sec (a)(1-3) g. Publication required to all unknown persons in formal proceedings. Sec h. Notice period may be extended for interested persons outside the country or parts unknown. Prob. Ct. R. 6 i. New position of Magistrate created. Appointed by the Court to perform administrative duties regarding informal petitions. j. Informal probate is conclusive as to all persons until superceded by formal proceeding order. Sec k. Time limitations 1. Informal probate cannot be granted until at least 7 days after decedent s death. 2. No formal or informal proceedings can be commenced more than 3 years after death. 3. Exception for protest to informal proceeding within 12 months. Sec If no will probated after 3 years assumption of intestacy is final. 5. If will informally probated it s conclusive after 3 years or within 12 months from informal probate. Sec III. PERSONAL REPRESENTATIVE a. The term Personal Representative includes executer, administrator, successor personal representative, special administrator and persons substantially performing the same functions. Sec (37) b. Testate priority: 1. Persons named in will or nominated by power in will. 2. Surviving spouse taking under the will. 3. Other devisees. Sec (a)(1-3). c. Intestate priority 1. Surviving spouse. 2. Other heirs. 3. Public administrator if no spouse or next of kin. d. Person entitled to letters other than named in will may nominate a qualified person to be a PR. Sec (c) e. Objection to appointment can only be made in formal proceeding. (sec (b) f. If objection above priorities apply with certain exceptions. 2

3 g. Court must appoint one in priority in will unless Court finds it not in best interest of estate. h. Appointment out of priority only in formal proceedings. Sec (e) i. In order to acquire powers and duties, PR must be appointed by order of Court or magistrate, qualify and be issued letters. Sec j. Formal and informal administrations are commenced by issuance of letters Sec , 3-307, k. G.L. c. 195, sec. 5A is repealed and replaced by the Code. Code includes all of the powers in G.L. c. 184B (Statutory Optional Fiduciary Powers) l. Some of the powers of a PR (applies in both testate and intestate estates) (not all can be performed by a special PR) 1. Retain assets of the decedent. 2. Receive assets from fiduciaries or other sources. 3. Perform, compromise or refuse performance of contracts including real estate contracts that continue as obligations of the estate. 4. Deposit or prudently invest liquid assets of the estate. 5. Make repairs or alterations to buildings. 6. Enter into leases within or beyond the administration. 7. Abandon valueless property. 8. Vote stock or securities. 9. Hold securities in nominee form w/o disclosure of the estate. 10. Insures assets and the PR against liability against third parties. 11. Borrow money, secured or unsecured against the assets of the estate. 12. Compromise debts or obligations. 13. Pay taxes or other expenses. 14. Employ persons including attorneys, accountants, auditors, etc. and to act on their advice without inquiry. 15. Prosecute or defend claims. 16. Sell or lease personal property of the estate. 17. Continue the decedent s unincorporated business. 18. Provide for exoneration of the PR from personal liability in estate contracts. 19. Satisfy and settle claims and distribute the estate pursuant to the Code. Sec (a) and (b) m. License required to sell real estate unless power granted in will. n. PR obligated to proceed expeditiously with settlement and distribution of estate. o. Prior to receiving letters, PR accepts appointment and qualifies by filing bond. Sec p. Sureties required unless 1. will waives requirement; 2. heirs or devisees file written waiver; 3. PR is bank or qualified trust company; or 4. Court concludes sureties are not in the estate s best interests. Sec (a) and (b) q. Person or creditor with interest in estate in excess of $5, can demand sureties be given. Sec r. If will doesn t specify amount, PR must submit best estimate of estate s value and file bond in same amount. Sec (a) 3

