YOU CAN T TAKE IT WITH YOU: ISSUES WITH REAL ESTATE IN A PROBATE ESTATE

Transcription

1 BBA Continuing Legal Education YOU CAN T TAKE IT WITH YOU: ISSUES WITH REAL ESTATE IN A PROBATE ESTATE NOVEMBER 9, 2017

2 CLE- You Can't Take It With You: Issues With Real Estate In A Probate Estate Thursday, November 9, :00 PM to 5:00 PM Table of Contents Program Agenda Speaker Biographies I II I. Powerpoint & Other Materials PowerPoint Presentation: Clearing Title to Probate Real Estate under the MUPC 1 Land Court Memo 34 Personal Representative s Petition For Order Of Complete Settlement Checklist 40 Summary of Taking Title From Probate Under The MUPC 41 Sample Assent & Release 42 II. Statutes and REBA Title Standards REBA Title Standards No. 78 (Updated ) 43 REBA Title Standard No. 40 (Transfers by Devisees) 44 Additional Sections of Chapter 190B 45 C.190B Deeds of Distributions Sections 49 C.202 Sales of Probate Estate Sections 57 Form REBA Title Standard No. 10 Power of Sale Under Will 62 REBA Title Standard No. 14 Missing Probates 63 REBA Title Standard No. 41 List of Heirs 64 III. Trusts MGL C.184 Sections 34 & Trustee Certificate REBA Form 35 One trustee MGL c. 184 section Trustee Certificate STANDARD certificate 69 Will of Deceased Property Owner with Pre-Existing Trust 70 Will of Deceased Property Owner with Trust Created in Will 71

3 CLE You Can t Take It With You: Issues with Real Estate in a Probate Estate Thursday, November 9, 2017; 3:00 p.m. 5:00 p.m. Boston Bar Association 16 Beacon Street, Boston MA A G E N D A 3:00 3:10 p.m. Welcome and Introduction SARA GOLDMAN CURLEY, ESQ. Nutter, McClennen & Fish, Boston MA EVELYN J. PATSOS, ESQ. Administrative Office of the Probate & Family Court 3:10 4:10 p.m. Clearing Title to Probate Real Estate under the MUPC JENNIFER A. MAGGIACOMO, ESQ. Norfolk Probate & Family Court 4:10 4:20 p.m. Q&A Session 1 4:20 4:35 p.m. Deeds of Distribution EVELYN J. PATSOS, ESQ. ELIZABETH J. YOUNG, ESQ. Westcor Land Title Insurance Company, Norton MA 4:35 4:45 p.m. Q&A Session 2 4:45 5:00 p.m. How to Convey Clear Title when the Will Devises Real Estate to a Trust ELIZABETH J. YOUNG, ESQ. Westcor Land Title Insurance Company 5:00 p.m. Q&A Session 3/ Conclusion I

4 CLE- You Can't Take It With You: Issues With Real Estate In A Probate Estate Speaker Biographies JENNIFER A. MAGGIACOMO is a magistrate and assistant judicial case manager for the Norfolk Division of the Probate and Family Court and was previously of the Middlesex Division. Ms. Maggiacomo is a graduate of Siena College in Loudonville, New York, and New England Law Boston. Prior to her appointment, Ms. Maggiacomo was an associate in the estate planning and estate administration department of Peabody & Brown (now Nixon Peabody LLP) and a law clerk to the justices of the Massachusetts Probate and Family Court. Ms. Maggiacomo updated the majority of chapters in a previous edition of MCLE s Massachusetts Probate Manual and continues to author the Real Estate Transfers and Sales chapter in that publication. She has authored various works for MCLE on the Massachusetts Uniform Probate Code and has lectured on guardianship, estate administration and real estate matters for MCLE, the BBA, CATIC, REBA and local community organizations. EVELYN J. PATSOS is a Case Manager in the Administrative Office of the Probate and Family Court. Prior to this position, she was a Deputy Assistant Register/MUPC Magistrate in the Worcester Division of the Probate and Family Court. For the last seven years, Evelyn has been responsible for management of the implementation of the Massachusetts Uniform Probate Code ( MUPC ) and the Massachusetts Uniform Trust Code ( MUTC ). As a member of the MUPC Procedures Committee, she developed the MUPC Estate Administration Procedural Guide, the 2 nd edition of the MUPC Estate Administration Procedural Guide, the MUPC Procedural Advisory, the MUTC Procedural Advisory and The Decoder. In 2015, Evelyn was named co-editor of the MCLE Massachusetts Probate Manual and is a contributing author to the 2012, 2014, and 2016 editions. She is a frequent speaker at seminars presented by Massachusetts Continuing Legal Education, Inc., Massachusetts Bar Association, Boston Bar Association, Real Estate Bar Association and Boston Estate Planning Forum. Evelyn is co-chair of the Probate and Family Court Bench/Bar Committee on Rules. In 2017 she was invited to join the Board of the Massachusetts Family and Probate American Inn of Court. Evelyn is an active member of the Greater Boston Fiduciary American Inn of Court and the Boston Bar Association Trusts and Estates Section. Prior to being admitted to the bar in 2003, Evelyn was a law intern for the Hillsborough county Superior Court in New Hampshire. In 2004 she received the Neighborhood Legal Services Pro Bono Services Award and in 2014 was the recipient of the Greater Boston Fiduciary American Inn of Court Award of Excellence. ELIZABETH J. YOUNG is Vice President and Senior Underwriting Counsel at Westcor Land Title Insurance Company for its New England office. She is a member of the Real Estate Bar Association of Massachusetts ( REBA ), serves on the Association s Title Standards and Forms Committee and is Co-chair of REBA s Continuing Education Committee. She is an active member of the Massachusetts Bar Association ( MBA ) and serves on the Executive Management Board II

5 of the MBA. Beth is also a member of the New England Land Title Association ( NELTA ), and is on NELTA s Board of Directors. She is a member of the Merrimack Valley Bar Association. She lectures for Massachusetts Continuing Legal Education, the MBA, REBA and the Suffolk University Law School Advanced Legal Studies Center for CLE and Academic Conferences. Beth received her B.A. from the University of Massachusetts at Amherst and her J.D. from Western New England University School of Law. Prior to joining Westcor Land Title Insurance Company, Ms. Young worked for a regional title insurance company, a title examination company, a commercial law firm, and a national title insurance company. III

6 Jennifer A. Maggiacomo, Esq. Norfolk Probate Court Evelyn J. Patsos, Esq. Probate & Family Court Administrative Office. Several slides adopted/adapted with permission BBA 1 Rev. 11/17

7 BBA 2 Law in force on decedent s date of death governs descent and distribution under the laws of intestacy. Miller v. Miller, 51 Mass. (10 Met.) 393 (1845) To extent practicable, provisions in a will are construed according to the law in effect at time of decedent s death. Hayes v Hammond, 336 Mass. 233 (1957) MUPC effective date 3/31/2012- persons dying on or after that date are under new scheme; persons dying before 3/31/12 are under old scheme. Know who your successors in interest are (heirs/ devisees)! If still have- keep!! Old MCLE Probate Manuals (prior to being 2 volume set) and old West Probate Law & Rules soft cover books See, MCLE Probate Manual Ch. 13 2

8 Pre-MUPC, Spouse was NEVER sole heir at law Post-MUPC, Spouse is OFTEN sole heir at law Pre-MUPC hybrid rights of representation scheme Post-MUPC per capita at each generation (Note: Heirs are same, but shares differ) Takers Under Anti-Lapse statute differ pre and post MUPC BBA 3 Inheritance rights under step parent adoption differ pre and post MUPC Omitted Child Statute differs Marriage revokes a will pre-mupc; it does not Post-MUPC 3

9 BBA 4 Pre-Code, 50 year limit on initial Administration (opening an estate) Pre-MUPC death- under the old rules Decedent died Pre-MUPC- do regular probate proceeding (i.e. Informal or formal) Post MUPC death- Code originally had a 3 year limit to open- known as do nothing clause Quickly, amendment to Code (4) 3 year do nothing clause is revamped. Probate Property requires a Probate Proceeding. If MUPC death, no probate and 3 yrs post death, must do formal Late & Limited PR appointed is limited 4

10 BBA 5 Unless Will requires, PR has NO obligation to sell and PR may seek license even if authorized/ required to sell under Will Code left intact G.L. c. 202, Sales of Real Estate by Fiduciaries, and c. 204, General Provisions Relative to Sales Code Amendment- informally or formally appointed fiduciary with authority under the will may sell without license at arms length (a)(23 ½ ) Remember- PR in either informal or formal intestacy requires license Registered Land. See Ed Williams Memo! Addresses all 3 instances: when sale by power, license or clearing title without sale 5

11 BBA 6 If authorized in Will, a PR (informally or formally appointed) may sell or mortgage real estate to arms length third party w/out a court license. 190B 3-715(a)(23 ½) If done by informal, that sale is conclusive even if Will later overturned through formal proceeding (a)(23 ½) REBA amended Title Standards 10 & 78: deed of informally or formally appointed PR under Will w POS conveys to purchaser for value a title free from the claims of general creditors and of legatees & devisees 6

12 BBA 7 Power is not to be used for distributees (i.e. heirs or devisees). See Land Court Memo for Registered Land Assent and Release (assenting to particular sale and releasing Onanian obligation) Special PR lacks authority to sell w/out license Sale by PR under power in Will may be exercised well after the 1 year statutory period. REBA Title Standard 10 7

13 BBA 8 Why? 1) Intestate; 2) Conclusive Presumption of Highest Price and Fulfillment of Fiduciary Obligation to Obtain Same; 3) Protection of Fiduciary bound in contract who has received a higher offer; or 4) Sale of Property by Fiduciary to Herself. G.L. c. 202 has remained intact 1 year from bond for general license 6 years from bond for license to sell for expenses or charges of administration (202, 20A) Forms Required Timely Petition signed by fiduciary Inventory Additional Bond? (with surety, need additional bond 1x sale price; without surety= no additional bond) Release of MA estate tax lien (G.L. c. 65C affidavit or commissioner s release if taxable estate) Military Affidavit (yes, unless all parties interested assent) Proof of Publication on Informal? Yes, in most counties 8

