Massachusetts Probate Law has undergone dramatic changes with the implentation of the MASSACHUSETTS UNIFORM PROBATE CODE, G.L.  c. 190B (“MUPC”) 

http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B

The underlying purpose of the revision in the law was to allow certain non-contested estates to be handled in a speedy and efficient manner. It also grants interested parties the right to request more protections through formal procedures. The MUPC is designed to provide persons interested in decedent’s estates with as little or as much by way of procedural and adjudicative safeguards as may be suitable in varying circumstance.  Under the MUPC the Court’s role is wholly passive until some interested party invokes its power to secure resolution of a matter.

When a person dies with property in Massachusetts, all assets which are subject to distribution must be properly administered under Probate law. There are two methods in Massachusetts for the devolution of real estate and personal property.

  1. By Descent
  2. By Will

Prior to summarizing both methods, it first must be determined if the deceased assets are subject to the Laws of Distribution. When a person dies, all property however held is deemed to compromise the total gross estate, for Estate tax purposes. This would include property which may not be subject to Probate such as property held in joint names, beneficial life insurance, beneficial retirement accounts and property in Trust.

GROSS ESTATE

 

The value of all assets for estate tax purposes

 

Probate Court Jurisdiction                                         Non-Probate Assets

 

 Solely owned assets                                                                  Jointly held assets

Tenancy in common                                                                 Beneficiary life Insurance

Shares of Stock                                                                            Beneficiary retirement

Automobile                                                                                  Funds in certain Trusts

Personal Property

Bank Accounts

Retirement funds without beneficiary

Business assets

The above list shows how certain assets may be divided.

Should the gross estate exceed tax exemption, it will be subject to estate taxation.

For the year 2012 the Federal exemption is $5,000,000.00

Current  Massachusetts exemption is $1,000,000.00

Federal Estate Tax link

Massachusetts Estate Tax link

Once it is determined what assets are under a Probate proceeding, the Probate assets must be valued to establish the type of filing needed.

Voluntary Administration (with or without will)  Small Estates 

Should the total of all assets subject to distribution be less than $25,000.00, exclusive of the decedent’s automobile, a voluntary executorship ( with Will )  or a voluntary administration ( without a will )  may be filed.

This is a simple process of notifying the Court through a form that assets are not over the threshold amount allowing the personal representative to handle assets without court intervention.

Should the total assets to be dispersed exceed $25,000  Probate proceedings must be commenced.

 PROBATE

Descent- No Valid Will- Intestacy

 Under the MUPC the heirs at law classification has changed.

The MUPC governs the descent and distribution of property. The basic purpose of the laws governing descent and distribution are to protect heirs, legatees and creditors and to have an orderly system of administration.

 Under the new Probate Law for deaths after April 1, 2012 :

 Section 2-102.[Share of Spouse.]
The intestate share of a decedent’s surviving spouse is:
(1)  the entire intestate estate if:
(i)  no descendant or parent of the decedent survives the decedent; or
(ii)  all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2)  the first $200,000, plus ¾ of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3)  the first $100,000 plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent;
(4)  the first $100,000 plus ½ of any balance of the intestate estate, if 1 or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
Section 2-103.[Share of Heirs Other Than Surviving Spouse.]
Any part of the intestate estate not passing to the decedent’s surviving spouse under section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(1)  to the decedent’s descendants per capita at each generation;
(2)  if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
(3)  if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them per capita at each generation;
(4)  if there is no surviving descendant, parent, or descendant of a parent, then equally to the decedent’s next of kin in equal degree; but if there are 2 or more descendants of deceased ancestors in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.  Degrees of kindred shall be computed according to the rules of civil law.

 The MUPC also creates an order of priority for appointment of a personal representative. The terms executor and administrator have been abolished.

BY WILL

 The Probate Court has jurisdiction of the Probate of Wills of a person who at the time of their death were inhabitants of or residents of Massachusetts.

A will shall not take effect until it has been duly proved and allowed In the Probate Court.

Normally the will and any codicils are filed in the Probate Court with a petition for Probate of Will with the named executor as petitioner.  The appropriate persons and agencies are notified of the filing.  A copy of the petition must be sent to the Division of Medical Assistance to determine if any benefits provided to the deceased are to be repaid by the estate.

The will then is submitted for allowance. This may be accomplished in several ways:

INFORMAL PROBATE:

Informal proceedings may be commenced by the appropriate personal representative, if no interested parties objects or requests protections, this process will allow the Estate to be administered administratively without Court involvment. The informal petition is reviewed and if in order a Magistrate of the Court issues an appointment to the personal representative.

If someone objects or if there is a request for certain protections the Informal will be converted to a formal proceeding. It is possible in complex estates to petition directly for a formal proceedure. The formal Probate will bring further procedural rules and a judge into the estate case.  Formal Probate may be unsupervised or supervised.

The MUPC also grants surviving spouses and dependant children greater protection in providing a discretionary family allowance and creating an Exempt Property clause.

 

For further information on Probate visit the Massachusetts Bar Association web site.

 

  

STEPS IN PROBATE PROCESS

  1. Determine if there is a will.  Places to check:     Home, Safe Deposit Box, Attorney, Probate Court
  2. Life Insurance policies should be located and reviewed.
  3. Select an Attorney.
  4. Determine which assets are subject to Probate.
  5. Safeguard assets.
  6. Seek appointment by Probate Court.

WILL CONTESTS

 The proper procedure for contesting a will is to file an appearance and objection to the will when it is offered for Probate.

Who may contest ?

  • spouse
  • heir of Testator
  • Legatee under Will
  • Creditor of Testator
  • Guardian Ad Litem

Grounds for Objection:

  • invalid will under Law
  • forgery
  • soundness of mind at time will executed
  • undue influence

Also, the petitioning executor may be challenged as being unsuitable.

The burden of proof is on the executor to show that the formal requirements of law were met at the time the will was executed.

The burden of proof rests on the contesting party on other issues.