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Complex Decisions

By Michael Roundy, Esq.

Estate representatives have a variety of options for how to probate an estate. Decisions made early in the process may have long-term consequences, as reflected in a recent decision of the Supreme Judicial Court, In re Estate of Slavin.

The Massachusetts Legislature enacted the Massachusetts version of the Uniform Probate Code (MUPC) in 2008. Under the MUPC, estates may be administered under a ‘formal’ or ‘informal’ process, as ‘supervised’ or ‘unsupervised’ administrations, as a ‘voluntary’ administration, and even by appointment of a ‘special personal representative’ under some circumstances.

Sorting through all of these options may seem daunting — and mistakes made at the initial stage may have lasting impact. In Estate of Slavin, an early decision to file as a voluntary personal representative nearly prevented the voluntary PR from pursuing a wrongful-death claim on behalf of the estate.

An informal probate, under Section 3-301 of the MUPC, is possible where the proposed personal representative has priority for appointment (usually named as PR in the will), and is in possession of the original will. A petition for informal appointment in intestacy (without a will) must also attest that, after a reasonably diligent search, the petitioner is unaware of any unrevoked will or why such an instrument the petitioner is aware of is not being probated. Informal probate is overseen by a magistrate rather than a judge, and hearings are not permitted. The benefit of informal probate is that it can be a faster process than a formal probate.

A formal probate, under Section 3-402 of the MUPC, is typically heard by a judge and may involve one or more hearings. It may be necessary to file a formal probate in order to object to an informal probate if the terms of the will are unclear, if the administration needs to be supervised, if the court needs to appoint a special personal representative, or for other reasons. A formal petition may also be used to obtain a judicial determination of intestacy, and of the heirs, without requesting the appointment of a personal representative.

Michael Roundy

Michael Roundy

“Sorting through all of these options may seem daunting — and mistakes made at the initial stage may have lasting impact.”

A formal administration may be supervised or unsupervised. A supervised administration is overseen more closely by the court, which typically must approve everything the PR wants to do before he or she does it. A supervised administration may be requested by the PR or by any interested person, and may be requested while a petition to appoint the PR is pending, or after the PR has already been appointed. Where a will directs supervised administration, it will be ordered unless the court finds that the circumstances relating to the need for supervision have changed since execution of the will.

For some estates, it may be necessary to appoint a special personal representative under Section 3-614 of the MUPC for specific purposes, such as searching the decedent’s safe-deposit box for his or her will, or to preserve assets of the estate. A special PR may also be appointed for the purpose of performing an act that a general PR cannot or should not perform due to a potential conflict of interest. While a special PR can have many of the same powers as a permanent PR, the special PR is not able to sell or distribute any assets of the estate.

Small estates may be administered by a voluntary PR. Under Section 3-1201 of the MUPC, a voluntary PR may administer an estate consisting only of personal property (no real estate) that includes a vehicle owned by the decedent and other property valued up to a cap of $25,000. Although voluntary PRs are recognized as such by certification by the register of probate, they are not appointed to the role by a judge or magistrate.


Case in Point

In Estate of Slavin, the decedent’s daughter filed the necessary statement of voluntary administration, which the register of probate certified in accordance with Section 3-1201. The daughter served as the voluntary PR for more than four years before she filed a petition for formal probate, seeking appointment as a personal representative under Section 3-402. She feared, correctly, that, as a voluntary PR, she would be unable to pursue a wrongful-death claim.

Although all five of the decedent’s other children assented to the daughter’s appointment as PR under the formal petition, the Probate and Family Court judge denied the appointment. The judge noted that Section 3-108 of the MUPC prohibits filing a formal petition for appointment more than three years after the decedent’s death. Since the decedent in Estate of Slavin had at that point died more than four years earlier, the judge denied the formal petition.

“The Estate of Slavin case reflects the potentially dramatic impact of an early decision about which method to use for probating an estate.”

The daughter appealed. The Supreme Judicial Court took the case for direct appellate review and reversed the lower court’s decision. The SJC noted that one of the few exceptions in Section 3-108 to the three-year limit on filing for a formal probate appointment is “appointment proceedings relating to an estate in which there has been a prior appointment.” While the Probate and Family Court judge found that a voluntary personal representative is not a ‘prior appointment,’ the SJC disagreed, holding that the exception in Section 3-108 “does not limit the type of prior appointment that qualifies.”

It agreed that, while a personal representative in a formal or informal probate must be appointed by a judge, a voluntary PR does not need to be. However, the voluntary PR statute does permit the register of probate to “issue a certificate of appointment to such voluntary personal representative” (MUPC Section 3-1201).

Moreover, the voluntary PR has the authority to pay debts, receive and sell personal property, pay funeral expenses, and distribute any balance remaining according to the principles of intestate succession. In addition, Section 3-1201 notes, third parties delivering property to the estate are “discharged and released to the same extent as if he dealt with a personal representative of the decedent.” Finally, a voluntary PR is liable for his or her administration of the estate to the same extent as a personal representative who was appointed by the court.

