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USA Statutes : massachusetts
Title : PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
Chapter : TITLE II. DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS
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GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 17. Expense of procuring surety chargeable on estate Section 17. Money paid with the approval of the judge of probate to a corporation qualified to act in the commonwealth in guaranteeing the fidelity of persons and in acting as surety on bonds, or to any person for acting as surety on any official bond given to such probate court, may be allowed as a charge against the estate and in the case of trusteeship shall be a charge against principal, except that if and so long as the trust estate shall consist wholly of real estate the money so paid shall be a charge against income.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 18. Executor or administrator; liability to account Section 18. If an executor or administrator, after being duly cited by the probate court, neglects to render an account of his administration, his bond may be put in suit as provided in the preceding chapter; and if he persists in such neglect, judgment shall be rendered against him, and he shall be liable in like manner and to the same extent as an executor in his own wrong.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 19. Repealed, 1938, 154, Sec. 2 GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 2. Forms of accounts Section 2. Accounts rendered to the probate court by an executor, administrator, trustee, guardian or conservator shall be for a period distinctly stated therein, and consist of three schedules, of which the first shall show the amount of personal property, and with respect to a trustee, guardian or conservator also the amount of the real property, according to the inventory, or, instead thereof, the amount of the balance of the next prior account, as the case may be, and all income and other property received and gains from the sale of any property or otherwise; the second shall show payments, charges, losses and distributions; the third shall show the investment of the balance of such account, if any, and changes of investment. A trustee shall state in his accounts the receipts of principal and income separately and also the payments and charges on account of such principal and income separately.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 20. Joint fiduciaries; allowance of account Section 20. The probate court may allow the account of two or more joint executors, administrators, guardians, conservators or trustees, upon the oath of one of them.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 21. Distribution Section 21. If the estate of a deceased person is to be distributed in whole or in part, the probate court, on petition of any person interested, after such notice as it may require, may order the executor or administrator to convert the personal property into cash and distribute it among the persons entitled thereto.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 22. Final discharge Section 22. If an executor, administrator, guardian, conservator or trustee has paid or delivered to the persons entitled thereto the money or other property in his hands, as required by decree of a probate court, he may perpetuate the evidence thereof by presenting to said court, within one year after the decree is made, an account of such payments or of the delivery of such property; and said account, upon being proved to the satisfaction of the court, and verified on oath by the accountant, shall be allowed as his final discharge and ordered to be recorded. Such discharge shall forever exonerate the accountant and his sureties from all liability under such decree unless his account is impeached for fraud or manifest error.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 23. Repealed, 1938, 154, Sec. 2 GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 23A. Accounts; issuance of citations Section 23A. When an account has been filed in the probate court and the accountant fails to take out a citation, give notice as therein ordered and make return of service to the court, the court may, upon application of any person interested, order him to do so; or the court may, in its discretion, issue such citation to any party in interest who may request it.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 24. Allowance of accounts; final determination Section 24. Upon application for the allowance of an account filed in the probate court such notice as the court may order shall be given by publication, unless all persons interested receive actual notice, and by delivering or mailing by registered mail a copy of the citation to the attorney general if there are public charitable interests, to the department of mental retardation in the case of mentally retarded persons and to the Veterans Administration if interested, and(1) For accounts of administrators of intestate estates to the heirs;(2) For accounts of executors and administrators with the will annexed to all legatees and devisees and to all other persons entitled to share in the estate whose interests are not represented except by the accountant;(3) For accounts of guardians and conservators to the ward and to the persons who would be his heirs were he to die intestate at the time of the delivery or mailing of such notice;(4) For accounts of trustees to all persons to or for whom income has been paid or accumulated or in the discretion of the trustee might have been paid or accumulated during the period covered by the account, and to those persons who during such period have received or were entitled to receive or in the discretion of the trustee might have received principal, and to all persons who at the mailing or delivery of such notice, in default of any appointment or otherwise, would be entitled to share in the income or principal if an existing tenancy for life or for years had then terminated or the trust estate were then distributable in whole or in part;(5) For accounts of special administrators or in other kinds of fiduciary accounts or where the court deems special circumstances exist to such persons as the court may direct;and in all cases to the executor or administrator of any deceased person entitled to notice or to those in being who have succeeded to the interest of such deceased person, and to other persons who are or may become interested and who shall have filed with the accountant and the register of probate a request in writing for notice of proceedings on accounts. The written assent to an account or the waiver in writing of notice thereof by a person interested or by his guardian or legal representative shall be deemed equivalent to notice.
Except as otherwise provided herein, if there are other persons interested to whom such notice has not been given by delivery or registered mail, or if the interests of persons unborn, unascertained or legally incompetent to act in their own behalf are not represented except by the accountant, the court shall appoint as guardian ad litem a competent and disinterested person to represent such interests and persons, and such guardian ad litem shall without further notice or action by the court also represent with respect to such account all interested persons who may be born after the date of his appointment. It shall not be necessary, unless the court shall so order, to designate by name persons represented by the guardian ad litem other than those who are entitled to notice by delivery or registered mailing. The guardian ad litem so appointed shall make oath to perform his duties faithfully and impartially and shall be entitled to such reasonable compensation as the court shall allow. In cases where the Veterans Administration is entitled to notice and the accountant certifies that the value of the estate does not exceed five thousand dollars, the Veterans Administration shall be deemed a competent and disinterested party to represent persons unborn, unascertained or legally incompetent to act in their own behalf.
The requirement of the appointment of a guardian ad litem to represent the interests of any person where a legally competent person entitled to notice herein has a power to appoint the entire property administered by the accountant to (1) himself, his creditors, his estate or creditors of his estate or (2) to any other class of appointees which is broader than the class of those persons who would take in default of the exercise of such power, or who has, at all times during the accounting period, a right to withdraw all of such property may be waived by the court in its discretion.
After a final decree has been entered on any account hereunder it shall not be impeached except for fraud or manifest error.
In the case of a minor entitled to notice by delivery or mailing hereunder who is under the age of fourteen at the date of the citation, such notice may be delivered or mailed to the legal or natural guardian of said minor or if the court shall so direct to some other person in his behalf.
If a deceased person in his duly allowed will has nominated a person or persons, even though interested, to represent the interests of persons unborn or unascertained or has requested that such representation be dispensed with, the court, in the absence of good cause shown, shall comply with the expressed desire of the deceased with respect to such representation.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 25. Unclaimed money; presumption of abandonment; remittance; minors Section 25. If money which a decree of a probate court has ordered to be paid over remains for six months unclaimed, said money shall be presumed abandoned and the executor, administrator, guardian, conservator or trustee who was ordered to pay the same shall remit said money to the state treasurer as abandoned property to be held by him subject to the provisions of chapter two hundred A. Such remittance shall be made in the name of the judge of probate on a form prescribed by the state treasurer.
Any money which a decree of a probate court orders to be paid over to a minor, who due to his minority may not receive the money until reaching the age of majority, shall not be remitted to the state treasurer pursuant to this section unless and until the money remains unclaimed for six months after the date on which the minor reaches the age of majority. Said money may be deposited in the name of the first judge of probate for the benefit of such minor pursuant to section twenty-seven.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 26. Legatees’ residence unknown; deposit of legacies Section 26. If the residence of a legatee under a will duly proved or of a person entitled to a portion of a trust fund under an order of distribution provided by section twenty-five of chapter two hundred and three is unknown or if he is a minor without legal guardian, the court may, if satisfied of such fact, order the legacy or share of the trust fund due him to be remitted as provided in and subject to the preceding section.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 27. Deposit of certain funds Section 27. If an executor, administrator, guardian, conservator or trustee has money which he considers it advisable to deposit in a savings bank, or in savings accounts in a trust company, or on paid-up shares and accounts of and in a co-operative bank, or with which he considers it advisable to purchase shares or make deposits in a credit union located in the commonwealth or to purchase share accounts of a federal savings and loan association or a savings and loan association located in the commonwealth, in the name of the judge of probate, for the benefit of any person, he may apply to the probate court by which he was appointed for leave so to do, and the court may in its discretion, without notice, direct such money to be so deposited, or such purchase to be made. When the deposit is made the deposit book or certificates of the bank shall be filed in said court and when a purchase is made the account book of said federal savings and loan association shall be filed in said court. When the person entitled to such money satisfies the court of his right to receive it, the court shall by decree direct that it be transferred to him.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 27A. Disposition of certain legacies or distributive shares Section 27A. Whenever payment of a legacy or distributive share cannot be made to the person entitled thereto, or such person may not receive or have the opportunity to obtain said legacy or distributive share, the court, on petition of an interested party or in its discretion, may order that the money be deposited in a savings bank or other like institution, or in savings accounts in a trust company, or deposited in a deposit or share account in a credit union located in the commonwealth, or invested in the manner provided in section twenty-five, and disposed of in the manner provided in section twenty-eight. When a claimant to such funds resides outside of the United States or its territories, the court in its discretion, in order to assist in establishing such claimant’s identity, right and opportunity to receive such fund, may require the appearance in person before the court of such claimant.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 27B. Legatees or distributees residing in foreign countries; procedure Section 27B. Whenever payment of a legacy or distributive share is to be made to a person who is domiciled in a country or state outside of the United States or its territories, in which the court, in its discretion, finds that there is not a reasonable assurance that such legatee or distributee will actually receive payment of his legacy or distributive share in substantially full value, the court, upon petition of the executor, administrator, or an interested party, or in its discretion, may order that such legacy or distributive share be paid, in whole or in part, to said executor, administrator, or interested party for use by him in the purchase of goods in the form of necessaries of life, food, clothing and medicines, to be sent to such legatee or distributee through a recognized public or private agency, upon his written request, order, or assignment.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 28. Final disposition of deposits Section 28. The probate court may, on petition of any person interested and after public notice, order all money or the proceeds thereof which have been deposited or invested by its authority and which shall have remained unclaimed for twenty years from the date of such deposit or investment to be paid to the residuary legatee, if any, of the testator to whose estate the money belonged, or, if such residuary legatee is dead, to his heirs living at the time of such distribution; and if no such residuary legatee or any of his heirs are then living, or if the deceased died intestate, said money and the proceeds thereof shall be disposed of and distributed among the persons entitled thereto and in the manner provided by chapter one hundred and ninety. The court shall first require from the persons to whom such money shall be ordered paid a sufficient bond of indemnity, with two sufficient sureties to be approved by it, conditioned to repay to the persons for whose benefit such deposit or investment was originally made, or to the personal representatives of such persons, all money paid over by the order of the court under this section.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 29. Non-resident beneficiaries; payment of trust fund to foreign trustee Section 29. If all living parties interested as beneficiaries in a trust created by a will allowed in the commonwealth reside outside thereof, the probate court having jurisdiction of the trust may, on petition of parties in interest or of the executor, administrator or trustee, if it considers it just and expedient, authorize the executor, administrator or trustee to pay the fund to a trustee appointed by the proper court in any other state or country, if all living beneficiaries and the executor, administrator or trustee signify their consent, and the court is satisfied that the laws of such other state or country secure the due performance of said trust; and upon such payment, shown to the satisfaction of said court, the executor, administrator or trustee appointed here may be discharged from further responsibility by decree of said court.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 3. Examination on oath Section 3. An executor, administrator, guardian, conservator, trustee or receiver may be examined on oath before the court upon any matters relative to his accounts.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 30. Contingent interest; representation Section 30. If there are contingent interests in such trust fund, whether the persons who may be entitled thereto are in being or not, or if any of the beneficiaries are minors, the court, before making an order or decree, shall cause such interests and minors to be properly represented by guardians ad litem or otherwise at its discretion.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 31. Settlement by receivers Section 31. The following claims shall, in the settlement of estates by receivers, be entitled to priority in the order named:First, Debts due the United States or debts due, or taxes assessed by, the commonwealth or a county, city or town therein.
Second, Wages to an amount of not more than one hundred dollars due an operative, clerk or servant for labor, either performed within one year last preceding the appointment of the receiver or for the payment for which a suit, which was commenced within one year after the performance of the labor, is pending or was terminated within one year after said appointment.
Third, Debts to an amount of not more than fifty dollars due physicians for medical attendance on the debtor or his family, rendered within six months prior to said appointment.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 4. Securities and moneys; requirement of production Section 4. In settling an account of any executor, administrator, trustee, guardian or other fiduciary, the probate court may require him, or any of them if there are more than one, to produce during the proceedings or afterward, as the court may direct, any securities or moneys comprised in the account or any documents relating to the investments of the estate, and to replace any moneys or property that have been improperly applied or disposed of, or the value thereof, and to pay or transfer the same or any moneys or property with which he or they may be charged into a proper account or otherwise, as the court may order, in such manner that the same shall be in the control of the persons entitled thereto; and the proceedings upon every such account shall be considered for all purposes to be proceedings in equity, and orders and decrees of the court therein shall be enforceable accordingly, and execution may issue for any such moneys against the fiduciary personally as upon a judgment at law in favor of the persons entitled to the control thereof, or any of them, for the benefit of all.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 5. Property; accounting; profits or losses Section 5. An executor or administrator with respect to personal property or a guardian, conservator or trustee with respect to real and personal property shall account for such property at its appraised value, but he shall make no profit by the increase nor sustain any loss by the decrease or destruction of any part thereof without his fault. If he sells any of such property for more than its appraised value, he shall account for the excess; if he sells for less than its appraised value, he shall be allowed for the loss if the court finds that the sale was expedient, and for the interest of all concerned; and he shall not be accountable for a debt inventoried as due to the estate if the court finds that it remains uncollected without his fault.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 6. Property subject to accountings Section 6. An executor or administrator with respect to personal property including the proceeds from any sale or mortgage of real estate, or a guardian, conservator or trustee with respect to real and personal property, shall be chargeable in his account with all such property of the estate coming to him and which is by law to be administered, although not included in the inventory; and with all interest, profit and income coming to him from the property.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 7. Account of guardian or conservator of mentally ill or mentally retarded person; allowance; condition precedent Section 7. No final account or discharge of a guardian of a mentally retarded person shall be allowed unless at least seven days’ notice has been given to the department of mental retardation in the case of a mentally retarded person. No account of a guardian of a mentally ill or mentally retarded person or of a conservator shall be allowed without such notice as the court may order to the United States veterans’ bureau or its successor if the ward is entitled to any benefit, estate or income paid or payable by or through said bureau or its successor.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 8. Income from realty; accounting; manner Section 8. If real estate of a deceased person is used, occupied or taken charge of by an executor or administrator, he shall account for the income and management thereof in the same manner as in the case of personal property.
GUARDIANS, CONSERVATORS, TRUSTEES AND RECEIVERS Chapter 206: Section 9. Mortgaged realty; manner of accounting; right of entry Section 9. If a mortgagee of real estate or an assignee of such mortgagee dies without having foreclosed the mortgage, the mortgaged property and the debt secured thereby shall be personal assets in the hands of his executor or administrator, and shall be administered and accounted for as such; and the executor or administrator shall have the same rights of entry and of action under said mortgage as the mortgagee or his assignee.
Chapter 190: Section 1. Spouse’s share of property not disposed of by will Section 1. A surviving husband or wife shall, after the payment of the debts of the deceased and the charges of his last sickness and funeral and of the settlement of his estate, and subject to chapter one hundred and ninety-six, be entitled to the following share in his real and personal property not disposed of by will:(1) If the deceased leaves kindred and no issue, and it appears on determination by the probate court, as hereinafter provided, that the whole estate does not exceed two hundred thousand dollars in value, the surviving husband or wife shall take the whole thereof; otherwise such survivor shall take two hundred thousand dollars and one half of the remaining personal and one half of the remaining real property. If the personal property is insufficient to pay said two hundred thousand dollars, the deficiency shall, upon the petition of any party in interest, be paid from the sale or mortgage, in the manner provided for the payment of debts or legacies, of any interest of the deceased in real property which he could have conveyed at the time of his death; and the surviving husband or wife shall be permitted, subject to the approval of the court, to purchase at any such sale, notwithstanding the fact that he or she is the administrator of the estate of the deceased person. A further sale or mortgage of any real estate of the deceased may later be made to provide for any deficiency still remaining. Whenever it shall appear, upon petition to the probate court of any party in interest, and after such notice as the court shall order, and after a hearing thereon, that the whole amount of the estate of the deceased, as found by the inventory and upon such other evidence as the court shall deem necessary, does not exceed the sum of two hundred thousand dollars over and above the amount necessary to pay the debts and charges of administration, the court shall itself by decree determine the value of said estate, which decree shall be binding upon all parties. If additional property is later discovered, the right or title to the estate covered by such decree shall not be affected thereby, but the court may make such further orders and decrees as are necessary to effect the distribution herein provided for.
(2) If the deceased leaves issue, the survivor shall take one half of the personal and one half of the real property.
(3) If the deceased leaves no issue and no kindred, the survivor shall take the whole.
Chapter 190: Section 2. Distribution of personal property Section 2. The personal property of a deceased person not lawfully disposed of by will shall, after the payment of his debts and the charges of his last sickness and funeral and of the settlement of the estate, and subject to the preceding section and to chapter one hundred and ninety-six, be distributed among the persons and in the proportions hereinafter prescribed for the descent of real property.
Chapter 190: Section 3. Descent of land, tenements or hereditaments Section 3. When a person dies seized of land, tenements or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts and to the rights of the husband or wife and minor children of the deceased as provided in this and in the two preceding chapters and in chapter one hundred and ninety-six, as follows:(1) In equal shares to his children and to the issue of any deceased child by right of representation; and if there is no surviving child of the intestate then to all his other lineal descendants. If all such descendants are in the same degree of kindred to the intestate, they shall share the estate equally; otherwise, they shall take according to the right of representation.
(2) If he leaves no issue, in equal shares to his father and mother.
(3) If he leaves no issue and no mother, to his father.
(4) If he leaves no issue and no father, to his mother.
(5) If he leaves no issue and no father or mother, to his brothers and sisters and to the issue of any deceased brother or sister by right of representation; and, if there is no surviving brother or sister of the intestate, to all the issue of his deceased brothers and sisters. If all such issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise, according to the right of representation.
(6) If he leaves no issue, and no father, mother, brother or sister, and no issue of any deceased brother or sister, then to his next of kin in equal degree; but if there are two or more collateral kindred in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.
(7) If an intestate leaves no kindred and no widow or husband, his estate shall escheat to the commonwealth; provided, however, if such intestate is a veteran who died while a member of the Soldiers’ Home in Massachusetts or the Soldiers’ Home in Holyoke, his estate shall inure to the benefit of the legacy fund or legacy account of the soldiers’ home of which he was a member.
Chapter 190: Section 4. Computation of degrees of kindred Section 4. Degrees of kindred shall be computed according to the rules of the civil law; and the kindred of the half blood shall inherit equally with those of the whole blood in the same degree.
Chapter 190: Section 5. Rights of persons born out of wedlock Section 5. A person born out of wedlock is heir of his mother and of any person from whom his mother might have inherited, if living, and the descendents of a person born out of wedlock shall represent such person and take, by descent, any estate which such person would have taken, if living.
Chapter 190: Section 6. Descent of estates of persons born out of wedlock Section 6. If a person born out of wedlock dies intestate, such estate shall pass in accordance with the law of intestate succession except that the father and his kindred shall not be considered as relatives of the child born out of wedlock unless the child might have inherited from the father as provided in section seven.
Chapter 190: Section 7. Intermarriage of parents of persons born out of wedlock Section 7. A person born out of wedlock whose parents have intermarried and whose father has acknowledged him as his child or has been adjudged his father under chapter two hundred and seventy-three, chapter two hundred and nine C or under similar law of another jurisdiction shall be deemed legitimate and shall be entitled to take the name of his parents to the same extent as if born in lawful wedlock. If a decedent has acknowledged paternity of a person born out of wedlock or if during his lifetime or after his death a decedent has been adjudged to be the father of a person born out of wedlock that person is heir of his father and of any person from whom his father might have inherited, if living, and the descendents of a person born out of wedlock shall represent that person and take by descent any estate which such person would have taken, if living. A person may establish paternity if, within the period provided under section nine of chapter one hundred and ninety-seven for bringing actions against executors and administrators, such person either (a) delivers to the executor or administrator an authenticated copy of a judgment rendered by a court of competent jurisdiction during a decedent’s lifetime adjudging the decedent to be the father of a person born out of wedlock, or (b) commences, in a court of competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved.
