By Mr. Creedon, a petition (accompanied by bill,
Senate, No. 843) of Robert S. Creedon, Jr. for legislation
relative to the uniform probate code. The Judiciary.
|
By Mr. Creedon, a petition (accompanied by bill,
Senate, No. 843) of Robert S. Creedon, Jr. for legislation
relative to the uniform probate code. The Judiciary.
|
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 3. Chapter one hundred fourteen of the
General Laws is hereby amended by striking out section thirty-two, as so
appearing, and inserting in place thereof the following section:-
Section 32. A person shall be entitled to a right
of interment for his or her own body in any burial lot or tomb of which his or
her spouse was seized at any time during marriage, which shall be exempt from
the operation of the laws relating conveyance, descent and devise, but may be
released by him or by
SECTION 4. Chapter one hundred sixty-seven D of the
General laws is hereby amended by striking out section five, as so appearing,
and inserting in place thereof the following section:--
Section 5. Any bank or federally-chartered bank may
receive deposits in the name of single or multiple parties pursuant to Article
VI of chapter one hundred ninety B.
SECTION 5. Section six of chapter one hundred and
sixty-seven D of the General Laws is hereby repealed.
SECTION 6.Chapter one hundred seventy-one of the
General laws is hereby amended by striking out section thirty-nine, as so
appearing, and inserting in place thereof the following section:--
Section 39. Shares and deposits may be received in
the name of single or multiple parties pursuant to Article VI of chapter one
hundred ninety B.
SECTION 7. Section forty of chapter one hundred and
seventy-one of the General Laws is hereby repealed.
SECTION 8. Sections thirty-three A and thirty-three
B of chapter one hundred and eighty-four of the General Laws are hereby
repealed.
SECTION 9. Sections one to four, inclusive, six and
eleven of chapter one hundred and eighty-four A of the General Laws are hereby
repealed.
SECTION 10. Section one of chapter one hundred and
eighty-six of the General Laws is hereby repealed
SECTION 11. Chapter one hundred and eighty-nine of
the General Laws is hereby repealed.
SECTION 12. Chapter one hundred and ninety of the
General Laws is hereby repealed.
SECTION 13. Chapter one hundred and ninety A of the
General Laws is hereby repealed.
SECTION 14. The General Laws are hereby amended by
2 inserting after chapter 190A the following new chapter:--
CHAPTER 190B
ARTICLE, PART
Article I
GENERAL
PROVISIONS, DEFINITIONS
Part 1
SHORT TITLE,
CONSTRUCTION, GENERAL PROVISIONS
Section
1-101. [Short
Title.]
1-102. [Purposes;
Rule of Construction.]
1-103. [Supplementary
General Principles of Law Applicable.]
1-104. [Severability.]
1-105. [Construction
Against Implied Repeal.]
1-106. [Effect
of Fraud and Evasion.]
1-107. [Evidence
of Death or Status.]
1-108. [Acts
by Holder of General Power.]
Part
2
DEFINITIONS
1-201. [General
Definitions.]
Part
3
SCOPE,
JURISDICTION
1-301. [Territorial Application.]
1-302. [Subject
Matter Jurisdiction.]
1-303. [Venue;
Multiple Proceedings; Transfer.]
1-304. [Practice
in Court.]
1-305. [Records
and Certified Copies.]
1-306. [Reserved.]
1-307. [Magistrate;
Powers.]
1-308. [Appeals.]
1-309. [Reserved.]
1-310. [Oath
or Affirmation on Filed Documents.]
Part
4
NOTICE,
PARTIES
LITIGATION
1-401. [Notice; Method and Time of Giving.]
1-402. [Notice;
Waiver.]
1-403. [Pleadings;
When Parties Bound by Others; Notice.]
1-404. [Guardian
ad class=SpellE>Litem and Next Friend.]
Article
II
INTESTACY,
WILLS
Part
1
INTESTATE
SUCCESSION
2-101. [Intestate Estate.]
2-102. [Share
of Spouse.]
2-103. [Share
of Heirs Other Than Surviving Spouse.]
2-104. [Reserved.]
2-105. [No
Taker.]
2-106. [Representation.]
2-107. [Kindred
of Half Blood.]
2-108. [Afterborn Heirs.]
2-109. [Advancements.]
2-110. [Debts
to Decedent.]
2-111. [Alienage.]
2-112. [Dower
and class=SpellE>Curtesy Abolished.]
2-113. [Individuals
Related to Decedent Through Two Lines.]
2-114. [Parent
and Child Relationship.]
Part
2
2-201 to 2-299
[Reserved.]
Part
3
SPOUSE
2-301. [Entitlement of Spouse; Premarital
Will.]
2-302. [Omitted
Children.]
Part
4
EXEMPT
PROPERTY
2-401. [Applicable
Law.]
2-402. [Mandatory
Family Allowance.]
2-403. [Exempt
Property.]
2-404. [Discretionary
Family Allowance.]
2-405. [Source,
Determination, and Documentation.]
Part
5
WILLS,
WILL CONTRACTS,
2-501. [Who
May Make Will.]
2-502. [Execution
of Wills.]
2-503. [Reserved.]
2-504. [Self-proved
Will.]
2-505. [Who
May Witness.]
2-506. [Choice
of Law as to Execution.]
2-507. [Revocation
by Writing or by Act.]
2-508. [Revocation
by Change of Circumstances.]
2-509. [Revival
of Revoked Will.]
2-510. [Incorporation
by Reference.]
2-511. [Testamentary
Additions to Trusts.]
2-512. [Events
of Independent Significance.]
2-513. [Separate
Writing Identifying Devise of Certain Types of Tangible Personal Property.]
2-514. [Contracts
Concerning Succession.]
2-515. [Deposit
of Will With Court in Testator's Lifetime.]
2-516. [Duty
of Custodian of Will; Liability.]
2-517. [Penalty
Clause for Contest.]
Part
6
RULES
OF CONSTRUCTION APPLICABLE ONLY TO WILLS
2-601. [Scope.]
2-602. [Will
May Pass All Property and After-acquired Property.]
2-603. [Anti-lapse;
Deceased Devisee; Class Gifts.]
2-604. [Failure
of Testamentary Provision.]
2-605. [Increase
in Devised Securities; Accessions.]
2-606. [Nonademption of Specific Devises; Unpaid Proceeds of Sale,
Condemnation, or Insurance; Sale by Conservator or Agent.]
2-607. [Nonexoneration.]
2-608. [Exercise
of Power of Appointment.]
2-609. [Ademption by Satisfaction.]
2-610. [Annuities.]
Part
7
RULES
OF CONSTRUCTION APPLICABLE TO WILLS
2-701. [Scope.]
2-702. [Requirement
of Survival.]
2-703. [Choice
of Law as to Meaning and Effect of class=SpellE>Donative Dispositions.]
2-704. [Taxes
on QTIPS.]
2-705. [Class
Gifts Construed to Accord with Intestate Succession.]
2-706. [Life
Insurance; Retirement Plan; Account With POD Designation; Transfer-on-Death
Registration; Deceased Beneficiary.]
2-707. [Survivorship
With Respect to Future Interests Under Terms of Trust; Substitute Takers.]
2-708. [Class
Gifts to "Descendants", "Issue", or "Heirs of the
Body"; Form of Distribution If None Specified.]
2-709. [Representation;
Per Capita at Each Generation; Per class=SpellE>Stirpes.]
2-710. [Worthier-Title
Doctrine Abolished.]
2-711. [Future
Interests in "Heirs" and Like.]
Part
8
GENERAL
PROVISIONS CONCERNING PROBATE
2-801. [Disclaimer
of Property Interests.]
2-802. [Effect
of Divorce, Annulment, and Decree of Separation.]
2-803. [Effect
of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life
Insurance, and Beneficiary Designations.]
2-804. [Revocation
of Probate and class=SpellE>Nonprobate Transfers by Divorce; No Revocation
by Other Changes of Circumstances.]
Part
9
STATUTORY
RULE AGAINST PERPETUITIES
2-901. [Statutory
Rule Against Perpetuities.]
2-902. [When Nonvested Property Interest or Power of Appointment
Created.]
2-903. [Reformation.]
2-904. [Exclusions
From Statutory Rule Against Perpetuities.]
2-905. [Prospective
Application.]
2-906. [Supersession].
ARTICLE
PROBATE
OF WILLS
PART
1
GENERAL
PROVISIONS
3-101. [Devolution
of Estate at Death; Restrictions.]
3-102. [Necessity
of Order of Probate For Will.]
3-103. [Necessity
of Appointment For Administration.]
3-104. [Claims
Against Decedent; Necessity of
Administration.]
3-105. [Proceedings
Affecting Devolution and Administration.]
3-106. [Proceedings
Within the Exclusive Jurisdiction of Court; Service; Jurisdiction Over Persons.]
3-107. [Scope
of Proceedings; Proceedings
Independent; Exception.]
3-108. [Probate,
Testacy and Appointment Proceedings;
Ultimate Time Limit.]
3-109. [Statutes
of Limitation on Decedent's Cause of Action.]
PART
2
VENUE
FOR PROBATE
TO
ADMINISTER; DEMAND FOR NOTICE
3-201. [Venue
for First and Subsequent Estate Proceedings;
Location of Property.]
3-202. [Appointment
or Testacy Proceedings; Conflicting
Claim of Domicile in Another State.]
3-203. [Priority
Among Persons Seeking Appointment as Personal Representative.]
3-204. [Demand
for Notice of Order or Filing Concerning Decedent's Estate.]
3-205. [Judge
or Register as Personal Representative.]
PART
3
INFORMAL
PROBATE
3-301. [Informal
Probate or Appointment Proceedings;
Petition; Contents.]
3-302. [Informal
Probate; Duty of Magistrate; Effect of Informal Probate.]
3-303. [Informal
Probate; Proof and Findings Required.]
3-304. [Informal
Probate; Unavailable in Certain Cases.]
3-305. [Informal
Probate; Magistrate Not Satisfied.]
3-306. [Informal
Probate; Notice Requirements.]
3-307. [Informal
Appointment Proceedings; Delay in
Order; Duty of Magistrate; Effect of Appointment.]
3-308. [Informal
Appointment Proceedings; Proof and
Findings Required.]
3-309. [Informal
Appointment Proceedings; Magistrate Not
Satisfied.]
3-310. [Informal
Appointment Proceedings; Notice
Requirements.]
3-311. [Informal
Appointment Unavailable in Certain Cases.]
PART
4
FORMAL
TESTACY
3-401. [Formal
Testacy Proceedings; Nature; When Commenced.]
3-402. [Formal
Testacy or Appointment Proceedings;
Petition; Contents.]
3-403. [Formal
Testacy Proceedings; Notice of Hearing
on Petition.]
3-404. [Formal
Testacy Proceedings; Written Objections
to Probate.]
3-405. [Formal
Testacy Proceedings; Uncontested
Cases; Hearings and Proof.]
3-406. [Formal
Testacy Proceedings; Contested
Cases; Testimony of Attesting
Witnesses.]
3-407. [Reserved.]
3-408. [Formal
Testacy Proceedings; Will
Construction; Effect of Final Order in
Another Jurisdiction.]
3-409. [Formal
Testacy Proceedings; Order; Foreign Will.]
3-410. [Formal
Testacy Proceedings; Probate of More
Than One Instrument.]
3-411. [Formal
Testacy Proceedings; Partial Intestacy.]
3-412. [Formal
Testacy Proceedings; Effect of
Order; Vacation.]
3-413. [Formal
Testacy Proceedings; Vacation of Order
For Other Cause.]
3-414. [Formal
Proceedings Concerning Appointment of Personal Representative.]
PART
5
SUPERVISED
ADMINISTRATION
3-501. [Supervised
Administration; Nature of Proceeding.]
3-502. [Supervised
Administration; Petition; Order.]
3-503. [Supervised
Administration; Effect on Other
Proceedings.]
3-504. [Supervised
Administration; Powers of Personal
Representative.]
3-505. [Supervised
Administration; Interim Orders; Distribution and Closing Orders.]
PART
6
PERSONAL
REPRESENTATIVE; APPOINTMENT, CONTROL
3-601. [Qualification.]
3-602. [Acceptance
of Appointment; Consent to Jurisdiction.]
3-603. [Bond
Without Sureties.]
3-604. [Bond
With Sureties; Procedure; Reduction.]
3-605. [Demand
For Sureties by Interested Person.]
3-606. [Terms
and Conditions of Bonds.]
3-607. [Order
Restraining Personal Representative.]
3-608. [Termination
of Appointment; General.]
3-609. [Termination
of Appointment; Death or Disability.]
3-610. [Termination
of Appointment; Voluntary.]
3-611. [Termination
of Appointment by Removal; Cause; Procedure.]
3-612. [Termination
of Appointment; Change of Testacy Status.]
3-613. [Successor
Personal Representative.]
3-614. [Special
Representative; Appointment.]
3-615. [Special
Representative; Who May Be Appointed.]
3-616. [Reserved.]
3-617. [Special
Representative; Formal Proceedings; Power and Duties.]
3-618. [Termination
of Appointment; Special Representative.]
PART
7
DUTIES
3-701. [Time
of Accrual of Duties and Powers.]
3-702. [Priority
Among Different Letters.]
3-703. [General
Duties; Relation and Liability to
Persons Interested in Estate; Standing
to Sue.]
3-704. [Personal
Representative to Proceed Without Court Order;
style='mso-spacerun:yes'> Exception.]
3-705. [Duty
of Personal Representative; Information
to Heirs and Devisees.]
3-706. [Duty
of Personal Representative; Inventory
and Appraisement.]
3-707. [Employment
of Appraisers.]
3-708. [Reserved.]
3-709. [Duty
of Personal Representative; Possession
of Estate.]
3-710. [Power
to Avoid Transfers.]
3-711. [Powers
of Personal Representatives; In
General.]
3-712. [Improper
Exercise of Power; Breach of Fiduciary
Duty.]
3-713. [Sale,
Encumbrance or Transaction Involving Conflict of Interest; Voidable; Exceptions.]
3-714. [Persons
Dealing with Personal Representative;
Protection.]
3-715. [Transactions
Authorized for Personal Representatives;
Exceptions.]
3-716. [Powers
and Duties of Successor Personal Representative.]
3-717. [Co-representatives; When Joint Action Required.]
3-718. [Powers
of Surviving Personal Representative.]
3-719. [Compensation
of Personal Representative.]
3-720. [Expenses
in Estate Litigation.]
3-721. [Reserved.]
PART
8
CREDITORS'
CLAIMS
3-801. [Reserved.]
3-802. [Statutes
of Limitations.]
3-803. [Limitations
on Presentation of Claims.]
3-804. [Manner
of Commencement of Claims.]
3-805. [Classification
of Claims.]
3-806. [Allowance
of Claims.]
3-807. [Payment
of Claims.]
3-808. [Individual
Liability of Personal Representative.]
3-809. [Secured
Claims.]
3-810. [Claims
Not Due and Contingent or class=SpellE>Unliquidated Claims.]
3-811. [Counterclaims.]
3-812. [Execution
and Levies Prohibited.]
3-813. [Compromise
of Claims.]
3-814. [Encumbered
Assets.]
3-815. [Administration
in More Than One State; Duty of Personal
Representative.]
3-816. [Final
Distribution to Domiciliary Representative.]
PART
9
SPECIAL
PROVISIONS RELATING TO DISTRIBUTION
3-901. [Successors'
Rights if No Administration.]
3-902. [Distribution; Order in Which Assets Appropriated; Abatement.]
3-903. [Right
of Retainer.]
3-904. [Interest
on General Pecuniary Devise.]
3-905. [Reserved.]
3-906. [Distribution
in Kind; Valuation; Method.]
3-907. [Distribution
in Kind; Evidence.]
3-908. [Distribution; Right or Title of
class=SpellE>Distributee.]
3-909. [Improper
Distribution; Liability of
class=SpellE>Distributee.]
3-910. [Purchasers
from class=SpellE>Distributees Protected.]
3-911. [Reserved.]
3-912. [Private
Agreements Among Successors to Decedent Binding on Personal Representative.]
3-913. [Distributions
to Trustee.]
3-914. [Disposition
of Unclaimed Assets.]
3-915. [Distribution
to Person Under Disability.]
3-916. [Apportionment
of Estate Taxes.]
3-917. [Partial
Distribution.]
PART
10
CLOSING
ESTATES
3-1001. [Formal
Proceedings Terminating Administration;
Testate or Intestate; Order of
General Protection.]
3-1002. [Reserved.]
3-1003. [Closing
Estates; By Sworn Statement of Personal
Representative.]
3-1004. [Liability
of class=SpellE>Distributees to Claimants.]
3-1005. [Limitations
on Proceedings Against Personal Representative.]
3-1006. [Limitations
on Actions and Proceedings Against class=SpellE>Distributees.]
3-1007. [Reserved.]
3-1008. [Subsequent
Administration.]
PART
11
COMPROMISE
OF CONTROVERSIES
3-1101. [Effect
of Approval of Agreements Involving Trusts, Inalienable Interests, or Interests
of Third Persons.]
3-1102. [Procedure
for Securing Court Approval of Compromise.]
PART
12
COLLECTION
OF PERSONAL PROPERTY BY AFFIDAVIT
3-1201. [Collection
of Personal Property by Affidavit.]
3-1202. [Effect
of Affidavit.]
3-1203. [Small
Estates; Summary Administration
Procedure.]
3-1204. [Small
Estates; Closing by Sworn Statement of
Personal Representative.]
Article
IV
FOREIGN
PERSONAL REPRESENTATIVES;
ANCILLARY
ADMINISTRATION
Part
1
DEFINITIONS
4-101. [Definitions.]
Part
2
POWERS
OF FOREIGN PERSONAL REPRESENTATIVES
4-201. [Payment
of Debt and Delivery of Property to Domiciliary Foreign Personal Representative
Without Local Administration.]
4-202. [Payment
or Delivery Discharges.]
4-203. [Resident
Creditor Notice.]
4-204. [Proof
of Authority-Bond.]
4-205. [Powers.]
4-206. [Power
of Representatives in Transition.]
4-207. [Ancillary
and Other Local Administrations; Provisions Governing.]
Part
3
JURISDICTION
OVER FOREIGN REPRESENTATIVES
4-301. [Jurisdiction
by Act of Foreign Personal Representative.]
4-302. [Jurisdiction
by Act of Decedent.]
4-302A. [Proceedings
to Determine Property Rights.]
4-303. [Service
on Foreign Personal Representative.]
Part
4
CONCLUSIVENESS
OF JUDGMENTS
4-401. [Effect
of Adjudication For or Against Personal Representative.]
ARTICLE
V
PROTECTION
OF PERSONS UNDER DISABILITY
PART
1
GENERAL
PROVISIONS
5-101. [General
Definitions.]
5-102. [Facility
of Payment or Delivery.]
5-103. [Delegation
of Powers by Parent or Guardian.]
5-104. [Reserved.]
5-105. [Venue.]
5-106. [Appointment
of Counsel; Guardian ad class=SpellE>Litem.]
PART
2
GUARDIANS
OF MINORS
5-201. [Appointment
and Status of Guardian of Minor.]
5-202. [Parental
or Guardian Appointment of Guardian for Minor.]