14 BBA 9 Revised Petition with embedded form alerts and checklist Attach property description with docket number and case name Conveyance to Third Person If any heirs or devisees have conveyed or mortgaged his/her interest in the property to a third person, list the third person s name, address, and nature of his/her interest below. Do NOT include the names of heirs, devisees, or the Decedent s mortgage 9

15 BBA 10 Formal Testacy- devisees If passing to independent trustee- notice or assent of independent trustee only If trustee and PR are identical, notice to all trust benes (Azarian and Claflin case law); if overlap, Motion and Affidavit of non-accounting fiduciary (see instructions re: notice and GALs for Petition for Complete Settlement) Informal Testacy- All devisees as above AND all heirs at law if during challenge period Formal or Informal Intestacy- All heirs at law 10

16 BBA 11 Attorney General- if charitable interest affected. Unif.Prob.Crt. Practice XXXIV, as amended Division of Medical Assistance- if interested, if filed claim or creditor s notice Notice Upon Deceased Devisee or Heir Notice on deceased taker s fiduciary and, if none, to his heirs as law, purported devisees and by publication. Can publication be waived if PR obtains affidavits of each heir at law of deceased taker, affirming that they are the only heirs and decedent died with no will. See G.L. c , practice alert from instructions on complete settlement petitions and check local practice! Is GAL necessary? G.L. c. 190B, Minors, incapacitated persons- arm s length, parental assent, DPA 11

17 BBA 12 Mailing: 14 days before return date if all in U.S. (incl. our commonwealths & territories). Rule 6, Supp Rules Probate & Family Crt One (1) Month if whereabouts unknown or outside US as described above Publication- always 7 days. Revised Citation has been updated to accord with rulesno need to publish if addresses, identities and whereabouts are known and no proof of actual service needed Assent alleviates notice; all assents= no publication required Citations returnable 3-6 weeks from issuance date. Check designated newspaper for lead time. No 2 cites outstanding Prepare Proposed Decree! 12

18 BBA 13 2 Choices: 1) was Allowance of Foreign Will now regular In/Formal Petition and then proceed as any domestic PR 2) License for Sale by Foreign (c. 202, 32) License Findings: 6 months has expired since DOD, sufficiency of fiduciary bond in domiciliary crt, fiduciary accountable in that court, no creditor or interested person is prejudiced by sale Generally, no military affidavit (but check local practice) No appointment of agent Lien Release? Best practice to file, but may be unnecessary 13

19 BBA 14 3 Parts to Probate: Determining Testacy Status, Determining Successors and Administration (TSA) Code (after amendment) and per the real estate bar requires a determination of testacy status and successors Testacy status determined through a probate proceeding (if formal- immediate; if informal need passage of challenge/ assumption period) Successors: Heirs determined only through a formal proceeding (needed for intestate deaths per Title Stan 41); devisees determined through allowance of will (and passage of time if will was informally allowed) Code, for currently unprobated deaths (pre and post Code), does not require Administration 14

20 BBA 15 Pre MUPC All proceedings were formal and REBA accepted Testacy/Successors as alleged in petition/adjudicated in decree. Title Standard 41 Accounts (the finalization of A(dministration)) were required- if final account was allowed, property clear of probate and if one not done, heirs/ devisees would have title clear of probate after 6 years from date of bond. See c A, c. 65C, REBA Title Standard 40. A(dministration) was required Today Informal allowance of will or intestacy process exists BUT- NOT an adjudication of T(estacy) until the passage of time (3 or 4 years from date of death) and REBA requires a testacy determination REBA now requires S(uccessors) to be determined and that is NOT done on any informal intestacy petition. Title St. 41 A(dministration) can now be finalized informally BUT that requires the passage of time to be deemed an adjudication- 1 year from filing closing statement Petitions for Complete Settlement- can determine T(estacy) and S(uccessors) while finalizing A(dministration)(allowance of final account) to clear title 15

21 After 1 year of filing PR s closing statement may not be challenged except for fraud/ manifest error Remember the Deed of Distribution! It is the PR s obligation to provide a deed of distribution reflecting the successors in interest and closing statement reflects same has been given BBA 16 Only works if: 1) Formal Decree on opening or 2) informal allowance of Will and passage of assumption period. Never works if informally opened on intestate estate. Title Standard 41 16

22 Petition for Order of Complete Settlement BBA 17 In addition to allowance of Final Account, may seek: A final determination of Testacy, if not previously determined (i.e. still within the challenge/ assumption period of an informal) Determination of the decedent s heirs at law, if not previously determined (i.e. proceeded informally to open)(successors) If seeking T or S, publication is required! See Revised Probate Court Rule 6 of Supplemental Rules 17

23 BBA 18 Practice Alert: In the case of a devise to an existing trust or trustee, or to a trustee or trust established by the will, the trust or trustee is the devisee and must be listed on the petition. The beneficiaries are not devisees and do not need to be listed on the petition. If property is devised to a trust/ee, notice must be given to the trustee, unless an assent/waiver of notice is filed using form MPC 455. Practice Alert: If the PR is one of the trustees, citation notice should be given to all competent adult trust beneficiaries, unless assents/waivers of notice are filed using form MPC 455. See Azarian v. First Nat l Bank of Boston, 383 Mass. 492, 495 (1981); but see MUPC at 1-403(2)(ii); see also Uniform Practice XVIA (2)(ii): To the extent there is no conflict of interest, an independent trustee binds the benes; notice must be given to the trustee; notice may be given to others (benes). (Practice Tip: May want to give notice to all competent adult benes). UP XVIA: Notice to the independent non-accounting co-fiduciary is sufficient if UP XVIA is followed; notice doesn t have to be given to the benes (Practice Tip: May want to give notice to all adult competent benes) 18

24 BBA 19 Practice Alert: If the PR is the sole trustee, the PR must provide the court with a copy of the trust and an affidavit identifying each trust bene and stating whether: 1) there are unborn/unascertained benes; and 2) any named bene is under a legal disability. The trust and the affidavit shall be returned upon entry of the decree. Neither the trust nor the affidavit shall be entered on the docket or scanned unless otherwise ordered by the court. Practice Alert: If the PR is the sole trustee, citation notice must be given to the beneficiaries of the trust, unless, assents/waivers of notice are filed using form MPC 455. Note: The court will review the trust/affidavit filed to confirm notice/assents and whether any trust benes are unborn/unascertained and/or legally disabled. 19

25 If Trust pays out immediately upon death of decedent- no unborn/ unascertained If trust pays out over time: contingencies for death of the life tenant creates unborn/ unascertained benes Accordingly, most trusts have unborn/unascertained benes Practice Alert: If there is no independent trustee and there are trust beneficiaries who are unborn/unascertained or under a legal disability, a GAL must be appointed to represent their interests UNLESS the appointment is waived by the court based on actual/parental/virtual representation. See and consider Kraft case! BBA 20 20

26 Waiving GAL when Co-Trustee When there is a partial overlap (PR A and Trustee A & B ), waiver of GAL using Uniform Practice XVIA: Read XVIA! file motion of the accounting PR; AND affidavit of the non-accounting co-fiduciary If a non-accounting co-fiduciary of an accountant, who has received or waived notice relating to the allowance of the account(s), currently represents the interests of a person or persons, the court may waive the appointment of a GAL for such person or persons upon motion of the accountant brought ex parte. Such motion shall be accompanied by an affidavit of the co-fiduciary representing: BBA that such co-fiduciary has received or waived notice relating to the allowance of the pending account(s); 2. that such co-fiduciary is not aware of any conflict of interest which would prevent him/her from representing the person or persons whose interest would otherwise require appointment of a GAL; 21

27 Waiving GAL when Co-Trustee Con t 3. that such co-fiduciary has a duty to account in his/her capacity as a fiduciary; 4. that such co-fiduciary recognizes that he/she has a fiduciary duty to review such pending accounts with due care and has done so; and 5. that such fiduciary assents to the allowance of the pending account(s). Such motion may be allowed without a hearing in the discretion of the court; provided, however, that the accountant shall be given an opportunity to be heard before such motion is denied. BBA 22 Practice Alert: Failure to provide any of the requirements provided by Uniform Practice XVIA (16A) shall result in the appointment of a GAL or other appropriate action by the court. 22

28 GAL s For Incapacitated Persons, Protected Persons and Minors A GAL must be appointed for a spouse, heir at law, or devisee who is an IP, PP or a minor UNLESS any of the following apply: 1. S/he is represented by a conservator; 2. S/he is represented by a guardian who is not the petitioner; 3. GAL waived due, for example, to parental, virtual, or other representation , BBA 23 See MUPC at 1-403,

29 BBA 24 To Seek Waiver of GAL, Need Motion (by PR counsel) AND Affidavit (by Trustee/Parent/UTMA Custodian/DPA/Guardian/Conservator) Affidavit to set forth sufficient facts to warrant a conclusion that the representation is adequate (i.e., no conflict of interest- Uniform Practice XVIA has sample language) Practice Tip: The affidavit of the representative should assent to the account; AND If request based on G. L. c. 190B, s , must file copy of Power of Attorney or other proof, when applicable. Consider that allows PR distribution to persons under disability: 1) Per Will; 2) To Attorneys in Fact; 3) For Adults- to spouse, parent or close relative in residence 10 k year/10 k property/ more if crt authorized; and 4) For Minors- into UTMA up to 10k or more if crt authorized 24

