By Attorney Suzanne R. Sayward (September 2011)

On January 1, 2012, a law which is likely to affect every resident of the Commonwealth at some point will go into effect. This law is the Uniform Probate Code (UPC) and it changes the way estates are administered in Massachusetts.

Here are five ways in which the settlement of estates will change under the UPC.

1. New Names for Probate Terms. Currently, the person appointed by the court to administer an estate is called the ‘Executor’ when there is a Will and the ‘Administrator’ when someone dies without a Will. Under the UPC, these terms are replaced with ‘Personal Representative.” Right now, the Court issues a ‘Certificate of Appointment’ to the Executor or Administrator as proof of their authority to act on behalf of the estate. Under the UPC, this proof of authority will be called, ‘Letters Testamentary’ or ‘Letters of Administration.’

2. Informal Probate Process Available for Many Estates. Under the current probate system in Massachusetts, it takes about 45 days from the date probate documents are filed with the Court to obtain the appointment of a permanent executor. Prior to receiving that appointment from the Court, bank accounts and other assets owned by a deceased person (or “decedent”) in his individual name are not accessible. This can be troubling to families who want to pay funeral expenses and other bills, or who need to manage property or continue operating a business. Under the UPC, if the estate is being administered under the new “informal” probate process, the appointment of the Personal Representative may occur as soon as seven days following a person’s death.

3. Heir Today, But Not After January 1, 2012 – Maybe. When a resident of the Commonwealth dies without a Will, her estate is distributed to her heirs as determined under the intestate laws. While that will still be the case under the UPC, the people who are your heirs will change. For example, right now, if someone dies without a Will leaving a surviving spouse and children, her estate will pass one-half to the surviving spouse and one-half to the children, in equal shares. Under the UPC, the deceased person’s estate will pass entirely to the surviving spouse provided that all of the decedent’s children are also the children of the surviving spouse. If this is not the case, the old rule applies.

4. Exempt Property and Family Allowance. There are two new protections for surviving family members under the UPC. The first is a $10,000 Exempt Property allowance in favor of the surviving spouse, or if there is no surviving spouse, the allowance is allotted to surviving children. The Exempt Property allowance is made up first of the decedent’s tangible personal property (furniture, cars, personal effects, etc.). If the value of the tangible personal property is less than $10,000 the shortfall is made up from other estate assets.

The second protection is the discretionary Family Allowance, which allows the Personal Representative to pay a monetary allowance from the estate for the benefit of the decedent’s spouse and dependent children of up to $18,000 while the estate is being settled. Both the Exempt Property allowance and the discretionary Family Allowance have priority over creditors of the estate.

5. Shorter Limitation for Probating Will. Currently, the Will of a deceased resident of Massachusetts may be administered up to 50 years after that person’s death. That means that if you find Great Uncle Henry’s Will in an old desk 49 years after his death, you can still probate it. Under the UPC, that statute of limitations will be three years. Failure to probate a Will within three years will result in the decedent being deemed to have died intestate, and any property that is discovered owned by the deceased after that three-year period will be distributed to his heirs in accordance with the intestate laws, and not under the terms of his Will.

The above is the briefest of summaries of a few of the changes under the new law that will occur when the UPC goes into effect in January. There are many welcome aspects to the UPC that 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.
This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.

Attorney Suzanne Sayward is a partner with the Dedham law firm Samuel, Sayward & Baler LLC and served as the 2009 president of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, visit www.ssbllc.com or call (781) 461-1020.