4 IV. APPOINTMENT OF PERSONAL REPRESENTATIVE a. Temporary executors and administrators eliminated. b. PR appointed after 7 days notice to interested persons in informal proceedings. c. Notice must include info regarding meaning of proceeding and their rights. d. Informally appointed PR may continue to serve with restrictions during pendency of subsequently filed formal proceeding. Sec e. If no informally appointed PR, a SPR may be appointed in order to preserve estate during pendency of formal proceedings. Sec f. Petition for appointment of informal PR must contain: 1. Statement of interest of the petitioner; 2. Name, D.O.D., age, and address of decedent; 3. Names and address of spouse, children, heirs and devisees; 4. Ages of any minors; 5. Statement identifying heir or spouse who may be incapacitated; 6. If decedent not domiciled in MA, statement showing venue; 7. Information concerning any PR previously appointed in MA or elsewhere that has not been terminated; 8. Statement that copy of petition and death certificate has been sent to the Division of Medical Assistance by certified mail; 9. Statement that informal appointment is timely under the circumstances. Sec (a)(1)(i-vii) g. Where intestacy, petition must also contain: 1. After diligent search petitioner is unaware of any revoked will relating to MA property or statement as to why any will is not being probated; 2. Priority of person seeking appointment; 3. Statement of concurrent or previous filing of death certificate. h. Petitioner must give at least 7 days notice prior to petitioning for informal appointment by delivery or by mail to: 1. All heirs and devisees; 2. Any person having prior or equal right to appointment not waived in writing and filed with the court; 3. Any PR of the decedent whose appointment not terminated; Sec (a) i. Certificate of such notice identifying the names and addresses of those noticed is prima facie evidence of notice. Sec (a) j. Notice must be published in newspaper of general circulation to later than 30 days after appointment or informal probate. k. Notice must include statements regarding: 1. Name and address or petitioner and PR; 2. It is being sent to persons having in interest in the estate; 3. Whether bond is with or without surety; 4. Court where papers are on file; 4

5 5. Estate being administered w/o supervision of court (informally); 6. Inventory and accounts not required to be filed with the court but that interested parties are entitled to notice and can petition the Court; 7. Interested parties entitled to petition Court for formal proceeding and to obtain orders terminating or restricting the PR appointed under informal proceeding. Sec (c). l. In informal proceeding Magistrate will determine whether: 1. Petition is verified, timely and complete; 2. Petitioner is a proper, interested person; 3. Venue is proper; 4. Notice has been properly and timely made; 5. Appointee has priority in appointment; 6. Spouse and heirs are not incapacitated or minors, or, if so, represented by guardians or conservators; 7. Court has death certificate Sec (a)(1-4 and 6-9); and 8. If testate, whether formally or informally probated. m. After determining matters in Item l, Magistrate will appoint the petitioner subject to qualification and acceptance. Status, powers and duties of PR are fully established by appointment. n. Formal proceeding necessary where: 1. Question as to priority or qualification of PR; 2. Testacy at issue; sec Magistrate has refused to approve informal appointment petition. Sec o. Formal petition for appointment includes all matters in Item l. p. Notice in formal proceedings given to interested persons who have not assented by: 1. Mailing a copy at least 14 days prior to return day to IP or counsel at office or residence; or 2. Personal delivery at least 14 days prior to return date; or 3. Publication at least 7 days before return date required to all unknown persons. Sec (b) q. Notice of formal appointment must be given to: 1. Surviving spouse, children and other heirs of the deceased; 2. Devisees and executors named in any offered or probated wills; 3. Any PR whose appointment has not been terminated; 4. All interested unknown persons; 5. All interested persons whose addresses are unknown; and 6. All persons interested as successors, persons previously appointed PRs and any person who may have a priority for appointment. Sec (b); 3-403(b) r. Formal appointment notice must include: 1. Name and address of petitioner and PR; 2. That it is being sent to persons having in interest in the estate; 3. Whether bond is with or without surety; 4. Court where papers are on file; 5

6 5. Estate being administered under formal procedure w/o supervision of court; 6. Inventory and accounts not required to be filed with the court but that interested parties are entitled to notice and can petition the Court. Sec (b); 3-403(c) s. After notice, Court will determine who is entitled to appointment; make the appointment and, if need be, terminate any prior appointment. Sec t. Note that formal appointment proceedings are distinguished from supervised administration. V. TESTACY PROCEEDINGS a. Informal Testacy Proceeding 1. Petition must contain all information required for informal appointment; 2. Petition must also state that: (a) Original purported will or authenticated copy from other jurisdiction attached; (b) Petitioner believes will to be validly executed; (c) After using reasonable diligence petitioner is unaware of any revocation and that it is believed to be the last will; and (d) Death certificate is attached or previously filed. Sec (a)(2)(i-iv) 3. Petitioner must give at least 7 days notice prior to petitioning for informal probate by delivery or by mail to: (a) All heirs and devisees; (b) Any person having prior or equal right to appointment not waived in (c) writing and filed with the court; Any PR of the decedent whose appointment not terminated; Sec (a)(1-3) 4. Certificate of such notice identifying the names and addresses of those noticed is prima facie evidence of notice. Sec (a) 5. If no spouse or heir of decedent or if any devisee is a charity, notice must be given to the AG. Sec. 306(d) 6. If spouse, heir or devisee is a minor or incapacitated person, notice must be given to guardian or conservator. Sec. 306(e) 7. Not more than 30 days after informal probate or appointment, notice must be published once in designated newspaper of general circulation. Sec (b) 8. Notice must include: (a) (b) (c) (d) (e) Name and address or petitioner and PR; That it is being sent to persons having in interest in the estate; Whether bond is with or without surety; Court where papers are on file; Estate being administered w/o supervision of court (informally); 6

