Massachusetts Adopts Uniform Probate Code
02/04/2011- Robinson Donovan Case Digest
By Attorney Nicholas P. Lata
Massachusetts has adopted the Uniform Probate Code, with most provisions taking effect July 1, 2011. The new law has an impact on the probate process and makes an effort to reduce the courts' role in the administration of trusts and estates. One area that will be dramatically changed is the impact of marriage, divorce and/or the birth or adoption of children after the execution of a will. These new provisions will affect almost every family in Massachusetts.
Under the new law, marriage no longer revokes a prior will. Instead, the new spouse takes a share of any part of the estate which is not devised to a child of the deceased born prior to the marriage of the deceased and surviving spouse. If the deceased spouse does not have a child of a prior marriage or relationship, the surviving spouse's share will encompass the entire estate. This can be avoided by stipulating in a will executed prior to a marriage that it was made in contemplation of marriage or by explicitly stating that a spouse has been provided for outside the will, such as by a trust.
Divorce continues to revoke any probate transfers to a former spouse, but under the new law, non-probate transfers such as the beneficial interest in life insurance policies and trusts are also automatically revoked by divorce. If this is not the intention, then the governing instruments relating to these transfers should be amended after divorce to confirm the intended beneficiary accordingly.
Another provision of the Uniform Probate Code states that if a party did not have any living children when a will was initially executed, any child born or adopted afterward will still take a share of the estate, unless the child's surviving parent is the sole beneficiary of virtually the entire estate. The amount of that share depends on whether there are other living children or a surviving parent at the time of the death. If however the deceased already had children when the original will was executed, the new child(ren) born or adopted thereafter will take a proportionate share of the part of the estate which is devised to the other children. Finally, the new law relaxes both the need for court supervision of trusts and restrictions regarding devises to individuals who are not yet born. Parties may want to consider providing for their heirs through trusts as the new provisions may enable the disbursement of an estate amongst future generations without subjecting it to the Federal estate tax.
This article is a general summary only and does not constitute legal advice.
Nicholas P. Lata is an attorney at Robinson Donovan, P.C. For questions about the Uniform Probate Code or any other estate planning matters, please contact your RD attorney or Attorney Lata at (413) 732-2301.