30 BBA 25 Upon Decree of Complete Settlement (Formal Closing) Formal Petition, if done properly, gives heirs or devisees good title. See REBA Title Stnd 40 Testacy adjudicated, heirs determined, will allowed- done either formal opening/ closing Admin costs cut off- done thru account allowance Informal proceeding preceded the petition for complete settlement, the petition for settlement must seek: If intestate, and within the challenge period, the adjudication of intestacy and, under all circumstances, the determination of heirs. See G.L. c. 190B, 3-108, Title Stnd 41 and G.L. c. 190B, (a). In addition to the assents or mailing/ delivery to all persons interested, a citation for publication should issue. Supp Prob & Fam Crt Rule 6(F). If testate, and within the challenge period, the adjudication of testacy and allowance of the will which should require, in addition to the assents or mailing/ delivery to all persons interested, a citation for publication. See G.L. c. 190B, 3-108, Supp Prob & Fam Crt Rule 6(F) and G.L. c. 190B, (a). 25

31 BBA 26 Fiduciary Fails to Close Formally or Informally After Formal Adjudication of Testacy- 6 years and 65C affidavit. Ttl Stnd 40 After Formal Adjudication of Intestacy with determination of heirs- same. See also, Ttl Stnd 41 After Informal Testacy- 6 years and 65C affidavit (note challenge period will necessarily be subsumed in 6 yr period; and expiration of challenge period results in adjudication in devisees). Probably. After Informal Intestacy- No. Determination of heirs necessary post Code. Ttl Stnd 41 26

32 BBA 27 Closing Statement (Informal Closing) 6 months post date of appoint + 1 year post DOD, statement of full administration (w no undischarged claims) and distribution, copy of statement with full accounting to all interested. One year after closing statement filed, no further crt action, statement may not be challenged. After Informal or Formal Allowance of Will/ Formal Appointment (Intestacy) (and passage of one or more statutory times)? After Informal Appointment (Intestacy). No. REBA Title Stnd 41 as amended requires adjudication of heirs for post-mupc petitions. 27

33 BBA 28 Effects MUPC deaths ONLY (those on or after 3/31/12) Ancillary proceedings are not limited by If will probated/ appointment made in decedent s domiciliary state, you can do in/formal in MA without regard to No original in/formal proceeding may be commenced under the Code more than three years after the decedent s death EXCEPT 28

34 a formal testacy or appointment proceeding may be commenced [after 3 years DOD] if no proceedings relative to the succession or estate administration has occurred within the 3 year period after the decedent s death, but the personal representative shall have no right to possess estate assets as provided in section beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate. Nothing was done and Fiduciary has a limitation BBA 29 29

35 BBA 30 Possessory right of 3-709: the personal representative has the right to possess the real estate if she deems it necessary for purposes of administration. Instructions: A late and limited appointed [PR] may not seek a license to sell real estate of the decedent. The [PR] s authority is limited to confirming title to estate assets in the successors and paying expenses of administration, if any. 30

36 Adjudicate Testacy Status (did the decedent die with or without a will?), and adjudicates Successors in interest (probate of will= devisees; intestate= heirs) Do You want a PR? Law doesn t require appointment of a PR. Absent Administration, title is shown through the probate decree If no PR, no Closing because no Administration What would one do if only real estate? Deed of Distribution but then must close to get past Administration Critical to work w title counsel- do not appoint PR if don t need one BBA 31 31

37 BBA 32 Detailed Line by Line Published Instructions Instructions Embedded in the Form When in Doubt, Check it Out! MUPC Estate Administration Procedural Guide 2 nd Edition Online and Free!!! The procedural requirements for the Late & Limited Petition are the same as filing the Petition for Formal Probate Section 4.4 et seq., of the guide should be consulted for specific details. 32

38 BBA 33 Petitioner- often a BFP / Title Counsel Petitioner has a property right in the estate of the decedent Division of Medical Assistance Gets notice in all Late and Limited cases, even if death over 10 years ago MUST FILE: Surviving Spouse, Children Heirs at Law Form, and if Testate, Devisees Form Assent and Waiver of Sureties Form- If Appointing PR If waiving sureties, form must be filed for each interested person for an intestate estate and for a testate estate where will doesn t waive sureties Complete the Decree- write names of heirs if intestate! Proof Guardianship/Conservatorship/Affidavit of Conservator Same rules apply as in any Formal Especially when dealing with Intestacy: List Heirs on Decree!!! 33

39 MEMO To: From: Registry Districts- Registered Land Sections Edmund A. Williams Date: October 13, 2012 Subject: MUPC THIS MEMO SUPERCEDES PREVIOUS MEMO DATED May 1, 2012 The Land Court will require, for registered land, formal probate proceedings to open or close estates for all of our LCP-2 cases, be they testate or intestate. For deed approvals from probate estates, we will accept a license from either a formal or informal proceeding. A deed based on a power of sale in a will can also be accepted from a personal representative appointed in either a formal or informal proceeding. We will not accept, other than in cases where title is otherwise conclusively established, deeds from personal representatives to heirs or devisees. If acceptance of a deed from a personal representative is requested, we can register it in conjunction with an LCP-2 order, but only if the petition is based on a formal proceeding that allows us to issue a certificate to the heirs or devisees SPECIAL CASES 1. Under the new statute, if no proceedings are filed within three years of the death of an owner, there is created an presumption of intestacy. We will require a formal probate court decree since a will for a devise of real estate could be filed after three years to overcome the presumption. 2. There are new rules for intestate distribution. 3. We will change our Guideline 14 re: the death of a registered land owner to incorporate changes made by the new statute in both terminology and in probate procedure (see suggested changes attached hereto). BBA 34

40 14. Death: The Effect of Death upon Registered Land Titles The purpose of this guideline is to assist attorneys in dealing with title to registered land upon the death of a registered owner. Upon such a death, there are three possible avenues of approach. THE METHODS OUTLINED ARE, GENERALLY SPEAKING, MUTUALLY EXCLUSIVE. 1. BY WAY OF A LICENSE TO SELL. This method is usually utilized when the death is fairly recent and when a sale of the real estate is contemplated. The advantage of this method is that the sale is free of debts of the deceased, costs of administration, legacies and Massachusetts estate taxes. The license may be obtained through either formal or informal probate proceedings For details, see Method # BY WAY OF A SALE UNDER THE POWER IN A WILL. This method is utilized when a sale is contemplated. Under this method, the sale is free of debts of the deceased, costs of administration and legacies. A deed executed pursuant to the power of sale in a will shall be accepted from personal representatives appointed in either a formal or informal probate. For details, see Method # BY WAY OF PETITION FOR A NEW CERTIFICATE AFTER DEATH OF A REGISTERED OWNER. This method is usually utilized when no sale is imminent. The heirs-at-law or the devisees in the will are entitled to a Certificate of Title in their names. For details, see Method # 1 and Method # 2. BBA 35

41 If Land Court form LCP-2 is presented, an Order of Court will issue. If a deed under a license is presented, the deed is approved. No petition is necessary. This guideline is not intended to be exhaustive and addresses only the most common situations. With any method, an attested copy of the outstanding Certificate of Title must be presented. METHOD # 1 DEATH OF ONE TENANT BY THE ENTIRETY OR DEATH OF ANY NUMBER OF JOINT TENANTS BUT THE LAST Because title to land passes in such situations by operation of law to the surviving co-tenant(s) by right of survivorship, it is unnecessary for the surviving owner(s) to obtain a new certificate of title in order to deal with the property. It is necessary, however, that evidence of the death be noted on the encumbrance sheet of the outstanding Certificate of Title. There should be registered the following: 1. Certified copy of death certificate of deceased owner. 2. If deceased was a tenant by the entirety, an Affidavit of No Divorce. Attached is a form which may be used. Once the above-mentioned documents are registered, the surviving owner(s) may deal with the property freely without Land Court approval. However, if the surviving owner(s) requests a certificate of title in his/her name, an "S" petition must be filed at the Land Court Department along with the statutory filing fee, the material referred to in the previous paragraph and an attested copy of the outstanding Certificate of Title. There is no form for such a petition; the surviving owner must simply recite under oath the circumstances, request the cancellation of the outstanding certificate and the issuance of a new certificate in his/her name. METHOD # 2 PETITION FOR LAND COURT ORDER This method is used to obtain a new Certificate of Title after the death of a person in whose name alone a Certificate of Title stands, after the death of both tenants by the entirety, after the death of any tenant in common and after the death of the last joint tenant. 1. Land Court Form LCP-2 must be completed and filed at the Land Court along with the statutory filing fee. Note that the petition has two signature sections. The petitioners (heirs or devisees of the deceased owner) may sign the first section of the petition or their attorney may sign for them. The statement in the last paragraph of the petition must be signed by the personal representative of the estate and the signature must be notarized. (Please note that formal probate proceedings or administration must be filed in order to file form LCP-2). BBA 36

42 2. An attested copy of the outstanding Certificate of Title must be filed with the petition. held: 3. Supporting documentation will vary depending upon how title to the property was (a) Tenancy by the Entirety/Joint Tenancy all co-tenants deceased (i) (ii) as to first to die, file a death certificate. In addition, an Affidavit of No Divorce must be filed where the owners were tenants by the entirety. (Where there were more than two joint tenants, these documents must be filed for each joint tenant to die but the last). as to the surviving tenant by the entirety or last joint tenant to die, file either an abstract of the probate proceedings prepared by a Land Court Examiner, or, attested Probate Court copies of the Probate petition, citation, decree, bond, will (and any codicils thereto), inventory, if any, and docket. Attorneys may not attest these documents. (b) (c) Tenancy in Common for each tenant in common who has died, file all of the material set out in the immediately preceding paragraph 3(a)(ii). If there are surviving tenants in common, each should assent to the petition by signing it to indicate that they are aware that the old certificate is to be canceled and a new one issued in their names and the names of the new tenant(s) in common. Certificate Standing in the Name of One Person again, file either an abstract of the probate proceedings, prepared by a Land Court Examiner, or, attested Probate Court copies of all probate papers in the estate of the deceased and the Probate Court docket. 4. The result of this procedure will be an attested Order of the Land Court which must be registered at the Land Registration Office at the proper Registry of Deeds. In due course, a new Certificate of Title will be drawn in accordance with the Order. NOTE: DEBTS As to decedents dying before January 1, 1990 the new Certificate of Title will issue subject to debts in the estate of the deceased owner, unless one full year has elapsed from the date upon which the bond in the estate was allowed. As to decedents dying on or after January 1, 1990 claims of creditors are barred at one year from the date of decedent's death. BBA 37