7 (f) Inventory and accounts not required to be filed with the court but that interested parties are entitled to notice and can petition the Court; (g) Interested parties entitled to petition Court for formal proceeding and to obtain orders terminating or restricting the PR appointed under informal proceeding. Sec (c) 9. In informal proceeding for original probate of a will Magistrate will determine whether: (a) Petition is verified, timely and complete; (b) Petitioner is a proper, interested person; (c) Venue is proper; (d) Notice has been properly and timely made; (e) Appointee has priority in appointment; (f) Spouse and heirs are not incapacitated or minors, or, if so, represented by guardians or conservators; and (g) Court has death certificate. Sec (a)(1-9) 10. Upon making findings that requirements in l have been met, Magistrate shall issue written statement of informal probate. Sec ; If Magistrate not satisfied will is entitled to be informally probated s/he may decline the petition which is not an adjudication and does not preclude formal proceedings. Sec b. Formal Testacy Proceeding 1. Is litigation to determine if a valid will was left by the decedent. 2. May also be proceeding to secure decree of intestacy and determination of heirs where no will offered. 3. Commenced by petition requesting order: (a) Probating a will; (b) Setting aside informal probate of a will; (c) Preventing pending petition for informal probate; and (d) That decedent died intestate. Sec May request appointment of a PR. 5. During pendency Magistrate cannot act on petition for informal probate or appointment. 6. Unless confirmation of informal appointment, PR can t make any further distribution after receipt of notice. Sec Petitioner can request restraining order against acting PR. Sec Petition for formal probate of will: (a) (b) Seeks judicial approval of will and determination of heirs; Contain same statements as informal probate along with statements that petitioner believes: (1) Will was validly executed; (2) No instrument revoking will; and (3) That will is decedent s last will. Sec (a)(2) (4) Original will or authenticated copy must be filed with the petition. 7

8 9. Petition for adjudication of intestacy must: (a) Request judicial finding and order that no will left by decedent; (b) Request determination as to heirs; (c) Contain same statements as informal appointment and assert: (1) Petitioner is unaware of unrevoked will relating to MA property or why instrument not being probated; (2) Priority of person seeking appointment & names of others having prior or equal rights; and (3) Statement of filing death certificate. Sec (c) 10. State whether supervised administration is requested. 11. Notice in formal testacy proceedings given to interested persons who have not assented by: (a) Mailing a copy at least 14 days prior to return day to IP or counsel at office or residence; or (b) Personal delivery at least 14 days prior to return date; or (c) Publication at least 7 days before return date required to all unknown persons. Sec (a) 12. Notice of formal testacy proceeding must be given to: (a) Surviving spouse, children and other heirs of the deceased; (b) Devisees and executors named in any offered or probated wills; (c) Any PR whose appointment has not been terminated; (d) All interested unknown persons and all interested persons whose addresses are unknown, by publication. Sec (b) (e) Attorney general if no spouse or heir or if any devisee is a charity. Sec (d) (f) Guardian or conservator if spouse, heir or devisee is a minor or incapacitated person. 13. Formal appointment notice must include: (a) Name and address of petitioner and PR; (b) That it is being sent to persons having in interest in the estate; (c) Whether bond is with or without surety; (d) (e) Court where papers are on file; Estate being administered under formal procedure w/o supervision of court; (f) Inventory and accounts not required to be filed with the court but that interested parties are entitled to notice and can petition the Court. Sec (c) 14. After return date, proof of notice and hearing, if necessary, if Court finds testator dead, venue proper and petition timely, then it will determine domicile, heirs and status of testacy. Sec Any will found to be valid and unrevoked shall be formally probated. Sec

