Estate Planning Council of Hampden County
February 14, 2012
BULKLEY, RICHARDSON AND GELINAS, LLP
Elizabeth H. Sillin
Bulkley Richardson
1500 Main Street
Springfield, MA 01115
413-272-6296
esillin@bulkley.com
William E. Hart
Bulkley Richardson
7 N. Pleasant Street
Amherst, MA 01002
413-256-0002
whart@bulkley.com
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We have “conservators” and no more “guardians of
the estate.” [MUPC §1-201(8)]
We can now call them “descendants” and not “issue.”
[MUPC §1-201(9)]
“Devise” when a noun is a testamentary gift of real or
personal property. “Devise” as a verb means “to
dispose of real or personal property by will.” [MUPC
§1-201(10)] Forget “bequeath,” “bequest” and
“legacy.”
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“Personal representative” includes both an executor of
a will and an administrator of an intestate estate.
[MUPC §1-201(37)]
We will have “testacy proceedings” to formally
“establish a will or determine intestacy.” [MUPC §1201(52) and Article 3, Part 4]
“Informal Probate” obviates appointment of
“temporary executors.” [See Mass. comment following
MUPC §3-614]
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The MUTC introduces the term “principal place of
administration” of a trust which may be designated in
the trust as long as the trustee’s principal place of
business is there, the trustee resides there or “all or
part of the administration occurs in the designated
jurisdiction.” [MUTC §108(a) emphasis added] MUTC
§204 defines the principal place of administration of a
testamentary trust as the location of the court where
the will was probated.
We will have “virtual representation” under MUTC
Article 3 for trust proceedings and non-judicial
settlements.
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“Equally near equally dear”
Mike Brady and Carol Brady
Greg
|
1/6
Peter
|
1/6
v w
xyz
Bobby
|
1/6
Marcia
|
1/6
Jan
|
1/6
Cindy
|
1/6
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If “per stirpes” and Greg and Peter are deceased
Greg
|
1/6
Peter
|
1/6
v w
xyz
1/12 1/12
Bobby
|
1/6
Marcia
|
1/6
Jan
|
1/6
Cindy
|
1/6
1/18 1/18 1/18
1/6 ÷ 2 = 1/12 each
1/6 ÷ 3 = 1/18 each
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Per capita at each generation
[MUPC §§§ 2-103, 2-106, 2-709]
Greg
|
1/6
v w
1/15 1/15
Peter
|
1/6
Bobby
|
1/6
Marcia
|
1/6
Jan
|
1/6
Cindy
|
1/6
xyz
1/15 1/15 1/15
(1/6 x 2=2/6=1/3; 1/3 ÷ 5 = 1/15 each)
Can still specify “per stirpes” (or the synonymous “by
right of representation”) in will – important to discuss
with clients.
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UPC Article III, Part 3 establishes “Informal Probate”
of a will (original only) and “Informal Appointment” of
a personal representative (“PR”) when neither the
surviving spouse nor any heir is incapacitated or a
minor. [MUPC §3-303(a)(8)]
Done by a magistrate. [MUPC §3-302]
As quickly as 7 days after death! [MUPC §§3-302 and
3-307(a)]
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After giving 7 days’ notice to heirs by “ordinary mail.”
[MUPC §3-306(a)]
Publication of notice in the newspaper is after probate
(no later than 30 days). [MUPC §3-306(b)]
An informally appointed PR’s “powers pertaining to
the office [are] fully established [and] not subject to
retroactive vacation.” [MUPC §3-307(b)]
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An “informally probated will is authority to administer
and distribute the estate…” [MUPC §3-703(b)]
“without order…or direction of the court…” [MUPC §3704]
“The personal representative shall take possession or
control of the decedent’s property” whether appointed
formally or informally. [MUPC §3-709]
Under the MUPC, filing an inventory [MUPC §3-706]
and accounting [MUPC §§3-1001 and 3-1003] with
the court are optional.
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Planning tip: If a client is getting married make sure
to look at the will.
Example: “I, Bill B, leave all my estate, including
my football collection, to my children, Gisele and
Tom…”
Under current, soon to be prior law, if Bill got
married, will was revoked. [M.G.L.c.191 §9]
Mary, new wife, takes under rules of intestacy.
[M.G.L.c. 190 § 1]
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Under new law, spouse is entitled to intestate share of
assets not devised to child of testator. [MUPC 190B
§2-301] Unless:
◦ Will made in contemplation of marriage
◦ Will states it is effective regardless of later marriage
◦ Testator has provided for spouse outside of will
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Bill marries Mary and dies leaving all his estate to his
children.
◦ Bill’s will not revoked.
◦ Devises to his children are preserved.
◦ Mary gets intestate share of assets not devised to his
children.
◦ In this example, Mary gets nothing under will – but she is
entitled to exempt property ($10k) [MUPC §2-403] and
discretionary family allowance during the period of
administration [MUPC §2-404] and she can elect against
will. [GL c. 191 § 15]
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Example: “I, Bill B, leave all my autographed
footballs and $200,000 to the Football Hall of
Fame and the rest of my estate, real and
personal, to my children, Gisele and Tom…”
Bill marries Mary and dies
◦ Mary gets intestate share of assets not devised to
children.
◦ New rules of intestacy [MUPC §2-102] Mary gets first
$100,000 and half the balance, ($50,000 here) and half
the autographed footballs, for a total of $150,000 plus
half of the footballs.
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“Upon the death of a person, the decedent’s real and
personal property devolves to the persons to whom it
is devised…or in the absence of testamentary
disposition, to the decedent’s heirs…” [MUPC §3-101
emphasis added]
But “every personal representative has a right to, and
shall take possession or control of, the decedent’s
property, except that any real property…may be left
with or surrendered to the person presumptively
entitled thereto…” [MUPC §3-709 emphasis added]
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So we expect to see deeds of distribution from
personal representatives to devisees of real estate.
[referred to in MUPC §3-908 and the comment
following MUPC §3-913]
The statutory powers (listed in MUPC §3-715 as
authorized “transactions”) of all personal
representatives, held without needing court authority
or being set forth in the will, include repairing, razing,
subdividing, leasing, removing natural resources from
and abandoning real property [MUPC §3-715(7)-(11)]
but not mortgaging or selling real property.
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So wills should continue to authorize PRs to sell and
mortgage real property without court authority.
How about an early sale under power contained in the
will by an informally appointed PR?
◦ An informal PR has full powers not subject to retroactive
vacation. [MUPC §§3-307(b) and 3-704]
◦ But a formal testacy proceeding can “set aside an
informal probate of a will” [MUPC §3-401] if commenced
within three years of death. [MUPC §3-108]