For all of these reasons, the SJC held that a voluntary PR constitutes an ‘appointment’ within the scope of the ‘prior appointment’ exception of Section 3-108. Thus, the daughter could be formally appointed (more than four years after death) as PR and pursue the wrongful-death claim that she could not pursue as a voluntary PR.

The Estate of Slavin case reflects the potentially dramatic impact of an early decision about which method to use for probating an estate. Would-be estate administrators may want to seek assistance from a qualified attorney in navigating such complex decisions.


Michael Roundy is a partner at the Springfield-based law firm Bulkley Richardson.


That Is the Question, and Here Are Some Answers

By Valerie Vignaux, Esq.

Valerie Vignaux

Please allow me to interrupt your quarantine gratitude journaling and victory gardening to demystify a topic apt for these unfortunate times: probate.

I have found in my legal practice that most consider probate to be a dirty word. I have also found widespread misunderstanding of what that dirty word really means. What better time than during a pandemic to learn about the legal process surrounding death?

What, then, is probate? It is a process to appoint someone to be in charge of your probate assets after you die, and to distribute those assets according to your wishes. You ask, one eyebrow raised, “what are probate assets?” Excellent question — I can tell that you are a close listener.

Probate assets are property (such as real estate, bank accounts, cars, investment accounts, and retirement funds) that you own in your name alone at your death. These assets do not have a joint owner (like a joint bank account you might have with a spouse). These assets do not have a designated beneficiary (like on an IRA or a life-insurance policy that lists a child as beneficiary). In order for anyone to be able to access these assets after your death — to pay bills, to make distributions to loved ones — the assets must go through the probate process.

“I have a will!” you proclaim with confidence, “so there won’t be any probate.” But you are wrong, my friend. It is not the existence of a will that prevents probate; it is the absence of probate assets that prevents probate. It is how you own something that dictates whether that process must be undertaken, not whether you have a will.

“Then I shall tear up my will!” you cry out. Please, no. Your will makes this process easier, in part, by telling the court whom you want to be in charge of those assets. In the old days, when we shook hands with gusto and gathered at bars to buy overpriced cocktails, we called this person the executor or executrix. Today — really, since 2012 — the personal representative fills this role. Same job, different name.

“What, then, is probate? It is a process to appoint someone to be in charge of your probate assets after you die, and to distribute those assets according to your wishes.”

Your will also informs the Probate Court who will get your probate assets. Additionally, if appropriate, your will names your desired guardian of your children, in the event you die leaving minors behind. (Please wash your hands and stop touching your face.)

“Probate is the fourth circle of hell,” you sigh with resignation, “and I will take great pains to avoid it.” Here’s the dirty word bit, and what so many believe: probate is complicated, takes forever, and costs tons of money. This is not, however, necessarily true, and it is often not true at all. Of course, it depends upon the nature of your assets — perhaps you own many properties in different states, or a family business. Probate’s difficulty depends, too, upon your family circumstances — maybe you don’t have highly valued assets, but your children do not get along and there is a high likelihood of challenge over your collection of red hawk tail feathers.

For most people, probate is simply a process with clearly defined steps and a timeline. Getting help from an attorney can make the process even easier.

You now know, because you’re a quick study, two ways to avoid probate (add a joint owner, designate a beneficiary). But here’s something radical to consider: you might not want to avoid it. There are situations in which it makes good sense to force your assets (some or all) through the probate process. Your will can serve as a master plan for what happens to all you leave behind. That document allows you to spread your wealth (whether millions in cash or a trunkful of hand-sewn face masks) among all of your loved ones equally, or unequally. Your will can even create a trust that can hold assets for minors, those with poor spending habits, or a disabled family member.

If you name your children as beneficiaries of your life-insurance policy and die while they are still minors, a conservator will need to be appointed to receive, hold, and manage those funds for the benefit of your children — kids can’t just inherit money. The conservatorship process, another Probate Court endeavor, also takes time and money — often more than probate itself.

If you instead name your estate as beneficiary of your life insurance (“such madness!” you gasp, but bear with me), those funds will be handled according to the master plan — your will. You can avoid the necessity of a conservatorship by directing those funds into a custodial account at a bank, or by including a trust in your will that will hold the money for the benefit of your children. This is just one example of many.

I work with clients regularly to avoid probate and still achieve their desired goals. But sometimes I recommend that they embrace the process because it makes the most sense for their situation. Probate doesn’t have to be a dirty word. Working with an estate-planning attorney, and perhaps a financial advisor, you may find this is true for you. It’s important that everyone have a plan in place, but let’s all try to stay alive for a good, long while.

Valerie Vignaux is an attorney with Bacon Wilson, P.C., and a member of the firm’s estate-planning and elder-law team. She assists clients with all manner of estate planning and administration, including probate, and provides representation for guardianship and conservatorship matters. She received the Partner in Care award from Linda Manor in 2017, and served on the board of directors for Highland Valley Elder Services; (413) 584-1287; [email protected]