9 VI. SPECIAL PERSONAL REPRESENTATIVE a. Upon petition of IP, notice and hearing, Court may appoint suitable person to be SPR when necessary to preserve estate or secure proper administration. Sec ; b. If emergency, court can make appointment without notice. Sec c. SPR s powers limited by statute and any court order. Sec ; d. Appointment may be for up to 90 days except in extraordinary circumstances when it may be extended. Sec VII. SUPERVISED ADMINISTRATION a. Described as single in rem proceeding to secure complete administration and settlement of estate under continuing authority of Court until order approving distribution of estate and discharging PR Sec b. Appropriate where IP wants assurances that estate will be properly adjudicated. Comment, Sec c. Should not be confused with formal proceedings. d. Petition for SA may be filed by any IP or by PR at any time or can be joined with a petition for testacy or appointment. Sec e. If no previous adjudication, petition must include matters required in petition for formal testacy proceeding along with notice and procedural requirements. Sec f. If not already adjudicated, Court will adjudicate testacy; determine priority and qualifications of PR even though request for SA may be denied. Sec g. After notice to IPs, Court will order SA if will directs (unless circumstances change) or finding of necessity. Sec h. Pendency of proceeding for SA stays informal petition. Sec (a) i. If will previously probated in informal proceeding, petition for SA may: 1. Seek to set it aside; 2. Obtain judicial adjudication; 3. Obtain order that decedent died intestate; Sec (b); Sec Request confirmation of previous informal appointment; or 5. Request order appointing a different PR. Sec (b); Sec j. Unless restricted by court order, SPR has all powers of PR except no distribution of the estate can be made without court order. 9

10 VIII. CLOSING THE ESTATE a. Informal Closing Procedure 1. Except estates administered in SA proceedings, a PR may informally close estate by filing verified statement with court that the PR has: (a) Determined the time for creditor claims has expired; (b) Fully administered the estate except as specified (c) Distributed the assets; (d) Sent a copy of the statement to all distributes, established creditors and known claimants; and (e) Furnished a full written account to the distributees. 2. Statement may be filed no earlier than 6 months from date of original general appointment. Note that statute of limitations for creditor s claims is one year form date of death. Sec ; 3-803; If no proceedings involving PR pending in Court one year after closing statement filed, closing statement may not be challenged except for fraud or manifest error. Sec (b) b. Formal Closing Proceedings 1. PR or any IP may petition for order of complete settlement of the estate. Sec (a) 2. Petition may request: (a) Court to determine testacy if not previously determined; (b) Consider final account; (c) Compel or approve accounting and/or distribution; (d) Construe any will; (e) Determine heirs; or (f) Adjudicate final settlement and distribution of estate. Sec (a) 3. PR may petition at any time for order of complete settlement (subject to the statute of limitations for creditors claims). Sec (a); Sec Other IPs may petition 1 year after appointment of original PR for order of complete settlement. 5. Notice is by citation unless assented to by all IPs. Sec (a); Sec After return day, upon due notice and any necessary hearing, the Court may: (a) Determine those entitled to distribution; (b) Direct or approve distribution or settlement; (c) Discharge PR form any further claims or demands; Sec (b) 7. Discharge for ever exonerates PR and sureties form all liability unless for fraud or manifest error. 10

11 IX. MUPC: ARTICLE V a. The Mass Uniform Probate Code (MUPC) was signed into law January 15, 2009 as Chapter 190B; Article V became effective July 1, 2009 b. Repealed Chapter 201 (Guardians and Conservators) and the entire Chapter 201B (Uniform Durable Power of Attorney Act), among other sections. c. The MUPC is an attempt to modernize the laws relating to guardians and conservators by minimizing governmental intrusions into the lives of individuals when the involvement of the Probate Court is required. X. GUARDIANS a. Article V, Part II Minors (changes are not detailed further herein) b. Article V, Part III Incapacitated Persons 1. Appointed by the court for the protection of the person only and to make decisions regarding that person s support, care, health, education and welfare. 2. The term incapacitated person is used when dealing with guardianships. 3. Incapacitated person is someone who for reasons other than advanced age or minority results in an inability to receive and evaluate information or make or communicate decisions to meet essential requirements for physical health, safety, or self care XI. CONSERVATORS a. Appointed by the court to protect the property and business affairs of the person in need of protection. b. The terms person to be protected or protected person is used when dealing with conservatorships. 11