Chapter 190: Section 8. Inheritance or succession by right of representation; posthumous children Section 8. Inheritance or succession by right of representation is the taking by the descendants of a deceased heir of the same share or right in the estate of another person as their parent would have taken if living. Posthumous children shall be considered as living at the death of their parent.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 1. Disposal of property Section 1. Where title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons concerned have died otherwise than simultaneously the property of each person shall be disposed of as if he had survived, except as otherwise provided in this chapter.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 2. Simultaneous death of beneficiaries designated to take successively or alternatively Section 2. If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his surviving another person, and both persons die, and there is no sufficient evidence that the two have died otherwise than simultaneously, the beneficiary shall be deemed not to have survived. If there is no sufficient evidence that two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their death each of such beneficiaries would have been entitled to the property if he had survived the others, the property shall be divided into as many equal portions as there were such beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each of such beneficiaries had survived.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 3. Joint tenants or tenants by entirety Section 3. Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously the property so held shall be distributed one half as if one had survived and one half as if the other survived. Where more than two joint tenants have died and there is no sufficient evidence that they died otherwise than simultaneously the property so held shall be divided into as many equal shares as there were joint tenants and the share allocable to each shall be distributed as if he had survived all the others.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 4. Simultaneous death of insured and beneficiary Section 4. Where the insured and the beneficiary in a policy or contract of life or endowment insurance or insurance against accident have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy or contract shall be payable as if the insured had survived the beneficiary.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 5. Application of chapter Section 5. This chapter shall not apply to a will, living trust or deed wherein provision has been made for distribution different from the distribution under this chapter, or to a policy or contract of insurance wherein provision has been made for payment of its proceeds different from such payment under this chapter, or to any other situation where provision is made for distribution of property or for payment different from the provisions of this chapter, or where provision is made for a presumption as to survivorship which results in a distribution of property or in a payment different from that here provided.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 6. Construction and interpretation Section 6. This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 7. Severability clause Section 7. If any of the provisions of this chapter or the application thereof to any persons or circumstances is held invalid such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or application, and to this end the provisions of this chapter are declared severable.
AND DISPOSITION OF PROPERTY, INCLUDING PROCEEDS OF INSURANCE Chapter 190A: Section 8. Citation as uniform law Section 8. This chapter may be cited as the Uniform Simultaneous Death Law.
MAKING AND REVOCATION Chapter 191: Section 1. Persons authorized to make wills; capacity; execution Section 1. Every person eighteen years of age or older and of sound mind may by his last will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by two or more competent witnesses, dispose of his property, real and personal, except an estate tail, and except as is provided in this chapter and in chapters one hundred and eighty-eight and one hundred and eighty-nine and in section one of chapter two hundred and nine.
CUSTODY AND PRODUCTION IN COURT Chapter 191: Section 10. Deposit with register of probate; receipt; fee Section 10. A will enclosed in a sealed wrapper, with an endorsement thereon of the name and residence of the testator and of the day when and the person by whom it is deposited, and with or without the name of a person to whom the will is to be delivered after the death of the testator, shall, on the payment of five dollars, be received by the register of probate in the county where the testator lives, who shall give a certificate of the receipt thereof, and shall keep such will; and the same shall not be opened until it is delivered to a person entitled to receive it or is otherwise disposed of as hereinafter provided.
CUSTODY AND PRODUCTION IN COURT Chapter 191: Section 11. Delivery of wills in custody Section 11. During the life of the testator such will shall be delivered only to him or in accordance with his order in writing duly verified by the oath of a subscribing witness; and after his death it shall be delivered to the person named in the endorsement, if such person demands it.
CUSTODY AND PRODUCTION IN COURT Chapter 191: Section 12. Public opening of unclaimed wills Section 12. If the will is not called for by the person, if any, named in the endorsement, it shall be publicly opened at the first probate court held after notice of the testator’s death, and shall be retained in the registry until so opened. If the jurisdiction of the case belongs to another court, it shall be delivered to the executors or other persons entitled to the custody thereof, to be by them presented for probate in such other court.
CUSTODY AND PRODUCTION IN COURT Chapter 191: Section 13. Duty of possessor of will upon death of testator Section 13. A person having custody of a will, other than a register of probate, shall, within thirty days after notice of the death of the testator, deliver such will into the probate court having jurisdiction of the probate thereof, or to the executors named in the will, who shall themselves deliver it into such court within said time; and if a person neglects without reasonable cause so to deliver a will, after being duly cited for that purpose by such court, he may be committed to jail by warrant of the court until he delivers it as above provided, and shall be liable to a person who is aggrieved for the damage sustained by him by reason of such neglect.
CUSTODY AND PRODUCTION IN COURT Chapter 191: Section 14. Retaining or concealing wills; proceedings to obtain will Section 14. If a person claiming to be interested in the estate of a person deceased makes complaint on oath to a probate court against any one suspected of retaining, concealing, or conspiring with others to retain or conceal, a will or testamentary instrument of the deceased, the court may cite the suspected person to appear before it and be examined on oath upon the matter of the complaint. Upon such examination all interrogatories and answers shall be in writing, signed by the person examined, and shall be filed in the court. If the person cited refuses to appear and to answer such interrogatories as are lawfully propounded to him, or to obey any lawful order of the court, he may be committed to jail by warrant of the court until he submits to its order. The court may award costs to be paid by either party, and may issue execution therefor.
RIGHTS OF SURVIVING HUSBAND OR WIFE Chapter 191: Section 15. Filing of waiver; rights upon waiver Section 15. The surviving husband or wife of a deceased person, except as provided in section thirty-six of chapter two hundred and nine, within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for her, or claiming such portion of the estate of the deceased as he or she is given the right to claim under this section, and if the deceased left issue, he or she shall thereupon take one third of the personal and one third of the real property; and if the deceased left kindred but no issue, he or she shall take twenty-five thousand dollars and one half of the remaining personal and one half of the remaining real property; except that in either case if he or she would thus take real and personal property to an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased. If the deceased left no issue or kindred, the surviving husband or wife shall take twenty-five thousand dollars and one half of the remaining personal and one half of the remaining real property absolutely. If the real and personal property of the deceased which the surviving husband or wife takes under the foregoing provisions exceeds twenty-five thousand dollars in value, and the surviving husband or wife is to take only twenty-five thousand dollars absolutely, the twenty-five thousand dollars, above given absolutely shall be paid out of that part of the personal property in which the husband or wife is interested; and if such part is insufficient the deficiency shall, upon the petition of any person interested, be paid from the sale or mortgage in fee, in the manner provided for the payment of debts or legacies, of that part of the real property in which he or she is interested. Such sale or mortgage may be made either before or after such part is set off from the other real property of the deceased for the life of the husband or widow. If, after probate of such will, legal proceedings have been instituted wherein its validity or effect is drawn in question, the probate court may, within said six months, on petition and after such notice as it orders, extend the time for filing the aforesaid claim and waiver until the expiration of six months from the termination of such proceedings.
RIGHTS OF SURVIVING HUSBAND OR WIFE Chapter 191: Section 16. Income from personal property; trustees to hold property Section 16. The probate court may upon application of a person interested appoint one or more trustees, who shall be subject to chapter two hundred and three so far as applicable, to hold during the life of a husband or widow any personal property to the income of which he or she may be entitled under the preceding section.
RIGHTS OF SURVIVING HUSBAND OR WIFE Chapter 191: Section 17. Curtesy or dower; rights in lieu of taking under will Section 17. A husband shall not be entitled to his curtesy in addition to the provisions of his wife’s will, nor a widow to her dower in addition to the provisions of her husband’s will, unless such plainly appears by the will to have been the intention of the testator.
PROVISIONS FOR SPECIAL CASES Chapter 191: Section 18. Estate conveyed by devise Section 18. A devise shall convey all the estate which the testator could lawfully devise in the land mentioned, unless it clearly appears by the will that he intended to convey a less estate.
PROVISIONS FOR SPECIAL CASES Chapter 191: Section 19. Estate, right or interest in land acquired after making will Section 19. An estate, right or interest in land acquired by a testator after the making of his will shall pass thereby in like manner as if possessed by him at the time when he made his will, unless a different intention manifestly and clearly appears by the will.
MAKING AND REVOCATION Chapter 191: Section 1A. Rules of construction Section 1A. The following rules of construction shall apply to the provisions of a will:1. The construction and legal effect of a disposition in a will shall be determined by the law of the commonwealth or by the local law of any foreign state or commonwealth selected by the testator in the will, unless the application of that law is contrary to the public policy of this commonwealth.
2. The intention of a testator as expressed in his will shall control the legal effect of his dispositions and the rules of construction expressed in the succeeding clauses three to five, inclusive, shall apply unless a contrary intention is indicated by the will.
3. In the case of bequeathed securities, the legatee shall be entitled only to (1) as much of the bequeathed securities as are a part of the estate at the time of the testator’s death; (2) any additional or other securities of the same issuer owned by the testator or his estate by reason of action initiated by the issuer excluding any acquired by exercise of purchase options; and (3) securities of another issuer owned by the testator or his estate as a result of a merger, consolidation or reorganization or other similar action, received in exchange for the bequeathed securities.
4. No general residuary clause in a will and no will making general disposition of all of the testator’s property shall exercise a power of appointment created by another instrument which does not specify a specific method of exercise unless reference is made to powers of appointment or there is some other indication of intention to exercise the power.
5. Where there is a residuary gift to two or more legatees or devisees and the share of one or more of them totally fails for any reason, such share or shares shall pass to the other residuary legatees or devisees proportionately.
6. A direction in a will or instrument of trust to pay taxes caused by, resulting from, or imposed by reason of the death of the testator or donor, as the case may be, out of the decedent’s probate estate or trust estate or other property, shall not include, unless the will or instrument of trust or a provision of such tax laws specifically provides otherwise, taxes levied or assessed under the tax laws of the United States or of the commonwealth or of any foreign state or commonwealth (i) on generation-skipping transfers or (ii) on any qualified terminable interest property in which the decedent had a qualifying income interest for life.
MAKING AND REVOCATION Chapter 191: Section 1B. Intent of donor; presumption Section 1B. Unless a contrary intent is manifested in the terms of an instrument creating or limiting a power of appointment, it shall be presumed that the person so creating or limiting such power intended to authorize the donee thereof, when exercising said power, not only to create absolute interests but also to create less than absolute legal and equitable interests, including interests in trust for the benefit of objects of said power even though the trustees thereof may not be objects of said power and including new powers of appointment, general or more limited, in objects of said power, even though the objects of the new powers may include one or more that are not objects of said power.
MAKING AND REVOCATION Chapter 191: Section 2. Competency of witnesses; interest of witness Section 2. Any person of sufficient understanding shall be deemed to be a competent witness to a will, notwithstanding any common law disqualification for interest or otherwise; but a beneficial devise or legacy to a subscribing witness or to the husband or wife of such witness shall be void unless there are two other subscribing witnesses to the will who are not similarly benefited thereunder.
PROVISIONS FOR SPECIAL CASES Chapter 191: Section 20. Omitted children Section 20. If a testator omits to provide in his will for any of his children, whether born before or after the testator’s death, or for the issue of a deceased child, whether born before or after the testator’s death, they shall take the same share of his estate which they would have taken if he had died intestate, unless they have been provided for by the testator in his life time or unless it appears that the omission was intentional and not occasioned by accident or mistake; provided, however, that no such child or issue shall take any share in any real property in the testator’s estate unless a claim is filed in the registry of probate by or in behalf of such child or any of such issue within one year after the date of the approval of the bond of the executor.
PROVISIONS FOR SPECIAL CASES Chapter 191: Section 21. Repealed, 1925, 155, Sec. 2 PROVISIONS FOR SPECIAL CASES Chapter 191: Section 22. Death of children or other relation before testator; effect upon devise or legacy; class gifts Section 22. If a devise or legacy is made to a child or other relation of the testator, who dies before the testator, but leaves issue surviving the testator, such issue shall, unless a different disposition is made or required by the will, take the same estate which the person whose issue they are would have taken if he had survived the testator. The words “child”, “issue”, and “other relation”, as used in this section, shall include adopted children.
This section shall apply to a devise or legacy under a class gift whether the death occurred before or after the execution of the will.
PROVISIONS FOR SPECIAL CASES Chapter 191: Section 23. Specific devises or bequests subject to security interests Section 23. A specific devise of real estate or a specific bequest of personal property subject to a security interest given by the testator, unless the contrary shall plainly appear by his will, shall be deemed to be the devise or bequest of the interest only which the testator had at the time of his decease in such real estate or personal property over and above such security interest, and if the note or obligation of the testator secured by such security interest be paid out of his other property after his decease, the executor of his will or the administrator with the will annexed of his estate shall, at the request of any person interested and by leave of the probate court, sell such real estate specifically devised or such personal property specifically bequeathed for the purpose of satisfying the estate of the testator for the amount so paid, together with the costs and expenses thereof.
PROVISIONS FOR SPECIAL CASES Chapter 191: Section 24. Devise of land in which testator has right of entry Section 24. If a testator devises land of which he is not seized, but in which he has a right of entry, or if, after making a will, he is disseized of land devised thereby, such land shall nevertheless pass to the devisee in like manner as it would have descended to the testator’s heirs if he had died intestate, and the devisee shall have the same remedy for the recovery of such land as such heirs might have had.
CONTRIBUTION AMONG DEVISEES AND LEGATEES Chapter 191: Section 25. Share of omitted child Section 25. If a child, or the issue of a child, omitted in the will takes under section twenty a portion of the estate of a testator, such portion shall be taken from all the devisees and legatees in proportion to and not exceeding the value of what they respectively receive under such will, unless in consequence of a specific devise or legacy or of some other provision of the will a different apportionment is found necessary to give effect to the testator’s intention relative to that part of his estate which passes by his will.
CONTRIBUTION AMONG DEVISEES AND LEGATEES Chapter 191: Section 26. Testator’s debts; contribution among devisees or legatees Section 26. If property which is given by will is taken from a devisee or legatee for the payment of the debts of the testator, all the other devisees and legatees shall, subject to the following section, contribute their respective proportions of the loss to the person from whom such property is taken, so that the loss may fall on all the devisees and legatees in proportion to and not exceeding the value of the property received by each.
CONTRIBUTION AMONG DEVISEES AND LEGATEES Chapter 191: Section 27. Contributions to pay debts; intent of testator Section 27. If the testator, by making a specific devise or bequest, has virtually exempted a devisee or legatee from liability to contribute with the others for the payment of the debts, or if by any other provisions in his will he has prescribed or required an appropriation of his estate different from that prescribed in the preceding section, his property shall be appropriated and applied in conformity with his will, so far as such appropriation and application can be made without affecting the liability of his whole estate for the payment of his debts.
CONTRIBUTION AMONG DEVISEES AND LEGATEES Chapter 191: Section 28. Contribution by omitted child Section 28. If a child, or the issue of a child, omitted in the will takes under section twenty a portion of the estate of a testator, such portion of the estate shall, for the purposes of the two preceding sections and section thirty, be considered as if it had been devised or bequeathed to such child or other descendant; and he shall contribute with the devisees and legatees, and be entitled to claim contribution from them, as before provided.
CONTRIBUTION AMONG DEVISEES AND LEGATEES Chapter 191: Section 29. Insolvency of devisee or legatee; liability for contribution Section 29. If a person who is liable to contribute according to the three preceding sections is insolvent or unable to pay his just proportion of the contribution required, the other persons so liable to contribute shall be severally liable for the loss occasioned by such insolvency, each one in proportion to and not exceeding the value of the property received by him from the estate of the deceased; and if a person who is so liable dies without having paid his proportion, his executors and administrators shall be liable therefor in like manner as if it had been his own debt and to the extent to which he would have been liable if living.
MAKING AND REVOCATION Chapter 191: Section 3. Subsequent incompetency of witnesses Section 3. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance of such will.
CONTRIBUTION AMONG DEVISEES AND LEGATEES Chapter 191: Section 30. Devise or legacy taken for dower or curtesy Section 30. If the estate of a devisee under a will is taken for the curtesy of the husband or dower of the widow of the testator, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is so taken, so that the loss may fall upon all the devisees and legatees in proportion to and not exceeding the value of property received by them under the will; but no devisee or legatee shall contribute if exempted therefrom by the will.
MAKING AND REVOCATION Chapter 191: Section 4. Law governing Section 4. A will made and executed in conformity with law existing at the time of its execution shall have the same effect as if made pursuant to this chapter.
MAKING AND REVOCATION Chapter 191: Section 5. Foreign wills Section 5. A last will and testament executed in the mode prescribed by the law, either of the place where the will is executed or of the testator’s domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this commonwealth; provided, that such last will and testament is in writing and subscribed by the testator.
MAKING AND REVOCATION Chapter 191: Section 6. Nuncupative wills Section 6. A soldier in actual military service or a mariner at sea may dispose of his personal property by a nuncupative will.
MAKING AND REVOCATION Chapter 191: Section 7. Exclusive provisions; necessity and effect of probate Section 7. No will, except as provided in this chapter and in chapter two hundred and nine, shall pass any property, real or personal, or charge or in any way affect the same; and no will shall take effect until it has been duly proved and allowed in the probate court. Such probate shall be conclusive as to its due execution.
MAKING AND REVOCATION Chapter 191: Section 8. Means of revocation Section 8. No will shall be revoked except by burning, tearing, cancelling or obliterating it with the intention of revoking it, by the testator himself or by a person in his presence and by his direction; or by some other writing signed, attested and subscribed in the same manner as a will; or by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law.
MAKING AND REVOCATION Chapter 191: Section 9. Effect of marriage, divorce or annulment Section 9. The marriage of a person shall act as a revocation of a will made by him previous to such marriage, unless it appears from the will that it was made in contemplation thereof. If the will is made in the exercise of a power of appointment and the real and personal property subject to the appointment would not, without the appointment, pass to the persons who would have been entitled to it if it had been the estate and property of the testator making the appointment and he had died intestate, so much of the will as makes the appointment shall not be revoked by the marriage.
If, after executing a will, the testator shall be divorced or his marriage shall be annulled, the divorce or annulment shall revoke any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse, as executor, trustee, conservator or guardian, unless the will shall expressly provide otherwise. Property prevented from passing to a former spouse because of revocation by divorce shall pass as if a former spouse had failed to survive the decedent, and other provisions conferring a power or office on the former spouse shall be interpreted as if the spouse had failed to survive the decedent. If provisions shall be revoked solely by this section, they shall be revived by the testator’s remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for the purpose of this section.
This section shall not apply to a will made under the provisions of chapter one hundred and ninety-one B unless the will otherwise provides.
Chapter 191A: Section 1. Definitions Section 1. The following words as used in this chapter shall have the following meanings, unless otherwise expressly provided or the context otherwise requires:—“Beneficiary”, any person to whom, and any estate, trust, corporation or other legal entity to which, an interest in property would pass in any manner described in section two, except for the execution and filing of a disclaimer in accordance with the provisions of this chapter.
An “interest in property” which may be disclaimed shall include:—1. any legal or equitable interest or estate, whether present, future or contingent, in any real or personal property, or in any fractional part, share, or portion thereof, or in any specific asset or assets thereof;2. any power to appoint, consume, apply, or expend property or any other right, power, or privilege, relating thereto;3. any fractional part, share or portion of any interest described in clause (1) or (2).
Chapter 191A: Section 10. Applicability of chapter Section 10. Except for the provisions of section eight, this chapter shall not abridge the right of any person to disclaim, waive, release, renounce, or abandon any interest in property under section fifteen of chapter one hundred and ninety-one or any other statute or rule of law.
Chapter 191A: Section 2. Interests which may be disclaimed Section 2. Unless barred by the provisions of section eight, a beneficiary may disclaim any interest in property which, except for the execution and filing of a disclaimer in accordance with the provisions of this chapter, pass to the beneficiary:—1. By intestate succession, devise, legacy, bequest, exercise or nonexercise of a power of appointment exercisable by will, or testamentary exercise or nonexercise of a power of appointment exercisable by either deed of trust or will; as beneficiary of a testamentary trust, beneficiary of a testamentary gift to a nontestamentary trust, or donee of a power of appointment created by will; by succession in any manner described in this clause to a disclaimed interest; or in any other manner not specified above under a testamentary instrument or by operation of any statute or rule of law governing devolution or disposition of property upon or after a person’s death.
2. As donee, grantee, beneficiary of an inter-vivos trust, beneficiary of an insurance or annuity contract, donee of a power of appointment created by a nontestamentary instrument, or as surviving joint tenant or tenant by the entirety, except that a surviving joint tenant or tenant by the entirety may not disclaim that portion of an interest in joint property or property held by the entirety which is allocable to amounts contributed by him or her to the interest in such property; through exercise or nonexercise of a power of appointment exercisable by deed, or nontestamentary exercise or nonexercise of a power of appointment exercisable by deed of trust or will; under any deed, assignment, or other nontestamentary instrument of conveyance or transfer; by succession in any manner described in this clause to a disclaimed interest; or in any other manner not specified above under a nontestamentary instrument or by operation of any statute or rule of law.