Will the buyer take clear title? Go ask REBA!
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Example: IRA Beneficiary designation for
Newt Gingrich
100% to Marianne Gingrich
signed,
Newt
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
Newt is now divorced from Marianne and married to
Callista.
Under current MA law, Marianne would receive the
IRA proceeds if Newt forgot to revoke.
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Under new law divorce causes revocation of any
revocable disposition or appointment to former
spouse and to relative of former spouse. [MUPC §2804(b)]
◦ Will
◦ Revocable trust
◦ Life insurance
◦ Retirement plans
◦ TOD accounts
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Divorce also revokes provisions naming former
spouse and relatives of former spouse: power of
attorney, general or limited power of appointment,
and nomination of former spouse as trustee, personal
representative, guardian, conservator, agent under
POA.

Those provisions not revoked are treated as if former
spouse disclaimed or has died.

Severs joint tenancies and transforms them into
tenancies-in-common. [MUPC §2-804(b)(2)]

Does not automatically insert new spouse as
beneficiary.
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Massachusetts lawyers have never liked testamentary
trusts because the trustees have had to account
annually to the court, and that is expensive and open
to inspection by others.
But people whose trusts are quite contingent, e.g.,
trusts for young children, prefer the simplicity of a
single document.
So we will have MUTC §201(b), which states: “A trust
is not subject to continuing judicial supervision unless
ordered by the court.”
22
Example:
“My Memorandum
1. The flowered casserole dish from Aunt Gertie to
Martha
2. My plastic golf clubs to Tiger

signed,
The Donald”
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Under current law, may make a memorandum
separate from the will, but is not admissible or
binding.
May make reference to items not specifically disposed
of by the will.
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Will must refer to the written statement and state
that the memo shall be binding.
Must be signed by the testator and describe items
with reasonable specificity. Can be prepared before or
after the will is executed. Will be admissible as part of
the will.
Can dispose only tangible personal property (cannot
be money).
Essentially may make it binding. [MUPC §2-513]
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Example: “I name Madonna to serve as my
Personal Representative, but if she is not willing
or is unable to serve, I give her the authority to
name a person to serve in her place and
stead…”
Under new law person may be given authority to
nominate someone to serve as PR. [MUPC §3-203]
May be useful if testator wants to give trusted person
or advisor authority to name a Personal
Representative.
25
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If no one is named or if all have renounced, surviving
spouse who is a devisee serves as PR.
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Then other devisees.

Then the surviving spouse who not a devisee.

Then other heirs.

If the person entitled to serve chooses not to, may
nominate a “qualified person” to serve.
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“After notice to the qualified beneficiaries, the trustee
of a trust…having a total value less than $200,000
may terminate the trust [if its value] is insufficient to
justify the cost of administration.” [MUTC §414(a)]
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Example: Trust names second spouse as life
beneficiary and Settlor’s children of first
marriage are remaindermen. Accounting
provision silent as to who is entitled to
accounting.
Under common law, trustees have duty of loyalty, so
we can infer that trustees should give information and
account to remaindermen.
Many trusts now exist and beneficiaries don’t know
about them.
28
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MUPC and MUTC both impose a duty on the trustee to
inform. [MUTC §813 or MUPC §7-303]
◦ MUPC not clear that requirement may be overridden by
language in trust instrument.
◦ Under MUTC the trust instrument may override!
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When
◦ When trust becomes irrevocable.
◦ If a new trustee is appointed after trust becomes
irrevocable and also if requested by beneficiary.

What
◦ Beneficiaries need to be “reasonably informed.”
◦ Accountings – under MUPC must provide annual
accountings upon request. [MUPC §7-303]
◦ Under MUTC, must send accounts annually to distributees
and persmissible distributees, and to other “qualified
people” who request. [MUPC §813]
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Who
◦ MUPC: “beneficiaries.” [MUPC §1-201(3)]
◦ MUTC: “qualified beneficiaries.” [MUTC §103 (10)]
 Is a distributee or permissible distributee
 Would be a distributee or permissible distributee if trust
terminated on that date.
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“The Settlor of a charitable trust, among others, may
maintain a proceeding to enforce the trust.” [MUTC
§405(c)]
P.S. We will also have “pet trusts” [MUTC §408] and
other non-charitable “purpose trusts.” [MUTC §409]
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