43 TAXES LEGACIES DEVISE TO TRUST Estate and inheritance taxes are not required to be noted on certificates, G.L. c. 185, 46. See also Guideline 35. Unless there is a specific devise of the real property, if a will directs the payment of legacies, the Land Court requires evidence of their payment unless six years have elapsed from the date of death. If property is devised to the trustees of a testamentary trust, attested copies of the trustees' appointment and bond must be included with the probate papers. If real property is devised to the trustees of an inter vivos trust which is not on record, the original trust instrument and any amendment(s) thereto or a certificate pursuant to G. L. ch. 184, 35 must be presented at the Land Court. The Court Order will issue to the trustees, and the trust will be registered and noted on the new certificate issued. DEEDS OF PERSONAL REPRESENTATIVES The Land Court will not accept, in lieu of the LCP-2 proceedings, a deed from the personal representative to the devisee under the will of or any nominee. METHOD # 3 SALE UNDER DECREE (LICENSE) OF PROBATE COURT This method and Method # 4 are alternatives to Method # 2 and are used when an immediate sale is contemplated. One of the advantages of obtaining a Probate Court decree of sale is that the property will be sold free of debts of the deceased, costs of administration, legacies and Massachusetts estate taxes, a tax release being a prerequisite for obtaining the decree from the Probate Court. 1. The original or an attested copy of the Decree of the Probate Court must be presented at the Land Court together with an attested copy of the Probate Court docket; the decree must be no more than one year old. The decree of the Probate Court may be obtained in conjunction with either formal or informal proceedings. 2. An attested copy of the outstanding Certificate of Title must be filed. 3. A fully executed deed must be presented. The grantor clause should state as follows: "I, personal representative of the estate of holder of a Decree of the Probate Court of County dated, by power conferred by said Decree". The date must be the date the decree issued. The deed must conform in all respects to the BBA 38

44 decree, thus, the consideration must be equal to or more than the amount specified in the decree. It should be executed on or after the date of the decree. Likewise, the description of the property in the deed must conform to the description in the decree. There are several Probate Courts whose decrees do not describe the property. If the decree is obtained from one of these courts, the petition filed to obtain the decree must be presented at Land Court. In addition, if the fiduciary is the grantee in the deed, the decree of the Probate Court must state that the fiduciary is permitted to take title. 4. If everything is in order, the deed under the decree will be endorsed "Approved for Registration" and signed by Land Court personnel. METHOD # 4 DEED UNDER POWER OF SALE IN WILL The advantage of a sale pursuant to a Power of Sale in the will is that the property is sold free of debts of the deceased, costs of administration and legacies. Power of sale can be used to convey registered land when there is an allowance of the will in the Probate Court in either a formal or informal proceeding. It is not to be used to distribute the registered land to the devisees or heirs at law, nor is it to be used to effectuate an agreement amongst the devisees as to which of them will take title. 1. An attested Probate Court copy of the will must be presented at the Land Court. To use this method, the Power of Sale in the will must be unequivocal. The clause containing the power should be marked. 2. Along with the will, file an attested Probate copy of the personal representative s appointment, together with an attested copy of the Probate Court docket. The certificate of appointment should be no more than 60 days old. 3. An attested copy of the outstanding Certificate of Title must be filed. 4. The fully executed deed of the personal representative must be filed. The grantor clause should state clearly that the personal representative is selling pursuant to the power conferred by the will of the deceased owner. The consideration in the deed must be other than nominal. BBA 39

45 PERSONAL REPRESENTATIVE S PETITION FOR ORDER OF COMPLETE SETTLEMENT CHECKLIST DECEDENT DIED WITH OR WITHOUT A WILL Form/Document Name Petition for Order of Complete Settlement (MPC 855) Proposed Decree and Order on Petition for Order of Complete Settlement (MPC 790) Citation Return of Service (MPC 570) Military Affidavit (MPC 470) Final Account (MPC 853 or MPC 853a) Inventory (MPC 854 or MPC 854a) Surviving Spouse, Children, Heirs at Law (MPC 162) Devisees (MPC 163) Statement of proposed will construction Affidavit - as to execution (MPC 480), domicile (MPC 485), or no conflict of a Conservator Assent and Waiver of Notice/Renunciation/Nomination/ Waiver of Sureties (MPC 455) Copy of Trust and Affidavit re: Trust Beneficiaries Proof of Guardianship/Conservatorship Motion by Petitioner and Affidavit of parent, virtual or other G. L. c. 190B, representative to request waiver of the appointment of a Guardian ad Litem (GAL) Motion by Petitioner and Affidavit of G. L. c. 190B, representative to request waiver of the appointment of a Guardian ad Litem (GAL) Copy of Power of Attorney OR other document Motion of the accounting PR and Affidavit of a nonaccounting co-fiduciary to request waiver of the appointment of a Guardian ad Litem (GAL) pursuant to Uniform Practice XVIA (16A) Required or May Need REQUIRED REQUIRED REQUIRED (unless the petition is assented to by all interested persons and publication is not required) REQUIRED (unless the petition is assented to by all interested persons) REQUIRED (if requesting the allowance of PR s final account) REQUIRED (if requesting allowance of PR s final account) REQUIRED (if requesting a formal determination of heirs) MAY NEED (if requesting a formal determination of testacy and the decedent died testate (with a will). This form must be already on file or accompany the Petition.) MAY NEED (if requesting will construction) MAY NEED MAY NEED MAY NEED (if the PR and the trustee are identical and there is no independent trustee, the PR must submit an affidavit identifying each trust beneficiary, including whether any are unborn, unascertained or under a legal disability) MAY NEED MAY NEED (if an heir or devisee who has an interest in the proceeding is under a legal disability and not otherwise represented) MAY NEED (For PR distributions only: if an heir or devisee who has an interest in the proceeding is under a legal disability and not otherwise represented) MAY NEED (For PR distributions only: to confirm authority to receive property pursuant to G. L. c. 190B, 3-915) MAY NEED (to request the waiver of a GAL when there is an independent co-fiduciary to represent persons interested who are under a legal disability) MPC 972 (2/1/17) BBA 40

46 3. If PR appointed, for devisees to have clear marketable title: (a) The PR s final account must be allowed (with testacy having been formally determined if the will was allowed informally and still within 3/4 year time limit to challenge) or lapse of time (MUPC at 3-901, G. L. c. 202, 20A, REBA TS 40) -AND- (b) MA estate tax lien must be dealt with or lapse of time; (REBA TS 24) -AND- (c) Deed of distribution from PR to distributee (MUPC at 3-907, 3-908, 3-909, and REBA Form 58). 1. A PR, except a PR appointed on a Late and Limited petition, may sell real estate if a license has been issued under G. L. c Heirs must be determined (at some point) for them to have marketable title (MUPC at 3-101, 3-901, REBA TS 14, REBA TS 41) 3. If PR appointed, for heirs to have clear marketable title: (a) The PR s final account must be allowed or lapse of time (MUPC at 3-901, G. L. c. 202, 20A) -AND- (b) MA estate tax lien must be dealt with or lapse of time; (REBA TS 24) -AND- (c) Deed of distribution from PR to distributee(s) (MUPC at 3-907, 3-908, 3-909, and REBA Form 58). TAKING TITLE FROM PROBATE UNDER THE MUPC TESTATE ESTATE 1. Will must be proved and allowed formally or informally (MUPC at 3-101, 3-102, 3-901) 2. A PR, except a PR appointed on a Late and Limited petition, may sell real estate if: (a) the will, probated formally or informally, empowered the personal representative to sell that real estate or an interest in that real estate; (MUPC at (23 ½) (See also REBA TS 10, REBA TS 78) -OR- (b) a license has been issued under G. L. c INTESTATE ESTATE REGISTERED LAND See Memorandum from Ed Williams, dated October 12, 2012 BBA 41 E. Patsos, Esq. As of 09/14/2017

47 MIDDLESEX, ss DOCKET NO. MI13PXXXX ) In Re: ) ) JOHN P. SMITH ) (deceased) ) ) ASSENT AND RELEASE The undersigned, David J. Smith, being a devisee under the Will of John P. Smith (the decedent ) hereby: 1. Assents to the sale by the Personal Representative, Richard I. Smith, of the decedent s real estate, condominium unit xxx located at xxxxx, Cambridge, Massachusetts, on the terms and at the price set forth in the Purchase and Sale Agreement dated November, 2013, between said fiduciary and Inna Jones (receipt of a copy of said Purchase and Sale Agreement is hereby acknowledged); and 2. Releases and forever discharges said Personal Representative and his successors from all obligations to accept any intervening, bona fide offer made to him to purchase the said premises at a higher price or upon terms varying from those set forth in the Purchase and Sale Agreement, acknowledging that such intervening, bona fide offers may currently exist. Dated this day of, Witness David J. Smith BBA 42

48 REBA Title Standard No. 78, Personal Representative Conveyances Per Power of Sale Under Massachusetts Uniform Probate Code Title derived f r om a conveyance of an interest in real estate from a decedent's estate by a personal representative appointed pursuant to an informal testacy proceeding under G.L. c. l 90B, Section et seq, is not on that account defective if such conveyance was made either: I. Pursuant to an informally probated will with a provision granting the personal representative the power to sell real estate of the decedent's estate. OR II. Pursuant to a license to sell real estate granted pursuant to G.L. c Comment Sec G,L. c, 190B, (23 ½), effective as ofjuly 8, 2012, Adopted May 7, 2012 Amended October 29, 2012 (to reflect enactment of G,L. c, 190B, (23 ½), effective as of July 8, 2012, by shortening former Section I, deleting former Caveat, and adding Comment) BBA 43