Disclaimer may be made for a beneficiary under a legal disability by the duly appointed guardian or conservator of such beneficiary, and for a deceased beneficiary by the legal representative of such beneficiary’s estate; provided, in any case, however, that the probate court having jurisdiction of the estate of such beneficiary shall have decreed, upon complaint filed by such guardian, conservator, or legal representative, that such disclaimer is in the best interests of those interested in the estate of such beneficiary and not detrimental to the best interests of the beneficiary or the estate of such beneficiary, and that such guardian, conservator, or legal representative is authorized to execute and file such disclaimer on behalf of such beneficiary in accordance with the provisions of this chapter.
Chapter 191A: Section 3. Time of filing and executing disclaimer Section 3. A disclaimer shall be executed and filed pursuant to the provisions of this chapter at any time after the creation of the interest in property being disclaimed, but in any event not later than nine months after the event determining that the beneficiary is finally ascertained as the beneficiary of such interest and that such interest is indefeasibly vested and in the case of a beneficiary who is a surviving joint tenant or tenant by the entirety, a disclaimer shall be executed and filed in any event not later than nine months after the death of the other joint tenant or tenants or tenant by the entirety; provided, that any court having jurisdiction of the property, an interest in which is being disclaimed, may, upon petition filed by the beneficiary, the duly appointed guardian or conservator of a beneficiary under a legal disability, or the legal representative of a deceased beneficiary’s estate, permit an extension of time to execute and file a disclaimer, for such further period of time as the court in its discretion deems advisable.
Chapter 191A: Section 4. Form and requisites of disclaimer Section 4. A disclaimer shall be in writing, shall describe the interest in property being disclaimed, shall declare the disclaimer and the extent thereof, shall be clear and unequivocal, and shall be signed by the beneficiary, the duly appointed guardian or conservator of a beneficiary under a legal disability, or the legal representative of a deceased beneficiary’s estate.
Chapter 191A: Section 5. Filing; acknowledgment; recording; service Section 5. The original of the disclaimer or an attested copy thereof, if filing is required to be made with more than one probate court, shall be filed with the probate court, or probate courts, if any, wherein a duly appointed fiduciary, if any, having custody or control of the property, an interest in which is being disclaimed, is required to file periodic accounts.
If the property, an interest in which is being disclaimed, is real property, the disclaimer shall be acknowledged in the manner provided for deeds of real property. The disclaimer shall not be valid as against any person, except the beneficiary, the heirs and devisees of the beneficiary, and any person, estate, trust, corporation or other legal entity having actual notice of the disclaimer, unless the original thereof or an attested copy thereof if the original is required to be filed with a probate court, is recorded in the registry of deeds for the county or district in which the real property is situated or, in the case of registered real property, is filed and registered in the office of the assistant recorder for the registry district in which the real property is located.
A copy of the disclaimer shall be served by delivering in hand or by mailing by certified mail to the last known address of the person or persons or other legal entity or entities having custody or possession of the property, an interest in which is being disclaimed. Failure to comply with these requirements of service shall not affect the validity of the disclaimer.
Chapter 191A: Section 6. Liability for disposition of disclaimed property Section 6. No person or other legal entity having custody or possession of the property, an interest in which is being or has been disclaimed, shall be liable for any distribution or other disposition made prior to the delivery to him or it of a copy of the disclaimer, pursuant to the requirements of section five; and no such person or other legal entity shall be liable for any good faith distribution or other disposition made in reliance upon a disclaimer, the form of which is in accordance with the requirements of section four, and a copy of which has been delivered to him or it pursuant to the requirements of section five.
If a disclaimer certifies, with particularity, that none of the contingencies specified in section eight, which would result in waiver or bar of the beneficiary’s right to disclaim, are applicable, any person or other legal entity having custody or possession of the property, and any third party purchaser of the property, an interest in which is being or has been disclaimed, shall be entitled to rely without further inquiry upon the aforesaid certifications.
Chapter 191A: Section 7. Effect of disclaimer Section 7. A disclaimer complying with all the applicable requirements of this chapter shall be effective according to its terms, and shall be irrevocable, upon execution in accordance with the provisions of section four, and filing in accordance with the provisions of section five.
If the interest in property being disclaimed is a power to appoint, consume, apply, or expend property, as described in clause (2) of the second paragraph of section one, or any fractional part, share, or portion thereof, such interest shall be extinguished.
Except as provided in the preceding paragraph, and unless such a result would substantially impair the provisions or intent of any instrument, statute or rule of law relating to the interest in property being disclaimed, such interest shall pass in the same manner as if the beneficiary had died immediately preceding the event determining that he, she or it is the beneficiary of such interest and that such interest is indefeasibly vested.
The interest in property being disclaimed shall never vest in the beneficiary.
Any person or other legal entity having custody or possession of the property, an interest in which is being disclaimed may file a complaint for instructions or complaint for declaratory judgment seeking a determination of the effect of a disclaimer, in1. A probate court, if any, having jurisdiction of such property; or2. If no probate court has jurisdiction of such property, any other court having jurisdiction of such property.
Chapter 191A: Section 8. Conditions which bar right to disclaim Section 8. The right to disclaim an interest in property shall be barred by:—1. assignment, conveyance, encumbrance, pledge, transfer or other disposition of such interest, or any contract therefor, by the beneficiary or sale or other disposition of such interest pursuant to judicial process made before the beneficiary has disclaimed such interest as herein provided;2. insolvency of the beneficiary at the time of attempted disclaimer. For purposes of this paragraph only, sections one to four, inclusive, and sections eight to thirteen, inclusive, of chapter one hundred and nine A shall be applicable as if the disclaimer were a conveyance;3. a written waiver of the right to disclaim such interest pursuant to the provisions of this chapter, signed by the beneficiary, the duly appointed guardian or conservator of a beneficiary under a legal disability, or the legal representative of a deceased beneficiary’s estate;4. acceptance of such interest by the beneficiary; if the beneficiary, having knowledge of the existence of such interest, receives without objection a benefit from such interest, such receipt shall be deemed to constitute acceptance of such interest.
The assignment, conveyance, encumbrance, pledge, transfer or other disposition or any contract therefor, sale or other disposition pursuant to judicial process, written waiver of the right to disclaim, or acceptance of a part of an interest in property shall not bar the right to disclaim any other part of such interest.
Chapter 191A: Section 9. Restraints on alienation; right to disclaim unaffected Section 9. The right to disclaim pursuant to the provisions of this chapter shall exist irrespective of any limitation in the nature of an express or implied spendthrift provision or other similar restraint on alienation imposed by any instrument, statute, rule of law or otherwise on the interest in property being disclaimed.
Chapter 191B: Section 1. Short title; definitions Section 1. This chapter may be cited as the Massachusetts Uniform Statutory Will Act.
As used in this chapter, the following words and phrases shall have the following meanings:—(1) “Child”, except as modified by this paragraph, a child of a natural parent whose relationship is involved. An adopted individual is the child of the adopting parents and not of the natural parents, but an individual adopted by the spouse of a natural parent is also the child of either natural parent. An individual born out of wedlock is not the child of the father unless the individual is openly and notoriously so treated by the father. The term does not include an individual who is a stepchild, a foster child, a grandchild, or a more remote descendant.
(2) “Issue”, all lineal descendants of an individual of all generations, with the status of a child at each generation being determined by the definition of child.
(3) “Personal representative”, the executor, administrator, successor personal representative, special administrator, or a person who performs substantially the same functions relating to the estate of a decedent under the law governing their status.
(4) “Property”, an interest, present or future, legal or equitable, vested or contingent, in real or personal property.
(5) “Representation”, a division of the estate into as many equal shares as there are surviving issue in the nearest degree of kinship and deceased individuals in the same degree who left issue surviving the decedent, each surviving issue in the nearest degree receiving one share and the share of each deceased individual in the same degree being divided among issue of that individual in the same manner.
(6) “Statutory will estate”, the entire testamentary estate, except as otherwise provided in the will.
(7) “Surviving spouse”, the individual to whom the testator was married at the time of death except a spouse from whom the testator was then separated under a decree of separation, whether or not final, or written separation agreement signed by both parties. An individual separated from the testator whose marriage to the testator continues in effect under the law of the commonwealth solely because a judgment of divorce or annulment of the marriage is not recognized as valid in the commonwealth is not the testator’s surviving spouse under this chapter. An individual whose marriage to the testator at the time of death is not recognized in the commonwealth solely because a judgment of divorce or annulment of a previous marriage of either or both of them is not recognized as valid in the commonwealth is the testator’s surviving spouse under this chapter.
(8) “Testamentary estate”, every interest in property subject to disposition or appointed by a will of the decedent.
(9) “Testator’s residence”, one or more properties normally used at the time of the testator’s death by the testator or the surviving spouse as a residence for any part of the year. If the property used as a residence is a unit in a cooperative or other entity, it includes all rights and interests relating to such unit. If the property is used in part for a commercial, agricultural, or other business purpose, the testator’s residence is an area not exceeding three acres, which includes the structure used in whole or in part as a residence and structures normally used by the testator in connection with the dwelling and excludes structures and areas outside the dwelling used primarily for a commercial, agricultural, or other business purpose.
(10) “Trustee”, an original, additional, or successor trustee, whether or not appointed or confirmed by the court.
Chapter 191B: Section 10. Powers of appointment Section 10. (a) A will incorporating by reference the terms of this chapter shall not exercise a power of appointment unless (i) the will complies with any conditions imposed on the exercise of the power, (ii) the appointment is within the scope of the power, and (iii) the will expressly refers to the power or expresses an intent to exercise any power of appointment held by the testator.
(b) If a power of appointment is exercised as provided in subsection (a), the appointed property shall pass as part of the statutory will estate unless the will provides otherwise.
Chapter 191B: Section 11. Survival Section 11. An individual who does not survive the testator by thirty days or more shall be treated as if the individual predeceased the testator.
Chapter 191B: Section 12. Appointment of personal representative or trustee Section 12. (a) The person named in the will as personal representative or trustee shall be entitled to serve, if qualified, as personal representative or trustee.
(b) If a qualified person is not named in the will as personal representative, or the named person is incapacitated, unwilling to serve, or dead, and a qualified alternate is not named in the will, priority for appointment as personal representative is determined by the law of the state of decedent’s domicile at death.
(c) If a qualified person is not named in the will as trustee, or the named person is incapacitated, unwilling to serve, or is dead, and a qualified alternate is not named in the will, the personal representative may appoint, without court approval, a qualified person, including a person serving as personal representative, to serve as trustee.
(d) If a personal representative or trustee resigns, is removed, becomes incapacitated, or dies, the surviving spouse or, if there is no surviving spouse or the surviving spouse is unable or unwilling to act, a majority of the adult children of the testator, may appoint a qualified successor personal representative or trustee.
(e) In all other cases, personal representatives and trustees shall be appointed by the court.
Chapter 191B: Section 13. Powers Section 13. (a) Subject to the provisions of subsection (c) and, except as expressly provided by will, a trustee, in addition to any other powers conferred by law, without prior approval of any court may:(1) retain property in the form in which it is received, including assets in which the trustee is personally interested;(2) make ordinary or extraordinary repairs, store, insure, or otherwise care for any tangible personal property, and pay shipping or other expense relating to the property as the trustee considers advisable;(3) abandon property the trustee determines to be worthless;(4) invest principal and income in any property the trustee determines and, without limiting the generality of the foregoing, invest in shares of an investment company or in shares or undivided portions of any common trust fund established by the trustee;(5) sell, exchange, or otherwise dispose of property at public or private sale on terms the trustee determines, no purchaser being bound to see to the application of any proceeds;(6) lease property on terms the trustee determines even if the term extends beyond the time the property becomes distributable;(7) allocate items of income or expense to income or principal, as provided by law;(8) keep registered securities in the name of a nominee;(9) pay, compromise, or contest claims or controversies, including claims for estate or inheritance taxes, in any manner the trustee determines;(10) participate in any manner the trustee determines in any reorganization, merger, or consolidation of any entity whose securities constitute part of the property held;(11) deposit securities with a voting trustee or committee of security holders even if under the terms of deposit the securities may remain deposited beyond the time they become distributable;(12) vote any security in person or by special, limited, or general proxy, with or without power of substitution, and otherwise exercise all the rights that may be exercised by any security holder in an individual capacity;(13) borrow any amount the trustee considers advisable to obtain cash for any purpose of the trust, and in connection therewith, mortgage or otherwise encumber any property on any conditions the trustee determines even if the term of the loan may extend beyond the term of the trust;(14) allot in or towards satisfaction of any payment, distribution, or division, in any manner the trustee determines, any property held at the then current fair market value;(15) hold trusts and shares undivided or at any time hold them or any of them set apart one from another;(16) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;(17) sell or exercise stock subscription or conversion rights;(18) employ persons, including attorneys, auditors, investment advisers, or agents, even if associated with the trustee, to advise or assist the trustee in the performance of duties, act without independent investigation upon their recommendations, and instead of acting personally, employ agents to perform any act of administration, whether or not discretionary;(19) continue any unincorporated business or venture in which the decedent was engaged at the time of death;(20) incorporate any business or venture in which the decedent was engaged at the time of death;(21) distribute property distributable to the estate of an individual directly to the devisees or heirs of the individual; and(22) perform any other act necessary or appropriate to administer the trust.
(b) Except as expressly provided in the will, the personal representative, in the administration of the estate, shall have all of the powers of a trustee conferred under subsection (a). In addition, the personal representative shall have the power to satisfy written charitable pledges of the decedent, irrespective of whether the pledges constitute binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges satisfied under the circumstances.
(c) Except as expressly provided in the will, the personal representative or trustee shall observe the standards in dealing with the estate which would be observed by a prudent person dealing with the property of another. If the personal representative or trustee has special skills or is named personal representative or trustee on the basis of representation of special skills or expertise, the person is under a duty to use those skills. Except to the extent qualified property is not available, only property that qualifies for the estate tax marital deduction under the Internal Revenue Code, as amended, may be allocated to the surviving spouse under section five or to the surviving spouse’s share of principal in a trust established under section six.
Chapter 191B: Section 14. Bond or surety Section 14. A personal representative or trustee under this chapter shall serve without giving bond or surety unless the testator by will, or the court upon the application of any person interested in the estate, provides otherwise.
Chapter 191B: Section 15. Uniformity of application and construction Section 15. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
Chapter 191B: Section 2. Making statutory will Section 2. An individual having capacity to make a will under the laws of the commonwealth may make a statutory will under the provisions of this chapter. The will shall be executed in a manner recognized as valid under the laws of the commonwealth.
Chapter 191B: Section 3. Incorporation by reference Section 3. (a) A will may incorporate by reference the provisions of this chapter in whole or in part and with any modifications and additions the will provides. To the extent an express provision of a will conflicts with this chapter, the terms of the will shall govern.
(b) A provision that all or part of the testator’s testamentary estate is to be disposed of in accordance with the provisions of this chapter incorporates by reference provisions of this chapter in effect on the date the will is executed.
(c) An incorporation by reference of provisions of this chapter may be in the following or a substantially similar form:“Except as otherwise provided in this will, I direct that my testamentary estate be disposed of in accordance with the Massachusetts Uniform Statutory Will Act.
” Chapter 191B: Section 4. Shares under statutory will Section 4. The statutory will estate shall pass as provided in sections five to nine, inclusive.
Chapter 191B: Section 5. Share of spouse Section 5. (a) The share of a surviving spouse shall be:(1) If there is no surviving issue, the entire statutory will estate; or(2) If there is a surviving issue,(i) subject to any lien or encumbrance, the testator’s residence and tangible personal property, except personal property held primarily for investment or for a commercial, agricultural, or other business purpose;(ii) the greater of three hundred thousand dollars, or one-half of the balance of the statutory will estate; and(iii) subject to the provisions of subsection (b), an interest in the remaining portion of the statutory will estate, including any property that would pass under the provisions of subclauses (i) or (ii) of this subsection but disclaimed by the surviving spouse, in a trust upon the terms set forth in section six.
(b) If the personal representative, other than the surviving spouse, determines that the trust under section six would be uneconomical, the entire statutory will estate shall pass to the surviving spouse.
Chapter 191B: Section 6. Trust for spouse and issue Section 6. Property held in trust under the provisions of subclause (iii) of clause (2) of subsection (a) of section five shall be held upon the following terms:(1) During the life of the surviving spouse, the entire net income shall be paid to or for the benefit of the surviving spouse in quarterly or more frequent installments. Net income accrued or undistributed on the death of the surviving spouse shall be paid to the estate of the spouse. If unproductive property is held in the trust, the surviving spouse at any time by written instrument delivered to the trustee may compel conversion of the unproductive property to productive property.
(2) During the life of the surviving spouse, the trustee at any time may pay to or for the benefit of the surviving spouse and issue of the testator amounts of the principal the trustee deems advisable, giving reasonable consideration to other resources available to the distributee, for the individual’s needs for health, education, support, or maintenance. For the purpose of making such discretionary payments, the principal shall be administered as two separate shares, which at the inception of the trust shall be equal. One share is the surviving spouse’s share of the principal. During the life of the surviving spouse, payments may not be made from the surviving spouse’s share to anyone other than the surviving spouse. Primary consideration shall be given to the needs of the surviving spouse and the children of the testator who are under the age of twenty-three years or under disability. The trustee may rely in good faith on a written statement furnished by a beneficiary. The discretion to pay principal to or for the benefit of any individual includes the discretion after that individual’s death to pay expenses incurred before the individual’s death and to pay funeral and burial expenses. If the trustee, other than the surviving spouse, determines that continuation of the trust is uneconomical, the trustee may terminate the trust by distribution of principal to the surviving spouse. Principal that in the exercise of the trustee’s discretion is paid to or for the benefit of any issue may be charged against any share of income or principal thereafter existing for that issue or for any ancestor or descendant of that issue, if the trustee upon equitable considerations so determines. If the surviving spouse or any issue is serving as trustee, the trustee’s discretion pursuant to this paragraph is not exercisable in favor of that trustee except as necessary for the trustee’s needs for health, education, support, or maintenance, nor is the trustee’s discretion exercisable in favor of the trustee’s estate, the trustee’s creditors, or creditors of the trustee’s estate.
(3) On the death of the surviving spouse, the principal, unless retained in trust under the provisions of section eight or nine, shall be paid, subject to any charges made by the trustee under the provisions of subparagraph (2), to the children of the testator in equal shares if all of the children are then living, otherwise to the then living issue of the testator by representation or, if no issue of the testator is then living, to the individuals who would be entitled to receive the estate as if the property were located in the commonwealth and the testator had then died intestate domiciled in the commonwealth in proportions determined under the law then existing.
Chapter 191B: Section 7. Shares of heirs when no surviving spouse Section 7. (a) If there is no surviving spouse, the statutory will estate shall pass, subject to the provisions of sections eight and nine, as follows:(1) If there is surviving issue, in equal shares to the children of the testator if all of them survive, otherwise to the surviving issue of the testator by representation; or(2) If there is no surviving issue, to the individuals entitled to receive the estate as if the property were located in the commonwealth and the testator had died intestate domiciled in the commonwealth in the proportions so determined.
(b) Unless the personal representative determines that a trust would be uneconomical, property to which the provisions of section eight or nine applies shall be distributed to the trustee. If the personal representative determines that a trust would be uneconomical, the property shall pass under the provisions of subsection (a) free of trust. The discretion provided in this subsection to the personal representative shall not be exercised by any of the testator’s issue serving as personal representative.
Chapter 191B: Section 8. Trust if child under specified age Section 8. (a) If property is distributable under the provisions of subparagraph (3) of section six or of section seven to a child of the testator who is under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, all shares distributable to issue of the testator shall be held in a trust under the provisions of this section. In exercising powers under subsections (b) and (c), primary consideration shall be given to the needs of children of the testator who are under the age of twenty-three years or under disability.
(b) Until no living child of the testator is under the age determined under subsection (a), the trustee shall pay the income and principal of the trust to or for the benefit or account of one or more of the issue of the testator in amounts the trustee deems advisable for their needs for health, education, support, or maintenance. Income not so paid may be added to principal.
(c) The trustee at any time in its discretion may distribute to a beneficiary the share, in whole or in part, of the trust to which the distributee would be entitled if the trust then terminated. If the whole of a share has been distributed under this subsection, the trustee thereafter shall not make any further distribution of income or principal to such distributee or issue of such distributee.
(d) The trust terminates when no living child of the testator is under the age determined under subsection (a) or the trustee determines that continuation of the trust is uneconomical.
(e) Subject to the provisions of subsection (c) and section nine, the property in the trust shall be distributed upon termination to the issue of the testator in proportion to the shares determined at the death of the surviving spouse under the provisions of subparagraph (3) of section six, or at the death of the testator under the provisions of section seven, if there is no surviving spouse. In determining the amount to be distributed to any distributee, the trustee shall charge the share of that distributee with any partial distribution made under subsection (c) and may charge, in its discretion, the share of that distributee with distributions under subsection (b) to or for the benefit or account of the distributee, or issue or ancestor of the distributee. If any issue whose share is held in trust under the provisions of this section dies before the complete distribution of the share, the property to which the issue would have been entitled if living shall be distributed to the assignees, or, if none, to the estate of the deceased issue.
