Through competent and thorough estate planning, the probate court can be avoided altogether upon the death of a loved one.  But what if it shouldn’t?  With the adoption of the Massachusetts Uniform Probate Code in 2012, changes came to the Massachusetts probate code that many may be unaware of.

As the law currently stands, if an estate is not probated within three years, then there is a presumption of intestacy.  In other words, the Will may not govern how the assets are to be distributed.  Consider this potential scenario – a passbook savings account worth $100,000 is located five years after a death and no probate was ever initiated.  The law currently dictates that the $100,000 will be distributed to the decedent’s heirs rather than in accordance with his Will.  In the event the Will omitted an estranged family member or directed that the assets be held in a trust, these wishes may not be upheld.

Furthermore, the appointment of a Personal Representative to attend to any later found assets is limited.  Colloquially referred to as a “late and limited filing,” a Personal Representative appointed three years after a death has limited powers and may not be able to effectively administer the estate or distribute the assets to the beneficiaries.  The Personal Representative’s powers go no further than those necessary to confirm title in estate assets and to pay the costs associated with administration of the estate.  By way of example, in Bennett v. R.J. Reynolds Tobacco Company, 2018 WL 6623866, the Supreme Judicial Court addressed whether a “late and limited [Personal Representative]” has standing to bring a civil lawsuit in an action for the wrongful death of a decedent.  The Supreme Judicial Court ruled that the late and limited Personal Representative did not have these powers and were restricted to the powers provided under the statute.

The problems and pitfalls associated with the three year “deadline” to initiate a probate can be avoided if the family considers probating an estate even if there appear to be no probate assets at the time of a death.  This is an evolving area of law and we encourage you to consult with an attorney upon the death of a loved one to consider all of your options.