Posts Categorized: Massachusetts Law

Probate and Family Court Announces Procedural and Form Changes as a Result of the MUTC

Author:

Nikki Marie Oliveira, Esq., LL.M., Margolis & Bloom, LLP

As we all know, the Massachusetts Uniform Trust Code (“MUTC”) has been adopted as M.G.L. ch. 203E.  It replaced all but Part V of Article VII of the Massachusetts Uniform Probate Code (“MUPC”).  The adoption of this new law brought about some changes for the probate process and the MUPC in general, as discussed below.

Both the MUPC and MUTC were adopted with the intent to make the processes more streamlined and efficient.  As practitioners are navigating through these labyrinths, it appears that the underlining goals of these news laws are in sight.  A foundational purpose of enacting the MUPC and the MUTC was to decrease judicial proceedings and court intervention overall.  Accordingly, the usual court functions regarding trusts have changed quite a bit, lessening court involvement for the majority of trust administration.

One such change affects trustees of testamentary trusts.  For example, it is no longer necessary to petition the court for the appointment of a trustee under a testamentary trust.  After the will is approved, the new process merely requires the appointed trustee to confirm his appointment and seek the approval of an accompanying bond.  The courts no longer issue letters to trustees appointed under the MUTC, but will send an attested copy of the statement form if the bond is approved by the court.

Another significant change involves the removal of trustees.  Under the MUTC, the settlor, co-trustee or beneficiary may seek the removal of a trustee for reasons other than cause.  In order for the court to grant the removal, the following three requirements must be satisfied: (1) removal serves the best interests of all beneficiaries of the trust; (2) removal does not interfere with a material purpose of the trust; and (3) there is a suitable co-trustee or successor trustee available and willing to serve.

The following is an overview of the forms changes:

New Trust Forms:
  • MPC 275- Statement of Confirmation of a Testamentary Trustee
  • MPC 351- General Trust Petition for Appointment of Guardian ad Litem
  • MPC 777- Decree and Order on General Trust Petition Appointing Guardian ad Litem
  • MPC 266- Petition for Resignation/Removal/Appointment of a Successor Trustee
  • MPC 782- Decree and Order on Petition for Resignation/Removal/Appointment of a Successor Trustee
  • MPC 267- Petition to Terminate a Trust
  • MPC 783- Decree and Order to Terminate a Trust 
Revised Trust Forms:
  • MPC 201- General Trust Petition
  • MPC 857- Petition for Allowance of Account
  • MPC 791- Decree and Order of Allowance of Account
  • MPC 295- Petition to Modify Bond
  • MPC 776- Decree and Order to Modify Bond
The following two forms have been replaced by new form MPC 275:
  • MPC 275- Petition for Appointment of Testamentary Trustee
  • MPC 781- Decree and Order on Petition for Appointment of Testamentary Trustee
Please click here to read the Probate Court Press Release and click here to read the full Procedural Advisory.  The MUPC and MUTC forms can be found here.


Probate and Family Court Announces Internet Access to Publicly Available Estate and Administration Cases

Author:
Heidi A. Seely, Esq., Pratt, Bator & Popov, LLP

 

 

On January 8, 2013, the Probate and Family Court announced that all publicly available Estate and Administration cases are now available online.Access is secured through the court website at www.masscourts.org.

Users can search cases by docket number or by case name.Once a case is located, users can find information regarding case status, named parties, and final disposition.PDF versions of filed documents, however, are not available on-line.The Probate Court notes that only those Estate and Administration cases that were created in, or converted to, electronic format will be available online.

