FAQs—Massachusetts Uniform Probate Code

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Before the MUPC, the executor had no authority as to the bodily remains of the decedent.

Under § 3-701 of the MUPC, the named (named in the Will) personal representative has power to carry out the written instructions of the testator pertaining to the disposition of the bodily remains and other arrangements such as funeral and burial, even prior to his or her appointment.

As a side note, “decedent” is the term referring to the person who died, “personal representative” is the MUPC word for executor, and “testator” is the term referring to the person whose Will it is.

Should the Will contain those instructions?

While it is permissible to state the written instructions directly in the Will, that is not what I recommend to my clients. The reason is that if the client changes his mind, he or she will have to redo his or her Will. I think it makes more sense for the client to write, sign and date a memorandum. The client should then do two more things. First, tell the named executor or personal representative about the written memorandum and where to find it. Secondly, indicate in the Will that he or she is leaving a written memorandum stating his or her wishes regarding the disposition of bodily remains and funeral and burial arrangements.

In addition to the disposition of bodily remains and the funeral and burial arrangements, the written memorandum may also provide directions regarding organ donation, prearrangements with a funeral home, cemetery and burial lot, casket, cremation and disposition of ashes, memorial service, notifications and obituary.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Under the MUPC, the person in charge of the estate of a deceased person is called a “personal representative”. Before the MUPC, we used the terms “executor”—if a person died with a Will—and “administrator”—if a person died without a Will.

Whether or not there is a Will, § 3-203(a) of the MUPC has a “priority ladder,” which establishes who has priority to be appointed as the personal representative. Generally, the order is as follows: (1) the person named in the Will, (2) the surviving spouse who is also a devisee, (3) other devisees, (4) the surviving spouse, (5) other heirs of the decedent, (6) if no known spouse or next of kin, a court-appointed public administrator.

As a side note, a “devisee” is the term referring to a person who is to inherit property under the Will, “heirs of the decedent” are those who would inherit in the absence of a Will, and “decedent” is the term referring to the person who died.

A person with priority may decline to serve as personal representative. Moreover, a person named as personal representative in the Will can decline and nominate a successor if and only if the Will explicitly provides that the named personal representative has the power to nominate a successor.

Rather than let the law determine who will be in charge of your estate, one should have an estate plan and name a personal representative in one’s Will.  One should also name a successor personal representative (backup person) and/or give your named personal representative the power to nominate a successor of his or her choosing.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Before the MUPC, Massachusetts law provided that marriage invalidates a Will in its entirety unless “it appears from the [W]ill that it was made in contemplation thereof.” Pretty simple and straightforward, right?  

Under the new law, things are a bit more complex. Under section 2-301 of MUPC, if a surviving spouse married the decedent after the decedent executed his or her final Will, the surviving spouse receives an intestate share (what he or she would have gotten if no Will) EXCEPT that the surviving spouse does not get an intestate share of those assets passing under the pre-marital Will to the children of the decedent who were born before the marriage and who are not also children of the surviving spouse, among other exceptions, “unless: (1) it appears from the [W]ill that the [W]ill was made in contemplation of the testator’s marriage to the surviving spouse; (2) the [W]ill expresses the intention that it is to be effective notwithstanding any subsequent marriage; or (3) the testator provided for the spouse by transfer outside the [W]ill and any intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.”

As a side note, “testator” is the term referring to the person whose Will it is.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

I am often asked “How does my divorce affect my estate plan?”

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Before the MUPC, Massachusetts law provided that divorce revoked the provisions in favor of a former spouse in a pre-existing Will (the former spouse was treated as having died first). The net effect was that the former spouse did not inherit directly under the Will and any nominations appointing the former spouse were void.

The prior law was sometimes problematic. For example, under the old law, the stepchildren potentially could inherit (even though the former spouse did not) since the former spouse was treated as having died first and, consequently, children of the former spouse were entitled to the share of the former spouse. Also, under the prior law, the former spouse could still inherit non-probate assets (if the former spouse was still the named beneficiary, i.e., the beneficiary designations were not updated). Lastly, under the old law, divorce did not revoke the provisions in a Will favoring family members of the former spouse and so those family members would inherit.

The MUPC changed much of that.

Under § 2-804 of the MUPC, divorce now revokes (1) bequests in a prior Will to a former spouse and members of his or her family unrelated to the testator by blood, adoption or affinity after the divorce, (2) appointments of the former spouse and members of his or her family unrelated to the testator by blood, adoption or affinity after the divorce, and (3) pre-existing beneficiary designations favoring the former spouse and any of his or her family members unrelated to the testator by blood, adoption or affinity after the divorce except “as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment[.]”

