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To Probate Or Not To Probate?

By: Amy L. McIntyre



Avoiding probate is not a new concept—but should probate be avoided?  Probate refers to the court process in which a person’s assets are managed and ultimately distributed after their death.[1]  The time, cost, and public nature of the probate process are what most often hope to avoid.[2]  To do so, estate planning techniques utilizing trusts, beneficiary designations, and joint ownership are commonly used tools to avoid probate while still maintaining control over the ultimate distribution of one’s assets even after they have died.[3] 


The Massachusetts Uniform Probate Code (MUPC) was enacted on March 31, 2012,[4] with the purpose to allow for estates to be settled quickly.[5]  To that end, the MUPC delineated three types of probate proceedings; informal probate, formal probate, and late and limited, the first two of which can only be initiated within three years from the decedent’s date of death, leaving a late and limited proceeding as the only option after the three year time-bar has elapsed.[6]  The MUPC established a one-year creditor period, running from the date of the decedent’s death, for creditors to perfect their claims against an estate.[7]  Prior to the enactment of the MUPC, the creditor period ran one year from the date of appointment of the personal representative,[8] and probate proceedings could be initiated up to fifty years from the date of the decedent’s death.[9]  The shortened timeframe for creditors to pursue claims against an estate leaves many wondering: why rush to file and provide creditors the opportunity to stake their claim?


The one-year creditor time bar may induce some to choose not to probate until after the one-year anniversary, but if creditors is the concern, one-year may not be sufficient.  Creditors may secure authority from the Supreme Judicial Court to file a late claim, pursuant to G.L. c. 190B, §3-803(e), by filing a “complaint in equity.”[10]  The creditor will be authorized to file a late claim upon a sufficient showing of merit to the claim, no prejudice on the part of the estate, and that the “failure to file suit within the one-year limitations period was not due to his carelessness or to any lack of diligence for which he might be properly censured or blamed.”[11]


Further, if the claim against the estate is brought by the Division of Medical Assistance (DMA) for Medicaid benefits received by the decedent during their lifetime, different rules apply.  The Massachusetts Supreme Judicial Court,   In re  Estate of Kendall, affirmed that the DMA faces a time bar of three years to file a claim against an estate.[12] The Kendall Court opined that DMA is in a unique position to know when the Medicaid recipient has died and is capable of initiating probate proceedings itself to secure its claim against the estate when a petition for appointment of personal representative has not yet been filed.[13]  If a petition for an informal or formal probate proceeding is filed within the three year timeframe, then the DMA has four months from the date of appointment of the personal representative to file its claim against the estate.[14]  The DMA is also out of luck in recovering against Medicaid liens that were recorded against real property owned during the decedent’s lifetime for those decedents who died on or after the enactment of the MUPC.[15] In the 2023 case, In re Estate of Mason, the Massachusetts Supreme Judicial Court held that “the plain language of G.L. c. 118E, §31(d)” limits MassHealth’s lien enforcement authority of recorded liens to when said property is sold “during the [member’s] lifetime.”[16]  However, if the decedent died prior to the March 31, 2012, recorded Medicaid liens may be enforced up to fifty years from the date of the decedent’s death pursuant to pre-MUPC statutes.[17]

Don’t be fooled, DMA is not the only creditor who can initiate probate proceedings.[18]  Creditors are interested parties under the MUPC and have standing to probate estates of debtors and may also seek to initiate proceedings if their one-year time-period is approaching and no petition for probate has been filed.[19]


So, what drawbacks must be considered if you do want to run the risk of waiting out the three years from date of death for decedent’s who died after March 31, 2012?  A Late and Limited probate proceeding is, well just that – “limited!”[20]  A personal representative appointed through the formal late and limited proceeding does not have the liability of paying creditors of the estate,[21] but they also don’t have the authority to administer and distribute the assets thereof.[22] Rather, with a Late and Limited probate, the appointed personal representative only has the authority to confirm who holds title to the assets in accordance with the Will of the decedent or the heirs-at-law when the decedent died intestate.[23]  Therefore, if real estate is owned, the beneficiaries would then be able to sell the real estate as the title holders, rather than the personal representative selling the real estate on behalf of the estate.[24]  And, who is paying for the costs to probate, or even the funeral expenses of the decedent?  Under the MUPC the priority of claims was codified, placing estate administration expenses first, funeral expenses second, federal debts and taxes third, last illness expenses fourth, state debts and taxes fifth, DMA debts sixth, and then all claims.[25]  The personal representative would not be able to pursue claims on behalf of the estate such as wrongful death claims or continue with legal actions that were pending prior to the death of the decedent which may result in additional estate assets.[26]