49 REBA Title Standard No. 40 Transfers By Devisees A title dependent on a deed from a devisee under a will giving the executor a power of sale is not rendered defective by the failure of the executor to join in such deed if: (1) a final account has been allowed showing payment of all debts, legacies, expenses of administration and Massachusetts death taxes; or (2) claims for debts, legacies, expenses of administration, and Massachusetts death taxes are barred by lapse of time or otherwise. Comment The above standard has no application to the situation in which an executor is required to exercise a power of sale pursuant to special provisions in the will. Adopted November 26, 1979 BBA 44

50 Section [Devolution of Estate at Death; Restrictions.] The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to property are subject to the restrictions and limitations contained in this chapter to facilitate the prompt settlement of estates. Upon the death of a person, the decedent's real and personal property devolves to the persons to whom it is devised by the decedent's last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the decedent's heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to allowances and exempt property, to rights of creditors, elective share of the surviving spouse, and to administration. Section [Necessity of Order of Probate For Will.] Except as provided in section , to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by a magistrate or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no court proceeding concerning the succession or administration of the estate has occurred, and (2) either the devisee or the devisee's successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings. UPC COMMENT The exception referring to Section relates to affidavit procedures which are authorized for collection of estates worth less than $25,000. Section and various sections in Parts 3 and 4 of this Article make it clear that a will may be probated without appointment of a personal representative, including any nominated by the will. The requirement of probate stated here and the limitations on probate provided in mean that questions as to testacy may be eliminated simply by the running of time. Under these sections, an informally probated will cannot be questioned after the later of three years from the decedent's death or one year from the probate whether or not an executor was appointed, or, if an executor was appointed, without regard to whether the estate has been distributed. If the decedent is believed to have died without a will, the running of three years from death bars probate of a late-discovered will and so makes the assumption of intestacy conclusive. These limitations do not apply to proceedings to construe probated wills or determine heirs of any intestate. See Section The exceptions to the section (other than the exception relevant to small estates) are not intended to accommodate cases of late-discovered wills. Rather, they are designed to make the probate requirement inapplicable where circumstances led survivors of a decedent to believe that there was no point to probating a will of which they may have had knowledge. If any will was probated within three years of death, or if letters of administration were issued in this period, the exceptions to the section are inapplicable. If there has been no proceeding in probate, persons seeking to establish title by an unprobated will must show, with reference to the estate they claim, either that it has been possessed by BBA 45

51 those to whom it was devised or that it has been unknown to the decedent's heirs or devisees and not possessed by any. It is to be noted, also, that devisees who are able to claim under one of the exceptions to this section may not obtain probate of the will or administration of the estate to assist them in their efforts to obtain the estate in question. The exceptions are to a rule which bars admission of a will into evidence, rather than to the section barring late probate and late appointment of personal representatives. Still, the exceptions should serve to prevent two "hard" cases which can be imagined readily. In one, a surviving spouse fails to seek probate of a will, giving the spouse the entire estate of the decedent because the spouse is informed or believes that all of the decedent's property was held by them jointly, with right of survivorship. Later, it is discovered that the spouse was mistaken as to the nature of the decedent's title. The other case involves a devisee who sees no point to securing probate of a will in the devisee's favor because of being unaware of any estate. Subsequently, valuable rights of the decedent are discovered. Section [Probate, Testacy and Appointment Proceedings; Ultimate Time Limit.] No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator s domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than 3 years after the decedent s death, except that: (1) if a previous proceeding was dismissed because of doubt relative to the fact of the decedent s death, then appropriate probate, appointment or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent s death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not unduly delayed initiating the subsequent proceeding; (2) appropriate probate, appointment or testacy proceedings may be maintained relative to the estate of an absent, disappeared or missing person at any time within 3 years after the death of the person can be established; (3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of 12 months from the informal probate or 3 years from the decedent s death; (4) an informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceedings relative to the succession or estate administration has occurred within the 3 year period after the decedent s death, but the personal representative shall have no right to possess estate assets as provided in section beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate; and (5) a formal testacy proceeding may be commenced at any time after 3 years from the decedent s death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent s death from one other than the decedent when the property is to be appointed by the terms of the decedent s will or is to pass or be distributed as a part of the decedent s estate or its transfer is otherwise to be controlled by the terms of the decedent s will. These limitations shall not apply to proceedings to construe probated wills or to determine heirs of an intestate. In cases under clause (1) or (2), the date on which a testacy or appointment BBA 46

52 proceeding is properly commenced shall be deemed to be the date of the decedent s death for purposes of other limitations provisions of this chapter which relate to the date of death. UPC COMMENT As originally approved and read with 3-102's requirement that wills be probated before being admissible in evidence, this section created a three-year-from-death time period within which proceedings concerning a succession (other than a determination of heirs, or will interpretation or construction) must be commenced. Unless certain limited exceptions were met, an estate became conclusively intestate if no formal or informal estate proceeding was commenced within the three year period, and no administration could be opened in order to generate a deed of distribution for purposes of proving a succession. Several of the original UPC states rejected the three year bar against late-offered wills and the correlated notion that formal proceedings to determine heirs in previously unadministered estates were necessary to generate title muniments locating inherited land in lawful successors. Critics preferred continued availability of UPC's procedures for appointing p.r.'s whose distributive instruments gave protection to purchasers. The 1987 technical amendment to reduced, but failed to eliminate, instances in which original probate and appointment proceedings were barred by the 3 year limitation period. This section establishes a basic limitation period of three years within which it may be determined whether a decedent left a will and to commence administration of the estate. But, an exception assures that heirs will have at least one year after an informal probate to initiate a contest and to secure administration of the estate as intestate. If no will is probated within three years from death, the section has the effect of making the assumption of intestacy final. If a will has been informally probated within the period, the section has the effect of making the informal probate conclusive after three years or within twelve months from informal probate, if later. Heirs or devisees can protect themselves against change within the three years of assumption concerning whether the decedent left a will or died intestate by bringing a formal proceeding shortening the period to that described in Sections and A personal representative who has been appointed under an assumption concerning testacy which may be reversed in the three-year period if there has been no formal proceeding, is protected by Section It relieves a personal representative of liability for surcharge for certain distributions made pursuant to an informally probated will, or under authority of informally issued letters of administration. Distributees who receive an estate distributed before the three-year period expires where there has been no formal determination accelerating the time for certainty, remain potentially liable to persons determined to be entitled by formal proceedings instituted within the basic period under Sections and The basic premise underlying all of these time provisions is that interested persons who want to assume the risks implicit in the three-year period of limitations should be provided legitimate means by which they can do so. At the same time, parties should be afforded ample opportunity for earlier protection if they want it. BBA 47

53 MASSACHUSETTS COMMENT G.L. c. 193, 4 limited filing of administration to 50 years from death. Subsection (4) is similar to an exception to the 50 year limitation of G.L. c. 193, 5. Note also additional remedies for fraud under and for vacating formal decrees under Chapter 140 of the Acts of 2012 adopted a newer version of the Uniform Probate Code which expands the opportunities to begin probate and appointment proceedings after 3 years from death. Section [Successors' Rights if No Administration.] In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by family allowance, exemption or intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption. UPC COMMENT Title to a decedent's property passes to his heirs and devisees at the time of his death. See Section This section adds little to Section except to indicate how successors may establish record title in the absence of administration. MASSACHUSETTS COMMENT For a discussion of the principle that title passes to the heirs without the requirement of the heirs to be determined by a probate proceeding and that the 3 year statute of limitations does not apply to a probate determination of heirs, see In the Matter of the Petition of Beachside I Homeowners Association, No. A11-180, Court of Appeals of Minnesota, July 18, BBA 48

54 Deeds of Distribution under MUPC with Commentary Distribution; order in which assets appropriated; abatement Section [Distribution; Order in Which Assets Appropriated; Abatement.] (a) Except as provided in subsection (b) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property passing by intestacy; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will. (b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator. (c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT A testator may determine the order in which the assets of his estate are applied to the payment of his debts. If he does not, then the provisions of this section express rules which may be regarded as approximating what testators generally want. The statutory order of abatement is designed to aid in resolving doubts concerning the intention of a particular testator, rather than to defeat his purpose. Hence, subsection (b) directs that consideration be given to the purpose of a testator. This may be revealed in many ways. Thus, it is commonly held that, even in the absence of statute, general legacies to a wife, or to persons with respect to which the testator is in loco parentis, are to be preferred to other legacies in the same class because this accords with the probable purpose of the legacies Distribution in kind; valuation; method Section [Distribution in Kind; Valuation; Method.] (a) Except as restricted or otherwise provided for by will or order of the court, a personal representative may distribute assets of the estate in kind or partly in cash and partly in kind and pro rata or not pro rata at then current values as between distributees. (b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within 30 days after mailing or delivery of the proposal. 1 BBA 49

55 Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT This section establishes a preference for distribution in kind. It directs a personal representative to make distribution in kind whenever feasible and to convert assets to cash only where there is a special reason for doing so. It provides a reasonable means for determining value of assets distributed in kind. It is implicit in Sections 3-101, and this section that each residuary beneficiary's basic right is to his proportionate share of each asset constituting the residue Distribution in kind; evidence Section [Distribution in Kind; Evidence.] If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring or releasing the assets to the distributee as evidence of the distributee's title to the property. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT This and sections following should be read with Section which permits the personal representative to leave certain assets of a decedent's estate in the possession of the person presumptively entitled thereto. The release contemplated by this section would be used as evidence that the personal representative had determined that he would not need to disturb the possession of an heir or devisee for purposes of administration. Under Section 3-711, a personal representative's relationship to assets of the estate is described as the same power over the title to property of the estate as an absolute owner would have. A personal representative may, however, acquire a full title to estate assets, as in the case where particular items are conveyed to the personal representative by sellers, transfer agents or others. The language of Section is designed to cover instances where the instrument of distribution operates as a transfer, as well as those in which its operation is more like a release Distribution; right or title of distributee Section [Distribution; Right or Title of Distributee.] Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative, is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT The purpose of this section is to channel controversies which may arise among successors of a decedent because of improper distributions through the personal representative who made the distribution, or a successor personal representative. Section does not bar appointment proceedings initiated to secure appointment of a personal representative to correct an erroneous distribution made by a prior representative. But see Section BBA 50