As a side note, “testator” is the term referring to the person whose Will it is.

The MUPC does not affect dispositions by way of pre-existing irrevocable trusts as these dispositions typically are addressed in the divorce decree.

Estate planning documents should be updated after divorce. As an example, if you still wanted a stepchild to inherit from you despite the divorce, it is important that you explicitly state in your new Will that the bequest to the stepchild is notwithstanding your divorce from his or her parent.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

A preliminary issue is whether there is a valid and enforceable prenuptial agreement or separation agreement impacting the inheritance rights of the surviving spouse.

The balance of this Q&A assumes there is no such valid and enforceable prenuptial or separation agreement.

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

In the absence of a Will, § 2-102 of the MUPC provides that the surviving spouse is entitled to the entire estate in two circumstances. The first circumstance is where there are no stepchildren or descendants of stepchildren, i.e., all the descendants of the decedent are also descendants of the surviving spouse and all the descendants of the surviving spouse are also descendants of the decedent. The second circumstance is where the decedent had no descendant or parent that survived him or her.

Under § 2-102 of the MUPC, if (1) there is no Will, (2) there are either stepchildren or descendants of stepchildren and (3) the decedent had one or more descendant, the spouse is entitled to the first $100,000 and half the balance (and the decedent’s descendants receive the other half).

Moreover, under § 2-102 of the MUPC, if (1) there is no Will, (2) there are either stepchildren or descendants of stepchildren,(3) the decedent had no descendant and (4) the decedent was survived by a parent, the surviving spouse is entitled to the first $200,000 and three-quarters of the balance (and the decedent’s surviving parent receives the other quarter).

There is also the “family allowance.” Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a “family allowance” to the surviving spouse and “minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent.” Unless the court orders otherwise, the personal representative’s discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year. M.G.L. c. 190B, § 2-405.

There is furthermore the “exempt property” statute. Under § 2-403(a) of the MUPC, the surviving spouse, or children if there is no surviving spouse, is entitled to $10,000 of exempt property from the decedent’s probate estate. The $10,000 first comes from “household furniture, automobiles, furnishings, appliances and personal effects.”

Finally, under § 2-403(b) of the MUPC, the surviving spouse has the right to remain rent-free in the decedent’s house for six months after the decedent’s death.

Rather than let the law determine what you are entitled to upon your spouse’s death and what your spouse is entitled to upon your death, you both should have an estate plan setting forth your wishes as to who gets what at the death of the first-to-die spouse and at the death of the surviving spouse and naming a personal representative, a successor personal representative (backup person) and/or give your named personal representative the power to nominate a successor of his or her choosing.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

What if there is a Will, but the surviving spouse was left nothing or a token amount?
Under Massachusetts law, can you disinherit your spouse?

A preliminary issue is whether there is a valid and enforceable prenuptial agreement or separation agreement impacting the inheritance rights of the surviving spouse.

The balance of this Q&A assumes there is no such valid and enforceable prenuptial or separation agreement.

Under Massachusetts law, a surviving spouse has the right to waive the Will and claim instead the forced share (also referred to as “elective share” and “statutory share”).

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012. However, the MUPC did not change a spouse’s right to waive the Will nor the calculation of the forced share.

The forced share is far less than the share the spouse would have received if there were no Will. The forced share applies only to the decedent’s probate property and property transferred by the decedent to a revocable trust during life.

If the decedent is survived by descendants, the forced share is 1/3 of the decedent’s property—the spouse is entitled to the first $25,000 outright and a life estate in the remainder of the 1/3 share.

If the decedent is survived by blood relatives but not descendants, the forced share is $25,000 and a life estate in half of the remaining property.

If the decedent is not survived by blood relatives, the forced share is $25,000 and half of the remaining property outright.

There is also the “family allowance.” Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a “family allowance” to the surviving spouse and “minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent.” Unless the court orders otherwise, the personal representative’s discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year. M.G.L. c. 190B, § 2-405.

There is furthermore the “exempt property” statute. Under § 2-403(a) of the MUPC, the surviving spouse, or children if there is no surviving spouse, is entitled to $10,000 of exempt property from the decedent’s probate estate. The $10,000 first comes from “household furniture, automobiles, furnishings, appliances and personal effects.”

