Since 2011 we have had a new probate law in Massachusetts – the Massachusetts Uniform Probate Code (MUPC).  This law changed the procedures to be followed when settling an estate in Massachusetts.  The purpose of the new law was to bring Massachusetts in line with other states that have adopted a similar “uniform” law.  The new law promised expedited estate settlement for all but the most complicated or contentious cases.

Unfortunately, the MUPC has not lived up to all of its high expectations.  The simplified and speedy procedure for uncomplicated estates is in practice no more speedy or uncomplicated than prior law.  Depending on the county in which the decedent died, it takes anywhere from 3-8 weeks to have a Personal Representative appointed (and until then no one can gain access to estate assets).  At the end of the estate settlement process, in most estates it is appropriate for the Personal Representative to have his or her final accounting formally approved by the Court in order to release the Personal Representative from liability for matters related to the settlement of the estate.  This final approval process has proven to be most painful. Even when all required documents are submitted and all beneficiaries assent to the accounting, the Courts still are unable to act to approve the account in a speedy fashion.  This delays the final closing of the estate for months on end.

All of this leads to higher costs for beneficiaries as court filings require filing fees, and preparation of probate documents and endless follow-up with the probate court takes attorney and paralegal time which is billed to the client.  As attorneys, we share our clients’ frustration with these delays.

The moral of the story is that avoiding probate with assets, to the greatest extent possible, is seemingly more important than ever.  Assets that are owned in trust, or have beneficiaries properly designated, will be immediately accessible by your intended beneficiaries without court involvement and its associated delay and expense.  Although administering a Trust after death is not a simple process, and distribution of Trust assets does not occur immediately in most cases, the timing of that process is much more within the control of the Trustee.

If you would like to read more about the probate process, read Attorney Sayward’s article Five Facts to Know about Probate and consult with your estate planning attorney about how you can plan to avoid probate with your assets within the context of your estate plan.

Published June 2014