Section 3-108
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 that: (1) if a previous proceeding was dismissed because of doubt relative to the fact of the decedent's death, then 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 unduly delayed initiating the subsequent proceeding; (2) appropriate probate, appointment or testacy proceedings may be maintained relative to the estate of an absent, disappeared or missing person at any time within 3 years after the death of the person may be established; (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 12 months from the informal probate or 3 years from the decedent's death; (4) an informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceedings relative to the succession or estate administration has occurred within the 3 year period after the decedent's death, but the personal representative shall have no right to possess estate assets as provided in section 3–709 beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate; and (5) a formal testacy proceeding may be commenced at any time after 3 years from the decedent's death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent's death from one other than the decedent when the property is to be appointed by the terms of the decedent's will or is to pass or be distributed as a part of the decedent's estate or its transfer is otherwise to be controlled by the terms of the decedent's will. These limitations shall not apply to proceedings to construe probated wills or to determine heirs of an intestate. In cases under clause (1) or (2), 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.
Comment
As originally approved and read with 3-102's requirement that wills be probated before being admissible in evidence, this section created a three-year-from-death time period within which proceedings concerning a succession (other than a determination of heirs, or will interpretation or construction) must be commenced. Unless certain limited exceptions were met, an estate became conclusively intestate if no formal or informal estate proceeding was commenced within the three year period, and no administration could be opened in order to generate a deed of distribution for purposes of proving a succession.
Several of the original UPC states rejected the three year bar against late-offered wills and the correlated notion that formal proceedings to determine heirs in previously unadministered estates were necessary to generate title muniments locating inherited land in lawful successors. Critics preferred continued availability of UPC's procedures for appointing p.r.'s whose distributive instruments gave protection to purchasers. The 1987 technical amendment to 3-108 reduced, but failed to eliminate, instances in which original probate and appointment proceedings were barred by the 3 year limitation period.
This section establishes a basic limitation period of three years within which it may be determined whether a decedent left a will and to commence administration of the estate. But, an exception assures that heirs will have at least one year after an informal probate to initiate a contest and to secure administration of the estate as intestate.
If no will is probated within three years from death, the section has the effect of making the assumption of intestacy final. If a will has been informally probated within the period, the section has the effect of making the informal probate conclusive after three years or within twelve months from informal probate, if later. Heirs or devisees can protect themselves against change within the three years of assumption concerning whether the decedent left a will or died intestate by bringing a formal proceeding shortening the period to that described in Sections 3-412 and 3-413.
A personal representative who has been appointed under an assumption concerning testacy which may be reversed in the three-year period if there has been no formal proceeding, is protected by Section 3-703. It relieves a personal representative of liability for surcharge for certain distributions made pursuant to an informally probated will, or under authority of informally issued letters of administration.
Distributees who receive an estate distributed before the three-year period expires where there has been no formal determination accelerating the time for certainty, remain potentially liable to persons determined to be entitled by formal proceedings instituted within the basic period under Sections 3-909 and 3-1006.
The basic premise underlying all of these time provisions is that interested persons who want to assume the risks implicit in the three-year period of limitations should be provided legitimate means by which they can do so. At the same time, parties should be afforded ample opportunity for earlier protection if they want it.
Massachusetts comment
G.L. c. 193, § 4 limited filing of administration to 50 years from death. Subsection (4) is similar to an exception to the 50 year limitation of G.L. c. 193, § 5. Note also additional remedies for fraud under § 1-106 and for vacating formal decrees under § 3-412.
Chapter 140 of the Acts of 2012 adopted a newer version of the Uniform Probate Code § 3-108 which expands the opportunities to begin probate and appointment proceedings after 3 years from death.