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“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.”
Case in Point
In Estate of Slavin, the decedent’s daughter
filed the necessary statement of voluntary admin- istration, 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, seek- ing appointment as a personal representative under Section 3-402. She feared, correctly, that, as a vol- untary PR, she would be unable to pursue a wrong- ful-death claim.
Although all five of the decedent’s other chil- dren 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 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 appoint- ment.” 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. How- ever, the voluntary PR statute does permit the regis- ter 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 dece- dent.” 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 vol- untary PR constitutes an ‘appointment’ within the scope of the ‘prior appointment’ exception of Sec- tion 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 com- plex decisions. BW
Michael Roundy is a partner at the Springfield- based law firm Bulkley Richardson.
“The Estate of Slavin case reflects the potentially dramatic impact of an early decision about which method to use
for probating an estate.”
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