5-203. [Objection
by Minor Fourteen or Older to Parental Appointment.]
5-204. [Court
Appointment of Guardian of Minor;
Conditions for Appointment; Temporary Guardian.]
5-205. [Reserved.]
5-206. [Procedure
for Court Appointment of Guardian of Minor.]
5-207. [Court
Appointment of Guardian of Minor;
Qualifications; Priority of
Minor's Nominee.]
5-208. [Bond;
Consent to Service by Acceptance of Appointment; Notice.]
5-209. [Powers,
Duties, Rights and Immunities of Guardian of Minor; Limitations.]
5-210. [Termination
of Appointment of Guardian; General.]
5-211. [Reserved.]
5-212. [Resignation,
Removal, and Other Post-appointment Proceedings.]
PART
3
GUARDIANS
OF INCAPACITATED PERSONS
5-301. [Nomination
of Guardian for Incapacitated Person by Will or Other Writing.]
5-302. [Reserved.]
5-303. [Procedure
for Court Appointment of a Guardian of an Incapacitated Person.]
5-304. [Notice
in Guardianship or class=SpellE>Conservatorship Proceeding.]
5-305. [Who
May Be Guardian; Priorities.]
5-306. [Findings; Order of Appointment.]
5-306A. [Substituted
Judgment.]
5-306B. [Authority
to Consent to Treatment.] [Reserved.]
5-307. [Bond;
Acceptance of Appointment; Consent to
Jurisdiction.]
5-308. [Emergency
Orders; Temporary Guardians.]
5-309. [Powers,
Duties, Rights and Immunities of Guardians, Limitations.]
5-310. [Termination
of Guardianship for Incapacitated Person.]
5-311. [Removal
or Resignation of Guardian; Termination
of Incapacity.]
5-312. [Reserved.]
5-313. [Religious
Freedom of Incapacitated Person.]
PART
4
MANAGEMENT
OF PROPERTY OF PERSONS
UNDER
DISABILITY
5-401. [Management of Estate.]
5-402. [Protective
Proceedings; Jurisdiction of Business
Affairs of Protected Persons.]
5-403. [Reserved.]
5-404. [Original
Petition for Appointment or Protective Order.]
5-405. [Notice.]
5-406. [Reserved.]
5-407. [Findings;
Order of Appointment; Permissible Court Orders.]
5-408. [Protective
Arrangements and Single Transactions Authorized.]
5-409. [Who
May Be Appointed Conservator;
Priorities.]
5-410. [Bond.]
5-411. [Terms
and Requirements of Bonds.]
5-412. [Acceptance
of Appointment; Consent to Jurisdiction.]
5-412A. [Emergency
Orders; Temporary Conservators.]
5-413. [Compensation
and Expenses.]
5-414. [Reserved.]
5-415. [Petitions
for Orders Subsequent to Appointment.]
5-416. [General
Duty of Conservator; Plan.]
5-417. [Inventory
and Records.]
5-418. [Accounts.]
5-419. [Conservators; Title By Appointment.]
5-420. [Recording
of Conservator's Letters.]
5-421. [Sale,
Encumbrance, or Transaction Involving Conflict of Interest
class=SpellE>Voidable; Exceptions.]
5-422. [Persons
Dealing With Conservators; Protection.]
5-423. [Powers
of Conservator in Administration.]
5-423A. [Delegation.]
5-424. [Distributive
Duties and Powers of Conservator.]
5-425. [Enlargement
or Limitation of Powers of Conservator.]
5-426. [Preservation
of Estate Plan; Right to Examine.]
5-427. [Claims
Against Protected Person.]
5-428. [Personal
Liability of Conservator.]
5-429. [Removal
or Resignation of Conservator;
Termination of Disability; Termination of Proceedings.]
5-430. [Payment
of Debt and Delivery of Property to Foreign Conservator without Local
Proceedings.]
5-431. [Foreign
Conservator; Proof of Authority; Bond; Powers.]
PART
5
DURABLE
POWER OF ATTORNEY
5-501. [Definition.]
5-502. [Durable
Power of Attorney Not Affected By Lapse of Time, Disability or Incapacity.]
5-503. [Relation
of Attorney in Fact to Court-appointed Fiduciary.]
5-504. [Power
of Attorney Not Revoked Until Notice.]
5-505. [Proof
of Continuance of Durable and Other Powers of Attorney by Affidavit.]
5-506. [Enforcement.]
5-507. [Protection;
Third Parties.]
Article
VI
NONPROBATE
TRANSFERS ON DEATH
Part
1
PROVISIONS
RELATING TO EFFECT OF DEATH
6-101. [Nonprobate Transfers on Death.]
Part
2
MULTIPLE-PERSON
ACCOUNTS
SUBPART
1
DEFINITIONS
6-201. [Definitions.]
6-202. [Limitation
on Scope of Part.]
6-203. [Types
of Account; Existing Accounts.]
6-204. [Forms.]
6-205. [Designation
of Agent.]
6-206. [Applicability
of Subparts.]
SUBPART
2
OWNERSHIP
AS BETWEEN PARTIES
6-211. [Ownership
During Lifetime.]
6-212. [Rights
at Death.]
6-213. [Alteration
of Rights.]
6-214. [Accounts
and Transfers class=SpellE>Nontestamentary.]
6-215. [Rights
of Creditors and Others.]
6-216. [Tenancy
by the Entireties.]
SUBPART
3
PROTECTION
OF FINANCIAL INSTITUTIONS
6-221. [Authority of Financial Institution.]
6-222. [Payment
on Multiple-Party Account Without POD Designation.]
6-223. [Payment
on POD Designation.]
6-224. [Payment
to Designated Agent.]
6-225. [Payment
to Minor.]
6-226. [Discharge.]
6-227. [Set-off.]
Part
3
UNIFORM
6-301. [Definitions.]
6-302. [Registration
in Beneficiary Form; Sole or Joint Tenancy Ownership.]
6-303. [Registration
in Beneficiary Form; Applicable Law.]
6-304. [Origination
of Registration in Beneficiary Form.]
6-305. [Form
of Registration in Beneficiary Form.]
6-306. [Effect
of Registration in Beneficiary Form.]
6-307. [Ownership
on Death of Owner.]
6-308. [Protection
of Registering Entity.]
6-309. [Nontestamentary Transfer on Death.]
6-310. [Terms,
Conditions, and Forms for Registration.]
6-311. [Rights
of Creditors and Others.]
ARTICLE
TRUST
ADMINISTRATION
PART
1
SITUS
OF TRUSTS
7‑101. [Principal
Place of Administration.]
7‑102. [Reserved.]
7‑103. [Effect
of Trusteeship.]
7-104. [Reserved.]
7-105. [Qualification
of Foreign Trustee.]
PART
2
JURISDICTION
OF COURT CONCERNING TRUSTS
7‑201. [Court; Jurisdiction of Trusts.]
7‑202. [Trust
Proceedings; Venue.]
7‑203. [Trust
Proceedings; Dismissal of Matters
Relating to Foreign Trusts.]
7‑204. [Reserved.]
7‑205. [Proceedings
for Review of Employment of Agents and Review of Compensation of Trustee and
Employees of Trust.]
7‑206. [Trust
Proceedings; Initiation by Notice; NecessaryParties.]
PART
3
DUTIES
7‑301. [General
Duties Not Limited.]
7‑302. [Reserved.]
7‑303. [Duty
to Inform and Account to Beneficiaries.]
7‑304. [Duty
to Provide Bond.]
7‑305. [Trustee's
Duties; Appropriate Place of
Administration; Deviation.]
7‑306. [Personal
Liability of Trustee to Third Parties.]
7‑307. [Limitations
on Proceedings Against Trustees After Final Account.]
7-308. [Resignation
or Removal of Trustee; Appointment to Fill Vacancy.]
7-309. [Petition
for Transfers of Trust Property Whose Disposition Depends Upon the Death of an
Absentee.]
7-310. [Receipts
of Trustees.]
7-311. [Duties
of Purchasers.]
PART
4
POWERS
OF FIDUCIARY
7-401. style='mso-tab-count:1'> [Powers of
Fiduciary.]
PART
5
STATUTORY
CUSTODIANSHIP TRUSTS
7-501. [Transfer
of Property; Statutory Custodianship Trustee; Revocability.]
7-502. [Application
of Income and Principal; Accounting by Trustee.]
7-503. [Resignation
or Removal of Trustee; Appointment to Fill Vacancy.]
ARTICLE I
GENERAL PROVISIONS, DEFINITIONS,
JURISDICTION OF COURT
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
Section 1-101.
[Short Title.]
This
chapter shall be known and may be cited as the Massachusetts Uniform Probate
Code.
Section 1-102.
[Purposes; Rule of Construction.]
(a) This chapter shall be liberally construed and
applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this
chapter are:
(1) to
simplify and clarify the law concerning the affairs of decedents and missing
persons;
(2) to
discover and make effective the intent of a decedent in distribution of the
decedent's property;
(3) to
promote a speedy and efficient system for liquidating the estate of the
decedent and making distribution to the decedent's successors;
(4) to
facilitate use and enforcement of certain trusts;
(5) to make
uniform the law among the various jurisdictions.
Section 1-103.
[Supplementary General Principles of Law Applicable.]
Unless
displaced by the particular provisions of this chapter, the principles of law
and equity supplement its provisions.
Section 1-104.
[Severability.]
If
any provision of this chapter or the application thereof to any person or
circumstances is held invalid, the invalidity shall not affect other provisions
or applications of the chapter which can be given effect without the invalid
provision or application, and to this end the provisions of this chapter are
declared to be severable.
Section 1-105.
[Construction Against Implied Repeal.]
This
chapter is a general act intended as a unified coverage of its subject matter
and no part of it shall be deemed impliedly repealed by subsequent legislation
if it can reasonably be avoided.
Section 1-106.
[Effect of Fraud and Evasion.]
Whenever
fraud has been perpetrated in connection with any proceeding or in any
statement filed under this chapter or if fraud is used to avoid or circumvent
the provisions or purposes of this chapter, any person injured thereby may
obtain appropriate relief against the perpetrator of the fraud or restitution
from any person (other than a bona fide purchaser) benefiting from the fraud,
whether innocent or not. Any proceeding
must be commenced within two years after the discovery of the fraud, but no
proceeding may be brought against one not a perpetrator of the fraud later than
five years after the time of commission of the fraud. This section has no bearing on remedies
relating to fraud practiced on a decedent during the decedent's lifetime which
affects the succession of the decedent's estate.
Section 1-107.
[Evidence of Death or Status.]
In
addition to the rules of evidence in courts of general jurisdiction, the
following rules relating to a determination of death and status apply:
(1) Death occurs when an individual has sustained
either (i) irreversible cessation of circulatory and
respiratory functions or (ii) irreversible cessation of all functions of the
entire brain, including the brain stem.
A determination of death must be made in accordance with accepted
medical standards.
(2) A certified or authenticated copy of a death
certificate purporting to be issued by an official or agency of the place where
the death purportedly occurred is prima facie evidence of the fact, place,
date, and time of death and the identity of the decedent.
(3) A certified or authenticated copy of any
record or report of a governmental agency, domestic or foreign, that an
individual is missing, detained, dead, or alive is prima facie evidence of the
status and of the dates, circumstances, and places disclosed by the record or
report.
(4) In the absence of prima facie evidence of
death under paragraph (2) or (3), the fact of death may be established by
evidence, including circumstantial evidence.
(5) An individual whose death is not established
under the preceding paragraphs who is absent for a continuous period of five
years, during which the person has not been heard from, and whose absence is
not satisfactorily explained after diligent search or inquiry, is presumed to
be dead. The person's death is presumed
to have occurred at the end of the period unless there is sufficient evidence
for determining that death occurred earlier.
Section 1-108.
[Acts by Holder of Certain Powers.]
For
the purpose of granting consent or approval with regard to the acts or accounts
of a personal representative or trustee, including relief from liability or
penalty for failure to post bond or to perform other duties, and for purposes
of consenting to modification or termination of a trust or to deviation from
its terms,
(i) the sole holder or all co-holders of a
presently exercisable general power of appointment, including one in the form
of a power of amendment or revocation, or a presently exercisable power to
appoint among a class of appointees which is broader than the class of those
persons who would take in default of the exercise of such power,
(ii) if the
court so permits in its discretion, the sole holder or all co-holders of a
testamentary general power of appointment, or a testamentary power to appoint
among a class of appointees which is broader than the class of those persons
who would take in default of the exercise of such power,
are deemed to act for beneficiaries to the extent
their interests (as objects, takers in default, or otherwise) are subject to
the power.
Section 1-109.
[Standard of Proof.]
In
contested cases, the standard of proof is a preponderance of the evidence.
PART 2
DEFINITIONS
Section 1-201.
[General Definitions.]
Subject
to additional definitions contained in the subsequent Articles that are
applicable to specific Articles, parts, or sections, and unless the context
otherwise requires, in this chapter:
(1)
"Administration" includes both formal and informal testate and
intestate proceedings under Article
(2)
"Agent" includes an attorney-in-fact under a durable or
nondurable power of attorney, an individual authorized to make decisions
concerning another's health care in accordance with chapter two hundred one D,
and an individual authorized to make decisions for another under a natural
death act.
(3)
"Beneficiary", as it relates to a trust beneficiary, includes
a person who has any present or future interest, vested or contingent, and also
includes the owner of an interest by assignment or other transfer; as it
relates to a charitable trust, includes any person entitled to enforce the trust;
as it relates to a "beneficiary of a beneficiary designation", refers
to a beneficiary of an insurance or annuity policy, of an account with POD
designation, of a security registered in beneficiary form (
(4)
"Beneficiary designation" refers to a governing instrument
naming a beneficiary of an insurance or annuity policy, of an account with POD
designation, of a security registered in beneficiary form (
(5)
"Child" includes an individual entitled to take as a child
under this chapter by intestate succession from the parent whose relationship
is involved and excludes a person who is only a stepchild, a foster child, a grandchild,
or any more remote descendant.
(6)
"Claims", in respect to estates of decedents and protected
persons, includes liabilities of the decedent or protected person, whether
arising in contract, in tort, or otherwise, and liabilities of the estate which
arise at or after the death of the decedent or after the appointment of a
conservator, including funeral expenses and expenses of administration. The term does not include estate or
inheritance taxes, or demands or disputes regarding title of a decedent or
protected person to specific assets alleged to be included in the estate.
(7)
"Court" means the Probate and Family Court Department of the
Trial Court and includes the District Court and Juvenile Court Departments of
the Trial Court in proceedings relating to the appointment of guardians of
minors when the subject of the proceeding is a minor and there is proceeding
before such District or Juvenile Court.
(8)
"Conservator" means a person who is appointed by a Court to
manage the estate of a protected person.
(9)
"Descendant" of an individual means all of such individual's
descendants of all generations, with the relationship of parent and child at
each generation being determined by the definition of child and parent
contained in this chapter.
(10) "Devise", when used as a noun, means
a testamentary disposition of real or personal property and, when used as a
verb, means to dispose of real or personal property by will.
(11) "Devisee" means a person designated
in a will to receive a devise. In the case
of a devise to an existing trust or trustee, or to a trustee or trust described
by will, the trust or trustee is the devisee and the beneficiaries are not
devisees.
(12) "Disability" means cause for
appointment of a conservator under chapter two hundred one.
(13) "Distributee"
means any person who has received property of a decedent from the decedent's
personal representative other than as a creditor or purchaser. A testamentary trustee is a
class=SpellE>distributee only to the extent of distributed assets or
increment thereto remaining in such trustee's hands. A beneficiary of a testamentary trust to whom
the trustee has distributed property received from a personal representative is
a class=SpellE>distributee of the personal representative. For the purposes of this provision,
"testamentary trustee" includes a trustee to whom assets are
transferred by will, to the extent of the devised assets.
(14) "Estate" includes the property of
the decedent, trust, or other person whose affairs are subject to this chapter
as originally constituted and as it exists from time to time during
administration.
(15) "Exempt property" means that
property of a decedent's estate which is described in Section 2-403.
(16) "Fiduciary" includes a personal
representative, guardian, conservator, and trustee.
(17) "Foreign personal representative"
means a personal representative appointed by another jurisdiction.
(18) "Formal proceedings" means
proceedings conducted before a judge with notice to interested persons.
(19) "Governing instrument" means a deed,
will, trust, insurance or annuity policy, account with POD designation,
security registered in beneficiary form (
(20) "Guardian" means a person who has
qualified as a guardian of a minor or incapacitated person pursuant to
testamentary or court appointment, but excludes one who is a guardian ad
class=SpellE>litem.
(21) "Heirs", except as controlled by
SecSection 2-711, means persons, including the surviving spouse and the
commonwealth, who are entitled under the statutes of intestate succession to
the property of a decedent.
(22) "Incapacitated person" means an
individual for whom a guardian has been appointed under Article V, Part 3.
(23) "Informal proceedings" means those
conducted without notice to interested persons by an officer of the Court
acting as a Magistrate for probate of a will or appointment of a personal
representative.
(24) "Interested person" includes heirs,
devisees, children, spouses, creditors, beneficiaries, and any others having a
property right in or claims against a trust estate or the estate of a decedent,
ward, or protected person. It also
includes persons having priority for appointment as personal representative,
and other fiduciaries representing interested persons. The meaning as it relates to particular
persons may vary from time to time and must be determined according to the
particular purposes of, and matter involved in, any proceeding.
(25) "Issue" of a person means descendant
as defined in subsection (9).
(26) "Joint tenants with the right of
survivorship" includes co-owners of property held under circumstances that
entitle one or more to the whole of the property on the death of the other or
others, but excludes forms of co-ownership registration in which the underlying
ownership of each party is in proportion to that party's contribution.
(27) "Lease" includes an oil, gas, or
other mineral lease.
(28) "Letters" includes letters
testamentary, letters of guardianship, letters of administration, and letters
of class=SpellE>conservatorship.
(29) "Magistrate" refers to the official
of the Court designated to perform the function of Magistrate as provided in
Section 1-307.
(30) "Minor" means a person who is under
eighteen years of age.
(31) "Mortgage" means any conveyance,
agreement, or arrangement in which property is encumbered or used as security.
(32) "Nonresident decedent" means a
decedent who was domiciled in another jurisdiction at the time of death.
(33) "Organization" means a corporation,
business trust, estate, trust, partnership, joint venture, association,
government or governmental subdivision or agency, or any other legal or
commercial entity.
(34) "Parent" includes any person
entitled to take, or who would be entitled to take if the child died without a
will, as a parent under this chapter by intestate succession from the child
whose relationship is in question and excludes any person who is only a
stepparent, foster parent, or grandparent.
(35) "Payor"
means a trustee, insurer, business entity, employer, government, governmental
agency or subdivision, or any other person authorized or obligated by law or a
governing instrument to make payments.
(36) "Person" means an individual or an
organization.
(37) "Personal representative" includes
executor, administrator, successor personal representative, special
administrator, special personal representative, and persons who perform
substantially the same function under the law governing their status. "General personal representative"
excludes special personal administrator.
(38) "Petition" means a written request
to the Court for an order after notice.
(39) "Proceeding" includes action at law
and suit in equity.
(40) "Property" includes both real and
personal property or any interest therein and means anything that may be the
subject of ownership.