12 c. Protected person is someone who is unable to manage property and business affairs effectively and has property that will be wasted or dissipated unless management is provided or money is needed for the support, care and welfare of the person or those entitled to the person s support XII. MEDICAL CERTIFICATE The Medical Certificate is a document that is: a. Completed by a physician, licensed psychologist or a certified psychiatric nurse clinical specialist; b. Completed within 30 days of the petition for guardianship/conservatorship; c. Details the capacity/competency examination which must take place within 30 days of the court hearing; and which d. Highlights functional capacities and incapacities; and e. Promotes the creation of limited court imposed intervention. XIII. LIMITED GUARDIANSHIP a. Court determination of scope of the incapacitated person s limitations and diminished functionality. b. Filing of a new Medical Certificate is required to assist court in determination of extent of guardianship required in any given situation. c. Court then addresses specific areas of incapacity and tailors the guardianship to meet the unique circumstances presented. Court then issues letters of appointment (formerly known as decrees). d. Orders issued only to the extent necessary to protect the person from individual harm. e. Limited guardianships are preferred by the court. XIV. LIMITED CONSERVATORSHIP a. Court determination as to necessity for the appointment of a conservator and limitation on powers granted only to those necessitated by the actual limitations of the person to be protected. 12

13 b. Conservator may be appointed to oversee business affairs while the day to day living expenses are left in the control of the protected person. 13

14 c. In lieu of the appointment of a conservator, a narrowly tailored protective order may issue which relates to a contract, trust or other transaction dealing with the protected person s property if the court deems it to be in the best interest of the protected person. d. Limited conservatorships are favored by the court. XV. TEMPORARY GUARDIANSHIP a. Used in emergency situations only during the pendency of a court proceeding for the appointment of a guardian if delay will result in immediate and substantial harm to the health, safety or welfare of the person who is alleged to be incapacitated b. Granted only in situations where no other person has authority to act in the particular situation at hand c. Limited powers granted for no more than 90 days, unless extended by court upon the finding of extraordinary circumstances. XVI. TEMPORARY CONSERVATORSHIP Criteria, results and limitations are that same as that for the appointment procedures for a temporary guardianship, except that the harm to be avoided is the likelihood of substantial harm to the property, income or entitlements of the person to be protected or those entitled to the person s support. XVII. FULL GUARDIANSHIP - Also known as plenary guardianship a. Removes all personal decision making authority and responsibilities from the incapacitated person. b. Court and medical personnel must now consider methods to preserve the incapacitated person s legal rights in specific areas and limit guardianship accordingly. XVIII. FULL CONSERVATORSHIP - Also known as plenary conservatorship. a. Removes all control over assets from the protected person. b. Court must consider limitations on control such that the protected person s legal rights can be preserved in specific areas. 14

15 XIX. HIGHLIGHTS OF CHANGES a. Clear distinction between guardians and conservators guardian of both person and property of an individual is no longer allowed. Two separate court proceedings and appointments are required. b. Eliminates the ability for one person to have complete and total control over another s life c. MUPC recognizes the need for a right to counsel and to have a GAL (guardian ad litem) appointed to investigate the condition of the person for whom a protective proceeding has been brought before the court. d. The incapacitated person/protected person has the right to be present at any hearing, to give evidence, cross examine witnesses and nominate his/her own choice for guardian or conservator. e. Guardians may not revoke a Health Care Proxy without a court order. f. A Health Care agent s decision supersedes that of a guardian. g. Letters of appointment of conservator/guardian and orders terminating same shall be recorded in the Registry of Deeds, when appropriate. h. Conservators may not exercise the power to sell or mortgage real property without court authorization pursuant to MGL c. 202 (unchanged). XX. DURABLE POWERS OF ATTORNEY ( DPOA ) a. Article V, Part V sets forth specifics. b. Powers set forth in a DPOA may be shifting or springing and the document is not affected by lapse of time, disability or incapacity. c. Attorney in fact is accountable to the guardian/conservator ( fiduciary ); fiduciary can revoke or amend the DPOA. d. No third party who in good faith relies on such DPOA shall be held liable for actions taken in reliance thereon. e. The attorney in fact may bring legal action for damages on behalf of the principal for unreasonable refusal of a third party to honor the DPOA. 15