Finally, under § 2-403(b) of the MUPC, the surviving spouse has the right to remain rent-free in the decedent’s house for six months after the decedent’s death.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Before the MUPC, Massachusetts law provided that a child not included in the will (“omitted child”), or their descendant(s) in certain circumstances, may elect (by filing a timely claim) to take an intestate share (what he or she would have gotten if no Will), regardless of whether the child was born before or after the execution of the Will, unless (1) the omitted child (or their descendant(s) in certain circumstances) was “provided for by the testator during his life time” or (2) “it appears that the omission was intentional and not occasioned by accident or mistake[.]” M.G.L. c. 191, § 20.

The new law pertaining to an omitted child, § 2-302 of the MUPC, applies only to a child born or adopted after execution of the testator’s Will (a so-called “after-born” or “after-adopted” child). The omitted “after-born” or “after-adopted” child, in certain circumstances, will receive a portion of the probate estate unless “[i]t appears from the [W]ill that the omission was intentional” or “[t]he testator provided for the omitted after-born or after-adopted child by transfer outside the [W]ill and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.” M.G.L. c. 190B, § 2-302(a) & (b).

If a child is omitted solely because the parent believes that he or she is deceased when in fact he or she is still living, the child will be entitled to a share of the probate estate. M.G.L. c. 190B, § 2-302(c).

When intentionally disinheriting a child, one may consider having the Will clearly state that the omission is intentional and that the parent believes the child is living at the time of the signing of the Will.

The Comment to § 2-302 of the MUPC, states, in part, as follows:

No Child Living When Will Executed. If the testator had no child living when he or she executed the [W]ill… an omitted after-born or after-adopted child receives the share he or she would have received had the testator died intestate, unless the [W]ill devised, under trust or not, all or substantially all of the estate to the other parent of the omitted child. If the [W]ill did devise, under trust or not, all or substantially all of the estate to the other parent of the omitted child, and if that other parent survives the testator and is entitled to take under the [W]ill, the omitted after-born or after-adopted child receives no share of the estate. In the case of an after-adopted child, the term “other parent” refers to the other adopting parent…

One or More Children Living When Will Executed. If the testator had one or more children living when the [W]ill was executed… an omitted after-born or after-adopted child only receives a share of the testator’s estate if the testator’s [W]ill devised property or an equitable or legal interest in property to one or more of the children living at the time the [W]ill was executed; if not, the omitted after-born or after-adopted child receives nothing.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

The MUPC contains certain family protection provisions meant to assist with the immediate support of surviving spouses and children. One such family protection provision is the discretionary family allowance (not to be confused with the exempt property statute). Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a “family allowance” to the surviving spouse and “minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent.”

Unless the court orders otherwise, the personal representative’s discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year. M.G.L. c. 190B, § 2-405. This family allowance provision allows for assistance to adult children if the adult children were being supported by the decedent. M.G.L. c. 190B, § 2-404(a).

If there is a surviving spouse and the minor or dependent children do not reside with him or her, the personal representative has authority to pay the family allowance partially to the surviving spouse and partially to or for the benefit of any minor or dependent children “as their needs may appear.” M.G.L. c. 190B, § 2-404(a).

Under § 2-404(b) of the MUPC, the “discretionary family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the Will of the decedent, unless otherwise provided, by intestate succession or by way of elective share.”

The Comment to § 2-404 of the MUPC, states, in part, as follows:

In determining the amount of the family allowance, account should be taken of both the previous standard of living and the nature of other resources available to the family to meet current living expenses until the estate can be administered and assets distributed. While the death of the principal income producer may necessitate some change in the standard of living, there must also be a period of adjustment. If the surviving spouse has a substantial income, this may be taken into account. Whether life insurance proceeds payable in a lump sum or periodic installments were intended by the decedent to be used for the period of adjustment or to be conserved as capital may be considered. A living trust may provide the needed income without resorting to the probate estate.

Obviously, need is relative to the circumstances, and what is reasonable must be decided on the basis of the facts of each individual case.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

The MUPC contains certain family protection provisions meant to assist with the immediate support of surviving spouses and children. One such family protection provision is the exempt property statute (not to be confused with the discretionary family allowance).

Under § 2-403(a), the surviving spouse, or children if there is no surviving spouse, is entitled to $10,000 of exempt property from the decedent’s probate estate. The $10,000 first comes from “household furniture, automobiles, furnishings, appliances and personal effects.” Also, under § 2-403(a), “these rights are in addition to any benefit or share passing to the surviving spouse or children by the decedent’s [W]ill, unless otherwise provided, or intestate succession, or by way of elective share.” However, under § 2-405, “[i]f the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to exempt property.”

Moreover, under § 2-403(b) of the MUPC, the surviving spouse has the right to remain rent-free in the decedent’s house for six months after the decedent’s death.

Nothing in this Q&A should be considered legal advice as this is a complicated area of the law.