(41) "Protected person" is a person for
whom a conservator has been appointed under Article V, Part 4.
(42) "Protective proceedings" means a
proceeding for appointment of a conservator under Article V, Part 4.
(43) "Register" refers to the official
designated in section four of chapter two hundred seventeen.
(44) "Security" includes any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in an oil, gas, or mining title or lease or in
payments out of production under such a title or lease, collateral trust
certificate, transferable share, voting trust certificate or, in general, any
interest or instrument commonly known as a security, or any certificate of
interest or participation, any temporary or interim certificate, receipt, or
certificate of deposit for, or any warrant or right to subscribe to or
purchase, any of the foregoing.
(45) "Settlement", in reference to a
decedent's estate, includes the full process of administration, distribution,
and closing.
(46) "Special personal representative"
means a personal representative as described by Sections 3-614 through 3-618.
(47) "State" means a state of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, or any
territory or insular possession subject to the jurisdiction of the United
States.
(48) "Successor personal representative"
means a personal representative, other than a special administrator, who is
appointed to succeed a previously appointed personal representative.
(49) "Successors" means persons, other
than creditors, who are entitled to property of a decedent under the decedent's
will or this chapter.
(50) "Supervised administration" refers
to the proceedings described in Part 5 of Article
(51) "Survive", except for purposes of
Part 3 of Article VI, means that an individual has neither predeceased an
event, including the death of another individual, nor is deemed to have
predeceased an event under Section 2-104 or 2-702. The term includes its derivatives, such as
"survives", "survived", "survivor",
"surviving".
(52) "Testacy proceeding" means a
proceeding to establish a will or determine intestacy.
(53) "Testator" includes an individual of
either sex.
(54) "Trust" includes an express trust,
private or charitable, with additions thereto, wherever and however
created. The term also includes a trust
created or determined by judgment or decree under which the trust is to be
administered in the manner of an express trust.
The term excludes other constructive trusts and excludes resulting
trusts, class=SpellE>conservatorships, personal representatives, trust
accounts as defined in Article VI, custodial arrangements pursuant to chapter
two hundred one A, business trusts providing for certificates to be issued to
beneficiaries, common trust funds, voting trusts, security arrangements,
liquidation trusts, and trusts for the primary purpose of paying debts,
dividends, interest, salaries, wages, profits, pensions, or employee benefits
of any kind, and any arrangement under which a person is nominee or escrow for
another.
(55) "Trustee" includes an original,
additional, or successor trustee, whether or not appointed or confirmed by
court.
(56) "Ward" means an individual for whom
a guardian has been appointed pursuant to Article V, Part 2.
(57) "Will" includes codicil and any
testamentary instrument that merely appoints an executor, revokes or revises
another will, nominates a guardian, or expressly excludes or limits the right
of an individual or class to succeed to property of the decedent passing by intestate
succession.
PART 3
SCOPE, JURISDICTION
Section 1-301.
[Territorial Application.]
Except as otherwise provided in this chapter, this
chapter applies to (1) the affairs and estates of decedents, missing persons,
and persons to be protected, domiciled in this commonwealth, (2) the property
of nonresidents located in this commonwealth or property coming into the
control of a fiduciary who is subject to the laws of this commonwealth, (3)
incapacitated persons and minors in this commonwealth, (4) survivorship and
related accounts in this commonwealth, and (5) trusts subject to administration
in this commonwealth.
Section 1-302.
[Subject Matter Jurisdiction.]
(a) To the
full extent permitted by the constitution, the Court has jurisdiction over all
subject matter relating to (1) estates of decedents, including construction of
wills and determination of heirs and successors of decedents, and estates of
protected persons, (2) protection of minors and incapacitated persons, (3)
trusts, and (4) any other matters authorized by section six of chapter two
hundred fifteen. The District Court and
the Juvenile Court shall have concurrent jurisdiction with the Probate and
Family Court to appoint guardians of minors when the subject of the petition is
a minor and there is a proceeding before such District or Juvenile Court. The District and Juvenile Court shall have
continuing jurisdiction over resignation, removal, reporting, and other
proceedings related to the guardianship.
(b) The
Court has full power to make orders, judgments and decrees and take all other
action necessary and proper to administer justice in the matters which come
before it.
(c) The
Court has jurisdiction over protective proceedings and guardianship
proceedings.
(d) If both
guardianship and protective proceedings as to the same person are commenced or
pending in the same court, the proceedings may be consolidated.
Section 1-303.
[Venue; Multiple Proceedings; Transfer.]
(a) Where a
proceeding under this chapter could be maintained in more than one place in
this commonwealth, the division in which the proceeding is first commenced has
the exclusive right to proceed.
(b) If
proceedings concerning the same estate, protected person, ward, or trust are
commenced in more than one court of this commonwealth, the court in which the
proceeding was first commenced shall continue to hear the matter, and the other
courts shall hold the matter in abeyance until the question of venue is
decided, and if the ruling court determines that venue is properly in another
court, it shall transfer the proceeding to the other court.
(c) If a
Court finds that in the interest of justice a proceeding or a file should be
located in another court of this commonwealth, the Court making the finding may
transfer the proceeding or file to the other court.
Section 1-304.
[Reserved.]
Section 1-305.
[Reserved.]
Section 1-306.
[Reserved.]
Section 1-307.
[Magistrate; Powers.]
The acts and orders which this chapter specifies as
performable by the Magistrate may be performed either by the Magistrate of the
Court or such other official of the Court, including a judge of the Court or
other official in the office of the Court, designated by the Court by a written
order filed and recorded in the office of the Court.
Section 1-308.
[Reserved.]
Section 1-309.
[Reserved.]
Section 1-310.
[Oath or Affirmation on Filed Documents.]
Except as otherwise specifically provided in this
chapter or by rule, every document filed with the Court under this chapter
including petitions, and demands for notice, shall be deemed to include an
oath, affirmation, or statement to the effect that its representations are true
as far as the person executing or filing it knows or is informed, and penalties
for perjury may follow deliberate falsification therein.
PART 4
NOTICE, PARTIES
LITIGATION
Section 1-401.
[Notice; Method and Time of Giving; Objections; Uncontested Matters.]
(a) If
notice on any matter is required by reference to this section and except for
specific notice requirements as otherwise provided, the Court shall fix a
return date and issue a Citation. The
petitioner shall cause notice of the return day of any matter to be given to
any interested person or attorney if the appearance is by attorney or the
interested person requested that notice be sent to the attorney. Notice shall be given:
(1) by
mailing a copy of the Citation at least fourteen days before the return date by
certified, registered or ordinary first class mail addressed to all interested
persons who have not assented in writing or their attorney if the appearance is
by attorney or the interested person requested that notice be sent to the
attorney at the person's office or place of residence, if known; or
(2) by delivering a copy of the Citation to the
person being notified personally at least fourteen days before the return date;
or
(3) if the address, or identity of any person is
not known and cannot be ascertained with reasonable diligence, by publishing a
copy of the Citation once in a newspaper having general circulation in the
county where the proceeding is pending, the publication of which is to be at
least seven days before the return date.
(b) The Court for good cause shown may provide
for a different method or time of giving notice for any return date. Notice of proceedings for guardianships of
minors in the District Court and the Juvenile Court shall be given in
accordance with the rules of those Courts.
(c) Proof of the giving of notice shall be made
on or before the hearing or return day and filed in the proceeding.
(d)
Any party to a formal proceeding who opposes the proceeding for any reason
shall before 10:00 A.M. of the return date enter an appearance in writing
giving the name of the proceeding, the objecting party's name and the objecting
party's address or the name and address of the objecting party's attorney.
(e)
The objecting party shall file a written affidavit of objections to the
proceeding, stating the specific facts and grounds upon which the objection is
based within thirty (30) days after the return date.
(f)
If an affidavit of objections fails to comply with the requirements of the
foregoing section (e), such affidavit of objections and the appearance of the
party filing such affidavit of objections may be struck on motion after notice
at any time after filing of such affidavit of objections.
(g)
If a proceeding is unopposed, after the time required for any notice has
expired, upon proof of notice, the Court or the Magistrate may enter appropriate
orders on the strength of the pleadings if satisfied that all conditions are
met, or the Court may conduct a hearing and require proof of the matters
necessary to support the order sought.
Section 1-402.
[Notice; Waiver.]
A
person, including a guardian ad class=SpellE>litem, conservator, or other
fiduciary, may waive notice by a writing signed by the person or the person's
attorney and filed in the proceeding. A
person for whom a guardianship or other protective order is sought, a ward, or
a protected person may not waive notice.
Section 1-403.
[Pleadings; When Parties Bound by Others; Notice]
In
formal proceedings involving trusts or estates of decedents, minors, protected
persons, or incapacitated persons, and in judicially supervised settlements,
the following apply:
(1)
Interests to be affected shall be described in pleadings which give
reasonable information to owners by name or class, by reference to the
instrument creating the interests, or in other appropriate manner.
(2)
Persons are bound by orders binding others in the following cases:
(i) Orders binding
the sole holder or all co-holders of a power of revocation or a presently
exercisable general power of appointment, including one in the form of a power
of amendment, or a presently exercisable power to appoint among a class of
appointees which is broader than the class of those persons who would take in
default of the exercise of such power, bind other persons to the extent their
interests (as objects, takers in default, or otherwise) are subject to the
power.
(ii) To the
extent there is no conflict of interest between them or among persons
represented, orders binding a conservator bind the person whose estate the
conservator controls; orders binding a guardian bind the protected person or
ward if no conservator has been appointed; orders binding a trustee bind
beneficiaries of the trust in proceedings to probate a will establishing or
adding to a trust, to review the acts or accounts of a prior fiduciary and in
proceedings involving creditors or other third parties; and orders binding a
personal representative bind persons interested in the undistributed assets of
a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator
or guardian has been appointed, a parent may represent a minor child
(iii) An
unborn or unascertained person who is not otherwise represented is bound by an
order to the extent the person's interest is adequately represented by another
party having a substantially identical interest in the proceeding.
(3) Notice
is required as follows:
(i) Notice as
prescribed by Section 1-401 shall be given to every interested person or to one
who can bind an interested person as described in (2)(i)
or (2)(ii) above. Notice may be given
both to a person and to another who may bind such person.
(ii) Notice
is given to unborn or unascertained persons, who are not represented under (2)(i) or (2)(ii) above, by giving notice to all known persons
whose interest in the proceedings are substantially identical to those of the
unborn or unascertained persons.
Section 1-404.
[Guardian ad class=SpellE>Litem and Next Friend.]
(a)
If, in a formal proceeding involving trusts or estates of decedents, minors,
protected persons, or incapacitated persons, and in judicially supervised
settlements, or otherwise, a minor, a mentally retarded person, an autistic
person, or person under disability, or a person not ascertained or not in
being, may be or may become interested in any property, real or personal, or in
the enforcement or defense of any legal rights, the court in which any action,
petition or proceeding of any kind relative to or affecting any such estate or
legal rights is pending may, upon the representation of any party thereto, or
of any person interested, appoint a suitable person to appear and act therein
as guardian ad class=SpellE>litem or next friend of such minor, mentally
retarded person, autistic person, or person under disability or not ascertained
or not in being; and a judgment, order or decree in such proceedings, made
after such appointment, should be conclusive upon all persons for whom such
guardian ad class=SpellE>litem or next friend was appointed.
(b)
The reasonable expenses of such guardian ad class=SpellE>litem or next
friend, including compensation and counsel fees, shall be determined by the
Court and paid as it may order, either out of the estate or by the plaintiff,
petitioner or the commonwealth. If such
expenses are to be paid by the plaintiff or petitioner execution therefor may issue in the name of the guardian ad
class=SpellE>litem or next friend.
(c)
Nothing in this Code shall affect the power of a court to appoint a guardian or
conservator to defend the interests of a minor class=SpellE>impleaded in
such court, or interested in a suit or matter there pending, nor the power of
such court to appoint or allow a person, as next friend for a minor, to
commence, prosecute or defend a suit in his or her behalf.
(d)
If it appears in a probate or appointment
proceeding that a spouse, heir at law or devisee is an incapacitated or
protected person or a minor, notice of all proceedings shall be given to the
incapacitated or protected person or minor and to his or her guardian or
conservator. Unless the spouse, heir or
devisee is represented by someone other than the petitioner or is under
guardianship or class=SpellE>conservatorship, the Court shall appoint a
guardian ad class=SpellE>litem who shall receive notice of all proceedings.
ARTICLE
II
INTESTACY,
WILLS,
PART
1
INTESTATE
SUCCESSION
Section
2-101. [Intestate Estate.]
(a) Any part of a decedent's estate
not effectively disposed of by will passes by intestate succession to the
decedent's heirs as prescribed in this Part, except as modified by the
decedent's will.
(b) A decedent by will may expressly
exclude or limit the right of an individual or class to succeed to property of
the decedent passing by intestate succession.
If that individual or a member of that class survives the decedent, the
share of the decedent's intestate estate to which that individual or class
would have succeeded passes as if that individual or each member of that class
had disclaimed the intestate share.
Section
2-102. [Share of Spouse.]
The intestate share of a decedent's
surviving spouse is:
(1) the entire intestate estate if:
(i) no
descendant or parent of the decedent survives the decedent; or
(ii) all of the decedent's surviving
descendants are also descendants of the surviving spouse and there is no other
descendant of the surviving spouse who survives the decedent;
(2) the first two hundred thousand
dollars, plus three-fourths of any balance of the intestate estate, if no
descendant of the decedent survives the decedent, but a parent of the decedent
survives the decedent;
(3) the first one hundred thousand
dollars, plus one-half of any balance of the intestate estate, if all of the
decedent's surviving descendants are also descendants of the surviving spouse
and the surviving spouse has one or more surviving descendants who are not
descendants of the decedent;
(4) the first one hundred thousand
dollars, plus one-half of any balance of the intestate estate, if one or more
of the decedent's surviving descendants are not descendants of the surviving
spouse.
Section
2-103. [Share of Heirs other than Surviving Spouse.]
Any part of the intestate estate not
passing to the decedent's surviving spouse under Section 2-102, or the entire
intestate estate if there is no surviving spouse, passes in the following order
to the individuals designated below who survive the decedent:
(1) to the decedent's descendants
per capita at each generation;
(2) if there is no surviving
descendant, to the decedent's parents equally if both survive, or to the surviving
parent;
(3) if there is no surviving
descendant or parent, to the descendants of the decedent's parents or either of
them per capita at each generation;
(4) if there is no surviving
descendant, parent, or descendant of a parent, then equally to the decedent's
next of kin in equal degree; but if there are two or more descendants of
deceased ancestors in equal degree claiming through different ancestors, those
claiming through the nearest ancestor shall be preferred to those claiming
through an ancestor more remote. Degrees
of kindred shall be computed according to the rules of civil law.
Section
2-104. [Reserved.]
Section
2-105. [No Taker.]
If there is no taker under the
provisions of this Article, the intestate estate passes to the commonwealth; provided,
however, if such intestate is a veteran who died while a member of the
Soldiers' Home in Massachusetts or the Soldiers' Home in Holyoke, the intestate
estate shall inure to the benefit of the legacy fund or legacy account of the
soldiers' home of which the intestate was a member.
Section
2-106. [Representation.]
(a) [Definitions.] In this section:
(1) "Deceased descendant",
"deceased parent", or "deceased ancestor" means a
descendant, parent, or ancestor who predeceased the decedent.
(2) "Surviving descendant"
means a descendant who survived the decedent.
(b) [Decedent's Descendants.] If, under Section 2-103(1), a decedent's
intestate estate or a part thereof passes "per capita at each
generation" to the decedent's descendants, the estate or part thereof is
divided into as many equal shares as there are (i)
surviving descendants in the generation nearest to the decedent that contains
one or more surviving descendants and (ii) deceased descendants in the same
generation who left surviving descendants, if any. Each surviving descendant in the nearest
generation is allocated one share. The
remaining shares, if any, are combined and then divided in the same manner
among the surviving descendants of the deceased descendants as if the surviving
descendants in the nearest generation and their surviving descendants had
predeceased the decedent.
(c) [Descendants of Parents.] If, under Section 2-103(3), a decedent's
intestate estate or a part thereof passes "per capita at each
generation" to the descendants of the decedent's deceased parents or
either of them, the estate or part thereof is divided into as many equal shares
as there are (i) surviving descendants in the
generation nearest the deceased parents or either of them that contains one or
more surviving descendants and (ii) deceased descendants in the same generation
who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one
share. The remaining shares, if any, are
combined and then divided in the same manner among the surviving descendants of
the deceased descendants as if the surviving descendants in the nearest
generation and their surviving descendants had predeceased the decedent.
Section
2-107. [Kindred of Half Blood.]
Relatives of the half blood inherit the
same share they would inherit if they were of the whole blood.
Section
2-108. [Afterborn Heirs.]
An individual in gestation at a particular
time is treated as living at that time if the individual lives one hundred
twenty hours or more after birth.
Section
2-109. [Advancements.]
(a) If an individual dies intestate
as to all or a portion of the estate, property the decedent gave during the
decedent's lifetime to an individual who, at the decedent's death, is an heir
is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a contemporaneous writing or
the heir acknowledged in writing that the gift is an advancement or (ii) the
decedent's contemporaneous writing or the heir's written acknowledgment
otherwise indicates that the gift is to be taken into account in computing the
division and distribution of the decedent's intestate estate.
(b)
If the value of an advancement is expressed in the conveyance, in the
contemporaneous writing, or in the acknowledgment, such value shall be adopted
in the division and distribution of the intestate estate; otherwise it shall be
determined according to the value when the property was given.
(c)
Property which is advanced by an intestate shall be considered as part
of the intestate's estate in the division and distribution of such estate, and
shall be taken by the heir who received the advance toward the heir's share of
the intestate estate; but the heir shall not be required to restore any part
thereof, although it exceeds the intestate share. A surviving spouse shall be entitled only to
a share in the residue after deducting the value of the advancement.
(d)
If a child or other lineal descendant of the intestate who has received
an advancement dies before the intestate, leaving descendants who receive a
share of the intestate's estate, the advancement shall be considered as part of
the intestate's estate in the division and distribution of such estate, and the
value thereof shall be taken in equal shares by the representatives of the
person who received the advancement toward their share of the intestate estate,
as if the advancement had been made directly to them.
(e)
The probate court in which the estate of a decedent is settled may hear
and determine all questions of advancements arising relative to such estate.
Section
2-110. [Debts to Decedent.]
A debt owed to a decedent is not
charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent,
the debt is not taken into account in computing the intestate share of the
debtor's descendants.
Section
2-111. [Alienage.]
No individual is disqualified to
take as an heir because the individual or another individual through whom the
individual claims is or has been an alien.
Section
2-112. [Dower and class Curtesy Abolished.]
The estates of dower and class
curtesy are abolished.
Section
2-113. [Individuals Related to Decedent Through Two Lines.]
An individual who is related to the
decedent through two lines of relationship is entitled to only a single share
based on the relationship that would entitle the individual to the larger
share.
Section
2-114. [Parent and Child Relationship.]
(a) Except as provided in subsection
(b), for purposes of intestate succession by, through, or from a person, an
individual is the child of his or her natural parents, regardless of their
marital status. The parent and child
relationship may be established under applicable state law.