MUPC Amendments as of October 26, 2012: What to take away

Author:
Tamara L. Sturges, Esq., Pathway Law LLC

Chapter 140 of the Acts of 2012 made a number of changes to M. G. L. c 190B, the MUPC. These changes have been outlined below. In addition to the changes in the law a number of forms have been updated and a few new forms have been promulgated. For more information on the changes and to view the new and amended forms please visit the MUPC HUB page (here).
Amendment to Section 1-404 [Guardian ad Litem and Next Friend]: In both informal and formal proceedings a GAL is not mandatory if the petitioner is also the conservator of a spouse, heir at law or devisee who is an incapacitated, protected person or minor.
Amendment to Section 3-108, subsection (4) [Probate, Testacy and Appointment Proceedings; Ultimate Time Limit]: As an exception to the 3 year rule a PR may be informally or formally appointed (if intestate) or formally (if testate) at any time, but the PR will have no authority to possess or distribute property beyond what is necessary to confirm title and pay expenses of administration.
Addition to Section 3-108, NEW subsection (5) [Probate, Testacy and Appointment Proceedings; Ultimate Time Limit]: As an exception to the 3 year rule a formal probate of a will may be opened for the sole purpose of establishing an instrument to direct or control the ownership of property, for example a clause in will exercising a power of appointment granted in a trust.
Amendment to Section 3-301 [Informal Probate or Appointment Proceedings; Petition; Contents.]: The petition to appoint a successor PR must state the priority of the nominee not the petitioner. (Forms MPC 255 and MPC 760 have been revised).
Adoption of Section 3-610 [Resignation by Personal Representative]: A PR may resign by giving 15 days written notice to known interested persons and then by filing a written statement of resignation with the court. However, the resignation shall have no effect unless a successor PR is appointed within the time indicated in the notice AND the resigning PR has delivered estate assets to the appointed successor. (Form MPC 264 has been revised).
Addition to Section 3-617, NEW subsection (c) [Special Personal Representative; Formal Proceedings; Power and Duties.]: Unless otherwise ordered by the court, the authority of a PR is extinguished for the period of time that a special PR has authority.
Addition to Section 3-706, NEW subsection (b) [Duty of Personal Representative; Inventory and Appraisement.]: A successor PR must  prepare an inventory 3 months after his/her appointment with values as of the date of the PR’s appointment (NOT the date of death). There is no filing requirement. If the successor PR chooses to file an inventory (Form MPC 854) with the court he/she should check the “other” box on page 1 to indicate that the inventory is being filed by a successor PR.
Addition to section 3-715, NEW subsection 23 ½ [Transactions Authorized for Personal Representatives; Exceptions.]: A formally or informally appointed PR has authority to sell real estate without a license to sell provided there is a power of sale in the will. Inversely a license is required where there is no will or no power of sale. To date REBA has yet not revised title standards and may still require a license to sell for an informal probate.
The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

Practice Tip: Key Features of the MUTC and MUPC

Author:
Katherine M. Sheehan, Esq., Ruberto, Israel & Weiner

It has been a year of change in Massachusetts in trust and estate law, with the enactment of the Massachusetts Uniform Probate Code (“MUPC”) and the Massachusetts Uniform Trust Code (“MUTC”).   Practitioners and fiduciaries alike welcome these changes, hoping that they will streamline both the estate administration and trust administration processes.  However, putting these new laws into practice may present challenges for some time to come as centuries old systems have been overhauled.  Below are some of the key features of these new laws, and how they may impact you.

MUPC
  • Laws of intestacy redefined (who will get your property if you die without a will and in what percentages).

 

  • Informal and formal probate administration introduced to streamline probate administration.

 

 

  • Supervised and unsupervised probate administration introduced to reduce court
    involvement in administering estates.

 

 

  • Virtual representation introduced to reduce court-appointed Guardians Ad Litem (also present in the MUTC).  Most significantly, parents can now represent their minor children and unborn descendants if no conflict of interest exists.

 

MUTC
  • Non-Judicial Settlement Agreements have been introduced, whereby certain trust terms can be modified without court involvement.

 

  • Pet trusts may now be established for the care and maintenance of pets.

 

 

  • Purpose trusts may now be established to maintain property such as a cemetery plot, an art collection, etc.

 

 

  • Courts may modify trust terms (including those governing distributions) if it can be shown that the law or facts and circumstances have changed so that trust terms no longer make sense.

 

 

  • Trusts may be combined or divided. 

 

 

  • The presumption that trustees must act unanimously was reversed.  Now trustees act by majority unless the trust states otherwise.

 

 

  • Trustees have a heightened duty to keep beneficiaries informed about the trust
    administration.

 


While these new concepts will prove to be very useful in the trust and estate administration process, they can also be quite complex.  If you serve as an executor or trustee, we welcome your questions regarding how these new laws impact you in the exercise of your fiduciary duties.

For additional information please contact Katherine M. Sheehan, Esq. at 617.742.4200 or [email protected] .

The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

The Massachusetts Uniform Trust Code Is Here!

Author:
M. Bradford Bedingfield, Wilmer Cutler Pickering Hale and Dorr LLP

On Sunday, July 8, 2012, Governor Patrick signed Chapter 140 of the Acts of 2012 (S.2128, amended by H.4223). Chapter 140 takes effect immediately.

Massachusetts Uniform Trust Code

Section 56 of Chapter 140 enacts the Massachusetts Uniform Trust Code (the “MUTC”). The MUTC (new Chapter 203E of the Massachusetts General Laws) generally replaces, and greatly expands upon, the trust law provisions (Article VII) of the Massachusetts Uniform Probate Code (the “MUPC”), which became effective on March 31, 2012. Apart from a few exceptions (described in Sections 61-65 of Chapter 140), the MUTC applies to all trust instruments, whenever created. Key features of the new MUTC include:

Non-Judicial Settlement Agreements (Sec. 111): Interested parties may now enter into binding non-judicial settlement agreements regarding matters such as trust interpretation, approval of accounts, directions to trustees, trustee liability and trustee powers.

