Tag Archives: Uniform Probate Code

Probate Bill and State Budget Get Go Ahead from Gov

As the formal session winds down (ending July 31st), the Governor last weekend signed into law two major bills the BBA has been tracking: An Act further regulating the Probate Code and establishing a Trust Code and the State Budget for FY2013.  Here’s a quick snapshot of these pieces of legislation:

Probate Code and Trust Code

The Massachusetts Uniform Trust Code (MUTC), corrections to the Massachusetts Uniform Probate Code (MUPC) and a revised fee schedule for the Probate Court represent a major victory for trusts and estates attorneys, the probate bench and the public.  These measures became effective immediately and will provide greater clarity and predictability for attorneys and clients.

The MUTC, now known as Chapter 140 of the Acts of 2012, codifies the laws of trusts and makes them more accessible and easier to understand.  With the passage of the MUTC, Massachusetts becomes the 24th state to have adopted the Uniform Trust Code (the District of Columbia also has the UTC).

The technical changes to the MUPC are intended to make the time-saving and efficiency of proceedings available to more estates.  Other sections of the legislation make corrections to the guardianship provisions of the MUPC to promote availability of medical information to the Court and to add flexibility for the Court to authorize guardians to place incapacitated person in nursing homes.

The revised fee schedule includes updated references to many actions and pleadings that are already being used under the MUPC.  Of specific importance are the revised fees for the first bond and first letter.  Under the revised fee schedule, there is no separate charge for the initial appointment bond of the fiduciary, or for the issuance of the first letter.

For additional information, check out this blog post drafted by the BBA Trusts and Estates section.  The Probate & Family Court also provides regular updates on its MUPC hub page.

State Budget

Governor Patrick has signed the FY13 state budget after taking the full 10 days allowed for reviewing the spending plan produced by the Legislature.  For the first 8 days of FY2013, the Commonwealth was operating on a temporary $1.25 billion interim budget.

The FY13 budget has huge implications for the welfare system, immigration status verifications and other policy areas.  As we’ve noted in this space in previous posts, the BBA took great interest in a few select line items:

  • The Massachusetts Legal Assistance Corporation (MLAC) received $12 million in funding.  While this figure falls short of the original request of $14.5 million, it will allow MLAC to continue providing legal services at its current level and to avoid MLAC needing to make further cuts to the organizations that it funds.
  • The Trial Court received $550,977,000 for FY13.  Governor Patrick did veto $10 million from the line item reserved for Probation.  The Governor noted that he believes the new figure meets the projected responsibilities and caseloads.  The Trial Court plans to ask the Legislature to override the Governor’s $10 million veto from Probation’s line item.

-Government Relations Department
Boston Bar Association
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Practitioners’ Perspectives: The Massachusetts Uniform Probate Code

The Massachusetts Uniform Probate Code (MUPC) takes effect on March 31st and Issue Spot reached out to some BBA members for their take on the new law.  Below are the independent thoughts of the expert trusts and estates attorneys we surveyed:

Peter Shapland – Day Pitney LLP

Most attorneys agree that the greatest benefit from the MUPC will be in the greater ease of “probating” wills and in the administration of testate estates.  The “informal probate” process will permit executors to begin their work in most cases without any undue delay and without any formal reporting to the Probate Court along the way.

The MUPC will not dramatically change my advice to estate planning clients, since I’ve never felt that the Massachusetts probate system was all that unduly burdensome.  The MUPC does permit some additional flexibility in the drafting of wills (e.g., disposition of tangibles), but most of the changes will come in the greater efficiency of administration of estates.

I can think of no cases where the outcome would differ under the new MUPC, but I can think of many cases where an estate would’ve been administered more easily under the MUPC, making the outcome come out sooner.

Brad Bedingfield – Wilmer Cutler Pickering Hale and Dorr LLP

Perhaps the biggest benefit I see from the MUPC for my practice is virtual representation.  The ability to file cases without necessarily having to use a guardian ad litem will streamline certain matters.