(b) An adopted individual is the
child of his or her adopting parent or parents and not of his or her natural
parents, but adoption of a child by the spouse of either natural parent has no
effect on the right of the child or a descendant of the child to inherit from
or through either natural parent.
PART
2
Sections
2-200 to 2-299. [Reserved]
PART
3
SPOUSE
Section
2-301. [Entitlement of Spouse:
Premarital Will.]
(a) If a testator's surviving spouse
married the testator after the testator executed a will, the surviving spouse
is entitled to receive, as an intestate share, no less than the value of the
share of the estate the spouse would have received if the testator had died
intestate as to that portion of the testator's estate, if any, that neither is
devised to a child of the testator who is born before the testator married the
surviving spouse and who is not a child of the surviving spouse nor is devised
to a descendant of such a child or passes under Sections 2-603 or 2-604 to such
a child or to a descendant of such a child, unless:
(1) it appears from the will that
the will was made in contemplation of the testator's marriage to the surviving
spouse;
(2) the will expresses the intention
that it is to be effective notwithstanding any subsequent marriage; or
(3) the testator provided for the
spouse by transfer outside the will and any intent that the transfer be in lieu
of a testamentary provision is shown by the testator's statements or is
reasonably inferred from the amount of the transfer or other evidence.
(b) In satisfying the share provided
by this section, devises made by the will to the testator's surviving spouse,
if any, are applied first, and other devises, other than a devise to a child of
the testator who was born before the testator married the surviving spouse and
who is not a child of the surviving spouse or a devise or substitute gift under
Section 2-603 or 2-604 to a descendant of such a child, abate as provided in
Section 3-902.
Section
2-302. [Omitted Children.]
(a) Except as provided in subsection
(b), if a testator fails to provide in a will for any children born or adopted
after the execution of the will, the omitted after-born or after-adopted child
receives a share in the estate as follows:
(1) If the testator had no child
living when the will was executed, an omitted after-born or after-adopted child
receives a share in the estate equal in value to that which the child would
have received had the testator died intestate, unless the will devised all or
substantially all the estate to the other parent of the omitted child and that
other parent survives the testator and is entitled to take under the will.
(2) If the testator had one or more
children living when the will was executed, and the will devised property or an
interest in property to one or more of the then-living children, an omitted
after-born or after-adopted child is entitled to share in the testator's estate
as follows:
(i) The
portion of the testator's estate in which the omitted after-born or
after-adopted child is entitled to share is limited to devises made to the
testator's then-living children under the will.
(ii) The omitted after-born or
after-adopted child is entitled to receive the share of the testator's estate,
as limited in subparagraph (i), that the child would
have received had the testator included all omitted after-born and
after-adopted children with the children to whom devises were made under the
will and had given an equal share of the estate to each child.
(iii) To the extent feasible, the
interest granted an omitted after-born or after-adopted child under this
section must be of the same character, whether equitable or legal, present or
future, as that devised to the testator's then-living children under the will.
(iv) In satisfying a share provided
by this paragraph, devises to the testator's children who were living when the
will was executed abate ratably. In
abating the devises of the then-living children, the court shall preserve to
the maximum extent possible the character of the testamentary plan adopted by
the testator.
(b) Neither subsection (a)(1) nor
subsection (a)(2) applies if:
(1) It appears from the will that
the omission was intentional; or
(2) The testator provided for the
omitted after-born or after-adopted child by transfer outside the will and the
intent that the transfer be in lieu of a testamentary provision is shown by the
testator's statements or is reasonably inferred from the amount of the transfer
or other evidence.
(c) If at the time of execution of
the will the testator fails to provide in the will for a living child solely
because the testator believes the child to be dead, the child is entitled to a
share in the estate as if the child were an omitted after-born or after-adopted
child.
(d) In satisfying a share provided
by subsection (a)(1), devises made by the will abate under Section 3-902.
(e) No such omitted child shall take
any share in real property unless a claim is filed in the registry of probate
by or on behalf of such child within one year after the death of the decedent.
PART
4
EXEMPT
PROPERTY
Section
2-401. [Applicable Law.]
This Part applies to the estate of a
decedent who dies domiciled in this commonwealth. Rights to exempt property, and discretionary
family allowance for a decedent who dies not domiciled in this commonwealth are
governed by the law of the decedent's domicile at death.
Section
2-402. [Reserved.]
Section
2-403. [Exempt Property.]
(a)
The decedent's surviving spouse is entitled from the estate to a value
at date of death, not exceeding ten thousand dollars in excess of any security
interests therein, in household furniture, automobiles, furnishings,
appliances, and personal effects. If
there is no surviving spouse, the decedent's children are entitled jointly to
the same value. If encumbered chattels
are selected and the value in excess of security interests, plus that of other
exempt property, is less than ten thousand dollars, or if there is not ten
thousand dollars worth of exempt property in the estate, the spouse or children
are entitled to other assets of the estate, if any, to the extent necessary to
make up the ten thousand dollars value.
Rights to exempt property and assets needed to make up a deficiency of
exempt property have priority over all unsecured claims against the estate, but
the right to any assets to make up a deficiency of exempt property abates as
necessary to permit earlier payment of the discretionary family allowance. These rights are in addition to any benefit
or share passing to the surviving spouse or children by the decedent's will,
unless otherwise provided, by intestate succession, or by way of elective
share.
(b)
The class decedent’s surviving spouse may remain in the house of the
decedent for not more than six months next succeeding the date of death without
being class=SpellE>chargable for rent.
Section
2-404. [Discretionary Family Allowance.]
(a)
In addition to the right to exempt property, the decedent's surviving
spouse and minor children whom the decedent was obligated to support and
children who were in fact being supported by the decedent are entitled to a
reasonable allowance in money out of the estate for their maintenance during
the period of administration, which allowance may not continue for longer than
one year if the estate is inadequate to discharge allowed claims. This discretionary family allowance may be
paid as a lump sum or in periodic installments.
It is payable to the surviving spouse, if living, for the use of the
surviving spouse and minor and dependent children; otherwise to the children, or persons having
their care and custody. If a minor child
or dependent child is not living with the surviving spouse, the discretionary
family allowance may be made partially to the child or the child's guardian or
other person having the child's care and custody, and partially to the spouse,
as their needs may appear. The
discretionary family allowance is exempt from and has priority over all
unsecured claims.
(b) The discretionary family
allowance is not chargeable against any benefit or share passing to the
surviving spouse or children by the will of the decedent, unless otherwise
provided, by intestate succession or by way of elective share. The death of any person entitled to a
discretionary family allowance terminates the right to allowances not yet paid.
Section
2-405. [Source, Determination, and Documentation.]
If the estate is otherwise
sufficient, property specifically devised may not be used to satisfy rights to
exempt property. Subject to this
restriction, the surviving spouse, guardians of minor children, or children who
are adults may select property of the estate as exempt property. The personal representative may make those
selections if the surviving spouse, the children, or the guardians of the minor
children are unable or fail to do so within a reasonable time or there is no
guardian of a minor child. The personal
representative may execute an instrument or deed of distribution to establish
the ownership of property taken as exempt property. The personal representative may determine the
discretionary family allowance in a lump sum not exceeding eighteen thousand
dollars or periodic installments not exceeding one thousand five hundred
dollars per month for one year, and may disburse funds of the estate in payment
of the discretionary family allowance payable in cash. The personal representative or an interested
person aggrieved by any selection, determination, payment, proposed payment, or
failure to act under this section may petition the court for appropriate
relief, which may include a discretionary family allowance other than that
which the personal representative determined or could have determined.
PART
5
WILLS,
WILL CONTRACTS,
Section
2-501. [Who May Make Will.]
An individual 18 or more years of
age who is of sound mind may make a will.
Section
2-502. [Execution; Witnessed Wills.]
(a)
Except as provided in subsection (b); subsection (d) and in Sections
2-506 and 2-513, a will must be:
(1) in writing;
(2) signed by the testator or in the
testator's name by some other individual in the testator's conscious presence
and by the testator's direction; and
(3) signed by at least two
individuals, each of whom witnessed either the signing of the will as described
in paragraph (2) or the testator's acknowledgment of that signature or
acknowledgment of the will.
(b)
Intent that the document constitute the testator's will can be
established by extrinsic evidence.
Section
2-503. [Reserved.]
Section.
2-504. [Self-Proved Will.]
(a)
A will may be simultaneously executed, attested, and made self-proved,
by acknowledgment thereof by the testator and affidavits of the witnesses, each
made before an officer authorized to administer oaths under the laws of the
state in which execution occurs and evidenced by the officer's certificate,
under official seal, in substantially the following form:
I, _______________, the testator,
sign my name to this instrument this _____ day of _________, and being first
duly sworn, do hereby declare to the undersigned authority that I sign and
execute this instrument as my will and that I sign it willingly (or willingly
direct another to sign for me), that I execute it as my free and voluntary act
for the purposes therein expressed, and that I am eighteen years of age or
older, of sound mind, and under no constraint or undue influence.
_________________________
Testator
We, _______________,
_______________, the witnesses, sign our names to this instrument, being first
duly sworn, and do hereby declare to the undersigned authority that the
testator signs and executes this instrument as [his] [her] will and that [he]
[she] signs it willingly (or willingly directs another to sign for [him]
[her]), and that each of us, in the presence and hearing of the testator,
hereby signs this will as witness to the testator's signing, and that to the
best of our knowledge the testator is eighteen years of age or older, of sound
mind, and under no constraint or undue influence.
_________________________
Witness
_________________________
Witness
The State of _______________
County of __________________
Subscribed, sworn to and acknowledged before
me by ________, the testator, and subscribed and sworn to before me by
_________, and _______, witness, this _____ day of __________.
(Seal)
(Signed) _______________________________
(Official
capacity of officer)
(b)
An attested will may be made self-proved at any time after its execution
by the acknowledgment thereof by the testator and the affidavits of the
witnesses, each made before an officer authorized to administer oaths under the
laws of the state in which the acknowledgment occurs and evidenced by the
officer's certificate, under the official seal, attached or annexed to the will
in substantially the following form:
The State of _______________
County of __________________
We,____________,
____________, and _____________, the testator and the witnesses, respectively,
whose names are signed to the attached or foregoing instrument, being first
duly sworn, do hereby declare to the undersigned authority that the testator
signed and executed the instrument as the testator's will and that [he] [she]
had signed willingly (or willingly directed another to sign for [him] [her]),
and that [he] [she] executed it as [his] [her] free and voluntary act for the
purposes therein expressed, and that each of the witnesses, in the presence and
hearing of the testator, signed the will as witness and that to the best of
[his] [her] knowledge the testator was at that time eighteen years of age or
older, of sound mind, and under no constraint or undue influence.
_________________________
Testator
_________________________
Witness
_________________________
Witness
Subscribed, sworn to and acknowledged before
me by ________, the testator, and subscribed and sworn to before me by
_________, and _________, witnesses, this _____ day of __________.
(Seal)
(Signed) ______________________________
(Official
capacity of officer)
(c)
A signature affixed to a self-proving affidavit attached to a will is
considered a signature affixed to the will, if necessary to prove the will's
due execution.
Section
2-505. [Who May Witness.]
(a)
An individual generally competent to be a witness may act as a witness
to a will.
(b)
The signing of a will by an interested witness does not invalidate the
will or any provision of it except that a devise to a witness or a spouse of
such witness shall be void unless there are two other subscribing witnesses to
the will who are not similarly benefited class=SpellE>thereunder or the
interested witness establishes that the bequest was not inserted, and the will
was not signed, as a result of fraud or undue influence by the witness.
Section
2-506. [Choice of Law as to Execution.]
A written will is valid if executed
in compliance with Section 2-502 or if its execution complies with the law at
the time of execution of the place where the will is executed, or of the law of
the place where at the time of execution or at the time of death the testator
is domiciled, has a place of abode, or is a national.
Section
2-507. [Revocation by Writing or by Act.]
(a)
A will or any part thereof is revoked:
(1)
by executing a subsequent will that revokes the previous will or part
expressly or by inconsistency; or
(2)
by performing a class=SpellE>revocatory act on the will, if the
testator performed the act with the intent and for the purpose of revoking the
will or part or if another individual performed the act in the testator's
conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing,
canceling, obliterating, or destroying the will or any part of it.
(b)
If a subsequent will does not expressly revoke a previous will, the
execution of the subsequent will wholly revokes the previous will by
inconsistency if the testator intended the subsequent will to replace rather
than supplement the previous will.
(c)
The testator is presumed to have intended a subsequent will to replace
rather than supplement a previous will if the subsequent will makes a complete
disposition of the testator's estate. If
this presumption arises and is not rebutted, the previous will is revoked; only
the subsequent will is operative on the testator's death.
(d)
The testator is presumed to have intended a subsequent will to
supplement rather than replace a previous will if the subsequent will does not
make a complete disposition of the testator's estate. If this presumption arises and is not
rebutted, the subsequent will revokes the previous will only to the extent the
subsequent will is inconsistent with the previous will; each will is fully
operative on the testator's death to the extent they are not inconsistent.
Section
2-508. [Revocation by Change of Circumstances.]
Except as provided in Sections
2-301, 2-803 and 2-804, a change of circumstances does not revoke a will or any
part of it.
Section
2-509. [Revival of Revoked Will.]
(a)
If a subsequent will that wholly revoked a previous will is thereafter
revoked by a class=SpellE>revocatory act under Section 2-507(a)(2), the
previous will remains revoked unless it is revived. The previous will is revived if it is evident
from the circumstances of the revocation of the subsequent will or from the
testator's contemporary or subsequent declarations that the testator intended
the previous will to take effect as executed.
(b)
If a subsequent will that partly revoked a previous will is thereafter
revoked by a class=SpellE>revocatory act under Section 2-507(a)(2), a
revoked part of the previous will is revived unless it is evident from the
circumstances of the revocation of the subsequent will or from the testator's
contemporary or subsequent declarations that the testator did not intend the
revoked part to take effect as executed.
(c)
If a subsequent will that revoked a previous will in whole or in part is
thereafter revoked by another, later, will, the previous will remains revoked
in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is
revived to the extent it appears from the terms of the later will that the
testator intended the previous will to take effect.
Section
2-510. [Incorporation by Reference.]
A writing in existence when a will
is executed may be incorporated by reference if the language of the will
manifests this intent and describes the writing sufficiently to permit its identification.
Section
2-511. [Testamentary Additions to Trusts.]
(a)
A will may validly devise property to the trustee of a trust established
or to be established (i) during the testator's
lifetime by the testator, by the testator and some other person, or by some
other person, including a funded or unfunded life insurance trust, although the
settlor has reserved any or all rights of ownership
of the insurance contracts, or (ii) at the testator's death by the testator's
devise to the trustee, if the trust is identified in the testator's will and
its terms are set forth in a written instrument, other than a will, executed
before, or concurrently with, or after the execution of the testator's will or
in another individual's will if that other individual has predeceased the
testator, regardless of the existence, size, or character of the corpus of the
trust. The devise is not invalid because
the trust is amendable or revocable, or because the trust was amended after the
execution of the will or the testator's death.
(b)
Unless the testator's will provides otherwise, property devised to a
trust described in subsection (a) is not held under a testamentary trust of the
testator, but it becomes a part of the trust to which it is devised, and must
be administered and disposed of in accordance with the provisions of the
governing instrument setting forth the terms of the trust, including any
amendments thereto made before or after the testator's death.
(c)
Unless the testator's will provides otherwise, a revocation or
termination of the trust before the testator's death causes the devise to
lapse.
Section
2-512. [Events of Independent Significance.]
A will may dispose of property by
reference to acts and events that have significance apart from their effect
upon the dispositions made by the will, whether they occur before or after the
execution of the will or before or after the testator's death. The execution or revocation of another
individual's will is such an event.
Section
2-513. [Separate Writing Identifying Devise of Certain Types of Tangible
Personal Property.]
A will may refer to a written
statement or list to dispose of items of tangible personal property not
otherwise specifically disposed of by the will, other than money. To be admissible under this section as
evidence of the intended disposition, the writing must be signed by the
testator and must describe the items and the devisees with reasonable
certainty. The writing may be referred
to as one to be in existence at the time of the testator's death; it may be
prepared before or after the execution of the will; it may be altered by the
testator after its preparation; and it may be a writing that has no
significance apart from its effect on the dispositions made by the will.
Section
2-514. [Contracts Concerning Succession.]
A contract to make or not to make a
will or devise, or to revoke or not to revoke a will or devise, or to die
intestate, if executed after the effective date of this Article, may be
established only by (i) provisions of a will stating
material provisions of the contract, (ii) an express reference in a will to a
contract and extrinsic evidence proving the terms of the contract, or (iii) a
writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills
does not create a presumption of a contract not to revoke the will or wills.
Section
2-515. [Deposit of Will with Court in Testator's Lifetime.]
A will may be deposited by the
testator or the testator's agent with any court for safekeeping, under rules of
the court. The will must be sealed and
kept confidential. During the testator's lifetime, a deposited will must be
delivered only to the testator or to a person authorized in writing signed by
the testator to receive the will. A
guardian of the estate or conservator may be allowed to examine a deposited
will of a protected testator under procedures designed to maintain the
confidential character of the document to the extent possible, and to ensure
that it will be resealed and kept on deposit after the examination. Upon being informed of the testator's death,
the court shall notify any person designated to receive the will and deliver it
to that person on request; or the court may deliver the will to the appropriate
court.
Section
2-516. [Duty of Custodian of Will; Liability.]
After the death of a testator a
person having custody of a will of the testator shall deliver it within thirty
days after notice of the death to a person able to secure its probate and if
none is known, to an appropriate court.
A person who willfully fails to deliver a will is liable to any person
aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to
deliver a will after being ordered by the court in a proceeding brought for the
purpose of compelling delivery is subject to penalty for contempt of court.
Section
2-517. [Penalty Clause for Contest.]
A
provision in a will purporting to penalize an interested person for
contesting the will or instituting other proceedings relating to the estate is
enforceable.
PART
6
RULES
OF CONSTRUCTION APPLICABLE ONLY TO WILLS
Section
2-601. [Scope.]
In the absence of a finding of a
contrary intention shown by the terms of the will, the rules of construction in
this Part control the construction of a will.
Section
2-602. [Will May Pass All Property and After-Acquired Property.]
Property owned by the testator at
death and any acquired by the testator's estate thereafter passes under the
will unless a different intention appears.
Section
2-603. [Antilapse; Deceased Devisee; Class Gifts.]
(a) [Definitions.] In this section:
(1) "Alternative devise" means a devise
that is expressly created by the will and, under the terms of the will, can
take effect instead of another devise on the happening of one or more events,
including survival of the testator or failure to survive the testator, whether
an event is expressed in condition-precedent, condition-subsequent, or any
other form. A residuary clause
constitutes an alternative devise with respect to a
class=SpellE>nonresiduary devise only if the will specifically provides
that, upon lapse or failure, the class=SpellE>nonresiduary devise, or
class=SpellE>nonresiduary devises in general, pass under the residuary
clause.
(2)
"Class member" includes an individual who fails to survive the
testator but who would have taken under a devise in the form of a class gift
had the individual survived the testator.