56 Improper distribution; liability of distributee Section [Improper Distribution; Liability of Distributee.] Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT The term improperly as used in this section must be read in light of Section and the manifest purpose of this and other sections of the Code to shift questions concerning the propriety of various distributions from the fiduciary to the distributees in order to prevent every administration from becoming an adjudicated matter. Thus, a distribution may be authorized at the time as contemplated by Section 3-703, and still be improper under this section. Section is designed to permit a personal representative to distribute without risk in some cases, even though there has been no adjudication. When an unadjudicated distribution has occurred, the rights of persons to show that the basis for the distribution (e.g., an informally probated will, or informally issued letters of administration) is incorrect, or that the basis was improperly applied (erroneous interpretation, for example) is preserved against distributees by this section. The definition of distributee to include the trustee and beneficiary of a testamentary trust in 1-201(10) is important in allocating liabilities that may arise under Sections and on improper distribution by the personal representative under an informally probated will. The provisions of and are based on the theory that liability follows the property and the fiduciary is absolved from liability by reliance upon the informally probated will Private agreements among successors to decedent binding on personal representative Section [Private Agreements Among Successors to Decedent Binding on Personal Representative.] Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT 3 BBA 51

57 It may be asserted that this section is only a restatement of the obvious and should be omitted. Its purpose, however, is to make it clear that the successors to an estate have residual control over the way it is to be distributed. Hence, they may compel a personal representative to administer and distribute as they may agree and direct. Successors should compare the consequences and possible advantages of careful use of the power to renounce as described by Section with the effect of agreement under this section. The most obvious difference is that an agreement among successors under this section would involve transfers by some participants to the extent it changed the pattern of distribution from that otherwise applicable. Differing from a pattern that is familiar in many states, this Code does not subject testamentary trusts and trustees to special statutory provisions, or supervisory jurisdiction. A testamentary trustee is treated as a devisee with special duties which are of no particular concern to the personal representative. Article VII contains optional procedures extending the safeguards available to personal representatives to trustees of both inter vivos and testamentary trusts Limitations on actions and proceedings against distributees Section [Limitations on Actions and Proceedings Against Distributees.] Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of a claimant to recover from a distributee who is liable to pay the claim, and the right of an heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or its value from any distributee is forever barred at the later of 3 years after the decedent's death or 1 year after the time of its distribution thereof, but all claims of creditors of the decedent are barred 1 year after the decedent's death. This section shall not bar an action to recover property or value received as a result of fraud. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT This section describes an ultimate time limit for recovery by creditors, heirs and devisees of a decedent from distributees. It is to be noted: (1) Section imposes a general limit of three years from death on one who must set aside an informal probate in order to establish his rights, or who must secure probate of a late-discovered will after an estate has been administered as intestate. Hence the time limit of may bar one who would claim as an heir or devisee sooner than this section, although it would never cause a bar prior to three years from the decedent's death. (2) This section would not bar recovery by a supposed decedent whose estate has been probated. See Section (3) The limitation of this section ends the possibility of appointment of a personal representative to correct an erroneous distribution as mentioned in Sections and If there have been no adjudications under Section 3-409, or possibly or , estate of the decedent which is discovered after administration has been closed may be the subject of different distribution than that attending the estate originally administered. The last sentence excepting actions or suits to recover property kept from one by the fraud of another may be unnecessary in view of the blanket provision concerning fraud in Article I. See Section In 1989, the Joint Editorial Board recommended changing the section so as to separate proceedings involving claims by claimants barred one year after decedent's death by Section 3-803(a)(1), and other proceedings by unbarred claimants or by omitted heirs or devisees. 4 BBA 52

58 Formal proceedings terminating administration; testate or intestate; order of general protection Section [Formal Proceedings Terminating Administration; Testate or Intestate; Order of General Protection.] (a) A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after 1 year from the appointment of the original personal representative except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account, compel or approve an accounting or distribution or both, to construe any will, determine heirs or adjudicate the final settlement and distribution of the estate. Unless the petition is assented to by all interested parties, notice shall be given in the manner prescribed by section by the petitioner to all interested persons. (b) After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person. Such discharge shall forever exonerate the personal representative and his sureties from all liability under such decree unless his account is impeached for fraud or manifest error. (c) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT Subsection (b) is derived from 64(b) of the Illinois Probate Act (1967) [S.H.A. ch. 3, 64(b)]. Section specifies that an order is binding as to all who are given notice even though less than all interested persons were notified. This section provides a method of curing an oversight in regard to notice which may come to light before the estate is finally settled. If the person who failed to receive notice of the earlier proceeding succeeds in obtaining entry of a different order from that previously made, others who received notice of the earlier proceeding may be benefitted. Still, they are not entitled to notice of the curative proceeding, nor should they be permitted to appear. See, also, Comment following section [Note: reserved not adopted.] Reserved Closing estates; by sworn statement of personal representative 5 BBA 53

59 Section [Closing Estates; By Sworn Statement of Personal Representative.] (a) Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court no earlier than 6 months after the date of original appointment of a general personal representative for the estate, a verified statement stating that the personal representatives or a previous personal representative, has: (1) determined that the time limited for presentation of creditors' claims has expired; (2) fully administered the estate of the decedent by making payment, settlement, or other disposition of all claims that were presented, expenses of administration and estate, inheritance and other death taxes, except as specified in the statement, and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or state in detail other arrangements that have been made to accommodate outstanding liabilities; and (3) sent a copy of the statement to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of the personal representative's administration to the distributees whose interests are affected thereby. (b) If no proceedings involving the personal representative are pending in the court 1 year after the closing statement is filed, the personal representative's closing statement may not be challenged, except for fraud or manifest error. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT The Code uses termination to refer to events which end a personal representative's authority. See Sections 3-608, et seq. The word closing refers to circumstances which support the conclusions that the affairs of the estate either are, or have been alleged to have been, wound up. If the affairs of the personal representative are reviewed and adjudicated under either Sections or , the judicial conclusion that the estate is wound up serves also to terminate the personal representative's authority. See Section 3-610(b). On the other hand, a closing statement under is only an affirmation by the personal representative that he believes the affairs of the estate to be completed. The statement is significant because it reflects that assets have been distributed. Any creditor whose claim has not been barred and who has not been paid is permitted by Section to assert his claim against distributees. The personal representative is also still fully subject to suit under Sections and 3-608, for his authority is not terminated under Section 3-610(a) until one year after a closing statement is filed. Even if his authority is terminated, he remains liable to suit unless protected by limitation or unless an adjudication settling his accounts is the reason for termination. See Sections and From a slightly different viewpoint, a personal representative may obtain a complete discharge of his fiduciary obligations through a judicial proceeding after notice. Sections and describe two proceedings which enable a personal representative to gain protection from all persons or from devisees only. A personal representative who neither obtains a judicial order of protection nor files a closing statement, is protected by in regard to acts or distributions which were authorized when done but which become doubtful thereafter because of a change in testacy status. On the other questions, the personal representative who does not take any of the steps described by the Code to gain more protection, has no protection against later claims of 6 BBA 54

60 breach of his fiduciary obligation other than any arising from consent or waiver of individual distributees who may have bound themselves by receipts given to the personal representative. This section increases the prospects of full discharge of a personal representative who uses the closing statement route over those of a personal representative who relies on receipts. Full protection follows from the running of the six months limitations period described in But, 's protection does not prevent distributees from claiming lack of full disclosure. Hence, it offers little more protection than a receipt. Still, it may be useful to decrease the likelihood of later claim of non-disclosure. Its more significant function, however, is to provide a means for terminating the office of personal representative in a way that will be obvious to third persons. In 1989 the Joint Editorial Board recommended changing subparagraph (a)(1) to make the time reference correspond to changes recommended for Section Liability of distributees to claimants Section [Liability of Distributees to Claimants.] After assets of an estate have been distributed and subject to Section , an undischarged claim not barred may be prosecuted in a proceeding against 1 or more distributees as an improper distribution in accordance with section Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT This section creates a ceiling on the liability of a distributee of the value of his distribution as of the time of distribution. The section indicates that each distributee is liable for all that a claimant may prove to be due, provided the claim does not exceed the value of the defendant's distribution from the estate. But, each distributee may preserve a right of contribution against other distributees. The risk of insolvency of one or more, but less than all distributees is on the distributee rather than on the claimant. In 1975, the Joint Editorial Board recommended the addition, after claimants for amounts in the second sentence, of received as exempt property, homestead or family allowances, or for amounts... The purpose of the addition was to prevent unpaid creditors of a decedent from attempting to enforce their claims against a spouse or child who had received a distribution of exempt values Limitations on proceedings against personal representative Section [Limitations on Proceedings Against Personal Representative.] Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within 6 months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT 7 BBA 55

61 This and the preceding section make it clear that a claimant whose claim has not been barred may have alternative remedies when an estate has been distributed subject to his claim. Under this section, he has six months to prosecute an action against the personal representative if the latter breached any duty to the claimant. For example, the personal representative may be liable to a creditor if he violated the provisions of Section The preceding section describes the fundamental liability of the distributees to unbarred claimants to the extent of the value received. The last sentence emphasizes that a personal representative who fails to disclose matters relevant to his liability in his closing statement and in the account of administration he furnished to distributees, gains no protection from the period described here. A personal representative may, however, use Section , or, where appropriate, to secure greater protection Limitations on actions and proceedings against distributees Section [Limitations on Actions and Proceedings Against Distributees.] Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of a claimant to recover from a distributee who is liable to pay the claim, and the right of an heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or its value from any distributee is forever barred at the later of 3 years after the decedent's death or 1 year after the time of its distribution thereof, but all claims of creditors of the decedent are barred 1 year after the decedent's death. This section shall not bar an action to recover property or value received as a result of fraud. Added by St.2008, c. 521, 9, eff. Mar. 31, UNIFORM PROBATE CODE COMMENT This section describes an ultimate time limit for recovery by creditors, heirs and devisees of a decedent from distributees. It is to be noted: (1) Section imposes a general limit of three years from death on one who must set aside an informal probate in order to establish his rights, or who must secure probate of a late-discovered will after an estate has been administered as intestate. Hence the time limit of may bar one who would claim as an heir or devisee sooner than this section, although it would never cause a bar prior to three years from the decedent's death. (2) This section would not bar recovery by a supposed decedent whose estate has been probated. See Section (3) The limitation of this section ends the possibility of appointment of a personal representative to correct an erroneous distribution as mentioned in Sections and If there have been no adjudications under Section 3-409, or possibly or , estate of the decedent which is discovered after administration has been closed may be the subject of different distribution than that attending the estate originally administered. The last sentence excepting actions or suits to recover property kept from one by the fraud of another may be unnecessary in view of the blanket provision concerning fraud in Article I. See Section In 1989, the Joint Editorial Board recommended changing the section so as to separate proceedings involving claims by claimants barred one year after decedent's death by Section 3-803(a)(1), and other proceedings by unbarred claimants or by omitted heirs or devisees. 8 BBA 56