(f) If an issue is serving as trustee, the discretion of the trustee under this section is not exercisable, except as necessary for that individual’s needs for health, education, support, or maintenance, in favor of that individual, that individual’s estate, that individual’s creditors, or the creditors of that individual’s estate.
Chapter 191B: Section 9. Effect of disability at distribution Section 9. (a) If property becomes distributable by a personal representative or trustee to an individual under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, or to an individual who the personal representative or trustee determines cannot effectively manage or apply the property by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause: (i) the personal representative or trustee, as to principal or income, may distribute part or all of the property to the distributee directly, by deposit or investment in the distributee’s name or for the distributee’s account, or to a guardian or conservator for the distributee; (ii) the personal representative may distribute to the trustee in trust under clause (iii); or (iii) the trustee may retain all or any part of the property in trust for the distributee and thereafter at any time the trustee may distribute or apply part or all of the principal or income to or for the benefit or account of the distributee.
(b) Unless terminated earlier, a trust under clause (iii) subsection (a) shall terminate upon the attainment of the required age, removal of the disability, or death of the distributee. Upon such termination, the trustee shall distribute the remaining trust property to the distributee or personal representative of the distributee’s estate.
(c) The provisions of this section shall not apply to distributions to a surviving spouse of the testator.
Chapter 192: Section 1. Petition for probate; affidavit of knowledge and belief; certified copy of death certificate Section 1. A petition for the probate of a will, letters of administration or letters testamentary shall have annexed an affidavit of the petitioner or of one of the petitioners that the statements therein made are true to the best of his knowledge and belief and shall be accompanied by a certified copy of the decedent’s death certificate issued by a public officer; provided, however, that in the case of a petition filed by a public administrator or special administrator, the copy of the death certificate shall not be required until thirty days after the appointment of either the public administrator or special administrator.
Chapter 192: Section 10. Order allowing foreign will Section 10. If at such hearing the court finds from the copies before it and any additional proof as to the authenticity and execution of the will that the instrument ought to be allowed in this commonwealth as the last will of the deceased, it shall order the copy to be filed and recorded, and the will shall then have the same effect as if it had been originally proved and allowed in the probate court in the usual manner.
Chapter 192: Section 11. Granting of letters testamentary on foreign will; settlement of estate Section 11. After allowing a will under the two preceding sections, the probate court shall grant letters testamentary on such will or letters of administration with the will annexed, and shall proceed in the settlement of the estate which may be found in this commonwealth in the manner provided in chapter one hundred and ninety-nine relative to such estates.
Chapter 192: Section 12. Notification of devisees and legatees Section 12. Within three months after the allowance of a will and the appointment and qualification of an executor, it shall be the duty of the executor to notify by mail the devisees and legatees named in the will whose addresses are known to him that devises, legacies or bequests have been made to them and to file in the probate court an affidavit showing the names of those notified and the addresses to which notices were mailed. In case an administrator with the will annexed is appointed he shall have the same duty unless it has already been performed by an executor.
Chapter 192: Section 13. Appointment of temporary executors; notice Section 13. The probate court may appoint the executor or executors named in a will, if suitable, if the person is not under indictment for, or has not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased, temporary executor or executors upon application contained in the petition for probate or made subsequent to the filing thereof, if the testator has requested such appointment, or if said application is assented to in writing by the widow or husband, if any, of the deceased and by all the heirs at law and next of kin of the deceased of full age and legal capacity. Such appointment may be made without the necessity of any notice if said application is assented to by the widow or husband, if any, of the deceased and by all the heirs at law and next of kin of the deceased of full age and legal capacity; otherwise seven days prior written notice of intent to seek such appointment shall be given to all the heirs at law and next of kin of the decedent. A certificate of counsel that such notice has been given shall be prima facie evidence thereof.
Chapter 192: Section 14. Powers and duties of temporary executors or administrators with will annexed Section 14. A temporary executor or a temporary administrator with the will annexed shall collect all the personal property of the deceased and preserve the same for the executor, administrator or administrator with the will annexed when appointed, and for that purpose may commence, maintain and defend suits. Unless otherwise directed in the will, the court may, in the decree appointing him or otherwise, without the necessity of notice, authorize the temporary executor or temporary administrator with the will annexed:—(1) to take charge of the real property of the deceased or any part thereof, and collect rents, make necessary repairs and do all other things which the court may consider necessary for the preservation of such real property and as a charge thereon;(2) to sell any personal property of the estate and to make such investments as would be proper investments for an executor;(3) to pay from the personal property in his hands the reasonable expenses of the last sickness, funeral and taxes of the deceased; and(4) to continue the business of the deceased for the benefit of his estate.
The probate court may, upon such notice, if any, as it considers reasonable, authorize or require a temporary executor or temporary administrator with the will annexed to do such other acts relative to any property or estate in his charge as it may deem necessary, but except as to continuing the business of the deceased this section shall not give to the temporary executor or temporary administrator with the will annexed other or greater powers than those granted to the named executor by the will. The temporary executor or temporary administrator with the will annexed shall not distribute any of the property in his hands except such amounts as may be allowed by the court to the widow or minor children for necessities.
Chapter 192: Section 15. Termination of powers of temporary executors or administrators with will annexed; extension of appointment; discharge Section 15. The powers of the temporary executor or temporary administrator with the will annexed shall cease upon the approval of the executor or administrator c. t. a.
, or upon the earlier entry of a decree terminating such powers and in any event at the expiration of ninety days from the appointment of the temporary executor or temporary administrator with the will annexed unless prior to such expiration, the court upon such prior notice, if any, as it considers reasonable, may extend the appointment of the temporary executor or temporary administrator with the will annexed for one or more terms not to exceed ninety days each, but no such extension shall take effect until the temporary executor or temporary administrator with the will annexed shall return an inventory of all the deceased’s real and personal property which shall have come to his possession or knowledge, and such extension shall terminate upon the appointment of an executor.
The probate court may, with or without notice, discharge a temporary executor or temporary administrator with the will annexed.
Chapter 192: Section 16. Accounting by temporary executors or administrators with will annexed Section 16. If all of the persons appointed executors or administrators with the will annexed are the same persons as the temporary executors or temporary administrators with the will annexed, they may account for their administration as temporary executors or temporary administrators with the will annexed in their accounts as executors or administrators with the will annexed, and in such case no new inventory need be filed by such executors or administrators with the will annexed. A temporary executor or temporary administrator with the will annexed who is discharged or not appointed executor or administrator with the will annexed shall within thirty days after his discharge or the cessation of his powers render upon oath a true account of his administration including an inventory of all the deceased’s real and personal property which shall have come to his possession or knowledge unless he has previously returned his inventory.
Chapter 192: Section 1A. Parties to probate proceedings; attorney general Section 1A. If it appears in the petition for the probate of a will or letters testamentary that there is no husband, widow or heir at law of such deceased person known to be living, the attorney general shall be made a party to the petition and shall be given notice of all proceedings relative to the probate of the will or granting of letters testamentary.
Chapter 192: Section 1B. Guardian ad litem for incompetent surviving spouse Section 1B. If it appears in the petition for the probate of will that the surviving spouse of the deceased person is incompetent by reason of insanity, mental retardation or minority, or is under conservatorship, unless the spouse is represented by someone other than the petitioner, a guardian ad litem shall be appointed and made a party to the petition and shall be given notice of all proceedings relative to the probate of the will or granting of letters testamentary.
Chapter 192: Section 1C. Guardian ad litem for children omitted from wills Section 1C. If it appears in the petition for the probate of a will, or in any paper or document filed in the registry of probate in connection with said petition, that the testator has omitted to provide in his will for any of his children, whether born before or after his death, or for the issue of a deceased child, whether born before or after the testator’s death, unless it appears from the will that such omission was intentional and not occasioned by accident or mistake, and if it shall also appear that any such child, or the issue of any deceased child is incompetent by reason of mental illness, minority or is under conservatorship, or is in the military service of the United States or its allies, unless such child or issue is represented by someone other than the petitioner, then a guardian ad litem shall be appointed and made a party to the petition for the probate of the will and shall be given notice by the petitioner of all proceedings relative to the probate of the will or granting of letters testamentary.
Chapter 192: Section 1D. Repealed, 1972, 574 Chapter 192: Section 2. Proof of will in uncontested proceedings; waiver of proof Section 2. If it appears to the probate court, by the consent in writing of the heirs, or by other satisfactory evidence, that no person interested in the estate of deceased person intends to object to the probate of an instrument purporting to be the will of such deceased, the court may grant probate thereof; (i) upon the testimony of one of the subscribing witnesses; and the affidavit of such witness taken before the register or an assistant register of probate may be received as evidence; (ii) without testimony if it is self-proved by affidavits of the testator and of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where executed, under official seal, in form and content substantially as follows: State of , County of , before me, the undersigned authority on this day personally appeared the testator and the witnesses whose names are signed to the attached or foregoing instrument, and, all of these persons being by me duly sworn; the testator declared to me and to the witnesses in my presence that the instrument is his last will and that he had willingly signed or directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence of the testator, that he signed the will as witness and that to the best of his knowledge the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence. ___ (Testator), ___ (Witness), ___ (Witness). Subscribed and sworn to before me by the said testator and the said witnesses, this ___ day of ___ A.
D. (signed) ___ (SEAL) official capacity of officer; (iii) without testimony if it is executed, attested and made self-proved by affidavits of the testator and the witnesses, each affidavit being made before an officer authorized to administer oaths under the laws of the state where executed, and under official seal. The same signature shall be sufficient for the execution, or attestation and the affidavit. The form and content shall be substantially as follows:I, the undersigned testator, do hereby declare that I sign (or direct another to sign for me) and execute this instrument as my last will, that I sign it willingly (or willingly direct another to sign for me) in the presence of each of said witnesses, and that I execute it as my free and voluntary act for the purposes herein expressed.
___________________________________________________________________ TestatorWe, the undersigned witnesses, each do hereby declare in the presence of the aforesaid testator that the testator signed (or directed another to sign for him and said person signed for him) and executed this instrument as his last will in the presence of each of us, that he signed it willingly (or willingly directed another to sign it for him), that each of us hereby signs this will as witness in the presence of the testator, and that to the best of our knowledge the testator is eighteen (18) years of age or over, of sound mind, and under no constraint or undue influence.
___________________________________________________________________ (Witness)___________________________________________________________________ (Witness)STATE OF ___COUNTY OF ___Subscribed, sworn to and acknowledged before me by the said testator and witnesses this ___ day of ___ A.
D.
(Signed) ___________________________________________________________________ (Seal) ___________________________________________________________________ Official Capacity; or (iv) without testimony if the probate of such instrument is assented to in writing by the widow or husband of the deceased, if any, and by all the heirs at law and next of kin.
Chapter 192: Section 3. Decree allowing will, compromise, or adjudication of intestacy; conclusiveness; subsequent reversal Section 3. A decree allowing a will, or compromise of a will, or adjudicating the intestacy of the estate of a deceased person, in any court in the commonwealth having jurisdiction thereof, shall, after one year from the rendition thereof, or, if proceedings for its reversal are had, after one year from its establishment, be final and conclusive in favor of purchasers for value, in good faith, without notice of any adverse claim, of any property, real or personal, from devisees, legatees, heirs, executors, administrators, guardians or conservators; and in favor of executors, administrators, trustees, guardians and conservators, who have settled their accounts in due form and have in good faith disposed of the assets of the estate in accordance with law; and also in favor of persons who have in good faith made payments to executors, administrators, trustees, guardians or conservators. If a subsequent decree reverses or qualifies the decree so originally rendered, heirs, devisees, legatees and distributees shall be liable to a subsequent executor, administrator or other person found entitled thereto, for any proceeds or assets of the estate received by them under the former decree, and in such case proceeds of real property shall be treated as real property. This section shall not make an adjudication of the fact of death conclusive.
Chapter 192: Section 4. Letters testamentary; issuance; qualifications of executor; bond Section 4. If a will has been duly proved and allowed, the probate court shall issue letters testamentary thereon to the executor named therein, if he is legally competent and a suitable person and if he is not under indictment for, or has not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased and accepts the trust and within thirty days gives bond to discharge the same; otherwise said court may grant letters of administration on the estate as provided in the following chapter.
Chapter 192: Section 5. Executor other than person named in will Section 5. If a person named as executor in a will has deceased or refuses to accept the trust, or, after being duly cited for the purpose, neglects to accept the same or neglects for twenty days after the probate of the will to give bond according to law, the court shall grant letters testamentary to the other executors, if there are any competent and willing to accept the trust.
Chapter 192: Section 6. Minors named as executors Section 6. If a person named as executor in a will is at the time of the probate thereof a minor, the other executor or executors, if any, shall administer the estate until the minor arrives at full age, when, upon giving bond according to law, he may be admitted as a co-executor of such will.
Chapter 192: Section 7. Judge or register of probate as executor or administrator of estate of wife, children or parents Section 7. If a judge or register of probate desires to be appointed executor of the will or administrator, or administrator with the will annexed, of the estate of his wife, child, father or mother, who at the time of their decease were inhabitants of or resident in his county, such will may be proved and allowed and appointment made and all subsequent proceedings relative to the estate may be had in the probate court of any adjoining county, and the register thereof shall forthwith transmit to the register of the county where the deceased resided, or of which said deceased was an inhabitant, a true and attested copy of all papers relating thereto filed and entered on the docket, which shall be recorded by the register to whom they are transmitted.
Chapter 192: Section 8. Death of executor; completion of duties Section 8. The executor of the will of an executor shall not, as such, administer on the estate of the first testator.
Chapter 192: Section 9. Hearing on foreign wills Section 9. Any person interested in a will which has been proved and allowed in any other of the United States or in a foreign country according to the laws of such state or country, or in a will which, by the laws of the state or country in which it was made, is valid without probate, may produce to the probate and family court in any county where there is any property, real or personal, on which such will may operate, a copy of such will and the probate thereof, duly authenticated, or if such will is valid without probate as aforesaid, a copy of the will or of the official record thereof duly authenticated by the proper official having custody of such will or record in such state or country together with an affidavit, in each case, by the petitioner or other person having knowledge of the facts, stating the names and residences of the known heirs and the next of kin of the testator living at his death and their relationship to the testator. The court shall thereupon assign a time and place for hearing and cause notice thereof to be given to all persons interested by publication at such times and in such newspapers as the court orders, said publication to be thirty days at least before the time assigned for hearing.
ORDINARY ADMINISTRATION Chapter 193: Section 1. Persons entitled to administer intestate’s estate Section 1. Administration of the estate of a person deceased intestate shall be granted to one or more of the persons hereinafter mentioned and in the order named, if competent and suitable and only if such person is not under indictment for, or has not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased, for the discharge of the trust and willing to undertake it, unless the court deems it proper to appoint some other person:First, The widow or surviving husband of the deceased.
Second, The next of kin or their guardians or conservators as the court shall determine.
Third, If none of the above are competent or if they all renounce the administration or without sufficient cause neglect for thirty days after the death of the intestate to take administration of his estate, one or more of the principal creditors, after public notice upon the petition.
Fourth, If there is no widow, husband or next of kin within the commonwealth, a public administrator.
SPECIAL ADMINISTRATION Chapter 193: Section 10. Appointment and discharge of special administrators Section 10. If the judge of probate deems it necessary or expedient, he may, at any time and place, with or without notice, appoint a special administrator who, in case of an appeal from the decree appointing him, shall nevertheless proceed in the execution of his duties until it is otherwise ordered by the supreme judicial court, and may in like manner discharge him; provided, however, that no person shall be appointed as a special administrator who is under indictment for, or has been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased. Such appointment and discharge shall be entered forthwith on the records of the court and notice thereof given to the executor or administrator, if any.
SPECIAL ADMINISTRATION Chapter 193: Section 11. Powers and duties of special administrators Section 11. A special administrator shall collect all the personal property of the deceased and preserve the same for the executor or administrator when appointed, and for that purpose may commence, maintain and defend suits. If he is appointed by reason of delay in granting letters testamentary, the court may authorize him to take charge of the real property of the deceased or of any part thereof, and collect rents, make necessary repairs and do all other things which it may consider needful for the preservation of such real property and as a charge thereon. His compensation shall be such as the court allows.
SPECIAL ADMINISTRATION Chapter 193: Section 12. Additional powers and duties Section 12. The probate court may, upon such notice as it considers reasonable, authorize or require a special administrator to sell or do such other acts relative to any property or estate in his charge as it may deem necessary; but this section shall not give to the special administrator other or greater powers than an administrator, except that he may be authorized to continue the business of the deceased for the benefit of his estate, and such authority may be granted at the time of, or after, his appointment and may be given without notice or with such notice as the court may order to be given prior to or after the granting of such authority.
SPECIAL ADMINISTRATION Chapter 193: Section 13. Advancements; payment despite appeal Section 13. Upon petition of the widow or of any child of the deceased, the probate court may, after notice, make a reasonable allowance out of the real or personal property in the hands of a special administrator appointed on account of the pendency of a petition relative to the probate of a will or the appointment of an administrator or of an administrator with the will annexed, as an advancement for the support of such widow or children, not exceeding such portion of the estate as they would finally be entitled to. An appeal from a decree relative to such allowance shall not prevent the payment of the allowance, if the petitioner gives bond to the special administrator, with sureties approved by the court and conditioned to repay it if the decree is reversed.
SPECIAL ADMINISTRATION Chapter 193: Section 14. Claims payable by special administrator Section 14. A special administrator may by leave of the probate court pay from the personal property in his hands the expenses of the last sickness and funeral of the deceased, the expenses incurred by the executor named in the will of the deceased, or by any other person presenting the same for probate, in proving the will in the probate court or in sustaining the proof thereof in the supreme judicial court and also, after notice, such debts due from the deceased as the probate court may approve.
SPECIAL ADMINISTRATION Chapter 193: Section 15. Actions by creditors; stay of proceedings pending appointment of executor or administrator; liability Section 15. A special administrator, temporary executor, or temporary administrator with will annexed shall be liable to an action by a creditor of the deceased brought within the period of limitation provided in section nine of chapter one hundred and ninety-seven; provided, however, that any such action shall be stayed by the court in which it is brought until such time as an executor or administrator of the estate of the deceased has been appointed and said executor or administrator has been substituted for said special administrator, temporary executor, or temporary administrator with will annexed as the party defendant.
SPECIAL ADMINISTRATION Chapter 193: Section 16. Effect of grant of letters testamentary or of administration Section 16. Upon the granting of letters testamentary or of administration, the powers of the special administrator shall cease. Upon the termination of his powers, the special administrator shall forthwith deliver to the executor or administrator or to such person as is otherwise lawfully authorized to receive it all the estate of the deceased in his hands; and the executor or administrator may be admitted to prosecute a suit commenced by the special administrator in like manner as an administrator de bonis non may prosecute a suit commenced by a former executor or administrator.
ORDINARY ADMINISTRATION Chapter 193: Section 2. Next of kin as administrators; consent Section 2. Administration of the estate of an intestate may be granted to one or more of the next of kin or any suitable person, if the husband or widow and all the next of kin resident in the commonwealth, who are of full age and legal capacity, consent in writing thereto. Notice of the petition may be dispensed with as if all parties entitled thereto had signified their assent or waived notice.
ORDINARY ADMINISTRATION Chapter 193: Section 3. Estates liable to income or succession tax; application of commissioner of revenue for administration Section 3. If a person dies leaving an estate which may be liable to an income tax under chapter sixty-two or a legacy or succession tax under chapter sixty-five or an estate tax under chapter sixty-five A or chapter sixty-five C, and a will disposing of such estate is not offered for probate, or an application for administration made, within four months after his decease, the probate court, upon application by the commissioner of revenue, may appoint an administrator. If, in the opinion of said commissioner, there is need for the appointment of a special administrator of such an estate for the protection of the interests of the commonwealth in respect to taxes under any of said chapters, either to prevent removal of property or for any other reason, said commissioner may at any time make application to the probate court for the appointment of such an administrator and the court may in its discretion make such appointment in the manner provided in section ten. Whoever, knowing that an application has been filed under this section either for administration or special administration of such an estate, shall remove from the commonwealth, except under an order or license of a court thereof, property belonging to such estate pending action by the court on such application and prior to the appointment of an executor or the granting of administration, ordinary or otherwise, under any other provision of law by a court of the commonwealth shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than one year, or both.
ORDINARY ADMINISTRATION Chapter 193: Section 4. Limitations upon time of granting of administration Section 4. Administration shall not be originally granted after the expiration of fifty years from the death of the testator or intestate, except in cases expressly authorized by law; provided, that if more than twenty years shall have elapsed between the date of death of the decedent and the filing after January first, nineteen hundred and fifty-two, of a petition for administration on his estate the rights of creditors of the decedent and the administrator under license of court or otherwise to deal with real estate of the decedent shall be subject to any rights acquired by conveyance, mortgage or other instrument in writing from or through any heir-at-law of the decedent recorded before the filing of said petition and to any rights established by a court of competent jurisdiction in a proceeding filed before the filing of said petition for administration.