(3)
"Devise" includes an alternative devise, a devise in the form
of a class gift, and an exercise of a power of appointment.
(4)
"Devisee" includes (i) a
class member if the devise is in the form of a class gift, (ii) the beneficiary
of a trust but not the trustee, (iii) an individual or class member who was
deceased at the time the testator executed the will as well as an individual or
class member who was then living but who failed to survive the testator, and
(iv) an appointee under a power of appointment exercised by the testator's
will.
(5)"Surviving devisee" or
"surviving descendant" means a devisee or a descendant who neither
predeceased the testator nor is deemed to have predeceased the testator under
Section 2-702.
(6)
"Testator" includes the class=SpellE>donee of a power of
appointment if the power is exercised in the testator's will.
(b) [Substitute Gift.] If a devisee fails to survive the
testator and is a grandparent or a descendant of a grandparent of either the
testator or the donor of a power of appointment exercised by the donor's will,
the following apply:
(1) Except as provided in paragraphs (3) and (4),
if the devise is not in the form of a class gift and the deceased devisee
leaves surviving descendants, a substitute gift is created in the devisee's
surviving descendants. They take per
capita at each generation the property to which the devisee would have been
entitled had the devisee survived the testator.
(2)
Except as provided in paragraphs (3) and (4), if the devise is in the
form of a class gift, other than a devise to "issue",
"descendants", "heirs of the body", "heirs",
"next of kin", "relatives", or "family", or a
class described by language of similar import, a substitute gift is created in
the deceased devisee or devisee's surviving descendants. The property to which the devisees would have
been entitled had all of them survived the testator passes to the surviving
devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to
which the particular devisee would have been entitled had the deceased devisees
survived the testator. Each deceased
class=SpellE>devisees's surviving descendants who are substituted for the
deceased devisee take per capita at each generation the share to which the
deceased devisee would have been entitled had the deceased devisee survived the
testator. For the purposes of this paragraph, "deceased devisee"
means a class member who failed to survive the testator and left one or more
surviving descendants.
(3) If
the will creates an alternative devise with respect to a devise for which a
substitute gift is created by paragraph (1) or (2), the substitute gift is
superseded by the alternative devise only if an expressly designated devisee of
the alternative devise is entitled to take under the will.
(4)
Unless the language creating a power of appointment expressly requires
that the appointee survive or otherwise excludes the substitution of the
descendants of an appointee for the appointee, a surviving descendant of a
deceased appointee of a power of appointment is substituted for the appointee
under this section, whether or not the descendant is an object of the power.
(c) [More Than One Substitute Gift; Which One
Takes.] If, under subsection (b), substitute gifts are created and not
superseded with respect to more than one devise and the devises are alternative
devises, one to the other, the determination of which of the substitute gifts
takes effect is resolved as follows:
(1)
Except as provided in paragraph (2), the devised property passes under
the primary substitute gift.
(2) If
there is a younger-generation devise, the devised property passes under the
younger-generation substitute gift and not under the primary substitute
gift.
(3) In
this subsection:
(i) "Primary devise" means the devise
that would have taken effect had all the deceased devisees of the alternative
devises who left surviving descendants survived the testator.
(ii)
"Primary substitute gift" means the substitute gift created
with respect to the primary devise.
(iii)
"Younger-generation devise" means a devise that (A) is to a
descendant of a devisee of the primary devise, (B) is an alternative devise
with respect to the primary devise, (C) is a devise for which a substitute gift
is created, and (D) would have taken effect had all the deceased devisees who
left surviving descendants survived the testator except the deceased devisee or
devisees of the primary devise.
(iv)
"Younger-generation substitute gift" means the substitute gift
created with respect to the younger-generation devise.
Section
2-604. [Failure of Testamentary Provision.]
(a)
Except as provided in Section 2-603, a devise, other than a residuary
devise, that fails for any reason becomes a part of the residue.
(b)
Except as provided in Section 2-603, if the residue is devised to two or
more persons, the share of a residuary devisee that fails for any reason passes
to the other residuary devisee, or to other residuary devisees in proportion to
the interest of each in the remaining part of the residue.
Section
2-605. [Increase in Securities; Accessions.]
(a)
If a testator executes a will that devises securities and the testator
then owned securities that meet the description in the will, the devise
includes additional securities owned by the testator at death to the extent the
additional securities were acquired by the testator after the will was executed
as a result of the testator's ownership of the described securities and are
securities of any of the following types:
(1) securities of the same organization acquired
by reason of action initiated by the organization or any successor, related, or
acquiring organization, excluding any acquired by exercise of purchase options;
(2) securities of another organization
acquired as a result of a merger, consolidation, reorganization, or other
distribution by the organization or any successor, related, or acquiring
organization; or
(3) securities of the same organization
acquired as a result of a plan of reinvestment.
(b)
Distributions in cash before death with respect to a described security
are not part of the devise.
Section 2-606. [Nonademption
of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or Insurance; Sale
by Guardian of the Estate, Conservator or Agent.]
(a)
A specific devisee has a right to the specifically devised property in
the testator's estate at death and:
(1) any balance of the
purchase price, together with any security agreement, owing from a purchaser to
the testator at death by reason of sale of the property;
(2) any amount of a condemnation award for
the taking of the property unpaid at death;
(3) any proceeds unpaid at death on fire or
casualty insurance on or other recovery for injury to the property; and
(4) property owned by the testator at death
and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of
the security interest for a specifically devised obligation.
(b)
If specifically devised property is sold or mortgaged by a guardian of
the estate conservator or by an agent acting within the authority of a durable
power of attorney for an incapacitated principal, or if a condemnation award,
insurance proceeds, or recovery for injury to the property are paid to a
conservator or to an agent acting within the authority of a durable power of
attorney for an incapacitated principal, the specific devisee has the right to
a general pecuniary devise equal to the net sale price, the amount of the
unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
(c)
The right of a specific devisee under subsection (b) is reduced by any
right the devisee has under subsection (a).
(d)
For the purposes of the references in subsection (b) to a conservator,
subsection (b) does not apply if after the sale, mortgage, condemnation,
casualty, or recovery, it was adjudicated that the testator's incapacity ceased
and the testator survived the adjudication by one year.
(e)
For the purposes of the references in subsection (b) to an agent acting
within the authority of a durable power
of attorney for an incapacitated principal, (i)
"incapacitated principal" means a principal who is an incapacitated
person, (ii) no adjudication of incapacity before death is necessary, and (iii)
the acts of an agent within the authority of a durable power of attorney are
presumed to be for an incapacitated principal.
Section
2-607. [Nonexonoration.]
A specific devise passes subject to
any mortgage interest existing at the date of death, without right of
exoneration, regardless of a general directive in the will to pay debts.
Section
2-608. [Exercise of Power of Appointment.]
(a)
In the absence of a requirement that a power of appointment be exercised
by a reference, or by an express or specific reference, to the power, a general
residuary clause in a will, or a will making general disposition of all of the
testator's property, expresses an intention to exercise a power of appointment
held by the testator only if (i) the power is a
general power and the creating instrument does not contain an effective gift if
the power is not exercised or (ii) the testator's will manifests an intention
to include the property subject to the power.
(b)
Unless a contrary intent is manifested in the terms of an instrument
creating or limiting a power of appointment, it shall be presumed that the
person so creating or limiting such power intended to authorize the
class=SpellE>donee thereof, when exercising said power, not only to create
absolute interests but also to create less than absolute legal and equitable
interests, including interests in trust for the benefit of objects of said
power even though the trustees thereof may not be objects of said power and
including new powers of appointment, general or more limited, in objects of
said power, even though the objects of the new powers may include one or more
that are not objects of said power.
Section
2-609. [Ademption by Satisfaction.]
(a)
Property a testator gave in the testator's lifetime to a person is
treated as a satisfaction of a devise in whole or in part, only if (i) the will provides for deduction of the gift, (ii) the
testator declared in a contemporaneous writing that the gift is in satisfaction
of the devise or that its value is to be deducted from the value of the devise,
or (iii) the devisee acknowledged in writing that the gift is in satisfaction
of the devise or that its value is to be deducted from the value of the devise.
(b)
For purposes of partial satisfaction, property given during lifetime
shall be valued as expressed in the will or in the contemporaneous writing; if
it is not so valued, such property shall be valued as of the time the devisee
came into possession or enjoyment of the property or at the testator's death,
whichever occurs first.
(c)
If the devisee fails to survive the testator, the gift is treated as a
full or partial satisfaction of the devise, as appropriate, in applying
Sections 2-603 and 2-604, unless the testator's contemporaneous writing
provides otherwise.
Section
2-610. [Annuities.]
(a) If an annuity, or the use, rent,
income or interest of property, real or personal, is given by will or by trust
instrument for the benefit of a person for life or until the happening of a
contingency, such person shall be entitled to receive and enjoy the same from
and after the death of the deceased, unless it is otherwise provided in such
will or trust instrument.
(b) A person entitled to an annuity,
rent, interest or income, or his personal representative, shall have the same
apportioned if his right or estate therein terminates between the days upon
which it is payable, unless otherwise provided in the will or trust instrument
by which it was created; but no action shall be brought
class=SpellE>therefor until the expiration of the period for which the
apportionment is made.
PART
7
RULES
OF CONSTRUCTION APPLICABLE TO DONATIVE
DISPOSITIONS
IN WILLS
GOVERNING
INSTRUMENTS
Section
2-701. [Scope.]
In the absence of a finding of a
contrary intention shown by the terms of the will, the rules of construction in
this Part control the construction of a governing instrument. The rules of construction in this Part apply
to a governing instrument of any type, except as the application of a
particular section is limited by its terms to a specific type or types of
class=SpellE>donative disposition or governing instrument.
Section
2-702. [Requirement of Survival.]
(a) [Requirement of Survival
Under Probate Code.] For the
purposes of this Code, except for purposes of Part 3 of Article VI [Uniform
(b) [Requirement of Survival under
class=SpellE>Donative Provision of Governing Instrument.] Except as provided in subsection (d) and
except for a security registered in
beneficiary form (
(c) [Co-owners With Right of Survivorship;
Requirement of Survival.] Except as
provided in subsection (d), if (i) it is not
established that one of two co-owners with right of survivorship survived the
other co-owner, one-half of the property passes as if one had survived, and
one-half as if the other had survived and (ii) there are more than two
co-owners and it is not established that at least one of them survived the
others, the property passes in the proportion that one bears to the whole
number of co-owners. For the purposes of
this subsection, "co-owners with right of survivorship" includes
joint tenants, tenants by the entireties, and other co-owners of property or
accounts held under circumstances that entitles one or more to the whole of the
property or account on the death of the other or others.
(d) [Exceptions.]
This section does not apply if:
(1) the governing instrument contains
language dealing explicitly with simultaneous deaths or deaths in a common
disaster and that language is operable under the facts of the case;
(2) the governing instrument expressly
indicates that an individual is not required to survive an event, including the death of another individual, by
any specified period or expressly requires the individual to survive the event
by a specified period;
(3) the application of this section to
multiple governing instruments would result in an unintended failure or
duplication of a disposition.
(e) [Protection of class=SpellE>Payors and
Other Third Parties.]
(1) A class=SpellE>payor or other third party
is not liable for having made a payment or transferred an item of property or
any other benefit to a beneficiary designated in a governing instrument who,
under this section, is not entitled to the payment or item of property, or for
having taken any other action in good faith reliance on the beneficiary's
apparent entitlement under the terms of the governing instrument, before the
class=SpellE>payor or other third party received written notice of a claimed
lack of entitlement under this section.
A class=SpellE>payor or other third party is liable for a payment
made or other action taken after the class=SpellE>payor or other third party
received written notice of a claimed lack of entitlement under this section.
(2) Written notice of a claimed lack of
entitlement under paragraph (1) must be mailed to the class=SpellE>payor's
or other third party's main office or home by registered or certified mail,
return receipt requested, or served upon the class=SpellE>payor or other
third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed
lack of entitlement under this section, a class=SpellE>payor or other third
party may pay any amount owed or transfer or deposit any item of property held
by it to or with the court having jurisdiction of the probate proceedings
relating to the decedent's estate, or if no proceedings have been commenced, to
or with the court having jurisdiction of probate proceedings relating to
decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of
property and, upon its determination under this section, shall order
disbursement in accordance with the determination. Payments, transfers, or deposits made to or
with the court discharge the class=SpellE>payor or other third party from all
claims for the value of amounts paid to or items of property transferred to or
deposited with the court.
(f) [Protection of Bona Fide Purchasers; Personal
Liability of Recipient.]
(1) A person who purchases property for value and
without notice, or who receives a payment or other item of property in partial
or full satisfaction of a legally enforceable obligation, is neither obligated
under this section to return the payment, item of property, or benefit nor is
liable under this section for the amount of the payment or the value of the item
of property or benefit. But a person
who, not for value, receives a payment, item of property, or any other benefit
to which the person is not entitled under this section is obligated to return
the payment, item of property, or benefit, or is personally liable for the
amount of the payment or the value of the item of property or benefit, to the
person who is entitled to it under this section.
(2) If this section or any part of this section
is preempted by federal law with respect to a payment, an item of property, or
any other benefit covered by this section, a person who, not for value,
receives the payment, item of property, or any other benefit to which the
person is not entitled under this section is obligated to return the payment,
item of property, or benefit, or is personally liable for the amount of the
payment or the value of the item of property or benefit, to the person who
would have been entitled to it were this section or part of this section not
preempted.
Section 2-703. [Choice of Law as to
Meaning and Effect of class=SpellE>Donative Dispositions.]
The
meaning and legal effect of a class=SpellE>donative disposition is
determined by the local law of the state selected by the transferor in the
governing instrument, unless the application of that law is contrary to the
provisions relating to the elective share described in Part 2, the provisions
relating to exempt property and allowances described in Part 4, or any other
public policy of this commonwealth otherwise applicable to the disposition.
Section 2-704. [Taxes on
class=SpellE>QTIPs.]
A
direction in a will or instrument of trust to pay taxes caused by, resulting
from, or imposed by reason of the death of the testator or donor, as the case
may be, out of the decedent's probate estate or trust estate or other property,
shall not include, unless the will or instrument of trust or a provision of
such tax laws specifically provides otherwise, taxes levied or assessed under
the tax laws of the United States or of the commonwealth or of any foreign
state or commonwealth on any qualified terminable interest property in which
the decedent had a qualifying income interest for life.
Section 2-705. [Class Gifts
Construed to Accord with Intestate Succession.]
(a) Adopted individuals and individuals born out
of wedlock, and their respective descendants if appropriate to the class, are
included in class gifts and other terms of relationship in accordance with the
rules for intestate succession. Terms of relationship that do not differentiate
relationships by blood from those by affinity, such as "uncles",
"aunts", "nieces", or "nephews", are construed to
exclude relatives by affinity. Terms of relationship that do not differentiate
relationships by the half blood from those by the whole blood, such as "brothers",
"sisters", "nieces", or "nephews", are construed
to include both types of relationships.
(b) In addition to the requirements of subsection
(a), in construing a class=SpellE>donative disposition by a transferor who
is not the adopting parent, an adopted individual is not considered the child
of the adopting parent unless the adoption took place while the person adopted
was a minor.
Section 2-706. [Life Insurance; Retirement Plan; Account
With POD Designation; Transfer-on-Death Registration; Deceased Beneficiary.]
(a) [Definitions.] In this section:
(1) "Alternative beneficiary
designation" means a beneficiary designation that is expressly created by
the governing instrument and, under the terms of the governing instrument, can
take effect instead of another beneficiary designation on the happening of one
or more events, including survival of the decedent or failure to survive the
decedent, whether an event is expressed in condition-precedent,
condition-subsequent, or any other form.
(2) "Beneficiary" means the beneficiary
of a beneficiary designation and includes (i) a class member if the beneficiary
designation is in the form of a class gift and (ii) an individual or class
member who was deceased at the time the
beneficiary designation was executed as well as an individual or class
member who was then living but who failed to survive the decedent.
(3) "Beneficiary designation" includes
an alternative beneficiary designation and a beneficiary designation in the
form of a class gift.
(4)
"Class member" includes an
individual who fails to survive the decedent but who would have taken under a
beneficiary designation in the form of a class gift had he or she survived the
decedent.
(5) "Surviving beneficiary" or
"surviving descendant" means a beneficiary or a descendant who did
not predecease the decedent.
(b) [Substitute Gift.] If a beneficiary fails to survive the
decedent and is a grandparent or a descendant of a grandparent, the following
apply:
(1) If the beneficiary designation is not in the
form of a class gift and the deceased beneficiary leaves surviving descendants,
a substitute gift is created in the beneficiary's surviving descendants. They take by representation the property to
which the beneficiary would have been entitled had the beneficiary survived the
decedent.
(2) If the beneficiary designation is in the form
of a class gift, other than a beneficiary designation to "issue",
"descendants", "heirs of the body", "heirs",
"next of kin", "relatives", or "family", or a class
described by language of similar import, a substitute gift is created in the
deceased beneficiary or beneficiaries' surviving descendants. The property to which the beneficiaries would
have been entitled had all of them survived the decedent passes to the
surviving beneficiaries and the surviving descendants of the deceased
beneficiaries. Each surviving
beneficiary takes the share to which the surviving beneficiary would have been
entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary's surviving
descendants who are substituted for the deceased beneficiary take by
representation the share to which the deceased beneficiary would have been
entitled had the deceased beneficiary survived the decedent. For the purposes of this paragraph,
"deceased beneficiary" means a class member who failed to survive the
decedent and left one or more surviving descendants.
(c) [Protection of class=SpellE>Payors.]
(1) A class=SpellE>payor is protected from
liability in making payments under the terms of the beneficiary designation
until the class=SpellE>payor has received written notice of a claim to a
substitute gift under this section.
Payment made before the receipt of written notice of a claim to a
substitute gift under this section discharges the class=SpellE>payor, but
not the recipient, from all claims for the amounts paid. A class=SpellE>payor is liable for a
payment made after the class=SpellE>payor has received written notice of the
claim. A recipient is liable for a
payment received, whether or not written notice of the claim is given.
(2) The written notice of the claim must be
mailed to the class=SpellE>payor's main office or home by registered or
certified mail, return receipt requested, or served upon the class=SpellE>payor
in the same manner as a summons in a civil action. Upon receipt of written notice of the claim,
a class=SpellE>payor may pay any amount owed by it to the court having
jurisdiction of the probate proceedings relating to the decedent's estate or,
if no proceedings have been commenced, to the court having jurisdiction of
probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds and, upon its
determination under this section, shall order disbursement in accordance with
the determination. Payment made to the court discharges the
class=SpellE>payor from all claims for the amounts paid.
(d) [Protection of Bona Fide Purchasers; Personal
Liability of Recipient.]
(1) A person who purchases property for value and
without notice, or who receives a payment or other item of property in partial
or full satisfaction of a legally enforceable obligation, is neither obligated
under this section to return the payment, item of property, or benefit nor is
liable under this section for the amount of the payment or the value of the
item of property or benefit. But a
person who, not for value, receives a payment, item of property, or any other
benefit to which the person is not entitled under this section is obligated to
return the payment, item of property, or benefit, or is personally liable for
the amount of the payment or the value of the item of property or benefit, to
the person who is entitled to it under this section.
