New Probate Laws – Ins and Outs, Ups and Downs

(This article was originally published in the Wakefield Daily Item)

By LUCY J. BUDMAN, ESQ.

Q.   Does the new Uniform Probate Code make the probate process easier? 

A.   The new probate law was meant to simplify probate for families with simple situations, but in practice it is anything but simple.   

On April 2, 2012, after years of delays, the Massachusetts Uniform Probate Code (MUPC) finally came into effect for probates of wills and intestacies. One of the major goals of the new law was to simplify probates, shorten the process and make them cheaper and easier for most families.

Unfortunately, we have found that the more things change, the more they remain the same.   For many probate estates, probate remains a lengthy, stressful, and expensive process.  As a result, we still advise that our clients take steps to avoid probate by using Trusts.

What is probate? Probate is the court process of transferring assets from the name of the decedent to their heirs. Probate happens whether or not you have a valid Will in place when you die. A valid Will simply gives direction to the probate court in terms of who is in charge of managing your assets and who will receive your property when you die. Without a valid Will, intestacy laws determine who is in charge and who inherits what you own and in what percentages (even if you have left oral instructions on how to distribute assets or a written note that fails to meet the requirements to qualify as a valid Will). In either case, your family must follow the elaborate rules of the probate court to get their inheritances.

The ideal of the MUPC is to remove some of the complexity from the probate process, but let’s review how it actually works for many people in the real world.

The Ideal: Probate is made simpler through the use of an “in and out” court process. Families with simple situations and no serious conflicts can take advantage of a limited “informal” probate. Wills or even intestate probates can be allowed right away by a court magistrate without ever seeing a judge. Once allowed, the Personal Representative (formerly called an Executor or Administrator) can pay the debts of the estate and distribute the property without having to seek court permission.

For complex or conflict heavy situations, a formal probate process, much like probate under the old law, can still take place. In addition to obvious problems such as feuding heirs or creditors at the door, many of our clients who have real estate in other states, minors in the family or incapacitated relatives find their situation is more complex than they had hoped.

The Reality:

  • The informal process is just not as fast as anyone would like it to be. Far from in and out, the Probate Courts are backlogged and have been hit especially hard by the State budget crisis. The Courts simply do not have the personnel to review probate filings, and we have found that for many of our clients, informal probates take weeks or months to be approved rather than days. Without the budget to hire more personnel at the Probate Courts, this may not change any time soon.
  • Informal probate is not good enough if your estate will include any real estate, even just your home!

The major real estate Title Insurance Companies, the companies responsible for Title standards, have all ruled that an informally appointed Personal Representative has no power to sell real estate unless at least three years have passed since date of death. Even if you have a valid Will giving your Personal Representative the power to sell real estate, it does them no good unless they have gone through the full, formal Probate Court process (in other words, something very like the old process). An informally appointed Personal Representative has to go back to court for a special extra power called a license to sell, a process that can costs thousands of dollars just by itself, especially if there is the time pressure of an imminent real estate closing.

  • Complex family situations are more common than you may imagine. If your family includes minor children or incapacitated seniors, a full, formal probate might still be necessary. If some of your family members are in conflict, they may request additional probate court supervision.  If your family tree is complex, probate can require genealogy efforts just to identify your heirs at law.
  • If you own property out of state (or out of the country!), your heirs are likely to need to open two probates, one here in Massachusetts and another in the place the property is located.
  • Going through formal probate can be more expensive than it was a few months ago, not less. With the recent change of the probate process to “in and out” the probate court can collect additional fees at each stage of the process, including transactions that did not have associated fees under the old process, such as closing probate after a final account has been filed.

The good news is that going through the probate process is a choice each person makes. We all have the option to plan in advance to avoid the court process entirely.  After meeting with us, the large majority of our clients decide they would prefer to save their families the time, stress and expense of probate by pursuing other planning, such as Living Trusts. A well drafted Trust can protect you and your family, not just from probate, but from taxes, creditors and long term care costs, depending on your planning goals.

Without planning, you are guaranteed a probate. Be sure that your attorney understands the ins and outs of the new Uniform Probate Code and can advise you about whether avoiding probate is the right move for you and your family.

 

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About Curley Law Firm LLP

Serving clients throughout Massachusetts, Curley Law Firm LLP draws upon more than four decades of combined Estate Planning and Elder Law experience to ensure that you can achieve your planning goals.

Attorneys Patrick Curley and Lucy Budman are two of fewer than two dozen Certified Elder Law Attorneys (CELA) in Massachusetts. Attorney Mark Curley has practiced in the areas of Estate Planning and Elder Law for over three decades.

The value of working with a firm with CELAs on the team is the peace of mind you receive - knowing that you will get the very best advice available to protect yourself, your family and your assets. A CELA is a recognized expert in legal matters dealing with Estate Planning and Elder Law including Trusts, Wills, Asset Protection against Medicaid and nursing home costs, Medicaid (MassHealth) benefits planning and applications, Probate and Trust administration, Guardianship and Conservatorship, and VA benefits planning.

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