ORDINARY ADMINISTRATION Chapter 193: Section 5. Estate not administered within fifty years Section 5. If administration has not been taken on the estate of a testator or intestate within fifty years after his decease, and any property or claim or right thereto remains undistributed or thereafter accrues to such estate and remains to be administered, original administration may for cause be granted, but it shall affect no other property. Before granting such administration the court shall require the petitioner to furnish evidence of the death of the intestate and such other evidence as the court may require. In the absence of satisfactory evidence of death and of interest on the part of the petitioners, the probate court shall refer the matter to the attorney general, or to any district attorney, who shall investigate and report thereon for the advice and assistance of the court.
ORDINARY ADMINISTRATION Chapter 193: Section 6. Revocation of letters of administration by proof of will Section 6. If, after the granting of letters of administration as upon an intestate estate, a will of the person deceased is duly proved and allowed, such letters shall be revoked; and the executor or an administrator with the will annexed may demand, collect and sue for all the personal property of the deceased which remains unadministered.
ADMINISTRATION WITH THE WILL ANNEXED Chapter 193: Section 7. Persons entitled to administer with will annexed Section 7. If no executor is named in a will, or if all the executors therein named are dead or incompetent or refuse to accept the trust or if the executor is under indictment for, or has been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased, or if, after being duly cited therefor, the executor neglects to accept the trust, or if he neglects for thirty days after the probate of the will to give bond according to law, the court shall commit administration of the estate, with the will annexed, to any person interested in the will of said deceased, to any creditor of the deceased or to any suitable person, who is not under indictment for, or has not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased; but after the expiration of said thirty days, and before letters of administration with the will annexed have been granted, the court may grant letters testamentary to any person named as executor who gives the bond required by law. If a person named as executor in a will petitions for the probate of the same and dies, declines or becomes unable to act before final decree is entered on said petition, any person interested in the will of said deceased, or any creditor of the deceased, or any suitable person, may, on petition, be allowed to enter and to prosecute the original petition for probate, to apply for letters of administration with the will annexed, and to act and proceed in any proposed compromise under sections fifteen and sixteen of chapter two hundred and four. If it appears that there are no known heirs or legatees or devisees under the will of the deceased, or when so designated by the division of medical assistance pursuant to subsection (e) of section thirty-two of chapter one hundred eighteen E a public administrator of the county shall be appointed to the trust.
ADMINISTRATION WITH THE WILL ANNEXED Chapter 193: Section 7A. Temporary administrators Section 7A. The probate court may, upon application contained in a petition for administration of an estate with the will annexed filed in accordance with the provisions of section seven or made subsequent to the filing thereof, appoint the petitioner or petitioners, if suitable and if such person is not under indictment for, or has not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased, temporary administrator or administrators with the will annexed, if the testator has requested such appointment or if said application is assented to in writing by the widow or husband, if any, of the deceased and by all the heirs at law and next of kin of the deceased of full age and legal capacity. Such appointment may be made without the necessity of any notice if said application is assented to by the widow or husband, if any, of the deceased and by all the heirs at law and next of kin of the deceased of full age and legal capacity; otherwise seven days prior written notice of intent to seek such appointment shall be given to all the heirs at law and next of kin of the decedent. A certificate of counsel that such notice has been given shall be prima facie evidence thereof.
ADMINISTRATION WITH THE WILL ANNEXED Chapter 193: Section 8. Administration during minority of named executor Section 8. If a person named as executor is a minor at the time of the probate of the will, administration with the will annexed may be granted during his minority, unless there is another executor who accepts the trust.
ADMINISTRATION DE BONIS NON Chapter 193: Section 9. Persons entitled to continue administration Section 9. If a sole or surviving executor or administrator dies, resigns or is removed before having fully administered an estate, and there is personal property of the deceased not administered to the amount of twenty dollars, or debts to that amount remaining due from the estate, or anything remaining to be performed in execution of the will, or if there is an order of distribution in accordance with section twenty-eight of chapter two hundred and six, the probate court shall grant letters of administration, with the will annexed, or otherwise as the case may require, to one or more suitable persons, who are not under indictment for, or have not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased, to administer the goods and estate of the deceased not already administered. If it appears that there are no known heirs of the deceased, a public administrator of the county shall be appointed to the trust.
Chapter 194: Section 1. Appointment; number; term Section 1. There shall be in each county one or more public administrators, not exceeding six in Middlesex and in Suffolk or five in any other county, appointed by the governor with the advice and consent of the council, who shall hold office for five years from the time of their appointment.
Chapter 194: Section 10. Unclaimed balance of estate; deposit with treasurer Section 10. When an estate has been fully administered by a public administrator, or by the executor or administrator with the will annexed of a person who died leaving no known heirs, he shall deposit any balance in his hands with the state treasurer as abandoned property to be held by him subject to the provisions of chapter two hundred A.
Chapter 194: Section 11. Annual accounts; failure to deposit remaining money with treasurer on final settlement Section 11. The probate court in each county shall require every public administrator in such county to render an account of his proceedings under any letters of administration at least once a year until the trust is fulfilled. When, on final settlement of an estate, it appears that money remains in the hands of such administrator which by law should have been deposited with the state treasurer, the court shall certify that fact and a statement of the amount so withheld to said treasurer, who, unless such deposit is made within one month after the receipt of such notice, shall cause the bond of the administrator to be prosecuted for the recovery of such money.
Chapter 194: Section 12. Accounting to successor administrator or executor Section 12. A public administrator shall, upon the appointment and qualification of an executor or administrator as his successor, surrender into the probate court his letters of administration in such case with an account on oath of his doings therein, and, upon a just settlement of such account, shall pay over and deliver to his successor all money remaining in his hands, and all property, effects and credits of the deceased not then administered.
Chapter 194: Section 13. Administration of pending estates at expiration of administrator’s term Section 13. Public administrators shall complete, as soon as they lawfully may, the administration of estates in their hands of which the administration is not complete at the date of the expiration of their terms.
Chapter 194: Section 14, 15. Repealed, 1990, 506, Sec. 3 Chapter 194: Section 16. Action by district attorney to insure prompt and faithful administration Section 16. If a public administrator neglects to return an inventory, settle an account or perform any other duty incumbent on him in relation to an estate, and there appears to be no heir entitled thereto, the district attorney for the district where the administrator received his letters shall, in behalf of the commonwealth, prosecute all suits and do all acts necessary to insure a prompt and faithful administration of the estate and the payment of the proceeds thereof into the state treasury; and if no heir has, within two years after the granting of letters of administration, appeared and made claim in the probate court for his interest in such estate, it shall be presumed that there is no such heir and the burden of proving his existence shall be upon the public administrator.
Each register of probate shall forthwith notify the proper district attorney and the attorney general of any breach of duty on the part of a public administrator in relation to any estate under his charge, of which such register has knowledge or which the records in his registry disclose.
Chapter 194: Section 17. Estates of less than $700 Section 17. If the total value of an estate which has come into the control of a public administrator is less than seven hundred dollars, unless the same is the balance of an estate received from a prior public administrator, he shall forthwith reduce all such property into money, not taking administration thereon, and deposit it, after payment of any outstanding funeral expenses and after deducting his reasonable expenses and charges, with the state treasurer, who shall hold it for the benefit of any other persons who may have legal claims thereon. Such claims may be presented to the comptroller within one year from such payment to the treasurer, and the comptroller shall examine such claims and allow such as may be proved to his satisfaction, and upon the expiration of the year shall forthwith certify the same to the governor and council for payment of the whole of the claims or such proportion thereof as the funds will allow.
Chapter 194: Section 18. Exemption from responsibility of estates of less than $700 Section 18. A public administrator, upon making such deposit, shall file with the state treasurer an itemized account, on oath, of all his dealings, receipts, payments and charges on account of the property from which the money so deposited proceeds, including the name of the intestate, if known to him, and the state treasurer shall thereupon deliver to him a receipt for such money. Such deposit shall exempt the public administrator from all responsibility for or on account of the money so deposited.
Chapter 194: Section 2. Bond; form; conditions Section 2. A public administrator shall give bond for the faithful administration of each estate on which letters of administration may be granted to him as such public administrator, with sufficient sureties, in such form as the probate court may order, payable to the judge of said court and his successors, with condition substantially as follows:—First, To make and return to the probate court, within three months from the time of granting to him, as public administrator, letters of administration on the estate of the deceased, a true inventory of all the real and personal property of the deceased which at the time of making thereof shall have come to his possession or knowledge;Second, To administer according to law all personal property of the deceased which may come into his possession or into the possession of any person for him, and also the proceeds of any of the real property of the deceased which may be sold or mortgaged by him;Third, To render on oath a true account of his administration at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, and also to render such account at such other times as the court orders;Fourth, To pay the balance of such estate remaining in his hands upon the settlement of his accounts to such persons as the court may direct; and, when such estate has been fully administered, to deposit with the state treasurer the whole amount remaining in his hands to which said treasurer may be entitled under the provisions of chapter one hundred and ninety-four of the General Laws;Fifth, Upon the appointment and qualification of an executor or administrator as his successor, to surrender into the probate court said letters of administration, with an account on oath of his doings therein; and, upon a just settlement of such account, to pay over and deliver to such successor all money remaining in his hands, and all property, effects and credits of the deceased not then administered.
Chapter 194: Section 3. Repealed, 1931, 305, Sec. 2 Chapter 194: Section 4. Duties Section 4. A public administrator shall, except as hereinafter provided, take out letters of administration and faithfully administer upon the estates of persons who die intestate within his county or elsewhere, leaving property in his county to be administered, if there is no known husband, widow or heir of such deceased living in the commonwealth at the time of filing the petition. Notwithstanding the foregoing, a public administrator shall apply for letters of administration for an intestate estate or petition for administration with the will annexed of a testate estate when so designated by the division of medical assistance pursuant to subsection (e) of section thirty-two of chapter one hundred eighteen E. The state treasurer shall be made a party to a petition for administration by a public administrator, and shall be given due notice of all subsequent proceedings. He shall, except as otherwise provided in this chapter, administer estates and render accounts in the same manner as other administrators.
Chapter 194: Section 5. Instances when public administrator should not act Section 5. Administration shall not be granted to a public administrator when the husband, widow or an heir of the deceased, in writing, claims the right of administration or requests the appointment of some other suitable person to the trust, if such husband, widow, heir or other person accepts the trust and gives the bond required, nor when the sole known assets of the estate of the deceased consist of an amount of money standing to his credit in a savings bank or in a savings account in a trust company, in case such account has not been increased by a deposit, nor decreased by a withdrawal of any part of his deposits or of any part of the interest thereon, during a period of twenty years or more next preceding the petition for such administration.
Chapter 194: Section 5A. Waiting period before administration Section 5A. Administration shall not be granted to a public administrator until after the expiration of ten days from the date of death.
Chapter 194: Section 6. Compensation for services of person taking out citation Section 6. If after citation has been issued by the probate court to a public administrator upon the estate of a deceased person, administration shall not be granted to him for the reason set forth in the preceding section, or because of the finding of a will of the deceased, the judge, if satisfied that the person taking out said citation has acted in good faith and for the best interests of the estate, or by designation of the division of medical assistance pursuant to subsection (e) of section thirty-two of chapter one hundred eighteen E may allow him just and reasonable compensation for his services, and reimbursement for expenses actually incurred, out of the assets of said estate.
Chapter 194: Section 7. Change after grant of letters to public administrator Section 7. If, after the granting of letters of administration to a public administrator and before the final settlement of the estate, the husband, widow or an heir of the deceased, in writing, claims the right of administration or requests the appointment of some other suitable person to the trust, the probate court may, in its discretion, grant letters of administration accordingly, or if, after the granting of such letters to a public administrator, a will of the deceased is proved and allowed, said court shall grant letters testamentary or letters of administration with the will annexed. When the person to whom such letters are granted gives the bond required by law the powers of the public administrator over the estate shall cease.
Chapter 194: Section 8. Death, resignation or removal of public administrator Section 8. Upon the death, resignation or removal of a public administrator, the probate court shall issue a warrant to some other public administrator in the same county, upon his application therefor, requiring him to examine the accounts of such public administrator relative to the estates on which he has taken out letters of administration, and to return to the probate court a statement of all of such estates as are not fully administered and of the balance of each estate remaining in the hands of such public administrator at the time of his death, resignation or removal. And thereupon the court shall issue to the public administrator making the return, upon his giving the requisite bond, letters of administration upon such of said estates as are not already administered, although the personal property remaining may not amount to twenty dollars.
Chapter 194: Section 9. Powers relating to real property Section 9. Public administrators may be authorized to take charge of the real property of the deceased or of any part thereof situated anywhere within the commonwealth, to lease the same, to collect the rents, and to make such repairs, and do all other things which may be considered necessary for the preservation of such real property and as a charge thereon. They may also be licensed by the probate court to sell the real property for the same purposes and in the same manner as other administrators. All laws relative to sales of land by administrators and the disposition of the proceeds shall govern such sales so far as applicable, except as otherwise provided in this chapter; provided, that the time limit imposed on sales by other administrators shall not apply to sales by public administrators, but shall be in the discretion of the court. The net proceeds of any sale after deducting the expenses thereof and other administration expenses, and such amount as may be required for the payment of debts in consequence of a deficiency in the personal property, shall, after one year from the time of the filing of the administrator’s bond, except as provided in the following section, be distributed to the persons who would have been entitled to said real property in the proportions to which they would have been entitled had it not been sold.
Chapter 195: Section 1 to 4. Repealed, 1933, 221, Sec. 1 Chapter 195: Section 10. Failure to appoint agent as cause for removal Section 10. Failure by an executor or administrator to comply with any provision of the two preceding sections shall be cause for removal.
Chapter 195: Section 11. Removal of executor or administrator; replacement Section 11. If an executor or administrator becomes insane or otherwise incapable of performing the trust, or is unsuitable therefor, or if an executor or administrator who resides out of the commonwealth, having been duly cited by the probate court, neglects to render his accounts and to settle the estate, the probate court may remove him; and thereupon the other executor or administrator, if any, may proceed in performing the trust as if the one removed were dead or, if there is no other executor or administrator, the court may appoint an administrator as provided in section nine of chapter one hundred and ninety-three. The court, upon such notice as it considers reasonable, may, if the petition for removal contains a prayer therefor, appoint a suitable person who is not under indictment for, or has not been convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes against the deceased to fill the vacancy caused by such removal, without the filing of a separate petition for that purpose.
If an executor or administrator is indicted for, or convicted of, murder in the first or second degree, or manslaughter, or accessory before the fact of such crimes, against the deceased, the executor or administrator shall not be eligible to serve as executor or administrator of the deceased’s estate, and the probate court shall remove him immediately as such from the point of indictment or conviction, whichever occurs first. The court shall appoint a suitable person to act as executor or administrator.
Chapter 195: Section 12. Removal of executor or administrator; validity of previous acts Section 12. If an executor or administrator is removed or if letters of administration are revoked, all previous sales, whether of real or personal property, made lawfully by the executor or administrator and with good faith on the part of the purchaser, and all other lawful acts done by such executor or administrator, shall remain valid and effectual.
Chapter 195: Section 13. Resignation of executor or administrator Section 13. An executor or administrator may resign his trust when it appears to the probate court proper to allow him so to do.
Chapter 195: Section 14. Intermeddling with personal property of deceased; executor in his own wrong Section 14. Whoever injuriously intermeddles with any personal property of a deceased person, without being thereto authorized by law, shall be liable as an executor in his own wrong to the persons aggrieved.
Chapter 195: Section 15. Liability of executor in his own wrong Section 15. An executor in his own wrong shall be liable to the rightful executor or administrator for the full value of the personal property of the deceased taken by him and for all damages caused to the estate by his acts; and he shall not be allowed to retain or deduct any part of such estate, except for funeral expenses or debts of the deceased or other charges actually paid by him and which the rightful executor or administrator might have been compelled to pay.
Chapter 195: Section 16. Voluntary informal administration of small estates Section 16. If an inhabitant of the commonwealth dies leaving an estate consisting entirely of personal property the total value of which may include a motor vehicle of which the decedent was the owner, and other personal property not exceeding fifteen thousand dollars in value, his surviving spouse, child, grandchild, parent, brother, sister, niece, nephew, aunt or uncle, if of full age and legal capacity and an inhabitant of the commonwealth, or, in the case of a person who at his death, was an inpatient or resident of any facility of the department of mental health, the department of mental retardation or was receiving relief or support under chapter one hundred and seventeen or assistance under chapter one hundred and eighteen, one hundred and eighteen A or one hundred and eighteen E, any person designated to act as a voluntary administrator of the estate of such person by the department of mental health, the department of mental retardation or the division of medical assistance, may, after the expiration of thirty days from the death of the decedent, provided no petition for letters testamentary or letters of administration have been filed with the probate court of the county in which the decedent resided, file with said probate court upon a form prescribed by the court a statement, verified by oath, or affirmation containing: (a) the name and residential address of the affiant, (b) the name, residence and date of death of the deceased, (c) the relationship of the affiant to the deceased, (d) a schedule showing every asset of the estate known to the affiant and the estimated value of each such asset, (e) a statement that the affiant has undertaken to act as voluntary administrator of the estate of the deceased and will administer the same according to law, and apply the proceeds thereof in conformity with this section, (f) the names and addresses of surviving joint owners of property with the deceased, known to the affiant, and (g) the names and addresses known to the affiant of the persons who would take under the provisions of section three of chapter one hundred and ninety in the case of intestacy. The oath required by this section shall not be governed by section one A of chapter two hundred and sixty-eight.
Upon presentation of such statement, accompanied by a certificate of the death of the deceased by a public officer and payment of a fee of three dollars or such amount as may be specified in section forty of chapter two hundred and sixty-two, the register of probate shall docket these documents as a part of the permanent records of the court. Upon payment of a fee as prescribed in section forty of chapter two hundred and sixty-two, the register shall, if no other probate proceeding for administration of such estate is pending in said court, issue an attested copy of a statement duly filed under this section.
Notwithstanding any provision of law to the contrary, a voluntary administrator shall certify on the statement that copies of said statement and death certificate have been sent to the division of medical assistance by certified mail. If the decedent received medical assistance under chapter one hundred eighteen E (1) when age sixty-five or older or (2) at any time on or after March twenty-second, nineteen hundred ninety-one, regardless of age, while an inpatient in a nursing facility or other medical institution, the provisions of section thirty-two of chapter one hundred eighteen E shall apply except (1) the period for the department to present a claim under subsection (b)(1) of said section thirty-two shall be within four months of the date the register of probate dockets the statement and (2) interest on allowed claims under subsection (c) of said section thirty-two shall commence four months plus sixty days after said date. This paragraph shall apply to estates of decedents dying on or after September first, nineteen hundred and ninety-two.
Upon the presentation of a copy of such a statement duly attested by the register of probate, the tender of a proper receipt in writing and the surrender of any policy, passbook, note, certificate or other evidentiary instrument, a voluntary administrator may, as the legal representative of the deceased and his estate, receive payment of any debt or obligation in the nature of a debt, or delivery of any chattel or asset, scheduled in such statement. Payments and deliveries made under this section shall discharge the liability of the debtor, obligor or deliverer to all persons with respect to such debt, chattel, obligation or other asset unless, at the time of such payment or delivery, a written demand has been made upon said debtor, obligor or deliverer by a duly appointed executor or administrator.
A voluntary administrator may sell any chattel so received and negotiate or assign any chose in action to convert the same to cash in a reasonable amount.
A voluntary administrator shall, as far as possible out of the assets which come into his hands, first discharge the necessary expenses of the funeral and last sickness of the deceased and the necessary expenses of administration without fee for his services, and then pay the debts of the deceased in the order specified in section one of chapter one hundred and ninety-eight and any other debts of the estate, and then distribute the balance, if any, to the surviving spouse, or, if there is no surviving spouse, to the persons and in the proportions prescribed by clauses (1), (2), (3), (4) and (5) of section three of chapter one hundred and ninety.
A voluntary administrator shall be liable as an executor in his own wrong to all persons aggrieved by his administration of the estate, and, if letters testamentary or letters of administration are at any time granted, shall be liable as such an executor to the rightful executor or administrator.
For the purpose of paragraph (6) of section one hundred and thirteen A of chapter one hundred and seventy-five and section two of chapter ninety, a voluntary administrator shall be deemed to be the legal representative of the estate of the decedent until an executor or administrator is appointed.
Upon payment of the proper fee, the register of probate may issue a certificate of appointment to said administrator, with a copy of the statement annexed thereto.
