MUPC Amendments as of October 2012: What to take away

Monday, November 26, 2012
By 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.

To view the original post on the Trusts & Estates Section blog, click here.