General comment
The provisions of this Article describe the Flexible System of Administration of Decedents' Estates. Designed to be applicable to both intestate and testate estates and to provide persons interested in decedents' estates with as little or as much by way of procedural and adjudicative safeguards as may be suitable under varying circumstances.
The following are essential characteristics of the Flexible System:
- (1) Post-mortem probate of a will must occur to make a will effective and appointment of a personal representative by a public official after the decedent's death is required in order to create the duties and powers attending the office of personal representative. Neither are compelled, however, but are left to be obtained by persons having an interest in the consequence of probate or appointment. Estates descend at death to successors identified by any probated will, or to heirs if no will is probated, subject to rights which may be implemented through administration.
- (2) Two methods of securing probate of wills which include a non-adjudicative determination (informal probate) on the one hand, and a judicial determination after notice to all interested persons (formal probate) on the other, are provided.
- (3) Two methods of securing appointment of a personal representative which include appointment with seven day prior written notice and without final adjudication of matters relevant to priority for appointment (informal appointment), on the one hand, and appointment by judicial order after notice by Citation to interested persons (formal appointment) on the other, are provided.
- (4) A seven day waiting period from death preventing informal probate or informal appointment of a personal representative is required.
- (5) Probate of a will by informal or formal proceedings or an adjudication of intestacy may occur without any attendant requirement of appointment of a personal representative.
- (6) One judicial, in rem, proceeding encompassing formal probate of any wills (or a determination after notice that the decedent left no will), appointment of a personal representative and complete settlement of an estate under continuing supervision of the Court (supervised administration) is provided for testators and persons interested in a decedent's estate, whether testate or intestate, who desire to use it.
- (7) Unless supervised administration is sought and ordered, persons interested in estates (including personal representatives, whether appointed informally or after notice) may use an “in and out” relationship to the Court so that any question or assumption relating to the estate, including the status of an estate as testate or intestate, matters relating to one or more claims, disputed titles, accounts of personal representatives, and distribution, may be resolved or established by adjudication after notice without necessarily subjecting the estate to the necessity of judicial orders in regard to other or further questions or assumptions.
- (8) The status of a decedent in regard to whether he left a valid will or died intestate must be resolved by adjudication after notice in proceedings commenced within three years after his death. If not so resolved, any will probated informally becomes final, and if there is no such probate, the status of the decedent as intestate is finally determined, by a statute of limitations which bars probate and appointment unless requested within three years after death. These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate.
- (9) Personal representatives appointed informally or after notice, and whether supervised or not, have statutory powers enabling them to collect, protect, distribute and otherwise handle all steps in administration without further order of the Court, except that, unless authorized by the will, a Personal Representative must obtain a license to sell real estate and supervised personal representatives may be subjected to special restrictions on power as endorsed on their letters.
- (10) Purchasers from personal representatives and from distributees of personal representatives are protected so that adjudications regarding the testacy status of a decedent or any other question going to the propriety of a sale are not required in order to protect purchasers.
- (11) Provisions protecting a personal representative who distributes without adjudication are included to make nonadjudicated settlements feasible.
- (12) Statutes of limitation bar creditors of the decedent who fail to present claims within one year from the decedent's death.
Overall, the system accepts the premise that the Court's role in regard to probate and administration, and its relationship to personal representatives who derive their power from public appointment, is wholly passive until some interested person invokes its power to secure resolution of a matter. This chapter, through the Court, provides remedies which are suitable and efficient to protect any and all rights regarding succession, but refrains from intruding into family affairs unless relief is requested, and limits its relief to that sought.
Massachusetts comment
The provisions of the Uniform Probate Code dealing with succession without administration, also known as universal succession (Sections 3-312 to 3-322) are not recommended for adoption in Massachusetts. These sections would permit heirs and devisees to accept estate assets and assume liabilities without formal or even informal filings with the Magistrate or the Court.