Chapter 195: Section 16A. Administration of small estates where executor named in will; voluntary executors Section 16A. If an inhabitant of the commonwealth dies leaving an estate consisting entirely of personal property the total value of which may include a motor vehicle of which the decedent was the owner, and other personal property not exceeding fifteen thousand dollars in value, and he leaves a will naming a person to be executor, the named person, if of full age and legal capacity may, after the expiration of thirty days from the death of the decedent, provided no petition for letters testamentary or letters of administration have been filed with the probate court of the county in which the decedent resided, file with said probate court upon a form prescribed by the court a statement, verified by oath, or affirmation containing: (a) the name and residential address of the affiant, (b) the name, residence and date of death of the deceased, (c) the relationship, if any, of the affiant to the deceased, (d) a schedule showing every asset of the estate known to the affiant and the estimated value of each such asset, (e) a statement that the affiant has undertaken to act as voluntary executor of the estate of the deceased and will administer the same according to law, and apply the proceeds thereof in conformity with this section, (f) the names and addresses of surviving joint owners of property with the deceased, known to the affiant, (g) the names and addresses known to the affiant of the persons who would take under the provisions of section three of chapter one hundred and ninety in the case of intestacy, and (h) the names and addresses known to the affiant of the persons who would take under the provisions of the will. The original of the will shall be filed with the above statement and if the executor resides outside the commonwealth he shall appoint a resident agent to represent him within the commonwealth. The oath required by this section shall not be governed by section one A of chapter two hundred and sixty-eight.
Upon presentation of such statement, accompanied by a certificate of the death of the deceased by a public officer and payment of a fee of three dollars or such amount as may be specified in section forty of chapter two hundred and sixty-two, the register of probate shall docket these documents as a part of the permanent records of the court. Upon payment of a fee as prescribed in section forty of chapter two hundred and sixty-two, the register shall, if no other probate proceeding for administration of such estate is pending in said court, issue an attested copy of a statement duly filed under this section.
Notwithstanding any provision of law to the contrary, a voluntary executor shall certify on the statement that copies of said statement and death certificate have been sent to the division of medical assistance by certified mail. If the decedent received medical assistance under one hundred eighteen E (1) when aged sixty-five or older or (2) at any time on or after March twenty-second, nineteen hundred ninety-one, regardless of age, while an inpatient in a nursing facility or other medical institution, the provisions of section thirty-two of chapter one hundred eighteen E shall apply except (1) the period for the department to present a claim under subsection (b)(1) of section thirty-two shall be within four months of the date the register of probate dockets the documents and (2) interest on allowed claims under subsection (c) of section thirty-two shall commence four months plus sixty days after said date. This paragraph shall apply to estates of decedents dying on or after September first, nineteen hundred and ninety-two.
Upon the presentation of a copy of such a statement duly attested by the register of probate, the tender of a proper receipt in writing and the surrender of any policy, passbook, note, certificate or other evidentiary instrument, a voluntary executor may, as the legal representative of the deceased and his estate, receive payment of any debt or obligation in the nature of a debt, or delivery of any chattel or asset, scheduled in such statement. Payments and deliveries made under this section shall discharge the liability of the debtor, obligor or deliverer to all persons with respect to such debt, chattel, obligation or other asset unless, at the time of such payment or delivery, a written demand has been made upon said debtor, obligor or deliverer by a duly appointed executor or administrator.
A voluntary executor may sell any chattel so received and negotiate or assign any chose in action to convert the same to cash in a reasonable amount.
A voluntary executor shall, as far as possible out of the assets which come into his hands, first discharge the necessary expenses of the funeral and last sickness of the deceased and the necessary expenses of administration without fee for his services, and then pay the debts of the deceased in the order specified in section one of chapter one hundred and ninety-eight and any other debts of the estate, and then distribute the balance, if any, according to the terms of the will, and should that prove impossible, the balance to the surviving spouse, or if there is no surviving spouse, to the persons and in the proportions prescribed by clauses (1), (2), (3), (4) and (5) of section three of chapter one hundred and ninety.
A voluntary executor shall be liable as an executor in his own wrong to all persons aggrieved by his administration of the estate, and, if letters testamentary or letters of administration are at any time granted, shall be liable as such an executor to the rightful executor or administrator.
For the purpose of a paragraph (6) of section one hundred and thirteen A of chapter one hundred and seventy-five and section two of chapter ninety, a voluntary executor shall be deemed to be the legal representative of the estate of the decedent until an executor or administrator is appointed.
Upon payment of the proper fee, the register of probate may issue a certificate of the appointment to said executor, with a copy of the statement annexed thereto.
Chapter 195: Section 17. Liability of executor or administrator Section 17. Unless otherwise provided in the contract, an executor or administrator shall not be individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he failed to reveal his representative capacity and identify the estate in the contract.
An executor or administrator shall be individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he was personally at fault.
Claims based on contracts entered into by an executor or administrator in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.
Issues of liability between the estate and an executor or administrator individually may be determined by an accounting, surcharge, indemnification or other appropriate proceeding.
Chapter 195: Section 5. Inventory Section 5. Every executor, except one who gives bond under section three of chapter two hundred and five, and every administrator shall, within three months after his appointment, make an oath and return to the probate court a true inventory of the real and personal property of the deceased which at the time of making such inventory has come to his possession or knowledge.
Chapter 195: Section 5A. Powers of executor or administrator Section 5A. Except as restricted or otherwise provided for by the will or by order of the probate court, and in addition to other powers conferred by law, executors and administrators shall have the following powers:(1) power to sell any personal property of the estate, or any interest therein, for cash, credit or for part cash and part credit, and with or without security for unpaid balances.
(2) power to invest in prudent investments.
(3) power to distribute assets of the estate in kind or partly in cash and partly in kind and pro rata or not pro rata at then current values as between beneficiaries.
(4) power to effect a fair and reasonable compromise with any debtor, creditor, obligor or obligee.
Nothing in this act shall prevent an executor or administrator from obtaining specific authority from the probate court to exercise the powers herein set forth.
Chapter 195: Section 6. Appraisal of property Section 6. Every inventory required to be filed in the probate court shall include an appraisal of the property comprised therein made under the penalties of perjury by the executor or other fiduciary filing the same, setting forth the actual market values of the various items thereof ascertained by such fiduciary to the best of his knowledge, information and belief. Said executor or other fiduciary shall receive no compensation for such appraisal. Before the filing of the inventory upon motion made by the executor or other fiduciary, or after the filing of the inventory upon motion made by any interested person and after such notice as the court may order and after hearing upon such motion, the court may appoint one or more special appraisers of such property or of any item or items thereof, if it shall find such appointment to be in the best interests of the estate. Such appraisers shall be sworn to the faithful performance of their duties and shall file their appraisal in the court within three months of their appointment. The values shown in any such special appraisal shall constitute the appraised value of the item or items involved.
Chapter 195: Section 7. Continuation of business of deceased Section 7. The probate court, upon such notice as it considers reasonable, may authorize an executor or administrator to continue the business of the deceased for the benefit of the estate for a period not exceeding one year from the date of his appointment. Such authority may be granted at the time of the appointment of an executor or administrator if the petition for such appointment contains a prayer therefor, and may be granted without special notice or with such special notice as the court may order to be given prior to or after the granting of such authority. The court, for cause shown, may extend such authority beyond one year.
Chapter 195: Section 8. Nonresident executor or administrator; appointment of agent for service of process Section 8. An executor or administrator who is appointed in, but resides out of, the commonwealth shall not enter upon the duties of his trust nor be entitled to receive his letter of appointment until he shall, by a writing filed in the registry of probate for the county where he is appointed, have appointed an agent residing in the commonwealth, and, by such writing, shall have agreed that the service of any legal process against him as such executor or administrator, or that the service of any such process against him in his individual capacity in any action founded upon or arising out of any of his acts or omissions as such executor or administrator, shall, if made on said agent, have like effect as if made on him personally within the commonwealth, and such service shall have such effect. Said writing shall state the name and address of the agent. An executor or administrator who, after his appointment, removes from, and resides without, the commonwealth shall so appoint a like agent.
Chapter 195: Section 9. Appointment of new agent Section 9. If an agent appointed under the preceding section dies or removes from the commonwealth before the final settlement of the accounts of his principal, another appointment shall be made and filed as above provided, and the powers of an agent appointed under this or the preceding section shall not be revoked prior to the final settlement of the estate unless another appointment shall be made as before provided.
ALLOWANCES TO WIDOWS AND CHILDREN Chapter 196: Section 1. Apparel and ornaments; rent-free possession of house Section 1. Articles of apparel and ornaments of the surviving spouse and minor children of a deceased person shall belong to them respectively. The surviving spouse may remain in the house of a deceased spouse for not more than six months next succeeding the death without being chargeable for rent.
ALLOWANCES TO WIDOWS AND CHILDREN Chapter 196: Section 2. Necessaries Section 2. Such parts of the personal property of a deceased person as the probate court, having regard to all the circumstances of the case, may allow as necessaries to the surviving spouse and for the family under the care of such spouse or if there is no surviving spouse, to the minor children of the deceased, not exceeding one hundred dollars to any child, and also such provisions and other articles as are necessary for the reasonable sustenance of the family, and the use of the house of the deceased and of the furniture therein for six months next succeeding the death, shall not be taken as assets for the payment of debts, legacies or charges of administration. After exhausting the personal property, real property may be sold or mortgaged to provide the amount of allowance decreed, in the same manner as it is sold or mortgaged for the payment of debts, if a decree authorizing such sale or mortgage is made, upon the petition of any party in interest, within one year after the approval of the bond of the executor or administrator.
ADVANCEMENTS Chapter 196: Section 3. Advancements made by intestate during lifetime Section 3. Property, real or personal, which is given by an intestate in his lifetime as an advancement to a child or other lineal descendant shall be considered as part of the intestate’s estate in the division and distribution of such estate among his issue, and shall be taken by such child or other descendant toward his share of such estate; but he shall not be required to restore any part thereof, although it exceeds his share. The widow shall be entitled only to her share in the residue after deducting the value of the advancement.
ADVANCEMENTS Chapter 196: Section 4. Advancements; value of real property Section 4. If such advancement is made in real property, the value thereof shall be considered as part of the real property to be divided; if it is in personal property, it shall be considered as part of the personal property; and if in either case it exceeds the share of real or personal property, respectively, which would have come to the heir so advanced, he shall not restore any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal to the shares of the other heirs who are in the same degree with him.
ADVANCEMENTS Chapter 196: Section 5. Gifts or grants considered as advancements Section 5. Gifts and grants shall be held to have been made as advancements, if they are expressed in the gift or grant to be so made, or if charged in writing as such by the intestate, or acknowledged in writing as such by the party receiving them.
ADVANCEMENTS Chapter 196: Section 6. Determination of value of advancement Section 6. If the value of an advancement is expressed in the conveyance, in the charge thereof made by the intestate or in the acknowledgment by the person receiving it, such value shall be adopted in the division and distribution of the estate; otherwise it shall be determined according to the value when the property was given.
ADVANCEMENTS Chapter 196: Section 7. Death of recipient of advancement before intestate Section 7. If a child or other lineal descendant who has received an advancement dies before the intestate, leaving issue, the advancement shall be considered as part of the intestate’s estate in the division and distribution of such estate, and the value thereof shall be taken by the representative of the heir to whom the advancement was made toward his share of the estate, as if the advancement had been made directly to him.
ADVANCEMENTS Chapter 196: Section 8. Jurisdiction to hear questions relating to advancements Section 8. The probate court in which the estate of a deceased person is settled may hear and determine all questions of advancements arising relative to such estate, or such questions may be heard and determined upon a petition for partition; but if such question arises upon a petition for partition, the court may suspend proceedings until the question has been decided in the probate court in which the estate of the deceased is settled.
ADVANCEMENTS Chapter 196: Section 9. Change of registration of securities Section 9. Securities owned by a deceased person, the value of which do not exceed seven hundred and fifty dollars with any one issuer, and with a cumulative value of no more than two thousand one hundred dollars, may, if thirty days has elapsed since the death of the deceased and neither a duly appointed executor or administrator nor a voluntary administrator has made written demand upon the issuer for payment, and the issuer shall not otherwise have actual notice that proceedings relative to the formal or informal settlement of the estate of the deceased have been commenced in any probate court, upon the request by or on behalf of any of the following persons cause such stock to be registered and held in the name of the surviving husband or wife, or to an adult child of the deceased, or if the issuer is satisfied that there is no surviving husband or wife or adult child, to the surviving father or mother of the deceased. Such issuer shall not be liable to any claims in respect to such securities.
PAYMENT OF DEBTS Chapter 197: Section 1. Executor or administrator, defined Section 1. As used in this chapter, the words “executor or administrator” shall, where appropriate, be construed to include an administrator with will annexed, a special administrator, a temporary executor, a temporary administrator with will annexed, or an administrator de bonis non.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 10. Barred claims; procedure Section 10. If the supreme judicial court, upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by section nine, deems that justice and equity require it and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person, provided forthwith upon the filing of the bill a notice such as provided in section nine has been filed in the proper registry of probate; but such judgment shall not affect any payment or distribution made before the filing of such bill and notice.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 11. New assets; effect on unsatisfied creditors; extension of time Section 11. If new assets shall come to the hands of an executor or administrator after the barring of creditor’s claims under section nine, he shall account for and apply the same in like manner as if they had been received within said period, and shall be liable, on account of such new assets, to an action at law or to a proceeding in the probate court by or for the benefit of a creditor, in like manner as if such assets had been received within the period, if such action or proceeding is commenced within four months after the creditor has notice of the receipt of such assets, and within six months after they are actually received.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 12. Defective actions; extension of time Section 12. If an action commenced against an executor or administrator within the time limited in section nine shall fail of a sufficient service or return by an unavoidable accident, if the process in such action shall be abated or defeated in consequence of a defect in the form thereof or of a mistake in the form of the proceeding, if, after a verdict for the plaintiff, the judgment shall be arrested, or, if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause within sixty days after the abatement or other determination of the original action, or after the reversal of the judgment therein.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 13. Unliquidated claims; presentment for payment Section 13. A creditor of the deceased, whose right of action shall not accrue within one year after the date of death of the deceased, may present his claim to the probate court at any time before the estate is fully administered; and if, upon examination thereof, the court shall find that such claim is or may become justly due from the estate, it shall order the executor or administrator to retain in his hands sufficient assets to satisfy the same. But if a person interested in the estate offers to give bond to the alleged creditor with sufficient surety or sureties for the payment of his claim if it is proved to be due, the court may order such bond to be taken, instead of requiring assets to be retained as aforesaid. If because of partial distribution already made, or because of inability to sell the real estate of the deceased, the executor or administrator shall be unable to retain sufficient assets to satisfy the claim in full as finally established, the creditor may enforce his claim for the balance under section twenty-nine within nine months from the final settlement of said estate or from the time when the amount of said balance is finally determined.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 14. Unliquidated claims; conclusiveness of judgment Section 14. The decision of the probate court upon the claim of such creditor shall not be conclusive against the executor or administrator or other person interested to oppose the allowance thereof, and he shall not be compelled to pay the same unless it is proved to be due in an action commenced by the claimant within one year after his claim becomes payable, or, if an appeal is taken from the decision of the probate court, in an action commenced within one year after the final determination of the proceedings thereon.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 15. Unliquidated claims; actions Section 15. The action referred to in the preceding section shall be brought against the executor or administrator, if he has been required to retain assets therefor; otherwise, upon the bond given under section thirteen.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 16. Unliquidated claims; pleadings Section 16. If the action is brought on such bond, the plaintiff shall set forth his original cause of action against the deceased in like manner as would be required in a declaration for the same demand against the executor or administrator, and may allege the non-payment of the claim as a breach of the condition of the bond; and the defendant may answer any matter of defence which would be available against the claim if prosecuted in the usual manner against the executor or administrator.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 17. Repealed, 1989, 329, Sec. 8 LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 18. Repealed, 1989, 329, Sec. 9 PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 19. Legacies; actions to recover Section 19. A legatee may recover his legacy and enforce all rights in respect to the same by proceedings in equity in the probate court in which the will was proved. Nothing in this chapter shall be construed to limit the time within which such proceedings may be brought except that the real estate of the testator shall not be liable to be sold for the payment of a legacy by the executor or other representative of the estate either under a power in the will or under license or order of court in, or as a result of, such a proceeding unless it is filed in the probate court within six years from the testator’s death. No action at law shall be brought against the estate of the testator for such recovery.
PAYMENT OF DEBTS Chapter 197: Section 2. Time of payment Section 2. If an executor or administrator shall not within six months after the date of death of the deceased have had notice of demands against the estate of the deceased sufficient to warrant him to represent such estate to be insolvent, he may, after the expiration of said six months, pay the debts due from the estate and shall not be personally liable to any creditor in consequence for such payments made before notice of such creditor’s demand; and if such executor or administrator shall be in doubt as to the validity of any debt which, if valid, he would have a right to pay under this section, he may, with the approval of the probate court, after notice to all persons interested, pay such debt or so much thereof as the court may authorize.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 20. Interest; rates; time payable Section 20. The rate of interest upon pecuniary legacies or pecuniary distributions under a trust instrument, unless otherwise provided in the will or trust instrument, shall be such as the supreme judicial court may by general rules establish, and in the absence of any such rules the rate shall be four per cent per annum. Unless otherwise provided in the will or living trust instrument, interest shall be payable from the date of the expiration of the period within which creditors may bring actions against an executor or administrator as provided in section nine, or six months from the date upon which the distribution is required by the trust instrument.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 21. Payment of certain legacies; indemnity for repayment Section 21. If an executor or administrator, within the time for the commencement of actions by creditors is required by a legatee or next of kin to make payment, in whole or in part, of a legacy or distributive share, the probate court may require that such legatee or next of kin shall first give bond to the executor or administrator, with surety or sureties approved by the court, and conditioned to repay the amount so to be paid or so much thereof as may be necessary to satisfy any demands which may be thereafter recovered against the estate of the deceased, and to indemnify the executor or administrator against all loss and damage on account of such payment.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 22. Partial distribution Section 22. If the court finds that partial distribution of the personal property of an estate in process of settlement therein can, without detriment to such estate, be made to the persons entitled thereto, the court may, subject to the rights of creditors and after notice, order such partial distribution to be made.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 23. Class legacies Section 23. If under a will a legacy is to be distributed in whole or in part among the heirs or next of kin of any person, or among persons of a certain class, the probate court, upon the application of any person interested, after notice, may order distribution among such persons as according to the will seem to be entitled to the legacy.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 24. Distributive shares, enforcement of payment Section 24. When the amount due a person who is next of kin or a distributee of an intestate estate on account of his share of the personal property has been ascertained by a decree of the probate court for distribution or partial distribution, or whenever any real or personal estate comprised in a trust or in the estate of a deceased person is ordered by the probate court to be sold and distributed under section nineteen of chapter two hundred and two, section twenty-five of chapter two hundred and three or section twenty-one of chapter two hundred and six, or any legacy or any surplus proceeds of sale are ordered by said court to be distributed or disposed of pursuant to the preceding section or section nine of chapter two hundred and four, or whenever said court in pursuance of any authority conferred on it orders the distribution or disposal of any fund or moneys, payment of the same, by the executor, administrator, trustee or other person so ordered to pay or distribute, to the person entitled may, if the executor, administrator, trustee or other person neglects upon demand to pay such amount, be enforced summarily by the probate court upon motion of the person entitled, in the same manner as a like payment under a decree in equity may be enforced, and execution may also be issued therefor against the executor, administrator, trustee or other person personally as upon a judgment at law.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 25. Debts due estate; set-off against legacies Section 25. A debt due the estate of a deceased person from a legatee or distributee of such estate shall be set off against and deducted from the legacy to such legatee or from the distributive share of such distributee; and the probate court shall hear and determine the validity and amount of any such debt, and may make all necessary or proper decrees and orders to effect such set-off or deduction; but this section shall not prejudice any remedy of an executor or administrator for the recovery of such debt or affect the liability of the legatee or distributee for the excess of his indebtedness over the amount of his share in or claim upon the estate to which he is indebted.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 25A. Lifetime gifts as satisfaction of legacy Section 25A. Property which a testator gives in his lifetime to a pecuniary legatee subsequent to the will providing for such pecuniary legacy, shall be treated to the extent of the gift as satisfaction of the pecuniary legacy in whole or in part only if the will so provides, or if the testator so declared in a contemporaneous writing, or if the legatee has acknowledged in writing that the gift was in satisfaction. For purposes of partial satisfaction, property given during a lifetime shall be valued as of the time the donee came into possession or enjoyment of the property or as of the time of death of the testator, whichever first occurred.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 26. Annuities, etc.
; commencement of use or payment Section 26. If an annuity, or the use, rent, income or interest of property, real or personal, is given by will or by an instrument in the nature thereof to or in trust for the benefit of a person for life or until the happening of a contingency, such person shall be entitled to receive and enjoy the same from and after the decease of the testator, unless it is otherwise provided in such will or instrument.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES Chapter 197: Section 27. Annuities, etc.