62 M.G.L. Ch. 202 Certain Sections Dealing with Probate Sales of Real Estate that were not repealed by the legislation enacting the MUPC 1. Realty; sale to satisfy debts If the personal property of a deceased person is insufficient to pay his debts, legacies and charges of administration, his executor or administrator shall, for the purpose of paying such debts, legacies or charges of administration, sell his real estate in the manner hereinafter provided, and the proceeds thereof shall be assets in the hands of the executor or administrator in like manner as if they had originally been part of the personal property of the deceased. 19. Distribution; sale of realty; procedure The probate court may, upon petition of an administrator, administrator with the will annexed, or executor filed within one year after the date of the giving of the executor's or administrator's bond, or, if an administrator de bonis non shall be appointed within one year after the date of the original appointment of the executor or administrator, then within six months after the date of the giving of a bond by such administrator de bonis non, or within the remainder of said last mentioned period of one year, whichever is the longer period, with the consent of all parties interested or after notice, license him to sell the whole or any part of the real estate or any undivided interest therein belonging to the estate of the deceased, in such manner and upon such notice as the court orders; and the net proceeds of such sale, after deducting the expenses thereof and such amount as may be required for the payment of debts, legacies and charges of administration, in consequence of a deficiency in the personal property, shall be paid over to the person or persons who would have been entitled to such real estate and in the proportions to which they would have been entitled had it not been sold. Before any such license shall be issued, the petitioner shall file in the probate court an affidavit containing the names of all persons known to him as having or claiming any interest in said real estate derived from any deed of conveyance or mortgage by, through or under any of the heirs or devisees, and if it appears that there are any such persons, they BBA 57

63 shall be made parties to the proceedings, and notified in such manner as the court orders. 20. Sale of realty for payment of debts; limitation of time No interest in the real estate of a deceased person conveyed absolutely or in mortgage for value and in good faith by an instrument duly recorded shall be liable to be taken on execution, or sold under any judicial proceeding for payment of his debts, costs of court, or claims against his estate, except claims for taxes, municipal assessments or succession taxes, legacies or other charges created by will of the deceased, or the expenses or charges of administration, after the expiration of one year from the time of the first appointed executor or administrator first giving bond for the performance of his trust, unless in pursuance of a license to sell granted in consequence of an order for the retention of assets passed under the provisions of section thirteen of chapter one hundred and ninetyseven upon a petition filed within said year or before said conveyance or mortgage is recorded, or unless in pursuance of a license to sell granted upon a petition filed in the registry of probate within said year, or unless for the satisfaction in whole or in part of a claim of which notice has been filed in the registry of probate within said year, stating substantially the name and address of the claimant, the nature and amount of the claim and the court, if any, in which proceedings are pending to determine or enforce the same. Said notice shall be filed with the other proceedings in the case and entered upon the docket under the name of the estate of the deceased. 20A. Estate expenses; execution on conveyed property; limitation of time No interest in the real estate of a deceased person conveyed absolutely or in mortgage for value and in good faith by an instrument duly recorded shall be liable to be taken on execution, or sold under any judicial proceeding for payment of expenses or charges of administration, after the expiration of six years from BBA 58

64 the time of such executor or administrator giving bond for the performance of his trust, unless in pursuance of a license to sell real estate granted upon a petition filed in the registry of probate within said six years. BBA 59

65 Deed of Distribution M.G.L. c. 190B, WHEREAS,, of, Massachusetts ( the Decedent ) died on having an interest in real estate at, Massachusetts; and WHEREAS, the undersigned, of, Massachusetts is the duly appointed and qualified Personal Representative of the Estate of the Decedent in the Probate and Family Court, Docket No. ; WHEREAS, the Distributee[s] herein is/are: (a) [ ] the Devisee[s] under the Last Will and Testament of the Decedent; (b) [ ] the Heir[s] of the Decedent; NOW, THEREFORE, the undersigned, in distribution of the estate, for no consideration, hereby distributes to:, of, Massachusetts, [Distributee 1], of, Massachusetts, [Distributee 2], of, Massachusetts, [Distributee 3] as [specify tenancy] such interest in the land in Being the same premises described in a deed of to the Decedent dated and [ ] recorded with County Registry of Deeds in Book, Page. [ ] filed in Registry District of the Land Court as Document No. and noted on Certificate of Title No.. Address of Premises:. WITNESS my hand and seal on the day of,. Personal Representative ( ) REBA Form No.58 Real Estate Bar Association for Massachusetts ( ) BBA 60

66 COMMONWEALTH OF MASSACHUSETTS, ss On this day of,, before me, the undersigned notary public, personally appeared the above, proved to me through satisfactory identification, being (check whichever applies): driver s license or other state or federal governmental document bearing a photographic image, oath or affirmation of a credible witness known to me who knows the above signatory, or my own personal knowledge of the identity of the signatory, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily for its stated purpose as Personal Representative. Notary Public My Commission Expires: Notes and Comments See M.G.L. c. 190B, 3-906, 3-907, 3-908, 3-909, and for limited purpose, requirements, and effect of deeds of distribution. ( ) REBA Form No.58 Real Estate Bar Association for Massachusetts ( ) BBA 61

67 REBA Title Standard No. 10 Power of Sale Under Will The deed of: (1) an executor, or (2) an administrator CTA, or (3) a personal representative under a will in a formal proceeding under M.G.L. c. 190B, or (4) a personal representative under a will in an informal proceeding under M.G.L. c. 190B conforming to the provisions of Title Standard 78, pursuant to a general power in the will to sell real estate conveys to the purchaser for value a title free from the claims of general creditors and of legatees and devisees under the will. Comments 1. This standard derives from the famous correspondence in 1912 between George A. Sawyer and John C. Gray which has been published with comments in Issue No. 1 of Volume 36 of the Massachusetts Law Quarterly. 2. The above standard applies to deeds given both within and after the period of the statute of limitations on creditors' actions but has no effect on either Federal or Massachusetts death tax liens. 3. Under the law in effect prior to March 31, 2012: (a) The executor and the administrator CTA (cum testamento annexo with the will annexed) were the only fiduciaries who had the power to sell without a license of the court; temporary executors, temporary administrators CTA, and special administrators must have obtained court authority to convey real estate. (b) The power to sell must have attached to the office of the executor/executrix and not the person with respect to an administrator CTA (c) The reference in the standard to an administrator CTA includes an administrator DBN CTA (de bonis non of the goods not administered). Adopted May 17, 1973 Amended May 4, 1994 (deleted "of the testator" in the Standard). Amended May 5, 2008 (added reference to administrators CTA and expanded Comments) Amended May 7, 2012 (to confirm Standard to passage of M.G.L. c. 190B, effective March 31, 2012) REBA Title Standard No. 10 Real Estate Bar Association for Massachusetts ( ) BBA 62

68 REBA Title Standard No. 14 Missing Probates A title dependent on a deed from heirs of a person for whom there are no Massachusetts probate proceedings is not defective if: (1) the decedent died more than 25 years ago, and (a) a recorded affidavit or death certificate shows the date of death and place of residence at death, and (b) an affidavit recorded prior to March 31, 2012 names the decedent's heirs, states that the decedent died intestate, and declares that no probate proceedings have been filed in any jurisdiction, or (2) the decedent died more than 50 years ago and instruments recorded prior to March 31, 2012 in the chain of title of land of the decedent identify the heirs. Comment M.G.L. c. 193, 4 limited the effect of administration proceedings begun after 20 years. M.G.L. c. 191, 12 and 13 required wills to be presented promptly. M.G.L. c. 197, 19 (Repealed July 1, 2011) precluded a sale of real estate to pay legacies after six years. Prior to the adoption of M.G.L. c. 191B, when the owner had been dead 25 years without probate or administration, the risk was deemed negligible that others than the grantee from the heirs would have a valid interest in the land under a will later offered for probate, a creditor's claim or a Massachusetts inheritance tax lien. Adopted November 26, 1973 Amended May 22, 1989 (The phrase "and declare that no probate proceeding have been filed in any jurisdiction," was added.) Amended May 7, 2012 (to confirm Standard to passage of M.G.L. c. 190B, effective March 31, 2012) REBA Title Standard No. 14 Real Estate Bar Association for Massachusetts ( ) BBA 63

69 REBA Title Standard No. 41 List of Heirs The listing of heirs on a petition filed prior to March 31, 2012 in a probate court in connection with the probate of a will or the administration of an estate may be relied upon as complete and accurate in the absence of evidence to the contrary recorded or filed in the appropriate registry of deeds or probate. Comment Although most conveyancers rely on such listings, case law indicates that the list of heirs set forth in a petition is not conclusive. See Cassidy v. Truscott, 287 Mass. 515, 192 N.E. 164; and Hopkins v. Treasurer and Receiver General, 276 Mass. 502, 177 N.E Caveat This Standard deals only with conveyances appearing in a title at least two years subsequent to the date of approval of the bond of the executor or administrator. This Standard does not apply to a listing of heirs on a petition converted to a proceeding under M.G.L. c. 190B pursuant to Probate and Family Court Amended Standing Order 5-11 (Application of M.G.L. c. 190B, Articles I-IV, VI and VII, to Estate Cases Pending on January 2, 2012 or with a Decree Issued Prior Thereto). Adopted November 26, 1979 Amended May 7, 2012 (to confirm Standard to passage of M.G.L. c. 190B, effective March 31, 2012) REBA Title Standard No. 41 Real Estate Bar Association for Massachusetts ( ) BBA 64

