Tamara Lauterbach Sturges, Esq., Pathway Law, LLC
Kerry L. Spindler, Esq., Goulston & Storrs PC
With the second anniversary of the effective date of estate administration sections of the Massachusetts Uniform Probate Code (the “MUPC”) behind us, the Boston Bar Association’s Trusts & Estate’s Section’s Public Service Committee asked the Massachusetts Probate and Family Courts to comment on frequently made errors in MUPC filings. With the assistance of Chief Justice Angela M. Ordoñez and Case Manager Evelyn J. Patsos, Esq., MUPC Magistrates and court personnel compiled a list of common mistakes and simple solutions.
1. Petition Should be Consistent with Death Certificate: A common error is that the decedent’s name as listed on the petition does not match the name listed on the death certificate. If the will and death certificate refer to the decedent by a different name, the petition should include any alias. For example, if the death certificate identifies the decedent as “John M. Smith” and the will identifies the decedent as “John Smith”, the petition should reference the estate as “John M. Smith, also known as John Smith”.
In addition, the decedent’s address as listed on the petition should match the address listed on the death certificate. If the address of the decedent is not accurately reflected on the death certificate an Affidavit of Domicile (Form MPC 485) must be filed with the petition.
2. Suspicious Deaths: Another common mistake occurs where the death certificate lists the cause of death as “pending” or homicide”. If the cause of death is listed as “pending” or “homicide”, the petitioner must file a Suspicious Death Affidavit (Form MPC 475) with the petition (M.G.L. 190B, Section 2-803).
3. Priority for Appointment: If the person requested to be appointed personal representative does not have the highest statutory priority to serve as personal representative pursuant to M.G.L. 190B, Section 3-203 or has equal statutory priority with others, then the petitioner must list the names of all individuals who have statutory priority to serve or who also have an equal statutory priority to serve. If there are renouncements or nominations accompanying the petition, the petitioner should indicate this by checking the appropriate box and filing the Renunciation and/or Nomination (Form MPC 455) of all such individuals. Instructions for completing the Renunciation and/or Nomination form are available (Form MPC 941).
Renunciation and/or Nomination form(s) shall be required and must be submitted with an informal petition if the petitioner is seeking to appoint a personal representative who does NOT have statutory priority for appointment. Only the court in a formal proceeding may appoint a person without statutory priority.
4. Formal vs. Informal Proceeding: Practitioners are attempting to go forward with informal proceedings where only formal proceedings are available. This most often occurs where there is a minor or otherwise incapacitated heir or devisee. If any devisee or heir is a minor or otherwise incapacitated, a formal proceeding is required unless there is an appointed conservator or guardian who is not one of the petitioners (M.G.L. 190B, Section 3-303(a)(8); Section 1-404 (as amended)). Absent an appointed conservator or guardian, informal proceedings are unavailable and formal proceedings are required.
In a formal proceeding, if there is no conflict of interest and no guardian or conservator has been appointed, a parent may represent a minor child. Likewise, if there is a substantially identical interest, a person who has assented or received notice may represent persons interested in an estate who are unborn or unascertained. In order to exert parental or virtual representation, a motion to waive a guardian ad litem (“GAL”) must be filed with the formal petition and allowed by the court. If the court finds that parental or virtual representation exists, a GAL does not need to be appointed.
5. Confusion About a Deceased Spouse: There is confusion about when to list a deceased spouse on a petition. If a spouse survived the decedent but died prior to filing the petition for probate, he or she must be named on the petition and his or her date of death must be provided. If a spouse predeceased the decedent, the predeceasing spouse should not be listed on the petition.
6. Trustees as Devisees: Petitions and voluntary administration filings frequently omit trustees in the list of devisees. If a trust is to receive any part of a decedent’s estate, the trustee of that trust must be listed on the petition as a devisee.
7. Overuse of Special Personal Representative: Special personal representatives often result in increased legal fees to the estate and create an accounting requirement. Courts will consider appointing a special personal representative only if a need for such is clearly articulated in the formal petition for appointment (Form MPC 160 or Form MPC 350). The convenience of an immediate appointment does not justify the appointment of a special personal representative.
8. Fiduciary Bond: A bond (Form MPC 801) must be filed with every petition for informal or formal probate that is seeking the appointment of a personal representative regardless of whether the will waives a bond and/or sureties. The value of personal and real property must be filled out on a bond even if the petitioner is submitting a bond without sureties.
9. File a Complete Package of Documents: The document most often omitted from a probate filing is the proposed Order or Decree. Fillable forms are provided via the Court Forms webpage. To avoid omitting documents, reference the Informal Checklist or Formal Checklists provided at the MUPC Hub before submitting any filing to the court.
10. Filing Fees: When an incorrect filing fee is submitted, no matter how de minimis the shortage or overage, the registry of probate must request additional funds or issue a refund. A new filing fee schedule went into effect only July 9, 2012 and was updated on October 17, 2012. Check filing fees online at the MUPC Hub prior to submitting a petition. If unsure about which fees apply, contact the registry before submitting your filing.
11. Last But Not Least, Proofread: Errors in petitions and other documents delay the probate process and may also increase costs and fees. The most common and easily correctable mistakes can be caught with proofreading. Before submitting a probate filing make sure to reference the MUPC Estate Administration Procedural Guide and review each document to confirm that it is completed properly, signatures are in the right spot and that all documents are dated.
The Probate and Family Court’s new website is full of helpful information, including the MUPC Estate Administration Procedural Guide, Uniform Fee Schedule, Informal and Formal Checklists, fillable forms for will and estate proceedings and fillable forms for trust proceedings.
 It is anticipated that the title of the Suspicious Death Affidavit will soon be changed to “Cause of Death Affidavit”.
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