; apportionment Section 27. A person entitled to an annuity, rent, interest or income, or his representative, shall have the same apportioned if his right or estate therein terminates between the days upon which it is payable, unless otherwise provided in the will or instrument by which it was created; but no action shall be brought therefor until the expiration of the period for which the apportionment is made.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 28. General provisions Section 28. After the settlement of an estate by an executor or administrator, and after the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, devisees and legatees of the deceased shall be liable in the manner provided in the following sections for all debts for which actions could not have been brought against the executor or administrator, and for which provision is not made in the preceding sections.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 29. Recovery against heirs; exemption through will Section 29. A creditor whose right of action accrues after the expiration of said time of limitation, and whose claim could not legally be presented to the probate court, or whose claim, if presented, has not been allowed, may, by action commenced within one year next after the time when such right of action accrues, recover such claim against the heirs and next of kin of the deceased or against the devisees and legatees under his will, each of whom shall be liable to the creditor to an amount not exceeding the value of the real or personal property which he has received from the estate of the deceased. But if by the will of the deceased any part of his estate or any one or more of the devisees or legatees is made exclusively liable for the debt in exoneration of the residue of the estate or of other devisees or legatees, such provisions of the will shall be complied with, and the persons and estate so exempted shall be liable for only so much of the debt as cannot be recovered from those who are first chargeable therewith.
PAYMENT OF DEBTS Chapter 197: Section 2A. Repealed, 1989, 329, Sec. 4 PAYMENT OF DEBTS Chapter 197: Section 3. Payment; defense against further claims Section 3. If an executor or administrator pays under the preceding section, before notice of the demand of any other creditor, the whole of the estate and effects of the deceased, he shall not be required in consequence of such notice to represent the estate insolvent, but in an action against him he shall be discharged upon proving such payments.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 30. Death of heir, next of kin, devisee or legatee; effect Section 30. If an heir, next of kin, devisee or legatee dies without having paid his just proportion of such debt, his executor or administrator shall be liable therefor, as for a debt of his decedent, to the extent to which said decedent would have been liable if living.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 31. Suit in equity; liability of several heirs Section 31. If, under the two preceding sections, more than one person is liable for the debt, the creditor may recover such debt by a suit in equity in the supreme judicial or superior court against such persons so liable as are within reach of process. The court shall determine, by the verdict of a jury if either party requires it, what amount is due to the plaintiff, and shall decide how much each of the defendants is liable to pay toward the debt.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 32. Improper parties defendants; effect Section 32. Such suit shall not be dismissed or barred for not making all the persons who might have been so included defendants; but in any stage of the cause the court may, upon terms, award proper process to bring in other parties, and may allow amendments in order to charge them as defendants.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 33. Insolvency of person liable for debt; effect Section 33. If an heir, devisee or other person who is liable for the debt is insolvent, unable to pay his proportion thereof or beyond reach of process, the others shall be liable to the creditor for the whole amount of his debt, but not in excess of the amounts received by them respectively from the estate of the deceased.
LIABILITY OF HEIRS, ETC.
, AFTER SETTLEMENT OF ESTATE Chapter 197: Section 34. Nonpayment by one heir; rights of others Section 34. If, in consequence of insolvency or bankruptcy, absence or other cause, a person liable for such debt fails to pay his just proportion thereof to the creditor, he shall be liable to indemnify all who, by reason of such failure on his part, pay more than their just proportion of the same. Such indemnity may be recovered by all of them jointly, or in separate actions by one or more of them for his or their parts respectively.
PAYMENT OF DEBTS Chapter 197: Section 4. New claims; insufficient assets; payment Section 4. If an executor or administrator pays, under section two, so much of the estate and effects of the deceased that the remainder is insufficient to satisfy a demand of which he afterward has notice, he shall be liable on such last mentioned demand for only so much as may then remain. If two or more such demands are exhibited, which together exceed the amount of assets remaining in his hands, he may represent the estate insolvent, and shall, pursuant to a decree of the probate court, divide and pay over what remains in his hands among the creditors who prove their debts under the commission of insolvency; but the creditors of the deceased who have been previously paid shall not be liable to repay any part of the amount received by them.
PAYMENT OF DEBTS Chapter 197: Section 5. Preferred claims; payment; actions by unsecured creditors Section 5. If it appears, upon the settlement of the account of an executor or administrator in the probate court, that the whole estate and effects which have come to his hands have been exhausted in paying the charges of administration and debts or claims entitled by law to a preference over the common creditors of the deceased, such settlement shall be a bar to an action brought against him by a creditor who is not entitled to such preference, although the estate has not been represented insolvent.
PAYMENT OF DEBTS Chapter 197: Section 6. Debts due executors or administrators; settlement; arbitration Section 6. If a debt claimed by an executor or administrator as due to him from the deceased is disputed by any person interested in the estate, the claimant shall file in the probate court a statement of his claim in writing, setting forth distinctly and fully the nature and grounds thereof; and the same may then be submitted under an order of the court to one or more arbitrators, if the claimant and the party objecting agree upon the arbitrators to be appointed. The court shall have the powers of courts of common law to discharge the rule by which the claim is referred, to reject and disallow the award or to recommit it to the arbitrators. The award of such arbitrators, if accepted by the probate court, shall be final and conclusive. The said arbitrators shall be awarded reasonable compensation by the probate court, which shall be paid by the commonwealth.
PAYMENT OF DEBTS Chapter 197: Section 7. Debts due executors or administrators; settlement by court Section 7. If the parties do not agree upon the arbitrators, or if the award is not confirmed by the probate court, the court shall decide upon the claim.
PAYMENT OF DEBTS Chapter 197: Section 8. Joint liability of deceased Section 8. If one of two or more persons who are indebted upon a joint contract, or upon a judgment founded on such contract, dies, his estate shall be liable therefor as if the contract had been joint and several or as if the judgment had been against him alone.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 9. Commencement of action; service of process; action against trustee; recovery of medical assistance payments Section 9. (a) Except as provided in this chapter, an executor or administrator shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased and unless, before the expiration of such period, the process in such action has been served by delivery in hand upon such executor or administrator or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed in the proper registry of probate.
(b) An executor or administrator shall not be held to answer to an action by a creditor of the deceased which is commenced within any other or additional period of limitation for bringing such action provided by or under this chapter unless before the expiration of such period the process in such action has been served by delivery in hand upon him or service thereof accepted by him or a notice as aforesaid has been filed in the proper registry of probate.
(c) A trustee of a trust, the assets of which are subject as a matter of substantive law to being reached by creditors of the deceased, shall not be held to answer to an action by a creditor of the deceased unless such action is commenced against such trustee or against the executor or administrator of the estate of the deceased within the time and in the manner provided in subsection (a). Such trustee shall have immunity from personal liability to a creditor of the deceased in the same manner as an executor or administrator has, pursuant to sections two, three, four, and five.
(d) If a deceased received medical assistance under chapter 118E when such deceased was 55 years of age or older or while an inpatient in a nursing facility or other medical institution, section 32 of chapter 118E shall govern the notice to be given to the division of medical assistance and such division’s claim for recovery under section 31 of said chapter 118E if the division so chooses.
LIMITATION OF ACTIONS BY CREDITORS Chapter 197: Section 9A. Actions for personal injuries or death; limitations; satisfaction of judgment restricted Section 9A. Notwithstanding the provisions of section nine, an action for personal injuries or death, if commenced more than one year after the date of death of the deceased, may be brought against said executor or administrator, provided that such action is commenced within three years next after the cause of action accrues, and provided further that any judgment recovered in any action so brought may be satisfied only from the proceeds of a policy of insurance or bond, if any, and not from the general assets of the estate.
If an executor or administrator has not been appointed, then an action allowed under this section may be maintained without such appointment, and shall be maintained naming the decedent as the defendant. In such event any service of process that may be necessary shall be made upon the entity providing the insurance or bond.
ORDER OF PAYMENT OF DEBTS Chapter 198: Section 1. Order of payment of debts Section 1. If the estate of a person deceased is insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral and last sickness and the charges of administration, be applied to the payment of his debts, which shall include equitable liabilities, in the following order:First, Debts entitled to a preference under the laws of the United States.
Second, Public rates, taxes, child support arrears and excise duties.
Third, debts due to the division of medical assistance for estates of individuals dying on or after July first, nineteen hundred and ninety-two, regardless of when the assistance was actually provided.
Fourth, wages or compensation, to an amount not exceeding one hundred dollars, due to a clerk, servant or operative for labor performed within one year last preceding the death of such deceased person or for such labor so performed for the recovery of payment for which a judgment has been rendered.
Fifth, debts, to an amount not exceeding one hundred dollars, for necessaries furnished to such person or his family within the six months last preceding his death, or for such necessaries so furnished for the recovery of payment for which a judgment has been rendered.
Sixth, debts due to all other persons.
If there is not enough to pay all the debts of any class, the creditors of that class shall be paid ratably upon their respective debts; and no payment shall be made to creditors of any class until all those of the preceding class or classes, of whose claims the executor or administrator has notice, have been fully paid.
PROOF OF CLAIMS Chapter 198: Section 10. Barred claims; new assets; effect Section 10. A creditor who does not present his claim for allowance in the manner herein provided shall be barred from recovering the same; but if new assets of the deceased come to the executor or administrator after the decree of distribution, the claim may be proved, allowed and paid as provided in this chapter for contingent claims.
PREFERENCES Chapter 198: Section 10A. Preference defined Section 10A. A person shall be deemed to have given a preference if, being insolvent, he has, within four months before his decease, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Where the preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required.
PREFERENCES Chapter 198: Section 10B. Voidable preferences; action by executor Section 10B. If a person shall have procured or suffered a judgment to be entered against him in favor of any person or has made a transfer of any of his property, and if, at the time of the transfer, or of the entry of the judgment, or of the recording or registering of the transfer if by law recording or registering thereof is required, and being within four months before his decease, the person be insolvent and the judgment or transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such judgment or transfer would effect a preference, it shall be voidable by the executor or administrator of the debtor, and he may recover the property or its value from such person.
PREFERENCES Chapter 198: Section 10C. Voidable preferences; set-off by creditor Section 10C. If a creditor has been preferred, and afterwards in good faith gives the debtor further credit without security of any kind for property which becomes a part of the debtor’s estate, the amount of such new credit remaining unpaid at the time of his decease may be set off against the amount which would otherwise be recoverable from him.
APPEALS Chapter 198: Section 11. Parties; procedure Section 11. Where commissioners are appointed, a person whose claim is disallowed in whole or in part, or an executor, administrator, heir, legatee, devisee or creditor who is dissatisfied with the allowance of a claim, may appeal from their decision to the superior court for the county where the probate or administration was granted, and the claim shall thereupon be tried and determined in like manner as if an action at law had been brought therefor by the supposed creditor against the executor or administrator. If the court examines the claim, appeals shall be under chapter two hundred and fifteen.
APPEALS Chapter 198: Section 12. Time Section 12. Such appeal shall be claimed and notice thereof given at the registry of probate within twenty days after the return of the commissioners. If the appeal is by an executor or administrator, he shall give notice thereof to the creditor within said twenty days. The appeal shall be entered at the return day next succeeding the expiration of said twenty days.
APPEALS Chapter 198: Section 13. Proceedings Section 13. Upon the entry of the appeal, the supposed creditor shall file a written statement of his claim, setting forth briefly and distinctly all the material facts necessary in a declaration for the same cause of action; and like proceedings shall thereupon be had in the pleadings, trial and determination of the cause as in an action at law; but no execution shall be awarded against the executor or administrator for a debt found due to the claimant. The final judgment shall be conclusive, and the list of debts allowed shall be altered by the probate court, if necessary, to conform thereto.
APPEALS Chapter 198: Section 14. Waiver; submission to arbitration Section 14. After claiming such appeal, the parties may waive it and submit the claim to arbitrators agreed on by the parties and appointed by the probate court, and thereupon the appeal shall not be entered. The award of such arbitrators, if accepted by the court, shall be as conclusive as a judgment at law.
APPEALS Chapter 198: Section 15. Costs Section 15. The prevailing party shall be entitled to costs, which, if recovered against the executor or administrator, may be allowed in his account.
APPEALS Chapter 198: Section 16. Late entry; effect Section 16. If a person whose claim has been disallowed in whole or in part by the commissioners, or if the administrator of the estate or the executor of the will of the deceased, or if an heir, legatee, devisee or creditor who is dissatisfied with the allowance of a claim by them, omits, for cause other than his own neglect, to claim or prosecute his appeal as before provided, the superior court in any county may, upon his petition filed within two years after the return of the commissioners and within four years after the date of the administration bond, allow him upon terms to enter and prosecute his appeal.
APPEALS Chapter 198: Section 17. Late entry; allowance; effect Section 17. The allowance of such appeal and the judgment thereon shall not affect any distribution ordered before written notice of the petition or of the intention to present the same has been given at the registry of probate or to the executor or administrator; but any debt thus proved and allowed shall be paid only out of such assets as remain in or come to the hands of the executor or administrator after payment of the amounts payable on such prior decree of distribution.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 18. Proved claims; distribution of assets Section 18. After the expiration of the time allowed by section twelve, the probate court shall make a decree for the distribution of the estate among the creditors in accordance with this chapter. If, before making the decree, the court has notice of an appeal then claimed or pending, the decree may be suspended until the determination of the appeal, or a distribution may be ordered among the creditors whose debts are allowed, leaving an amount sufficient to pay to the claimant whose demand is disputed a proportion equal to that of the other creditors.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 19. Dividends; payment Section 19. The court may before the expiration of the time allowed for claiming appeals order dividends to be paid to creditors whose claims have been allowed, if there is left an amount sufficient to pay upon claims that may probably be proved afterward a proportion equal to what is so paid to such creditors. Such amount shall remain unappropriated until the final dividend is declared, or until a distribution is ordered.
PROOF OF CLAIMS Chapter 198: Section 2. Commissioners; appointment Section 2. If the probate court finds from the representation of an executor or administrator that the estate of the deceased will probably be insufficient for the payment of his debts, it may appoint two or more commissioners to receive and examine all claims of creditors against such estate, and to return a list of all claims presented to them, with the amount allowed on each. All debts of the estate of said deceased not at the time of such finding barred by any statute of limitations may be allowed either by said commissioners or by said court.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 20. Proved claims; further distribution Section 20. If all the assets are not distributed upon the first decree, or if new assets come to the executor or administrator, the court shall make further decrees for distribution.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 21. Deceased partner; claims for dividends Section 21. If the deceased was a member of a partnership, and partnership and individual claims are proved against his estate, separate lists thereof shall be made, and in decreeing dividends the court shall order the joint and the separate estate to be distributed in the same manner and among the same classes of creditors as in the case of insolvent debtors under chapter two hundred and sixteen.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 22. Enforcement of claim Section 22. When the amount due a creditor has been ascertained by a decree for distribution under this chapter, payment of the same may be enforced in the same manner as is provided by section twenty-four of chapter one hundred and ninety-seven.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 23. Allowed claims; sufficiency of assets; payment of other claims Section 23. If, after the completion of the list of allowed claims, the assets prove sufficient to pay all such claims, the executor or administrator shall pay them in full; and if any other debt is afterward recovered against him, he shall be liable therefor only to the extent of the assets then remaining. If there are two or more such creditors, the assets, if insufficient to pay their demands in full, shall be divided among them pro rata.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 24. Additional claims; procedure Section 24. The executor or administrator, in an action brought against him on such demand, may prove the amount of assets in his hands, and thereupon judgment shall be rendered in the usual form; but execution shall not issue for more than the amount of such assets; and if there are two or more judgments, the court shall apportion the amount among them.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 25. Unclaimed dividends; disposition Section 25. After twenty years from the decree of distribution of an insolvent estate, the probate court, upon application by a creditor whose claim was allowed, and after notice of such application published in one or more newspapers of the county for not less than two years on such days as the court shall direct, may order any unclaimed dividends, with the interest received thereon, after deducting all expenses and charges of administration since the decree of distribution, to be distributed anew among the creditors who have received their dividends. If there is a surplus after satisfying the claims of such creditors with interest, it shall be distributed to the persons legally entitled thereto.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 26. Unclaimed dividends; claims by executor of deceased creditor Section 26. If a creditor who has failed to receive his dividend as aforesaid has died, the probate court for the county where administration on his estate might have been granted shall, at any time before a decree to distribute the unclaimed dividends is passed, grant administration upon his estate, although more than twenty years may have elapsed since his death, and the administrator may receive and administer such dividend.
PAYMENT OF DIVIDENDS TO CREDITORS Chapter 198: Section 27. Executor; removal for neglect to account Section 27. If an executor or administrator neglects to render and settle his accounts in the probate court within six months after the final determination of the claims of creditors of an insolvent estate, or within such further time as the court may allow, and thereby delays a decree of distribution, such neglect shall be unfaithful administration and he may be removed.
CONTINGENT CLAIMS Chapter 198: Section 28. Funds; setting aside for payment of dividends Section 28. If, at the expiration of the time allowed for the proof of claims, a person is liable as a surety for the deceased, or has a contingent claim against his estate which could not have been proved as a debt within said time, the court upon proof thereof shall, in ordering a dividend, leave an amount sufficient to pay to such contingent creditor a proportion equal to what is then to be paid to the other creditors.
CONTINGENT CLAIMS Chapter 198: Section 29. Proof of claims Section 29. If such contingent debt becomes absolute within four years after the time of the giving of the executor’s or administrator’s bond, it may be proved before the probate court, before the commissioners already appointed, or before others to be appointed therefor.
PROOF OF CLAIMS Chapter 198: Section 3. Commissioners; duties Section 3. The commissioners shall be sworn. They shall appoint convenient times and places for their meetings to receive and examine claims, and shall by mail or otherwise give to all known creditors at least seven days’ written notice of the time and place of each meeting, and such other notice as the court shall order. The executor or administrator shall, fourteen days at least before the first meeting, give to the commissioners the names and residences of all known creditors. At the expiration of the time allowed for the proof of claims, the commissioners shall make their return to the court. They shall mail postpaid within seven days thereafter, or within such further time as the court orders, a written notice to all known creditors and to the administrator of the estate or the executor of the will of the deceased, and to the heirs, legatees or devisees of the deceased, of the filing of said return, and shall, within thirty days after said notice, file in the registry of probate an affidavit of having given the same, with a copy thereof.
CONTINGENT CLAIMS Chapter 198: Section 30. Dividends; allowance Section 30. Upon the allowance of such claim the creditor shall be entitled to a dividend thereon equal to what has been paid to the other creditors, so far as the same can be paid without disturbing the former dividend; and if the claim is not finally established, or if the dividend upon it does not exhaust the assets, the residue shall be divided among all creditors whose claims have been allowed. Any surplus after satisfying the claims of such creditors, with interest, shall be distributed to the persons legally entitled thereto.
ACTIONS BY CREDITORS PENDING INSOLVENCY PROCEEDINGS Chapter 198: Section 31. Representation of insolvency; effect Section 31. Except as provided in the following section, no action shall be maintained against an executor or administrator after an estate has been represented insolvent, unless for a claim entitled to a preference which would not be affected by the insolvency of the estate or unless the assets prove more than sufficient to pay all the debts allowed. If the estate is represented insolvent while an action is pending for a claim which is not entitled to such preference, the action may be discontinued without costs; or, if it is disputed, it may be tried and determined and judgment rendered thereon in the same manner and with the same effect as is provided in the case of an appeal from the allowance or disallowance of the claim of a creditor; or it may be continued without costs until it appears whether the estate is insolvent, and, if it is not insolvent, the plaintiff may prosecute the action as if no such representation had been made.
ACTIONS BY CREDITORS PENDING INSOLVENCY PROCEEDINGS Chapter 198: Section 32. Commencement of action Section 32. If it is not ascertained at the end of nine months after the granting of letters testamentary or of administration whether an estate represented as insolvent is or is not so in fact, any creditor whose claim has not been presented for proof may commence an action therefor against the executor or administrator, and such action may be continued without costs for the defendant until it appears whether the estate is insolvent; and if it is not insolvent, the plaintiff may prosecute the action as if no such representation had been made.
ACTIONS BY CREDITORS PENDING INSOLVENCY PROCEEDINGS Chapter 198: Section 33. Judgment; entry; effect Section 33. If judgment has been rendered against an estate which has been represented insolvent, and a certified copy from the probate court, showing such representation, has been filed in the clerk’s office of the court in which the judgment was rendered, no execution shall be issued on such judgment; but such judgment may be presented for allowance in the same manner as other claims of creditors, and otherwise the proceedings relative to such judgment shall be the same as those relative to judgments rendered on appeal under section thirteen.
