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Julie Garber

Changes Are Coming to Massachusetts Probate Laws

By October 18, 2011

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Recently I have had to deal with an estate in Massachusetts (for those of you who don't know, I practice in Florida) and I was really shocked to learn how antiquated the probate process is there. But there is some good news, although it didn't help me with my situation - on January 2, 2012, Massachusetts probate estates will be governed by the Uniform Probate Code (or UPC), which will make drastic changes to the Massachusetts probate process. Massachusetts attorney Suzanne Sayward has written 5 facts you should know about new legislation that changes how estates are administered which I have summarized here:

  1. New probate terms will be introduced. The person or entity put in charge of overseeing an estate throughout the probate process will no longer be called an "executor," instead the term "personal representative" will be used. In addition, "Certificate of Appointment" will be changed to "Letters Testamentary" or "Letters of Administration."
  2. A new, informal probate process will be introduced. Under current law it can take up to 45 days for an executor (soon to be called personal representative) to be appointed. Under the new law a personal representative may be appointed in as little as seven days.
  3. Intestacy laws will change. When someone dies without a will, state intestacy laws will dictate who inherits what. Currently in Massachusetts the intestacy laws provide that estate of a married person will be distributed 50% to the surviving spouse and 50% to the children of the deceased spouse. Under the new law if the children are from the marriage with the deceased person's current spouse, then the surviving spouse will inherit 100% of the estate.
  4. Certain family members will be entitled to receive exempt property and a family allowance. The new law introduces the concept of "exempt property," meaning exempt from creditors' claims. Exempt property will include up to $10,000 worth of tangible personal property (jewelry, art work, furniture, cars and the like). In addition, the surviving spouse and dependent children will be entitled to receive up to $18,000 in a "family allowance" during the probate administration which will also be exempt from creditors' claims.
  5. The time limit for probating a will will be shortened to 3 years. Under current Massachusetts law a will can be probated up to a whopping 50 years after the testator dies. Not so under the new law, which will limit the time for probating a will to 3 years. After that, even if a deceased person made a will their estate will be administered under Massachusetts' intestacy laws.

According to Ms. Sayward, the new law "should streamline the probate process for most families, making it faster, simpler and less expensive to settle an estate. However, there are also a number of provisions in the UPC that will control the settlement of an estate for people who do not leave a Will. These provisions may not represent your intentions. As has always been the case, it is much better to take control of your estate plan and create your own Will rather than letting the Commonwealth do it for you." Very good advice regardless of where you live.

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