(2) If this section or any part of this section
is preempted by federal law with respect to a payment, an item of property, or
any other benefit covered by this section, class=SpellE>aperson who, not for
value, receives the payment, item of property, or any other benefit to which
the person is not entitled under this section is obligated to return the
payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the
item of property or benefit, to the person who would have been entitled to it
were this section or part of this section not preempted.
Section 2-707. [Survivorship With
Respect to Future Interests Under Terms of Trust; Substitute Takers.]
(a)
[Definitions.] In this section:
(1) "Alternative future interest" means
an expressly created future interest
that can take effect in possession or enjoyment instead of another future
interest on the happening of one or more events, including survival of an event
or failure to survive an event, whether an event is expressed in
condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create
an alternative future interest with respect to a future interest created in a
class=SpellE>nonresiduary devise in the will, whether or not the will
specifically provides that lapsed or failed devises are to pass under the
residuary clause.
(2) "Beneficiary" means the beneficiary
of a future interest and includes a class member if the future interest is in
the form of a class gift.
(3) "Class member" includes an
individual who fails to survive the distribution date but who would have taken
under a future interest in the form of a class gift had the individual survived
the distribution date.
(4) "Distribution date", with respect
to a future interest, means the time when the future interest is to take effect
in possession or enjoyment. The
distribution date need not occur at the beginning or end of a calendar day, but
can occur at a time during the course of a day.
(5) "Future
interest" includes an alternative future interest and a future interest in
the form of a class gift.
(6) "Future
interest under the terms of a trust" means a future interest that was
created by a transfer creating a trust
or to an existing trust or by an exercise of a power of appointment to an
existing trust, directing the continuance of an existing trust, designating a
beneficiary of an existing trust, or creating a trust.
(7) "Surviving
beneficiary" or "surviving descendant" means a beneficiary or a
descendant who did not predecease the distribution date.
(b) [Survivorship Required; Substitute
Gift.] If an instrument is silent on the
requirement of survivorship, a future interest under the terms of a trust is
contingent on the beneficiary's surviving the distribution date. In that case, if a beneficiary of a future
interest under the terms of a trust fails to survive the distribution date, the
following apply:
(1) If the future interest is not in the form of
a class gift and the deceased beneficiary leaves surviving descendants, a
substitute gift is created in the beneficiary's surviving descendants. They take by representation the property to
which the beneficiary would have been entitled had the beneficiary survived the
distribution date.
(2) If the future interest is in the form of a
class gift, other than a future interest to "issue",
"descendants", "heirs of the body", "heirs",
"next of kin", "relatives", or "family", or a
class described by language of similar import, a substitute gift is created in
the deceased beneficiary or beneficiaries' surviving descendants. The property to which the beneficiaries would
have been entitled had all of them
survived the distribution date passes to the surviving beneficiaries and the
surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to
which the surviving beneficiary would have been entitled had the deceased
beneficiaries survived the distribution date.
Each deceased beneficiary's surviving descendants who are substituted
for the deceased beneficiary take by representation the share to which the
deceased beneficiary would have been entitled had the deceased beneficiary
survived the distribution date. For the
purposes of this paragraph, "deceased beneficiary" means a class
member who failed to survive the distribution date and left one or more
surviving descendants.
style='mso-tab-count:2'>
(c) [If No Other Takers, Property Passes Under
Residuary Clause or to Transferor's Heirs.]
If, after the application of subsections (b), there is no surviving taker, the property passes in the following
order:
(1)
if the trust was created in a class=SpellE>nonresiduary devise in the
transferor's will or in a codicil to the transferor's will, the property passes
under the residuary clause in the transferor's will; for purposes of this
section, the residuary clause is treated as creating a future interest under
the terms of a trust.
(2)
if no taker is produced by the application of paragraph (1), the property passes
to the transferor's heirs under Section 2-711.
Section 2-708. [Class Gifts to
"Descendants," "Issue," or "Heirs of the Body";
Form of Distribution if None Specified.]
If
a class gift in favor of "descendants", "issue", or
"heirs of the body" does not specify the manner in which the property
is to be distributed among the class members, the property is distributed among
the class members who are living when the interest is to take effect in
possession or enjoyment, in such shares as they would receive, under the
applicable law of intestate succession, if the designated ancestor had then
died intestate owning the subject matter of the class gift.
Section 2-709. [Representation; Per
Capita at Each Generation; Per class=SpellE>Stirpes.]
(a) [Definitions.] In this section:
(1) "Deceased child" or "deceased
descendant" means a child or a descendant who predeceased the distribution
date.
(2) "Distribution date", with respect
to an interest, means the time when the interest is to take effect in
possession or enjoyment. The distribution date need not occur at the beginning
or end of a calendar day, but can occur at a time during the course of a day.
(3) "Surviving ancestor",
"surviving child", or "surviving descendant" means an
ancestor, a child, or a descendant who did not predecease the distribution
date.
(b) [Per Capita at Each Generation.] If an applicable statute or a governing
instrument calls for property to be distributed "per capita at each
generation", the property is divided into as many equal shares as there
are (i) surviving descendants in the generation nearest to the designated
ancestor which contains one or more surviving descendants (ii) and deceased
descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest
generation is allocated one share. The
remaining shares, if any, are combined and then divided in the same manner
among the surviving descendants of the deceased descendants as if the surviving
descendants who were allocated a share and their surviving descendants had
predeceased the distribution date.
(c) [Representation; Per
class=SpellE>Stirpes.] If a governing
instrument calls for property to be distributed "by representation"
or "per class=SpellE>stirpes", the property is divided into as
many equal shares as there are (i) surviving children of the designated
ancestor and (ii) deceased children who left surviving descendants. Each surviving child is allocated one share. The share of each deceased child with
surviving descendants is divided in the same manner, with subdivision repeating
at each succeeding generation until the property is fully allocated among
surviving descendants.
(d) [Deceased Descendant With No Surviving
Descendant Disregarded.] For the
purposes of subsections (b) and (c), an individual who is deceased and left no
surviving descendant is disregarded, and an individual who leaves a surviving
ancestor who is a descendant of the designated ancestor is not entitled to a
share.
Section 2-710. [Worthier Title
Doctrine Abolished.]
The
doctrine of worthier title does not exist in this commonwealth either as a rule
of law or as a rule of construction.
Language in a governing instrument describing the beneficiaries of a
class=SpellE>donative disposition as the transferor's
"heirs", "heirs at
law", "next of kin", "distributees",
"relatives", or "family", or language of similar import,
does not create or presumptively create a reversionary interest in the
transferor.
Section 2-711. [Future Interests in "Heirs" and
Like.]
If
an applicable statute or a governing instrument calls for a future distribution
to or creates a future interest in a designated individual's "heirs",
"heirs at law", "next of kin", "relatives", or
"family", or language of similar import, the property passes to those
persons, including the commonwealth under Section 2-105, and in such shares as
would succeed to the designated individual's intestate estate under the
intestate succession law of the designated individual's domicile if the designated
individual died when the donative disposition is to take effect in possession
or enjoyment. If the designated
individual's surviving spouse is living but is remarried at the time the
interest is to take effect in possession or enjoyment, the surviving spouse is
not an heir of the designated individual.
PART 8
GENERAL PROVISIONS CONCERNING
PROBATE
Section 2-801. [Disclaimer of
Property Interests.]
(a) [Definitions.] The following words as used in this section
shall have the following meanings, unless otherwise expressly provided or the
context otherwise requires:-
"Beneficiary",
any person to whom, and any estate, trust, corporation or other legal entity to
which, an interest in property would pass in any manner described in subsection
(b), except for the execution and filing of a disclaimer in accordance with the
provisions of this chapter.
An
"interest in property" which may be disclaimed shall include:
1. any legal or equitable interest or estate,
whether present, future or contingent, in any real or personal property, or in
any fractional part, share, or portion thereof, or in any specific asset or
assets thereof;
2. any power to appoint, consume, apply, or
expend property or any other right, power, or privilege, relating thereto;
3. any fractional part, share or portion of any
interest described in clause 1 or 2.
(b) [Interests Which May be Disclaimed.] Unless barred by the provisions of subsection
(h), a beneficiary may disclaim any interest in property which, except for the
execution and filing of a disclaimer in accordance with the provisions of this
section, pass to the beneficiary:
1. By intestate succession, devise, legacy,
bequest, exercise or class=SpellE>nonexercise of a power of appointment
exercisable by will, or testamentary exercise or class=SpellE>nonexercise of
a power of appointment exercisable by either deed of trust or will; as
beneficiary of a testamentary trust, beneficiary of a testamentary gift to a
class=SpellE>nontestamentary trust, or class=SpellE>donee of a power of
appointment created by will; by succession in any manner described in this
clause to a disclaimed interest; or in any other manner not specified above
under a testamentary instrument or by operation of any statute or rule of law
governing devolution or disposition of property upon or after a person's death.
2. As class=SpellE>donee, grantee,
beneficiary of an class=SpellE>intervivos trust, beneficiary of an insurance
or annuity contract, class=SpellE>donee of a power of appointment created by
a class=SpellE>nontestamentary instrument, or as surviving joint tenant or
tenant by the entirety, except that a surviving joint tenant or tenant by the
entirety may not disclaim that portion of an interest in joint property or property
held by the entirety which is allocable to amounts contributed by him or her to
the interest in such property; through exercise or nonexercise of a power of
appointment exercisable by deed of trust or will; under any deed, assignment,
or other non-testamentary instrument of conveyance or transfer; by succession
in any manner described in this clause to a disclaimed interest; or in any
other manner not specified above under a non-testamentary instrument or by
operation of any statute or rule of law.
Disclaimer
may be made for a beneficiary under a legal disability by the duly appointed
guardian or conservator of such beneficiary, and for a deceased beneficiary by
the legal representative of such beneficiary's estate; provided, in any case,
however, that the probate court having jurisdiction of the estate of such
beneficiary shall have decreed, upon complaint filed by such guardian,
conservator, or legal representative, that such disclaimer is in the best
interests of those interested in the estate of such beneficiary and not
detrimental to the best interests of the beneficiary or the estate of such
beneficiary, and that such guardian, conservator, or legal representative is
authorized to execute and file such disclaimer on behalf of such beneficiary in
accordance with the provisions of this chapter.
(c) [Time of Filing and Executing
Disclaimer.] A disclaimer shall be
executed and filed pursuant to the provisions of this section at any time after
the creation of the interest in property being disclaimed, but in any event not
later than nine months after the event determining that the beneficiary is
finally ascertained as the beneficiary of such interest and that such interest
is indefeasibly vested and in the case of a beneficiary who is a surviving joint
tenant or tenant by the entirety, a disclaimer shall be executed and filed in
any event not later than nine months after the death of the other joint tenant
or tenants or tenant by the entirety; provided, that any court having
jurisdiction of the property, an interest in which is being disclaimed, may, upon petition filed
by the beneficiary, the duly appointed guardian or conservator of a beneficiary
under a legal disability, or the legal representative of a deceased
beneficiary's estate, permit an extension of time to execute and file a
disclaimer, for such further period of time as the court in its discretion
deems advisable.
(d) [Form and Requisites of Disclaimer.] A disclaimer shall be in writing, shall
describe the interest in property being disclaimed, shall declare the
disclaimer and the extent thereof, shall be clear and unequivocal, and shall be
signed by the beneficiary, the duly appointed guardian or conservator of a
beneficiary under a legal disability, or the legal representative of a deceased
beneficiary's estate.
(e) [Filing; Acknowledgment; Recording;
Service.] The original of the disclaimer
or an attested copy thereof, if filing is required to be made with more than
one probate court, shall be filed with the probate court, or probate courts, if
any, wherein a duly appointed fiduciary, if any, having custody or control of
the property, an interest in which is being disclaimed, is required to file
periodic accounts.
If
the property, an interest in which is being disclaimed, is real property, the
disclaimer shall be acknowledged in the manner provided for deeds of real
property. The disclaimer shall not be
valid as against any person, except the beneficiary, the heirs and devisees of
the beneficiary, and any person, estate, trust, corporation or other legal
entity having actual notice of the disclaimer, unless the original thereof or
an attested copy thereof if the original is required to be filed with a probate
court, is recorded in the registry of deeds for the county or district in which
the real property is situated or, in the case of registered real property, is
filed and registered in the office of the assistant recorder for the registry
district in which the real property is located.
A
copy of the disclaimer shall be served by delivering in hand or by mailing by
certified mail to the last known address of the person or persons or other
legal entity or entities having custody or possession of the property, an
interest in which is being disclaimed.
Failure to comply with these requirements of service shall not affect
the validity of the disclaimer.
(f) [Liability for Disposition of Disclaimed
Property.] No person or other legal
entity having custody or possession of the property, an interest in which is
being or has been disclaimed, shall be liable
for any distribution or other disposition made prior to the delivery to
him or it of a copy of the disclaimer, pursuant to the requirements of
subsection (e); and no such person or other legal entity shall be liable for
any good faith distribution or other disposition made in reliance upon a
disclaimer, the form of which is in accordance with the requirements of
subsection (d), and a copy of which has been delivered to him or it pursuant to
the requirements of subsection (e).
If
a disclaimer certifies, with particularity, that none of the contingencies
specified in subsection (h), which would result in waiver or bar of the
beneficiary's right to disclaim, are applicable, any person or other legal
entity having custody or possession of the property, and any third party
purchaser of the property, an interest in which is being or has been
disclaimed, shall be entitled to rely without further inquiry upon the
aforesaid certifications.
(g) [Effect of Disclaimer.] A disclaimer complying with all the
applicable requirements of this section shall be effective according to its
terms, and shall be irrevocable, upon execution in accordance with the
provisions of subsection (d), and filing in accordance with the provisions of
subsection (e).
If
the interest in property being disclaimed is a power to appoint, consume,
apply, or expend property, as described in clause 2 of the second paragraph of
subsection (a), or any fractional part, share, or portion thereof, such
interest shall be extinguished.
Except
as provided in the preceding paragraph, and unless such a result would
substantially impair the provisions or intent of any instrument, statute or
rule of law relating to the interest in property being disclaimed, such
interest shall pass in the same manner as if the beneficiary had died
immediately preceding the event determining that he, she or it is the
beneficiary of such interest and that such interest is indefeasibly
vested.
The
interest in property being disclaimed shall never vest in the beneficiary.
Any
person or other legal entity having custody or possession of the property, an
interest in which is being disclaimed, may file a complaint for instruction or
complaint for declaratory judgment seeking a determination of the effect of a
disclaimer, in
1. A probate court, if any, having jurisdiction
of such property; or
2. If no probate court has jurisdiction of such
property, any other court having jurisdiction of such property.
(h) [Conditions Which Bar Right to Disclaim.] The right to disclaim an interest in property
shall be barred by:-
1. assignment, conveyance, encumbrance, pledge,
transfer or other disposition of such interest, or any contract
class=SpellE>therefor, by the beneficiary or sale or other disposition of
such interest pursuant to judicial process made before the beneficiary has
disclaimed such interest as herein provided;
2. insolvency of the beneficiary at the time of
attempted disclaimer. For purposes of
this paragraph only, sections one to four, inclusive, and sections eight to
thirteen, inclusive, of chapter one hundred and nine A shall be applicable as
if the disclaimer were a conveyance;
3. a written waiver of the right to disclaim
such interest pursuant to the provisions of this section, signed by the
beneficiary, the duly appointed guardian or conservator of a beneficiary under
a legal disability, or the legal representative of a deceased beneficiary's
estate;
4. acceptance of such interest by the
beneficiary; if the beneficiary, having knowledge of the existence of such
interest, receives without objection a benefit from such interest, receives
without objection a benefit from such interest, such receipt shall be deemed to
constitute acceptance of such interest.
The
assignment, conveyance, encumbrance, pledge, transfer or other disposition or
any contract class=SpellE>therefor, sale or other disposition pursuant to
judicial process, written waiver of the right to disclaim, or acceptance of
apart of an interest in property shall not bar the right to disclaim any other
part of such interest.
(i) [Restraints on Alienation; Right to Disclaim
Unaffected.] The right to disclaim
pursuant to the provisions of this section shall exist irrespective of any
limitation in the nature of an express or implied spendthrift provision or
other similar restraint on alienation imposed by any instrument, statute, rule
of law or otherwise on the interest in property being disclaimed.
(j) [Applicability of Section.] Except for the provisions of subsection (h),
this section shall not abridge the right of any person to disclaim, waive,
release, renounce, or abandon any interest in property under section 2-201 or
any other statute or rule of law.
Section 2-802. [Effect of Divorce,
Annulment, and Judgment of Separation.]
(a) An individual who is divorced from the
decedent is not a surviving spouse unless, by virtue of a subsequent marriage,
the individual is married to the decedent at the time of death. A judgment of separation that does not terminate
the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of Parts 1, 2, 3, and 4 of this
Article, and of Section 3-203, a surviving spouse does not include:
(1)
an individual who obtains or consents to a final decree or judgment of divorce
from the decedent or an annulment of their marriage, which decree or judgment
is not recognized as valid in this commonwealth, unless subsequently they
participate in a marriage ceremony purporting to marry each to the other or
live together as husband and wife;
(2)
an individual who, following an invalid decree or judgment of divorce or
annulment obtained by the decedent, participates in a marriage ceremony with a
third individual; or
(3)
an individual who was a party to a valid proceeding concluded by an order
purporting to terminate all marital property rights.
Section 2-803. [Effect of Homicide
on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and
Beneficiary Designations.]
(a)
[Definitions.] In this section:
(1) "Disposition or appointment of
property" includes a transfer of an item of property or any other benefit
to a beneficiary designated in a governing instrument.
(2) "Governing instrument" means a
governing instrument executed by the decedent.
(3) "Revocable", with respect to a
disposition, appointment, provision, or nomination, means one under which the
decedent, at the time of or immediately before death, was alone empowered, by
law or under the governing instrument, to cancel the designation in favor of
the killer, whether or not the decedent was then empowered to designate the
decedent in place of the killer the decedent then had capacity to exercise the
power.
(b) [Forfeiture of Statutory Benefits.] An individual who feloniously and
intentionally kills the decedent forfeits all benefits under this Article with
respect to the decedent's estate, including an intestate share, an elective
share, an omitted spouse's or child's share, exempt property, and a family
allowance. If the decedent died
intestate, the decedent's intestate estate passes as if the killer disclaimed
the intestate share.
(c) [Revocation of Benefits Under Governing
Instruments.] The felonious and
intentional killing of the decedent:
(1)
revokes any revocable (i) disposition or appointment of property made by the
decedent to the killer in a governing instrument, (ii) provision in a governing
instrument conferring a general or class=SpellE>nongeneral power of
appointment on the killer, and (iii) nomination of the killer in a governing
instrument, nominating or appointing the killer to serve in any fiduciary or
representative capacity, including as personal representative, executor,
trustee, or agent; and
(2)
severs the interests of the decedent and killer in property held by them at the
time of the killing as joint tenants with the right of survivorship,
transforming the interests of the decedent and killer into tenancies in common.
(d) [Effect of Severance.] A severance under subsection (c)(2) does not
affect any third-party interest in property acquired for value and in good
faith reliance on an apparent title by survivorship in the killer unless a
writing declaring the severance has been noted, registered, filed, or recorded
in records appropriate to the kind and location of the property which are
relied upon, in the ordinary course of transactions involving such property, as
evidence of ownership.