70 MGL Ch. 184 Section 34. Any recordable instrument purporting to affect an interest in real estate executed by any person or persons who, in the records of the registry of deeds for the county or district in which the real estate lies, are or appear to be the trustees of a trust shall be binding on the trust in favor of a purchaser or other person relying in good faith on such instrument, notwithstanding (a) inconsistent provisions of the trust, unless said trust is recorded in said registry of deeds, with the place of recording referred to in some instrument in the chain of title to the real estate affected, (b) any amendment, revocation, removal or resignation of trustee, appointment of additional trustee, or other matter affecting the trust, unless the same is recorded in said registry of deeds and noted on the margin of said trust in said registry, or (c) any inadequacy in the consideration recited. As used in this section the term trust shall not include a trust under a will. MGL Ch. 184 Section 35. Notwithstanding section 25 to the contrary, a certificate sworn to or stated to be executed under the penalties of perjury, and in either case signed by a person who from the records of the registry of deeds or of the registry district of the land court, for the county or district in which real estate owned by a non-testamentary trust lies, appears to be a trustee thereunder and which certifies as to: (a) the identity of the trustees or the beneficiaries thereunder; (b) the authority of the trustees to act with respect to real estate owned by the trust; or (c) the existence or nonexistence of a fact which constitutes a condition precedent to acts by the trustees or which are in any other manner germane to affairs of the trust, shall be binding on all trustees and the trust estate in favor of a purchaser or other person relying in good faith on the certificate. The certificate most recently recorded in the registry of deeds for the county or district in which the real estate lies shall control. BBA 65

71 Trustee s Certificate Pursuant to M.G.L. c. 184, 35 Name of Trust: Dated: I, [Name of Trustee], Trustee of [name of trust] under [indenture] [agreement declaration] of Trust dated [date], [as amended] (the Trust ) between [name of settler/donor] as [settler/donor] and [name of original trustees] as the original [and current] trustees, certify as follows: (a). Name of Trustee(s) is/are the current trustee(s) of the Trust. If either one of us shall fail or cease to serve, Successor Trustee shall serve as successor Trustee; (b). The trustees of the Trust have authority to act with respect to real estate owned by the Trust, and have full and absolute power under said Trust to convey any interest in real estate and improvements thereon held in said Trust and no purchaser or third party shall be bound to inquire whether the trustee has said power or is properly exercising said power or to see to the application of any trust asset paid to the trustee for a conveyance thereof; and, (c). There are no facts which constitute conditions precedent to acts by the trustees or which are in any other manner germane to affairs of the Trust. Executed as a sealed instrument under the pains and penalties of perjury on, 20. NAME OF TRUSTEE Trustee See REBA Title Standard No. 68 REBA Form No. 35 Real Estate Bar Association for Massachusetts (6-1-04) BBA 66

72 Real Estate Bar Association for Massachusetts (6-1-04) BBA 67

73 Note The Trustees Certificate may need to be amended in certain circumstances, for example, where there are conditions precedent to the acts by the trustees. [Attach appropriate acknowledgement or jurat certificate form] Comment As to registered land, see also Land Court Guideline 52. ( ) Amended November 14, 2011 (Amended to make reference to jurat certificate form in the Note and to add the Comment) REBA Form No. 35 Real Estate Bar Association for Massachusetts (6-1-04) BBA 68

74 [NAME OF TRUST] TRUSTEE CERTIFICATE The undersigned hereby certifies as follows 1. The undersigned,, is/are all of the Trustee(s) of Name of Trust under declaration of trust dated and recorded with the District Registry of Deeds in Book Page. 2. The Trust is in full force and effect and has not been amended or modified, except as provided above, and has not been revoked as of the date hereof 3. The undersigned has [have] full power and authority and has [have] been directed by the beneficiaries of the Trust to transfer the title to the property located at street address,, County, Massachusetts ( Premises ) to Name of Grantee(s), for consideration of $. The property to be conveyed is described in the deed to Name of Trust dated and recorded with the District Registry of Deeds in Book, Page. In connection with the transfer of the property, the Trustee(s) are hereby authorized to execute and deliver, on behalf of the Trust, any and all documents with respect to said transaction, including, but not limited to, a deed by the undersigned conveying the Premises to for consideration of $, together with any other agreements, assignments, certificates, affidavits, settlement statements and documents as may be necessary or desirable in effectuating said transaction. Executed as a sealed instrument this day of, 20 Trustee and not individually, , ss Commonwealth of Massachusetts On this day of, 20 before me, the undersigned notary public, personally appeared, proved to me through satisfactory evidence of identification, which was her Massachusetts Driver s License, to be the person whose name is signed on the preceding document, and acknowledge to me that she signed it voluntarily for its stated purpose, as Trustee, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of (his) (her) knowledge and belief. (Official Signature of Notary) (printed name of notary) My commission expires BBA 69

75 Will of Deceased Property Owner I, Deceased Property Owner, being unmarried, of Natick, Middlesex County and Commonwealth of Massachusetts, do hereby make this my LAST WILL and TESTAMENT and revoke all wills and codicils previously made by me. After the payment of my just debts and funeral expenses I give, devise and bequeath my estate as follows: To my daughter Alice Property Owner I give and bequeath all my household furnishings and furniture. To my son Adam Property Owner I give and bequeath all my workshop furnishings, furniture and equipment and all of the contents in my workshop. To my grandchildren, I give and bequeath, to share and share alike, my coin and stamp collections. All the residue of my estate I give to Robert P. Anyman, as Trustee of the LPO Trust, under the Declaration of Trust dated March 3, 2017, or his successor in trust, ( Trustee ), as Trustee of the LPO Trust created under an agreement into which I entered with trustee, the terms of which are set forth in a written instrument dated March 3, I direct that the residue of my estate be added to the principal of that trust to be administered, invested, and distributed as a part of the principal of that trust, according to its terms, including any amendments made to it prior to my death, or which may be made to it subsequent to my death. I nominate and appoint the aforesaid Alice Property Owner to be Personal Representative of this my LAST WILL and TESTAMENT without furnishing any surety or sureties upon her official bond. In witness whereof, I hereunto set my hand this seventh day of March, Deceased Property Owner Signed by the Testator as and for his LAST WILL and TESTAMENT in our presence and we at his request and in his presence and in the presence of each other, hereunto set our hands as witnesses this seventh day of March, Ernest P Witness Lucy I R Witness Willam T Witness BBA 70

76 I, H_, of assachusetts, make this my will and revoke all wills and codicils previously made by me. ARTICLE FIRST TANGIBLE PERSONAL PROPERTY I give all my tangible personal property to the trustee, hereinafter named, in trust for the benefit of my spouse, if she survives me, to be administered according to the provisions of Article Third, below (hereinafter, the " SUPPLEMENTAL NEEDS TRUST"), or, if my said spouse fails to survive me, then I give my tangible personal property in substantially equal shares to those of my children who survive me and to the descendants who survive me of each of my children who fails to survive me, such descendants to take by right of representation the share such deceased child would have taken had such child survived me. My personal representative shall make all determinations as to the equality of shares. I authorize my personal representative to pay as an administration expense of my estate the expense of packing, shipping, insuring, and delivering such property. ARTICLE SECOND RESIDUE I give the remainder of my estate ("the Residue") to the trustee, hereinafter named, in trust for the benefit of my spouse, if she survives me, to be administered according to the provisions of Article Third, below (hereinafter, the " SUPPLEMENTAL NEEDS TRUST"). Should my said spouse not survive me, then I give the Residue of my estate in equal shares to those of my children who survive me and to the descendants who survive me of each of my children who fails to survive me, such descendants to take by right of representation the share such deceased child would have taken had such child survived me. If there are no children or descendants of deceased children who survive me, I give one-half (1/2) of the Residue of my estate to those persons who would be my heirs-at-law under BBA 71

77 the statutes of descent and distribution then in effect in the Commonwealth of Massachusetts had I died intestate, unman-ied and domiciled in Massachusetts ( except that any child of mine shall not be considered my heir-at-law), and one-half (1/2) of the Residue of my estate to those persons who would be the heirs-at-law of my spouse under the statutes of descent and distribution then in effect in the Commonwealth of Massachusetts had my spouse died intestate, unman-ied and domiciled in Massachusetts, provided that my heirs-at-law and my spouse's heirsat-law shall be determined as of the date of death of the second to die as between me and my spouse. ARTICLE THIRD TRUST PROVISIONS FOR SPOUSE With respect to the for the benefit of my spouse, property as hereinafter provided: SUPPLEMENTAL NEEDS TRUST established above, my trustee shall hold and administer the trust (a) Provisions during my spouse's life. (1) The trustee may pay to my said spouse, or apply for my spouse's benefit, from time to time such part, none or all of the net income of the trust as the trustee deems appropriate in the trustee's complete and unfettered discretion. In addition, the trustee may pay to my said spouse, or apply for my spouse's benefit, from time to time such pa11, none or all of the principal of the trust as the trustee deems appropriate in the trustee's complete and unfettered discretion. Any net income not paid in any year shall be added to the principal at the end of the year. The trustee, in making discretionary payments, shall do so liberally in accordance with the purpose as set forth below without regard to the future interest of the remainder beneficiaries of this trust. (2) This trust is intended to provide for the administration of the funds held therein for the benefit of my spouse, It is intended, if my spouse is eligible to receive cash, services or other forms of assistance from any federal, state or local government Initial: - 2 of 19 BBA 72