Consequently, if you are considering a delay in probating an estate to avoid having to pay creditors, know that you may run the risk of a creditor petitioning as an interested party which may in turn cause the estate to incur more administration expenses.[27]  Further, by waiting too long, your only option may be a Late and Limited proceeding in which the appointed personal representative’s authority would be limited to simply confirming the title holders to assets rather than having the general authority to marshal the assets of the estate and distributing them appropriate devisees or heirs-at-law after paying estate administration expenses and perfected creditor claims.[28]  If the decedent died prior to March 31, 2012, creditors have up to fifty years to file their claims against the estate.[29]  Seeking legal counsel to timely review the options, assets, and expenses of the estate is always prudent.

 


Amy L. McIntyre is a paralegal with Rubin and Rudman LLP in Boston. She is a member of the firm’s trust and estate department and elder law practice group. She concentrates on asset restructuring and Medicaid eligibility. She is a current law student at Western New England University Law School, where she is a JD candidate for May of 2024. Ms. McIntyre served as a junior staff member on the Western New England Law Review for Volume 45 and is serving as the online content editor for Volume 46. She is a student member of the Massachusetts chapter of National Academy of Elder Law Attorneys. Ms. McIntyre earned a bachelor’s degree in legal studies from Becker College and a master’s degree from Worcester State University in managerial leadership.


[1] SMARTASSET TEAM, How to Avoid Probate in Massachusetts, AOL. (Feb. 8, 2024, 9:40 PM), https://www.aol.com/finance/avoid-probate-massachusetts-024017889.html.

[2] Id.

[3] Id.

[4] Douglas R. Peterson, The Massachusetts Uniform Probate Code (MUPC): A New Law Substantially Effecting Inheritance, Wills, Trusts, and Estate Administration, Douglas R. Peterson Attorney at Law, https://www.douglasrpetersonattorneylaw.com/the-massachusetts-uniform-probate-code-mupc/ (Feb. 10, 2024); see generally Mass. Gen. Laws ch. 190B.

[5] Creditors and the Massachusetts Uniform Probate Code, Fegreus & Broderick, LLP (Dec. 10, 2015), https://www.fegreuslaw.com/probate-and-estate-blog/2015/12/10/creditors-and-the-massachusetts-uniform-probate-code.

[6] SMARTASSET TEAM, supra note 1; SSB, Better Late than Never: What Happens When You Wait More than 3 Years to Administer an Estate, Samuel, Sayward & Baler, LLP (Oct. 19, 2021), https://ssbllc.com/better-late-than-never-what-happens-when-you-wait-more-than-3-years-to-administer-an-estate/.

[7] Creditors and the Massachusetts Uniform Probate Code, supra note 5.

[8] Id.

[9] SSB, supra note 6.

[10] Creditors and the Massachusetts Uniform Probate Code, supra note 5.

[11] Id.

[12] In re Estate of Kendall, 486 Mass. 522, 534 (2020).

[13] Id. at 531-532.

[14] Massachusetts Supreme Judicial Court: Personal Representative’s Power To Pay Claims Extinguished After Three Years, Probate Stars,(Jan. 4, 2021), https://probatestars.com/massachusetts-supreme-judicial-court-personal-representatives-power-to-pay-claims-extinguished-after-three-years/ [hereinafter Massachusetts Supreme Judicial Court].

[15] Pat Murphy, SJC: MassHealth can’t enforce lien against decedent’s home, Massachusetts Lawyers Weekly, (Dec. 21, 2023), https://masslawyersweekly.com/2023/12/21/sjc-masshealth-cant-enforce-lien-against-decedents-home/.

[16] In re Estate of Mason, 493 Mass. 148, 159 (2023).

[17] Pat Murphy, supra note 15.

[18] See Creditors and the Massachusetts Uniform Probate Code, supra note 5.

[19] Id.

[20] SSB, supra note 6.

[21] Massachusetts Supreme Judicial Court, supra note 14.

[22] SSB, supra note 6.

[23] Id.

[24] Id.

[25] Mass. Gen. Laws ch. 190B, § 3-805.

[26] See What Family Members Can Sue for Wrongful Death in Massachusetts?, The Law Offices of John J. Sheehan, https://attorneysheehan.com/what-family-members-can-sue-for-wrongful-death-in-massachusetts/ (last visited Feb. 16, 2024).

[27] See Creditors and the Massachusetts Uniform Probate Code, supra note 5.

[28] SSB, supra note 6.

[29] Id.

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