(e) [Effect of Revocation.] Provisions of a governing instrument that are
not revoked by this section are given effect as if the killer disclaimed all
revoked provisions or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the killer predeceased the decedent.
(f) [Wrongful Acquisition of Property.] A wrongful acquisition of property or
interest by a killer not covered by this section must be treated in accordance
with the principle that a killer cannot profit from the wrong.
(g) [Felonious and Intentional Killing; How
Determined.] After all right to appeal
has been exhausted, a judgment of conviction establishing criminal
accountability for the felonious and intentional killing of the decedent
conclusively establishes the convicted individual as the decedent's killer for
purposes of this section. In the absence
of a conviction, the court, upon the petition of an interested person, must
determine whether, under the preponderance of evidence standard, the individual
would be found criminally accountable for the felonious and intentional killing
of the decedent. If the court determines
that, under that standard, the individual would be found criminally accountable
for the felonious and intentional killing of the decedent, the determination
conclusively establishes that individual as the decedent's killer for purposes
of this section.
(h) [Protection of class=SpellE>Payors and
Other Third Parties.]
(1) A class=SpellE>payor or other third party
is not liable for having made a payment or transferred an item of property or
any other benefit to a beneficiary designated in a governing instrument
affected by an intentional and felonious killing, or for having taken any other
action in good faith reliance on the validity of the governing instrument, upon
request and satisfactory proof of the decedent's death, before the class=SpellE>payor
or other third party received written notice of a claimed forfeiture or
revocation under this section. A
class=SpellE>payor or other third party is liable for a payment made or
other action taken after the class=SpellE>payor or other third party received
written notice of a claimed forfeiture or revocation under this section.
(2) Written notice of a claimed forfeiture or
revocation under paragraph (1) must be mailed to the class=SpellE>payor's or
other third party's main office or home by registered or certified mail, return
receipt requested, or served upon the class=SpellE>payor or other third
party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed
forfeiture or revocation under this section, a class=SpellE>payor or other
third party may pay any amount owed or transfer or deposit any item of property
held by it to or with the court having jurisdiction of the probate proceedings
relating to the decedent's estate, or if no proceedings have been commenced, to
or with the probate and family court located in the county of the decedent's
residence. The court shall hold the
funds or item of property and, upon its determination under this section, shall
order disbursement in accordance with the determination. Payments, transfers, or deposits made to or
with the court discharge the class=SpellE>payor or other third party from
all claims for the value of amounts paid to or items of property transferred to
or deposited with the court.
(i) [Protection of Bona Fide Purchasers; Personal
Liability of Recipient.]
(1) A person who purchases property for value and
without notice, or who receives a payment or other item of property in partial
or full satisfaction of a legally enforceable obligation, is neither obligated
under this section to return the payment, item of property, or benefit nor is
liable under this section for the amount of the payment or the value of the
item of property or benefit. But a
person who, not for value, receives a payment, item of property, or any other
benefit to which the person is not entitled under this section is obligated to
return the payment, item of property, or benefit, or is personally liable for
the amount of the payment or the value of the item of property or benefit, to
the person who is entitled to it under this section.
(2) If this section or any part of this section
is preempted by federal law with respect to a payment, an item of property, or
any other benefit covered by this section, a person who, not for value,
receives the payment, item of property, or any other benefit to which the
person is not entitled under this section is obligated to return the payment,
item of property, or benefit, or is personally liable for the amount of the
payment or the value of the item of property or benefit, to the person who
would have been entitled to it were this section or part of this section not
preempted.
Section 2-804. [Revocation of
Probate and class=SpellE>Nonprobate Transfers by Divorce; No Revocation by
Other Changes of Circumstances.]
(a) [Definitions.] In this section:
(1) "Disposition or appointment of
property" includes a transfer of an item of property or any other benefit
to a beneficiary designated in a governing instrument.
(2) "Divorce or annulment" means any
divorce or annulment, or any dissolution or declaration of invalidity of a
marriage, that would exclude the spouse as a surviving spouse within the
meaning of Section 2-802. A judgment of
separation that does not terminate the status of husband and wife is not a
divorce for purposes of this section.
(3) "Divorced individual" includes an
individual whose marriage has been annulled.
(4) "Governing instrument" means a
governing instrument executed by the divorced individual before the divorce or
annulment of the individual's marriage to the individual's former spouse.
(5) "Relative of the divorced individual's
former spouse" means an individual who is related to the divorced
individual's former spouse by blood, adoption, or affinity and who, after the
divorce or annulment, is not related to the divorced individual by blood,
adoption, or affinity.
(6) "Revocable", with respect to a
disposition, appointment, provision, or nomination, means one under which the
divorced individual, at the time of the divorce or annulment, was alone
empowered, by law or under the governing instrument, to cancel the designation
in favor of the former spouse or former spouse's relative, whether or not the
divorced individual was then empowered to designate himself in place of the former
spouse or in place of the former spouse's relative and whether or not the
divorced individual then had the capacity to exercise the power.
(b) [Revocation Upon Divorce.] Except as provided by the express terms of a
governing instrument, a court order, or a contract relating to the division of
the marital estate made between the divorced individuals before or after the
marriage, divorce, or annulment, the divorce or annulment of a marriage:
(1)
revokes any revocable (i) disposition or appointment of property made by a
divorced individual to the individual's former spouse in a governing instrument
and any disposition or appointment created by law or in a governing instrument
to a relative of the divorced individual's former spouse, (ii) provision in a governing instrument
conferring a general or class=SpellE>nongeneral power of appointment on the
divorced individual's former spouse or on a relative of the divorced
individual's former spouse, and (iii) nomination in a governing instrument,
nominating a divorced individual's former spouse or a relative of the divorced
individual's former spouse to serve in any fiduciary or representative
capacity, including a personal representative, executor, trustee, conservator,
agent, or guardian; and
(2)
severs the interests of the former spouses in property held by them at the time
of the divorce or annulment as joint tenants with the right of survivorship,
transforming the interests of the former spouses into tenancies in common.
(c) [Effect of Severance.] A severance under subsection (b)(2) does not
affect any third-party interest in property acquired for value and in good
faith reliance on an apparent title by survivorship in the survivor of the
former spouses unless a writing declaring the severance has been noted,
registered, filed, or recorded in records appropriate to the kind and location
of the property which are relied upon, in the ordinary course of transactions
involving such property, as evidence of ownership.
(d) [Effect of Revocation.] Provisions of a governing instrument that are
not revoked by this section are given effect as if the former spouse and
relatives of the former spouse disclaimed the revoked provisions or, in the
case of a revoked nomination in a fiduciary or representative capacity, as if
the former spouse and relatives of the former spouse died immediately before
the divorce or annulment.
(e) [Revival if Divorce Nullified.] Provisions revoked solely by this section are
revived by the divorced individual's remarriage to the former spouse or by a
nullification of the divorce or annulment.
(f) [No Revocation for Other Change of
Circumstances.] No change of
circumstances other than as described in this section and in Section 2-803
effects a revocation.
(g) [Protection of class=SpellE>Payors and
Other Third Parties.]
(1) A class=SpellE>payor or other third party
is not liable for having made a payment or transferred an item of property or
any other benefit to a beneficiary designated in a governing instrument
affected by a divorce, annulment, or remarriage, or for having taken any other
action in good faith reliance on the validity of the governing instrument,
before the class=SpellE>payor or other third party received written notice
of the divorce, annulment, or remarriage. A class=SpellE>payor or other
third party is liable for a payment made or other action taken after the
class=SpellE>payor or other third party received written notice of a claimed
forfeiture or revocation under this section.
(2) Written notice of the divorce, annulment, or
remarriage under subsection (g)(2) must be mailed to the
class=SpellE>payor's or other third party's main office or home by
registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner
as a summons in a civil action. Upon
receipt of written notice of the divorce, annulment, or remarriage, a
class=SpellE>payor or other third party may pay any amount owed or transfer
or deposit any item of property held by it to or with the court having
jurisdiction of the probate proceedings relating to the decedent's estate or,
if no proceedings have been commenced, to or with the court having jurisdiction
of probate proceedings relating to decedents' estates located in the county of
the decedent's residence. The court
shall hold the funds or item of property and, upon its determination under this
section, shall order disbursement or transfer in accordance with the
determination. Payments, transfers, or
deposits made to or with the court discharge the class=SpellE>payor or other
third party from all claims for the value of amounts paid to or items of
property transferred to or deposited with the court.
(h) [Protection of Bona Fide Purchasers; Personal
Liability of Recipient.]
(1) A person who purchases property from a former
spouse, relative of a former spouse, or any other person for value and without
notice, or who receives from a former spouse, relative of a former spouse, or
any other person a payment or other item of property in partial or full
satisfaction of a legally enforceable obligation, is neither obligated under
this section to return the payment, item of property, or benefit nor is liable
under this section for the amount of the payment or the value of the item of
property or benefit. But a former spouse, relative of a former spouse, or other
person who, not for value, received a payment, item of property, or any other
benefit to which that person is not entitled under this section is obligated to
return the payment, item of property, or benefit, or is personally liable for
the amount of the payment or the value of the item of property or benefit, to
the person who is entitled to it under this section.
(2) If this section or any part of this section
is preempted by federal law with respect to a payment, an item of property, or
any other benefit covered by this section, a former spouse, relative of the
former spouse, or any other person who, not for value, received a payment, item
of property, or any other benefit to which that person is not entitled under
this section is obligated to return that payment, item of property, or benefit,
or is personally liable for the amount of the payment or the value of the item
of property or benefit, to the person class=SpellE>whowould have been entitled
to it were this section or part of this section not preempted.
PART 9
STATUTORY RULE AGAINST PERPETUITIES
Section 2-901. [Statutory Rule Against Perpetuities.]
(a) [Validity of class=SpellE>Nonvested
Property Interest.] A
class=SpellE>nonvested property interest is invalid unless:
(1)
when the interest is created, it is certain to vest or terminate no later than
21 years after the death of an individual then alive; or
(2)
the interest either vests or terminates within 90 years after its creation.
(b) [Validity of General Power of Appointment
Subject to a Condition Precedent.] A
general power of appointment not presently exercisable because of a condition
precedent is invalid unless:
(1)
when the power is created, the condition precedent is certain to be satisfied
or becomes impossible to satisfy no later than 21 years after the death of an
individual then alive; or
(2)
the condition precedent either is satisfied or becomes impossible to satisfy
within 90 years after its creation.
(c) [Validity of class=SpellE>Nongeneral or
Testamentary Power of Appointment.] A
class=SpellE>nongeneral power of appointment or a general testamentary power
of appointment is invalid unless:
(1)
when the power is created, it is certain to be irrevocably exercised or
otherwise to terminate no later than 21 years after the death of an individual
then alive; or
(2)
the power is irrevocably exercised or otherwise terminates within 90 years
after its creation.
(d) [Possibility of Post-death Child
Disregarded.] In determining whether a
class=SpellE>nonvested property interest or a power of appointment is valid
under subsection (a)(1), (b)(1), or (c)(1), the possibility that a child will
be born to an individual after the individual's death is disregarded.
(e) [Effect of Certain "Later-of" Type
Language.] If, in measuring a period
from the creation of a trust or other property arrangement, language in a
governing instrument (i) seeks to disallow the vesting or termination of any
interest or trust beyond, (ii) seeks to postpone the vesting or termination of
any interest or trust until, or (iii) seeks to operate in effect in any similar
fashion upon, the later of (A) the expiration of a period of time not exceeding
21 years after the death of the survivor of specified lives in being at the
creation of the trust or other property arrangement or (B) the expiration of a
period of time that exceeds or might exceed 21 years after the death of the survivor of lives in being
at the creation of the trust or other property arrangement, that language is
inoperative to the extent it produces a period of time that exceeds 21 years
after the death of the survivor of the specified lives.
Section 2-902. [When
class=SpellE>Nonvested property Interest or Power of Appointment Created.]
(a) Except as provided in subsections (b) and (c)
and in Section 2-905(a), the time of creation of a class=SpellE>nonvested
property interest or a power of appointment is determined under general
principles of property law.
(b) For purposes of this Part, if there is a
person who alone can exercise a power created by a governing instrument to
become the unqualified beneficial owner of (i) a class=SpellE>nonvested
property interest or (ii) a property interest subject to a power of appointment
described in Section 2-901(b) or (c), the class=SpellE>nonvested property
interest or power of appointment is created when the power to become the
unqualified beneficial owner terminates.
(c) For purposes of this Part, a
class=SpellE>nonvested property interest or a power of appointment arising
from a transfer of property to a previously funded trust or other existing
property arrangement is created when the class=SpellE>nonvested property
interest or power of appointment in the original contribution was created.
Section 2-903. [Reformation.]
Upon
the petition of an interested person, a court shall reform a disposition in the
manner that most closely approximates the transferor's manifested plan of
distribution and is within the 90 years allowed by Section 2-901(a)(2),
2-901(b)(2), or 2-901(c)(2) if:
(1)
a class=SpellE>nonvested property interest or a power of appointment becomes
invalid under Section 2-901 (statutory rule
against perpetuities);
(2)
a class gift is not but might become invalid under Section 2-901 (statutory
rule against perpetuities) and the time has arrived when the share of any class
member is to take effect in possession or enjoyment; or
(3)
a class=SpellE>nonvested property interest that is not validated by Section
2-901(a)(1) can vest but not within 90 years after its creation.
Section 2-904. [Exclusions from
Statutory Rule Against Perpetuities.]
Section
2-901 (statutory rule against perpetuities) does not apply to:
(1)
a class=SpellE>nonvested property interest or a power of appointment arising
out of a class=SpellE>nondonative transfer, except a
class=SpellE>nonvested property interest or a power of appointment arising
out of (i) a premarital or class=SpellE>postmarital agreement, (ii) a
separation or divorce settlement, (iii) a spouse's election, (iv) a similar
arrangement arising out of a prospective, existing, or previous marital
relationship between the parties, (v) a contract to make or not to revoke a
will or trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in satisfaction
of a duty of support, or (viii) a reciprocal transfer;
(2)
a fiduciary's power relating to the administration or management of assets,
including the power of a fiduciary to sell, lease, or mortgage property, and
the power of a fiduciary to determine principal and income;
(3)
a power to appoint a fiduciary;
(4)
a discretionary power of a trustee to distribute principal before termination
of a trust to a beneficiary having an indefeasibly vested interest in the
income and principal;
(5)
a class=SpellE>nonvested property interest held by a charity, government, or
governmental agency or subdivision, if the class=SpellE>nonvested property
interest is preceded by an interest held by another charity, government, or
governmental agency or subdivision;
(6)
a class=SpellE>nonvested property interest in or a power of appointment with
respect to a trust or other property arrangement forming part of a pension,
profit-sharing, stock bonus, health, disability, death benefit, income deferral,
or other current or deferred benefit plan for one or more employees,
independent contractors, or their beneficiaries or spouses, to which
contributions are made for the purpose of distributing to or for the benefit of
the participants or their beneficiaries or spouses the property, income, or
principal in the trust or other property arrangement, except a
class=SpellE>nonvested property interest or a power of appointment that is
created by an election of a participant or a beneficiary or spouse; or
(7)
a property interest, power of appointment, or arrangement that was not subject
to the common-law rule against perpetuities or is excluded by another statute
of this commonwealth.
Section 2-905. [Prospective
Application.]
(a)
Except as extended by subsection (b), this Part applies to a
class=SpellE>nonvested property interest or a power of appointment that is
created on or after the effective date of this Part. For purposes of this
section, a class=SpellE>nonvested property interest or a power of appointment
created by the exercise of a power of appointment is created when the power is
irrevocably exercised or when a revocable exercise becomes irrevocable.
(b) If
a class=SpellE>nonvested property interest or a power of appointment was
created before the effective date of this Part and is determined in a judicial
proceeding, commenced on or after the effective date of this Part, to violate
this class=SpellE>commonaealth's rule against perpetuities as that rule
existed before the effective date of this Part, a court upon the petition of an
interested person may reform the disposition in the manner that most closely
approximates the transferor's manifested plan of distribution and is within the
limits of the rule against perpetuities applicable when the
class=SpellE>nonvested property interest or power of appointment was
created.
Section 2-906. [Supersession]. This Part supersedes the rule of the common
law known as the rule against perpetuities.
ARTICLE
PROBATE OF WILLS
PART 1
GENERAL PROVISIONS
Section 3-101. [Devolution of
Estate at Death; Restrictions.]
The
power of a person to leave property by will, and the rights of creditors,
devisees, and heirs to property are
subject to the restrictions and limitations contained in this chapter to
facilitate the prompt settlement of estates.
Upon the death of a person, the decedent's real and personal property
devolves to the persons to whom it is devised by the decedent's last will or to
those indicated as substitutes for them in cases involving lapse, renunciation,
or other circumstances affecting the devolution of testate estate, or in the
absence of testamentary disposition, to the decedent's heirs, or to those
indicated as substitutes for them in cases involving renunciation or other
circumstances affecting devolution of intestate estates, subject to allowances
and exempt property, to rights of
creditors, elective share of the surviving spouse, and to administration.
Section 3-102. [Necessity of Order
of Probate For Will.]
Except
as provided in Section 3-1201, to be effective to prove the transfer of any
property or to nominate an executor, a will must be declared to be valid by an
order of informal probate by a Magistrate or an adjudication of probate by the
Court, except that a duly executed and class=SpellE>unrevoked will which has
not been probated may be admitted as evidence of a devise if (1) no Court
proceeding concerning the succession or administration of the estate has
occurred, and (2) either the devisee or the devisee's successors and assigns
possessed the property devised in accordance with the provisions of the will,
or the property devised was not possessed or claimed by anyone by virtue of the
decedent's title during the time period for testacy proceedings.
Section 3-103. [Necessity of
Appointment For Administration.]
Except
as otherwise provided in Article IV, to acquire the powers and undertake the
duties and liabilities of a personal representative of a decedent, a person
must be appointed by order of the Court or a Magistrate, qualify and be issued
letters. Administration of an estate is
commenced by the issuance of letters.
Section 3-104. [Claims Against
Decedent; Necessity of Administration.]
No
proceeding to enforce a claim against the estate of a decedent or a decedent's
successors may be revived or commenced before the appointment of a personal
representative. After the appointment
and until distribution, all proceedings and actions to enforce a claim against
the estate are governed by the procedure prescribed by this Article. After distribution a creditor whose claim has
not been barred may recover from the class=SpellE>distributees as provided
in Section 3-1004 or from a former personal representative individually liable
as provided in Section 3-1005. This
section has no application to a proceeding by a secured creditor of the
decedent to enforce a right to the security except as to any deficiency
judgment which might be sought therein.
Section 3-105. [Proceedings
Affecting Devolution and Administration]
Persons
interested in decedents' estates may petition the Magistrate for determination
in the informal proceedings provided in this Article, and may petition the
Court for orders in formal proceedings within the Court's jurisdiction
including but not limited to those described in this Article.
Section 3-106. [Proceedings Within
the Exclusive Jurisdiction of Court;
Service; Jurisdiction Over
Persons.]