Virtual Representation (Art. 3): Article 3 of the MUTC further develops the so-called “virtual representation” rules introduced in Sec. 1-403 of the MUPC (M.G.L. c. 190B). For example, the MUTC allows (barring a conflict of interest) parents to represent the interests of minor and unborn children, and allows an interested party to represent minor, unborn, incapacitated and not reasonably ascertainable beneficiaries with substantially identical interests. These rules should reduce the need for guardians ad litem and further facilitate settlement agreements.

Enforcement of Charitable Trusts (Sec. 405(c)): The settlor of a charitable trust now has standing to enforce the provisions of the trust.

Pet Trusts (Sec. 408): The MUTC allows for trusts for the care of one or more animals. These “pet trust” provisions replace M.G.L. c. 203 Sec. 3C.

Purpose Trusts (Sec. 409): A Massachusetts settlor may now establish a so-called “purpose trust,” which has no beneficiaries, but instead operates to further one or more valid purposes of the settlor.

Trust Modification (Sec. 411-417): The MUTC generally liberalizes Massachusetts law regarding modification and termination of trusts.

Trust Revocability (Sec. 602): Trusts established after the effective date of the MUTC are now presumed revocable unless the instrument expressly provides otherwise (reversing the longstanding Massachusetts default rule).

Majority Decision (Sec. 703): Trustees of trusts established after the effective date of the MUTC who are unable to reach a unanimous decision regarding any trust action may now act by majority vote, unless the instrument provides otherwise (reversing the longstanding Massachusetts default rule).

Trustee Resignation (Sec. 705): Trustees may now resign without court approval where the trust instrument is silent as to resignation.

Trustee Removal (Sec. 706): A trustee may now be removed (1) for serious breach of trust, (2) because of lack of cooperation among co-trustees that substantially impairs trust administration, (3) where because of unfitness or persistent failure to administer the trust effectively, removal is in the trustees’ best interests, or (4) where there is a substantial change of circumstances or removal is requested by all “qualified beneficiaries” (defined in Sec. 103) and removal is in the best interests of the beneficiaries and is not inconsistent with a material purpose of the trust.

Trustee Duties and Powers (Art. 8): The MUTC includes detailed provisions regarding the duties and powers of trustees.

Powers to Direct (Sec. 808): The MUTC allows for directed trustees.

Duty to Inform and Report to Beneficiaries (Sec. 813): Trustees must now keep qualified beneficiaries reasonably informed of trust administration. Within 30 days of accepting a trusteeship (or of the date on which a trust became irrevocable), a trustee must inform the qualified beneficiaries (or their representatives) in writing of the trustee’s name and address. The trustee must also now send statements of account (formal or informal) annually to current beneficiaries (except for beneficiaries who waive this right), and upon request to other qualified beneficiaries.

Limitation of Proceedings Against Trustees (Sec. 1005): The MUTC updates the rules regarding when beneficiaries may bring claims for breach of trust in certain circumstances.

Massachusetts Uniform Probate Code

Chapter 140 (Sections 3-52) makes various (primarily technical) changes to the MUPC. In particular:

Proceedings After Three Years (Sec. 3-108): It expands upon the ability of interested parties in certain circumstances to commence testacy or appointment proceedings where no such proceedings have occurred within the three-year period following the decedent’s death.

Resignation by Personal Representative (Sec. 3-610): It allows a personal representative to resign by filing a written statement with the court after having provided at least 15 days’ written notice to all interested persons, effective upon appointment of a successor.

Sale of Real Property (Sec. 3-715): It describes in greater detail the power of a personal representative appointed by formal or informal probate to sell real property.

Nursing Facility (Sec. 5-101(15)): It provides certain exceptions to the definition of “Nursing Facility” for purposes of the guardianship rules.

Medical Certificates (Sec. 5-303): It expands upon the class of professionals who may sign a medical certificate for purposes of guardianship proceedings.

Temporary Admission to Nursing Facilities (Sec. 5-309(g)): It allows guardians, in certain limited circumstances, to admit incapacitated persons to nursing facilities for up to 60 days without a finding by the court.

Revocation of Powers of Attorney (Sec. 5-504(c)): It clarifies prospectively the rules regarding good faith actions of agents who do not yet have actual knowledge of revocation of the agency by the principal.

Transfer of Certain Securities

Section 53 of Chapter 140 introduces new M.G.L. c. 196A, which allows certain securities holdings (up to a cumulative value of not more than $2,100) to be registered in the name of a surviving spouse, an adult child of the deceased, or a surviving father or mother, in certain circumstances, without formal or informal probate.

Probate and Family Court Fee Schedule

Finally, Section 60 of Chapter 140 establishes a revised Probate and Family Court fee schedule, replacing M.G.L. c. 262 Sec. 40. The revised fee schedule, like the other provisions of Chapter 140, is effective immediately.

—————-

The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney.http://www.bostonbarlawyer.org/ or call 617-742-0625.