In addition, the new rules regarding limitation of actions against trustees who present final accounts or statements to beneficiaries (but don’t necessarily seek formal approval of the court of the trustee’s accounts) will give some certainty to trustees who provide sufficient information to beneficiaries but don’t want to procure assents or incur the expense of court proceedings.

Cameron Casey – Ropes & Gray LLP

I expect that the greatest benefit of the new probate law will be that many estates can be administered informally, meaning that the beneficiaries of the estate, rather than the Probate Court, have primary oversight over the personal representative’s actions.  In informal administration, the appointment of the personal representative – whom we used to call the “executor” – can be accomplished quickly (as soon as a week after the decedent’s death), and the estate settlement process is greatly simplified.  In addition, in many cases, trustees of testamentary trusts will be relieved from having to regularly account to the Probate Court and petition to have their accounts allowed – a process that in the past has entailed a significant investment of time and expense for the trustee.

I anticipate that we will advise many of our clients to choose informal administration, which will streamline the probate piece of the larger estate settlement process and reduce costs and headaches for the clients.  (There is a noticeable furrowing of clients’ brows when you tell them that, under current law, they must wait several weeks or even months to be appointed executor.)

In certain circumstances, we may also incorporate testamentary trusts into our estate planning for clients, which we have rarely done in the past because of the accounting burden discussed above.  So, for example, rather than create a new inter vivos trust or search for an existing trust to hold property for a client’s children until they reach a designated age, we may instead draft a simple, short-term trust under the client’s will.

Whether in the context of estate planning or probate matters, the new law adds to the trusts and estates  lawyer’s toolbox, giving her additional ways to help clients arrange their affairs in the simplest and most reasonable way.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Mid-Session Legislative Update

The Legislature’s winter recess began last Wednesday evening – but not before some important pieces of legislation passed in both the House and Senate.  The reason for the winter recess?  Legislative rules require the House and Senate to break from formal session during non-election years as a way of preventing action on major bills so close to the holidays, a time during which the public may not be as attentive.  If two-thirds of members agree, the Legislature can return to session during their scheduled break.  This recess gives legislators time to spend in their districts and affords others a chance to do additional lobbying on bills expected to move next year.  Here’s a quick update on the progress of transgender civil rights, sentencing reform and important trusts and estates bills that the BBA is working on…

A victory for transgender rights!  When the House and Senate approved a bill to include gender identity and expression in the Commonwealth’s nondiscrimination statute and existing hate crime laws, Massachusetts joined 15 other states – along with Washington, D.C. – that already provide these protections for transgender people.  Governor Patrick, who supports the legislation, is expected to sign the bill soon.   While the final version of the Transgender Equal Rights Bill does not include protections within public accommodations, this is a historic and important victory for transgender equality in Massachusetts.

We have more work to do on sentencing reform. We had hoped that a bill denying parole for repeat violent offenders would also eliminate mandatory minimum drug sentences for non-violent offenders. While we were pleased to see some elements of sentencing reform in the Senate version of the bill, we were disappointed that the House version only contained parole denial for repeat offenders.  We’re still hoping that a conference committee will be able to restore the Senate reforms relative to reduced mandatory minimum drug sentences.

Having just passed the midpoint of the 2011-2012 session, legislative rules now require that bills pending at the end of the first annual session carry over into the second annual session.  But let’s not forget that the portion of the Massachusetts Uniform Probate Code dealing with estates goes into effect on January 2, 2012. Two important housekeeping proposals, the MUPC technical corrections and the Massachusetts Uniform Trust Code, are still pending and we cannot wait until the beginning of the next session to act.   A delay in passing these bills will put greater strain on an already overburdened Probate & Family Court.

While the House and Senate will continue to meet over the next few weeks in informal sessions, the second leg of the 2011-2012 begins in January and will continue until through July.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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