When should heirs be notified of a will in Massachusetts?
With the voluntary administration of small estates although no notice is required for the petition, the voluntary personal representative would be required to contact the heirs as part of fulfilling his or her duties and responsibilities under the law.
With an informal probate administration, notice is required at least 7 days before the petition is filed and in the case of a formal probate administration, notice is required by the court to be given in time for a response by the return day of the citation and order of notice issued by the court.
In cases where there is no probate estate, it is only required that the will be filed with a death certificate in the probate court at no charge where it is indexed and becomes a public court record. There is no specific requirement that anyone be notified until some probate proceeding is initiated.
What is the average period of time it takes for estate distributions to be completed in Massachusetts?
We are unaware of any statistics being gathered which would address this question. That information would be difficult if not impossible to compile with any degree of accuracy. In general, though, the timing of distributions is regulated to the following extent:
Creditors have until one year from the date of death to commence a suit for recovery of their claims. A personal representative who distributes before the one year is up could be personally liable to a creditor to the extent that there are insufficient assets left to cover the claim. So generally, heirs and devisees under wills should not be expecting anything for at least one year after the date of death. There may be other reasons preventing the personal representative from distributing at that time such as claims which are not yet due or subject of pending cases which haven’t been susceptible of compromise, or unresolved taxes, including estate taxes, which may be assessed or subject to upward adjustment after audit. In that case the law requires payment of interest on pecuniary bequests at the rate of 4% per annum. Residuary bequests will get the benefit of accrued interest at the time of final distribution and any disputes would be handled in the estate closing process. If the personal representative of an estate is absolutely certain that all creditors claims and taxes have been accounted for and wants to personally risk making early distribution, he or she may (but cannot be required) to do so and if they do should at least try to protect themselves with an indemnification agreement from each distributee. As you can see each case has its own circumstances bearing on when final distribution will be actually be made.
Can I use a durable power of attorney naming me as attorney in fact to seek appointment as personal representative (executor) of the will upon the death of the person who executed the power?
No. The power of attorney ceases to have any effect upon the death of the principal. You would have to qualify under some other provision of the probate code.
Can I waive rights to an inheritance in Massachusetts ?
Yes you can. You can also waive rights to gifts, life insurance proceeds, trust beneficiary rights and other gifted or inherited interests in property. The legal term for this is a “disclaimer”. Massachusetts law provides requirements as to 1) formality (writing and filing); 2) timing (9 months after the event giving rise to the right of disclaimer – this is usually someone’s death but not always); and 3) certain contingencies that would prevent a valid disclaimer (for example, you can’t have already accepted the gift or inheritance, or cannot disclaim if you are bankrupt). In addition, under federal law the disclaimed property if passing by way of a “qualified disclaimer” is not a taxable gift by you.
Can a person designate someone as a health care agent on a health care proxy who is also a beneficiary of the person’s will?
What is the effective date of the Mass Uniform Probate Code?
With few exceptions, the Guardianship and Conservatorship provisions became effective on July 1, 2009 and the probate provisions on March 31, 2012.
Are the provisions of the Mass Uniform Probate Court Retroactive?
The answer is complicated. Yes and No. It depends. The new procedures apply to all cases whether pending as of the effective date or commenced thereafter. Some of the substantive provisions may or may not apply depending upon the specific circumstances including the date of death. An experienced and knowledgeable lawyer should be consulted.
Was the spousal elective share (to take against the will) increased by the Mass Uniform Probate Code?
The uniform probate court did not change the elective share law. Changes are under consideration by the legislature. Some provisions clarify and some would say increase the definition of the estate for purposes of what the elective share applies to.
Does an attorney-in-fact under a durable power of attorney have standing to seek appointment of a guardian or conservator for the principal or a relative of the principal?
Does a living will override a Durable Power of Attorney in Massachusetts?
Living wills are not specifically recognized under Massachusetts law. They may have evidentiary value in the event of litigation. In Massachusetts authorization for health care decisions is to be by way of a health care proxy. There is a gray area as to what kinds of decisions are or are not health care decisions.
How many witnesses are required for a durable power of attorney in Massachusetts?
None. However, if out of state real property is involved, the applicable requirements of that state’s laws should be looked at. Although not required, one or more witnesses may nontheless be advisable.
What is the current estate size limit for voluntary informal estate administration in Massachusetts?
The limit for filing a statement of voluntary administration is one motor vehicle of any value and up to $25,000 worth of other personal property.
Can a court appointed guardian revoke an existing health care proxy of the protected person?
Yes, but only after a hearing and authorization by the Court.
Can a conservator revoke an existing durable power of attorney of the protected person?
Yes, unless forbidden by the terms of a Court order.