In
proceedings within the exclusive jurisdiction of the Court where notice is
required by this chapter or by rule, and in proceedings to construe probated
wills or determine heirs which concern estates that have not been and cannot
now be open for administration, interested persons may be bound by the orders
of the Court in respect to property in or subject to the laws of this
commonwealth by notice in conformity with Section 1-401. An order is binding as to all who are given
notice of the proceeding though less than all interested persons are notified.
Section 3-107. [Scope of
Proceedings; Proceedings
Independent; Exception.]
Unless
supervised administration as described in Part 5 is involved, (1) each
proceeding before the Court or a Magistrate is independent of any other
proceeding involving the same estate;
(2) petitions for formal orders of the Court may combine various
requests for relief in a single proceeding if the orders sought may be finally
granted without delay. Except as
required for proceedings which are particularly described by other sections of
this Article, no petition is defective because it fails to embrace all matters
which might then be the subject of a final order; (3) proceedings for probate of wills or
adjudications of no will may be combined with proceedings for appointment of
personal representatives; and (4) a
proceeding for appointment of a personal representative is concluded by an
order making or declining the appointment.
Section 3-108. [Probate, Testacy
and Appointment Proceedings; Ultimate
Time Limit.]
No
informal probate or appointment proceeding or formal testacy or appointment
proceeding, other than a proceeding to probate a will previously probated at
the testator's domicile and appointment proceedings relating to an estate in
which there has been a prior appointment, may be commenced more than 3 years
after the decedent's death, except (1) if a previous proceeding was dismissed
because of doubt about the fact of the decedent's death, appropriate probate,
appointment or testacy proceedings may be maintained at any time thereafter
upon a finding that the decedent's death occurred prior to the initiation of
the previous proceeding and the applicant or petitioner has not delayed unduly
in initiating the subsequent proceeding;
(2) appropriate probate, appointment or testacy proceedings may be
maintained in relation to the estate of an absent, disappeared or missing
person at any time within three years after the death of the person can be
established; and (3) a proceeding to
contest an informally probated will and to secure appointment of the person
with legal priority for appointment in the event the contest is successful, may
be commenced within the later of twelve months from the informal probate or
three years from the decedent's death;
and (4) if no proceeding concerning the succession or administration of
the estate has occurred within 3 years after decedent's death, a formal testacy
proceeding may be commenced at any time thereafter for the sole purpose of
establishing a devise of property which the devisee or the devisee's successors
and assigns possessed in accordance with the will or property which was not
possessed or claimed by anyone by virtue of the decedent's title during the
3-year period, and the order of the Court shall be limited to that property. These limitations do not apply to proceedings
to construe probated wills or determine heirs of an intestate. In cases under (1) or (2) above, the date on
which a testacy or appointment proceeding is properly commenced shall be deemed
to be the date of the decedent's death for purposes of other limitations
provisions of this chapter which relate to the date of death.
Section 3-109. [Statutes of
Limitation on Decedent's Cause of Action.]
No
statute of limitation running on a cause of action belonging to a decedent
which had not been barred as of the date of death, shall apply to bar a cause
of action surviving the decedent's death sooner than four months after
death. A cause of action which, but for
this section, would have been barred less than four months after death, is
barred after four months unless tolled.
PART 2
VENUE FOR PROBATE
PRIORITY TO ADMINISTER
Section 3-201. Venue for First and
Subsequent Estate Proceedings; Location
of Property.]
(a)
Venue for the first informal or formal testacy or appointment proceedings after
a decedent's death is:
(1) in the county where the
decedent was domiciled at the time of death;
or
(2) if the decedent was not
domiciled in this commonwealth, in any county where property of the decedent
was located at the time of death.
(b)
Venue for all subsequent proceedings within the exclusive jurisdiction of the
Court is in the place where the initial proceeding occurred, unless the initial
proceeding has been transferred as provided in Section 1-303 or (c) of this
section.
(c)
If the first proceeding was informal, on application of an interested person
and after notice to the proponent in the first proceeding, the Court, upon
finding that venue is elsewhere, may transfer the proceeding and the file to
the other court.
(d)
For the purpose of aiding determinations concerning location of assets which
may be relevant in cases involving non-domiciliaries, a debt, other than one
evidenced by investment or commercial paper or other instrument in favor of a
non-domiciliary is located where the debtor resides or, if the debtor is a
person other than an individual, at the place where it has its principal
office. Commercial paper, investment
paper and other instruments are located where the instrument is. An interest in property held in trust is
located where the trustee may be sued.
Section 3-202. [Appointment or
Testacy Proceedings; Conflicting Claim
of Domicile in Another State.]
If
conflicting claims as to the domicile of a decedent are made in a formal
testacy or appointment proceeding commenced in this commonwealth, and in a
testacy or appointment proceeding after notice pending at the same time in
another state, the Court of this commonwealth must stay, dismiss, or permit
suitable amendment in, the proceeding here unless it is determined that the
local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the
proceeding first commenced must be accepted as determinative in the proceeding
in this commonwealth.
Section 3-203. [Priority Among
Persons Seeking Appointment as Personal Representative.]
(a)
Whether the proceedings are formal or informal, persons have priority for
appointment in the following order:
(1) the person with priority as
determined by a probated will including a person nominated by a power conferred
in a will;
(2) the surviving spouse of the
decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the
decedent;
(5) other heirs of the decedent;
(6) if there is no known spouse or
next of kin, a public administrator appointed pursuant to chapter one hundred
ninety-four.
(b)
An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in
(a) apply except that
1) if the estate appears to be more than adequate
to meet exemptions and costs of administration but inadequate to discharge
anticipated unsecured claims, the Court, on petition of creditors, may appoint any
qualified person;
(2) in case of objection to appointment of a person
other than one whose priority is determined by will by an heir or devisee
appearing to have a substantial interest in the estate, the Court may appoint a
person who is acceptable to the heirs and devisees or, in default of agreement
any suitable person.
(c)
A person entitled to letters under (2) through (5) of (a) above, may nominate a
qualified person to act as personal representative. Any person
may renounce the right to nominate or to an appointment by appropriate
writing filed with the Court. When two
or more persons share a priority, those of them who do not renounce must concur
in nominating another to act for them, or in applying for appointment.
(d)
Conservators of the estates of protected persons, or if there is no
conservator, any guardian except a guardian ad class=SpellE>litem of a minor
or incapacitated person, may exercise the same right to nominate, to object to
another's appointment, or to participate in determining the preference of a
majority in interest of the heirs and devisees that the protected person or
ward would have if qualified for appointment.
(e)
Appointment of one who does not have priority, including priority resulting
from renunciation or nomination determined pursuant to this section, may be
made only in formal proceedings. Before
appointing one without priority, the Court must determine that those having
priority, although given notice of the proceedings, have failed to request
appointment or to nominate another for appointment, and that administration is
necessary.
(f)
No person is qualified to serve as a personal representative:
(1) who is under the age of 18;
(2) whose appointment the Court finds in formal
proceedings to be contrary to the best interests of the estate.
(g)
A personal representative appointed by a court of the decedent's domicile has
priority over all other persons except where the decedent's will nominates
different persons to be personal representative in this commonwealth and in the
state of domicile. The domiciliary
personal representative may nominate another, who shall have the same priority
as the domiciliary personal representative.
(h)
This section governs priority for appointment of a successor personal
representative but does not apply to the selection of a special personal
representative.
Section 3-204. [Reserved.]
Section 3-205. [Judge or Register as Personal
Representative.]
If
a Judge or Register desires to be appointed personal representative of the
estate of his or her spouse, child or parent who at the time of their decease
was domiciled in his or her county, such appointment may be made and all
subsequent proceedings relative to the estate may be had in the Court of any
adjoining county, and the Register thereof shall forthwith transmit to the
Register of the county where the decedent was domiciled, a true and attested
copy of all papers relating thereto filed and entered on the docket, which
shall be recorded by the Register to whom they are transmitted.
PART 3
INFORMAL PROBATE
Section 3-301. [Informal Probate or Appointment
Proceedings; Petition; Contents.]
(a)
Petitions for informal probate or informal appointment shall be directed to the
Court, and verified by the petitioner to be accurate and complete to the best
of the petitioner's knowledge and belief as to the following information:
(1) Every petition for informal probate of a will
or for informal appointment of a personal representative, other than a special
or successor representative, shall contain the following:
(i) a statement of
the interest of the petitioner;
(ii) the name, date of death, age and address of
the decedent at the time of death, and the names and addresses of the spouse,
children, heirs and devisees and the ages of any who are minors so far as known
or ascertainable with reasonable diligence by the applicant;
(iii) a statement identifying any heir or surviving
spouse who may be an incapacitated person;
(iv) if the decedent was not domiciled in the
commonwealth at the time of death, a statement showing venue;
(v) a statement identifying and indicating the
address of any personal representative of the decedent appointed in this
commonwealth or elsewhere whose appointment has not been terminated;
(vi) a statement that a copy of the petition and
the death certificate have been sent to the Division of Medical Assistance by
certified mail; and
(vii) a statement that the time limit for informal
probate or appointment as provided in this Article has not expired either
because 3 years or less have passed since the decedent's death, or, if more
than 3 years from death have passed, circumstances as described by Section
3-108 authorizing tardy probate or appointment have occurred.
(2) A petition for informal probate of a will shall
state the following in addition to the statements required by (1):
(i) that the
original of the decedent's last will is in the possession of the court, or
accompanies the petition, or that an authenticated copy of a will probated in
another jurisdiction accompanies the petition;
(ii) that the petitioner, to the best of the
petitioner's knowledge, believes the will to have been validly executed;
(iii) that after the exercise of reasonable
diligence, the petitioner is unaware of any instrument revoking the will, and
that the petitioner believes that the instrument which is the subject of the
petition is the decedent's last will.
(iv) a statement that a death certificate issued by
a public officer is in the possession of the Court, or accompanies the
petition.
(3) A petition for informal appointment of a
personal representative to administer an estate under a will shall describe the
will by date of execution and state the time and place of probate or the
pending petition for probate. The
petition for appointment shall adopt the statements in the petition for probate
and state the name, address and priority for appointment of the person whose
appointment is sought.
(4) A petition for informal appointment of a
personal representative in intestacy shall state in addition to the statements
required by (1):
(i) that after the
exercise of reasonable diligence, the petitioner is unaware of any
class=SpellE>unrevoked testamentary instrument relating to property having a
class=SpellE>situs in this commonwealth under Section 1-301, or, a statement
why any such instrument of which the petitioner may be aware is not being
probated;
(ii) the priority of the person whose appointment
is sought and the names of any other persons having a prior or equal right to
the appointment under Section 3-203.
(iii) a statement that a death certificate issued
by a public officer is in the possession of the Court, or accompanies the
petition.
(5) A petition for appointment of a personal
representative to succeed a personal representative appointed under a different
testacy status shall refer to the order in the most recent testacy proceeding,
state the name and address of the person whose appointment is sought and of the
person whose appointment will be terminated if the petition is granted, and
describe the priority of the petitioner.
(6) A petition for appointment of a personal
representative to succeed a personal representative who has tendered a resignation
as provided in 3-610(c), or whose appointment has been terminated by death or
removal, shall adopt the statements in the petition which led to the
appointment of the person being succeeded except as specifically changed or
corrected, state the name and address of the person who seeks appointment as
successor, and describe the priority of the petitioner.
(b)
By verifying a petition for informal probate, or informal appointment, the
petitioner submits personally to the jurisdiction of the Court in any
proceeding for relief from fraud relating to the petition, or for perjury, that
may be instituted against the petitioner.
Section 3-302. [Informal Probate; Duty of Magistrate; Effect of Informal Probate.]
Upon
receipt of a petition requesting informal probate of a will, the Court or a
Magistrate, upon making the findings required by Section 3-303 shall issue a
written statement of informal probate if at least seven days have elapsed since
the decedent's death. Informal probate
is conclusive as to all persons until superseded by an order in a formal
testacy proceeding. No defect in the
petition or procedure relating thereto which leads to informal probate of a
will renders the probate void.
Section 3-303. [Informal Probate; Proof and Findings Required.]
(a)
In an informal proceeding for original probate of a will, the Court or a
Magistrate shall determine whether:
(1) the petition is complete;
(2) the petitioner has made oath or affirmation
that the statements contained in the petition are true to the best of the
petitioner's knowledge and belief;
(3) the petitioner appears from the petition to be
an interested person as defined in Section 1-201(24);
(4) on the basis of the statements in the petition,
venue is proper;
(5) an original, duly executed and apparently
class=SpellE>unrevoked will is in the Court's possession;
(6) on the basis of the statements in the petition
any notice required by Section 3-306 has been given and that the petition is
not within Section 3-304;
(7) it appears from the petition that the time
limit for original probate has not expired;
(8) on the basis of statements in the petition, the
spouse and heirs are not incapacitated persons or minors; or if they are
incapacitated persons or minors they are represented by guardians or
conservators; and
(9) a death certificate issued by a public officer
is in the Court's possession.
(b)
The petition shall be denied if it indicates that a personal representative has
been appointed in another county of this commonwealth or except as provided in
subsection (d) below, if it appears that this or another will of the decedent
has been the subject of a previous probate order.
(c)
A will which appears to have the required signatures and which contains an
attestation clause showing that requirements of execution under Section 2-502
have been met shall be probated without further proof. In other cases, a Magistrate may assume
execution if the will appears to have been properly executed.
(d)
Informal probate of a will which has been previously probated in another state
or country may be granted at any time upon written petition by any interested
person, together with deposit of an authenticated copy of the will and of the
statement probating it from the office or court where it was first probated.
(e)
A will from a place which does not provide for probate of a will after death
and which is not eligible for probate under subsection (a) above, may be
probated in this commonwealth upon receipt by the Court of a duly authenticated
copy of the will and a duly authenticated certificate of its legal custodian
that the copy filed is a true copy and that the will has become operative under
the law of the other place.
Section 3-304. [Informal Probate; Unavailable in Certain Cases.]
Petitions
for informal probate which relate to one or more of a known series of
testamentary instruments (other than a will and one or more codicils thereto),
the latest of which does not expressly revoke the earlier, shall be declined.
Section 3-305. [Informal Probate; Magistrate Not Satisfied.]
(a)
If the Magistrate is not satisfied that a will is entitled to be probated in
informal proceedings because of failure to meet the requirements of Sections
3-303 and 3-304 or any other reason, the Magistrate may decline the
petition. A declination of informal
probate is not an adjudication and does not preclude formal probate
proceedings.
Section 3-306. [Informal Probate and Appointment
Proceedings; Notice Requirements.]
(a)
The petitioner must give written notice seven days prior to petitioning for
informal probate or appointment by delivery or by mail: (1) to all heirs and
devisees; (2) to any person having a prior or equal right to appointment not
waived in writing and filed with the Court;
and (3) to any personal representative of the decedent whose appointment
has not been terminated. A certificate
that such notice has been given, setting forth the names and addresses of those
to whom notice has been given, shall be prima facie evidence thereof. No other prior notice of an informal probate
or appointment proceeding is required.
(b)
The notice shall be delivered or sent by ordinary mail to each of the heirs and
devisees. The notice shall include the
name and address of the petitioner and personal representative, indicate that
it is being sent to persons who have or may have some interest in the estate
being administered, indicate whether bond with or without surety will be filed,
and describe the court where papers relating to the estate are on file. The notice shall state that the estate is
being administered under informal procedure by the personal representative
under the Massachusetts Uniform Probate Code without supervision by the Court,
that inventory and accounts are not required to be filed with the Court, but
that recipients are entitled to notice regarding the administration from the
personal representative and can petition the Court in any matter relating to
the estate, including distribution of assets and expenses of
administration. The notice shall state
that the recipient is entitled to petition the court to institute formal
proceedings and to obtain orders terminating or restricting the powers of
personal representatives appointed under informal procedure.
(c)
If it appears from the petition that there is no spouse or heir of the decedent
or that any devisee is a charity, the petitioner shall give notice to the
attorney general of the commonwealth.
(d)
If it appears from the petition that a spouse, heir or devisee is a minor or an
incapacitated person, the petitioner shall give notice to that person and that
person's guardian or conservator.
(e)
The duty does not extend to require notice to persons who have been adjudicated
in a prior formal testacy proceeding to have no interest in the estate. The petitioner's failure to give this notice
is a breach of duty to the persons concerned but does not affect the validity
of the probate, appointment, powers or other duties. A petitioner may inform other persons of the
petition by delivery or ordinary first class mail.
Section 3-307. [Informal Appointment
Proceedings; Delay in Order; Duty of Magistrate; Effect of Appointment.]
(a)
Upon receipt of a petition for informal appointment of a personal
representative other than a special personal representative as provided in
Section 3-614, if at least seven days have elapsed since the decedent's death,
the Court or a Magistrate, after making the findings required by Section 3-308,
shall appoint the petitioner subject to qualification and acceptance; provided, that if the decedent was a
non-resident, the Court or a Magistrate shall delay the order of appointment
until 30 days have elapsed since death unless the personal representative
appointed at the decedent's domicile is the petitioner, or unless the
decedent's will directs that the decedent's estate be subject to the laws of
this commonwealth.
(b)
The status of personal representative and the powers and duties pertaining to
the office are fully established by informal appointment. An appointment, and the office of personal
representative created thereby, is subject to termination as provided in
Sections 3-608 through 3-612, but is not subject to retroactive vacation.
Section 3-308. [Informal Appointment
Proceedings; Proof and Findings
Required.]
(a)
In informal appointment proceedings, the Court or a Magistrate must determine
whether:
(1) the petition for informal appointment of a
personal representative is complete;
(2) the petitioner has made oath or affirmation
that the statements contained in the petition are true to the best of the
petitioner's knowledge and belief;
(3) the petitioner appears from the petition to be
an interested person as defined in Section 1-201(24);
(4) on the basis of the statements in the petition,
venue is proper;
(5) any will to which the requested appointment
relates has been formally or informally probated; but this requirement does not apply to the
appointment of a special personal representative;
(6) any notice required by Section 3-306 has been
given; and
(7) from the statements in the petition, the person
whose appointment is sought has priority entitling that person to the
appointment;
(8) on the basis of the statements in the petition,
the spouse and heirs are not incapacitated persons or minors; or if any are
incapacitated persons or minors they are represented by guardians or
conservators; and
(9) a death certificate issued by a public officer
is in the Court's possession.
(b)
Unless Section 3-612 controls, the petition must be denied if it indicates that
a personal representative who has not filed a written statement of resignation
as provided in Section 3-610(c) has been appointed in this or another county of
this commonwealth, that (unless the petitioner is the domiciliary personal
representative or the domiciliary representative's nominee) the decedent was
not domiciled in this commonwealth and that a personal representative whose
appointment has not been terminated has been appointed by a Court in the state
of domicile, or that other requirements of this section have not been met.
Section 3-309. [Informal Appointment
Proceedings; Magistrate Not Satisfied.]
If
the Magistrate is not satisfied that a requested informal appointment of a
personal representative should be made because of failure to meet the
requirements of Sections 3-307 and 3-308, or for any other reason, the
Magistrate may decline the petition. A
declination of informal appointment is not an adjudication and does not
preclude appointment in formal proceedings.
Section 3-310. [Reserved.]
Section 3-311. [Informal A