PROOF OF CLAIMS Chapter 198: Section 4. Claims; examination by court Section 4. If the court does not appoint commissioners under section two, it shall receive and examine the claims of creditors, allow such as should legally be allowed and cause a list of all claims presented for proof, with the amount allowed or disallowed on each claim, to be made and certified by the register of said court.
PROOF OF CLAIMS Chapter 198: Section 5. Creditors; notice Section 5. The court shall in such cases order the executor or administrator to give to creditors notice of the times when and places where their claims will be examined, in the same manner as is required of commissioners.
PROOF OF CLAIMS Chapter 198: Section 6. Commissioners; vacancies Section 6. If a commissioner appointed under section two dies or resigns before his duties are fully performed, or, if for unreasonable neglect to make the return required by law or for any other cause, is removed, the probate court may fill the vacancy.
PROOF OF CLAIMS Chapter 198: Section 7. Claimants; answers under oath Section 7. The commissioners or the court may require a claimant to make true answers under oath to all questions relative to his claim; and if he refuses to take such oath or to answer fully all questions, his claim may be disallowed. Any one of the commissioners may administer the oath to claimants and witnesses.
PROOF OF CLAIMS Chapter 198: Section 7A. Voidable preferences; surrender; effect Section 7A. The claims of creditors who have received preferences voidable under section ten B shall not be allowed unless such creditors shall first surrender such preferences.
PROOF OF CLAIMS Chapter 198: Section 8. Examination by court Section 8. The probate court may, except while an appeal is pending, upon the application of the executor or administrator, examine under oath any person whose claim has been allowed as aforesaid unless such allowance has been made by the supreme judicial or superior court on appeal, may summon any person to give evidence relative thereto, and, upon notice, alter or expunge a claim which it finds is founded in whole or in part in fraud, illegality or mistake.
PROOF OF CLAIMS Chapter 198: Section 9. Limitations on time Section 9. Six months after the appointment of the commissioners or after the order of the court under section five shall be allowed for creditors to present and prove their claims; and if a new commissioner is appointed under section six, the time shall be extended until the expiration of six months from his appointment. The court may allow further time upon petition of the commissioners or any party in interest, and during such extended time presentation of claims which might have been previously presented shall not be barred by any law limiting the time within which actions by a creditor of the deceased may be brought against an executor or administrator.
Chapter 199: Section 1. Administration of estates Section 1. If administration is taken in this commonwealth on the estate of a person who was an inhabitant of any other state or country, his estate found here shall, after payment of his debts, be disposed of according to his last will, if any; otherwise his real property shall descend according to the laws of this commonwealth, and his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant.
Chapter 199: Section 2. Settlement of estates Section 2. After the payment of all debts for which such estate is liable in this commonwealth, the residue of the personal property may be distributed and disposed of, as provided in the preceding section, by the probate court; or, in the discretion of the court, it may be transmitted to the executor or administrator, if any, in the state or country of which the deceased was an inhabitant, to be there disposed of according to the laws thereof. But nothing herein shall be construed to prevent the distribution or transmission of part of the personal property of an estate in process of settlement when it can be done without detriment to the estate or prejudice to the creditors.
Chapter 199: Section 3. Insolvent estates; settlement Section 3. If such person dies insolvent, his estate found in this commonwealth shall, as far as practicable, be so disposed of that all his creditors here and elsewhere may receive equal proportions of their respective debts.
Chapter 199: Section 4. Insolvent estates; transmittal to foreign executor; conditions Section 4. The estate shall not be transmitted to the foreign executor or administrator until all the creditors who are citizens of this commonwealth have received the proportion which would be due to them if the whole estate of the deceased, wherever found, which is applicable to the payment of common creditors were divided without preference among all the creditors in proportion to their respective debts; and no creditor not a citizen of this commonwealth shall be paid out of the assets found here until all those who are such citizens have received the proportion provided in the preceding section.
Chapter 199: Section 5. Insolvent estate; surplus; disposition Section 5. If there is a residue after such payment to the citizens of this commonwealth, it may be paid to any other creditors who have duly proved their debts here, in proportion to the amount due to each of them, but no one shall receive more than would be due to him if the whole estate were divided ratably among all the creditors as before provided. The remainder may be transmitted to the foreign executor or administrator; or if there is none, it shall, after the expiration of four years from the appointment of the administrator, be distributed ratably among all creditors, both citizens and others, who have proved their debts in this commonwealth.
Chapter 199A: Section 1. Definitions Section 1. In this chapter the following words shall have the following meanings unless the context clearly requires otherwise:“Domiciliary foreign guardian or foreign conservator”, a foreign guardian or foreign conservator currently qualified and acting under appointment by a court of another jurisdiction in which the protected person is currently domiciled.
“Domiciliary foreign personal representative”, a foreign personal representative under the law of the jurisdiction of a decedent’s domicile.
“Foreign guardian or foreign conservator”, a guardian or conservator who was appointed by a court of another jurisdiction to administer the estate of a minor or other protected person.
“Foreign personal representative”, a personal representative under the law of another jurisdiction.
“Local administration”, administration by a personal representative appointed in the commonwealth pursuant to appointment proceedings described in chapters one hundred and ninety-two, one hundred and ninety-three or one hundred and ninety-four.
“Local guardian or conservator”, a guardian or conservator appointed in the commonwealth pursuant to appointment proceedings described in chapter two hundred and one, but excluding one who is merely a guardian ad litem.
“Local personal representative”, any personal representative appointed in the commonwealth pursuant to appointment proceedings described in chapter one hundred and ninety-two, one hundred and ninety-three or one hundred and ninety-four and shall exclude foreign personal representatives who acquire the power of a local personal representative pursuant to section six.
“Nonresident decedent”, a decedent who was domiciled in another jurisdiction at the time of his death.
“Nonresident protected person”, a protected person who is currently domiciled in another jurisdiction.
“Personal representative”, an executor, administrator, successor personal representative, special administrator, public administrator, and persons who perform substantially the same function under the law governing their status.
“Protected person”, a minor or other person whose estate in the commonwealth or in any other jurisdiction is currently administered by a guardian or conservator appointed by a court.
“Resident creditor”, a person domiciled in, or doing business in the commonwealth, who is, or could be, a claimant against an estate of a nonresident decedent or nonresident protected person.
Chapter 199A: Section 10. Proceedings to determine property rights; representation by foreign fiduciaries Section 10. In any proceeding in the commonwealth to determine rights in real or personal property in the commonwealth or administered by a fiduciary in the commonwealth or under a will admitted to probate in the commonwealth:(a) The interest of a nonresident decedent whose estate is not under local administration may be represented by any foreign personal representative of a decedent named a party to the proceeding and served in the manner provided in section eleven or by other lawful means;(b) The interest of a nonresident protected person named a party to the proceeding for whom there is no local guardian or conservator may be represented by a foreign guardian or conservator served in the manner provided in section eleven or by other lawful means. The authority of a foreign personal representative or of a foreign guardian or conservator under this section shall include authority to be a party to an agreement of compromise in respect of the rights of the decedent or the protected person in such property. The procedures authorized in this section are in addition to and not in limitation of all other applicable procedures.
Chapter 199A: Section 11. Service of process; appearance Section 11. In addition to and not in limitation of other provision of law, service of process may be made upon the foreign personal representative, guardian or conservator by registered or certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of the commonwealth on either the foreign personal representative or his decedent immediately prior to death.
If service is made upon a foreign personal representative, guardian or conservator as provided in this section, he shall be allowed at least thirty days within which to appear or respond.
Chapter 199A: Section 12. Conclusiveness of judgments Section 12. An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate of a nonresident decedent shall be as binding on the local personal representative as if he were a party to the adjudication.
Chapter 199A: Section 13. Probate court jurisdiction Section 13. Nothing in this chapter shall limit the jurisdiction of the probate court under other provisions of the General Laws.
Chapter 199A: Section 2. Payment or delivery of property to foreign fiduciaries Section 2. At any time after the expiration of sixty days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent, or holding personal property subject to a general power of appointment exercised by the will of a nonresident decedent duly admitted to probate in a foreign jurisdiction, may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his status and an affidavit made by or on behalf of the representative stating:(1) the date of death of the nonresident decedent,(2) that no local administration, or application or petition therefor, is pending in the commonwealth, and(3) that the foreign personal representative is entitled to payment or delivery.
Payment or delivery may be made to a foreign personal representative of a nonresident decedent appointed in a jurisdiction which was not the domicile of the decedent upon similar proof of appointment and affidavit, if such affidavit also states that there is no domiciliary foreign personal representative and no proceedings are pending for appointment of a personal representative in any court in the jurisdiction of the decedent’s domicile and that the foreign personal representative is the personal representative appointed in the appointment proceeding first commenced.
If such nonresident decedent owned tangible personal property located in the commonwealth at the time of his death, or at any time during the twelve months preceding his death had a permanent or temporary place of abode in the commonwealth, a foreign personal representative of the decedent shall not accept payment or delivery pursuant to this section earlier than one month after filing proof of his authority in accordance with section five with a copy to the commissioner of revenue.
Any person indebted to a nonresident protected person who has not been domiciled in the commonwealth at any time within the preceding year, or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to such nonresident protected person may pay the debt, deliver the personal property, or the instrument to the domiciliary foreign guardian or conservator upon being presented with proof of his appointment and an affidavit made by or on behalf of the guardian or conservator stating:(1) that the protected person is not and has not been domiciled in the commonwealth at any time within the preceding year,(2) that no local guardian or conservator has been appointed for the protected person and no application or petition therefor is pending in the commonwealth, and(3) that the foreign guardian or conservator has duly qualified, is currently acting and is entitled to payment or delivery.
Payment or delivery may be made to a foreign guardian or conservator of a nonresident protected person appointed in a jurisdiction which is not the current domicile of the protected person upon similar proof of appointment and affidavit, if such affidavit also states:(1) that there is no domiciliary foreign guardian or conservator and no proceedings are pending for appointment of a guardian or conservator in any court of the jurisdiction of the protected person’s domicile, and(2) that either the protected person was domiciled in the jurisdiction in which the foreign guardian or conservator was appointed at the time of his appointment, or that the foreign guardian or conservator is the guardian or conservator appointed in the appointment proceeding first commenced.
Chapter 199A: Section 3. Release of debtors or persons possessing property Section 3. Payment or delivery made in good faith on the basis of the proof of authority and affidavit shall release the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative or local guardian or conservator.
Chapter 199A: Section 4. Notice by resident creditors Section 4. Payment or delivery under section two may not be made if a resident creditor of the nonresident decedent or nonresident protected person has notified the debtor of the nonresident decedent or nonresident protected person or the person having possession of the personal property belonging to or appointed by the nonresident decedent or belonging to the nonresident protected person that the debt should not be paid nor the property delivered to the foreign personal representative, guardian or conservator.
Chapter 199A: Section 5. Filing by domiciliary foreign personal representatives Section 5. If no local administration or application or petition therefor is pending in the commonwealth, a domiciliary foreign personal representative may file with a probate court in the commonwealth in a county in which property belonging to the decedent is located, authenticated copies of his appointment and of any official bond he has given.
Chapter 199A: Section 6. Powers of domiciliary foreign personal representatives Section 6. A domiciliary foreign personal representative who has complied with section five may exercise as to personal property in the commonwealth all the powers of a local personal representative acting in a similar representative capacity and may maintain actions and proceedings in the commonwealth, subject to compliance with sections eight and nine of chapter one hundred and ninety-five.
Chapter 199A: Section 7. Local fiduciaries; effect on powers of foreign fiduciaries Section 7. The power of a foreign personal representative under section two or six shall be exercised only if there is no administration or application therefor pending in the commonwealth. An application for local administration of the estate shall terminate the power of the domiciliary foreign personal representative to act under section six, but the probate court may allow the domiciliary foreign personal representative to exercise limited powers to preserve the estate. No person, who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application for, or grant of, local administration. The local personal representative shall be subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in the commonwealth.
The power of a foreign guardian or conservator under section two shall be exercised only if no local guardian or conservator has been appointed and no application therefor is pending in the commonwealth. No person who, before receiving actual notice of such appointment or application, has changed his position in reliance upon the powers of a foreign guardian or conservator shall be prejudiced by reason of the appointment of a local guardian or conservator or an application therefor.
Chapter 199A: Section 8. Jurisdiction over foreign fiduciaries Section 8. A foreign personal representative shall submit himself to the jurisdiction of the courts of the commonwealth by (1) filing authenticated copies of his appointment as provided in section five, (2) receiving payment of money or taking delivery of personal property under section two, or (3) doing any act as a personal representative in the commonwealth which would have given the commonwealth jurisdiction over him as an individual. Jurisdiction under section two shall be limited to the money or value of personal property collected.
A foreign guardian or conservator shall submit himself to the jurisdiction of the courts of the commonwealth by acting under clauses (2) and (3) of the preceding paragraph.
Chapter 199A: Section 9. Additional jurisdiction over foreign personal representatives Section 9. In addition to jurisdiction conferred by section eight, a foreign personal representative shall be subject to the jurisdiction of the courts of the commonwealth to the same extent that his decedent was subject to jurisdiction immediately prior to death.
Chapter 200: Section 1. Receiver; petition for appointment Section 1. If a person entitled to or having an interest in property within the jurisdiction of the commonwealth has disappeared or absconded from the place within or without the commonwealth where he was last known to be, and it is not known where he is, or if such person, having a spouse or minor child, dependent to any extent upon him for support, has disappeared or absconded without making sufficient provision for such support, and it is not known where he is, or if it is known that he is without the commonwealth, anyone who would under the law of the commonwealth be entitled to administer upon the estate of such absentee if he were deceased, or if no one is known to be so entitled, any suitable person, or such spouse, or some one in behalf of such spouse or minor, may file a petition under oath in the probate court for the county where any such property is situated or found, stating the name, age, occupation and last known residence or address of such absentee, the date and circumstances of the disappearance or absconding, and the names and residence of other persons, whether members of such absentee’s family or otherwise, of whom inquiry may be made, and the amount of such property, real and personal, so far as known, and its location within the commonwealth, praying that a receiver of such property be appointed under this chapter. The state treasurer shall be made a party to every such petition and shall be given due notice of all subsequent proceedings under this chapter.
Chapter 200: Section 10. Surviving spouse and children; allowance Section 10. The court may order said property or its proceeds acquired by mortgage, lease or sale to be applied in payment of charges incurred or that may be incurred in the support and maintenance of the absentee’s spouse and minor children, and to the discharge of such debts and claims for alimony as may be proved against said absentee.
Chapter 200: Section 11. Repealed, 1980, 178, Sec. 2 Chapter 200: Section 12. Receiver; compensation; accounting; limitation on actions Section 12. The receiver shall be allowed such compensation and disbursements as the court orders, to be paid out of said property or proceeds. If before any order for distribution is made under section thirteen, such absentee, or a duly appointed administrator, executor, assignee in insolvency or trustee in bankruptcy of his estate, or his duly appointed guardian or conservator, appears and claims said property, such receiver shall account for, deliver and pay over to such absentee or legal representative the remainder thereof, after making such deductions as may be allowed under this section and section ten. If such absentee or legal representative does not appear and claim said property prior to any such order, all the right, title and interest of such absentee in said property, real or personal, or the proceeds thereof shall cease, except as provided in section thirteen, and no action shall be brought by him or such legal representative on account thereof.
Chapter 200: Section 13. Distribution of property; procedure; tax Section 13. If upon the expiration of seven years after the date of the disappearance or absconding as found and recorded by the court or, in case such receiver is not appointed within six years after said date, upon the expiration of one year after the date of the appointment of the receiver, the remainder of said property has not been accounted for, delivered or paid over to the absentee or his legal representative under section twelve, the court shall order the distribution thereof, subject to the deduction hereinafter provided, to the persons to whom, and in the shares and proportions in which, it would have been distributed if said absentee had died intestate within the commonwealth on the date of the expiration of said seven years or of said one year, as the case may be. Said remainder shall accordingly be so distributed unless, before such distribution is completed, the absentee or his legal representative referred to in section twelve appears and claims the same, in which case the court, upon the petition of the receiver or such absentee or legal representative, may make such further order relative to the distribution thereof as it deems just and equitable. Prior to making distribution as herein provided, said receiver shall deduct from the amount otherwise available for distribution, and shall pay over to the commissioner of revenue for the commonwealth, the equivalent of the tax which would have been imposed by chapter sixty-five or chapter sixty-five A or chapter sixty-five C if said absentee had died intestate within the commonwealth on said date and said property had passed to the distributees by inheritance.
Chapter 200: Section 14. Repealed, 1941, 399, Sec. 2 Chapter 200: Section 2. Notice to show cause Section 2. The court shall issue a notice reciting the substance of the petition which shall be addressed to such absentee and to all persons who claim an interest in the property of the absentee within the jurisdiction of the commonwealth, and to all whom it may concern, citing them to appear at a time and place named and show cause why a receiver of such property should not be appointed and such property held and disposed of under this chapter.
Chapter 200: Section 3. Return of notice; publication Section 3. The return day of said notice shall be not less than thirty nor more than sixty days after its date. The court shall order said notice to be published once in each of three successive weeks in one or more newspapers within the commonwealth, and to be posted in two or more conspicuous places in the town within the commonwealth where the absentee last resided or was known to have been either temporarily or permanently and upon each such parcel of his or her land within the commonwealth. The court shall order said notice to be mailed to the last known address of the absentee and so much of said notice as relates to land to be recorded in the registry of deeds for the county and district where the land is located. The court may order other and further notice to be given within or without the commonwealth.
Chapter 200: Section 4. Fees and costs Section 4. If the petition is dismissed, the fees and cost of publishing, serving and recording said notice shall be paid by the petitioner; if a receiver is appointed they shall be paid by the receiver and allowed in his account.
Chapter 200: Section 5. Receiver; appointment; bond Section 5. The absentee or any person who claims an interest in any property of the absentee within the jurisdiction of the commonwealth may appear and show cause why the prayer of the petition should not be granted. The court may after hearing dismiss the petition, or it may appoint a receiver of such property. In making such appointment the court may give preference to anyone who would under the law of the commonwealth be entitled to administer the estate of such absentee if he were deceased or to any person who is found by the court to have been at the date of such disappearance or absconding an agent of such absentee and in possession of a substantial portion of such property. If a receiver is appointed the court shall find and record the date of the disappearance or absconding of the absentee; and such receiver shall give bond to the judge of probate and his successors in office in such sum and with such condition as the court orders, with a company named in section one hundred and five of chapter one hundred and seventy-five and approved by the court as surety thereon.
Chapter 200: Section 6. Possession of property by receiver Section 6. After the approval of such bond the receiver shall take possession of the property of the absentee within the jurisdiction of the commonwealth so far as is known, and he shall file in the registry of probate a schedule of the property received by him.
Chapter 200: Section 7. Receiver; power to hold additional property; debts Section 7. Such receiver upon petition filed by him may be authorized and directed to take possession of any additional property within the commonwealth which belongs to such absentee and to demand and collect all debts due such absentee from any person within the commonwealth.
Chapter 200: Section 8. Intangible property Section 8. If such absentee has left no corporeal property within the commonwealth, but there are debts and obligations due or owing to him from persons within the commonwealth, a petition may be filed as provided in section one, stating the nature and amount of such debts and obligations, so far as known, and praying that a receiver thereof may be appointed. The court may thereupon issue a notice as above provided and may, upon the return of said notice and after a hearing, dismiss the petition or appoint a receiver and authorize and direct him to demand and collect the debts and obligations specified in said petition; provided, that no public administrator shall be appointed as such receiver when the sole known assets of the estate of the absentee consist of an amount of money standing to his credit in a savings bank or in the savings department of a trust company, in case such account has not been increased by a deposit, nor decreased by a withdrawal of any part of his deposits or of any part of the interest thereon, during a period of ten years or more next preceding the petition for appointment of a receiver. The receiver shall give bond as provided in section five, and shall hold the proceeds of such debts and obligations and all property received by him, and distribute the same as hereinafter provided. He may be further authorized and directed as provided in section seven.
Chapter 200: Section 9. Property; management and sale Section 9. The court may make orders for the care, custody, leasing and investing of all property and its proceeds in the possession of the receiver. If any of said property consists of live animals or is perishable or cannot be kept without great or disproportionate expense, the court may order such property to be sold at public or private sale. After the appointment of a receiver, upon his petition and after notice, the court may order all or part of said property, including the rights of the absentee in land, to be sold at public or private sale to supply money for payments authorized by this chapter or investment approved by the court. Except as provided by order of the court, the receiver shall have the following powers:(1) to sell any personal property in the possession of the receiver or any interest therein, for cash, credit or for part cash and part credit, and with or without security for unpaid balances.
(2) to invest in prudent investments.
(3) to effect a fair and reasonable compromise with any debtor, creditor, obligor or obligee.
Chapter 200A: Section 1. Definitions Section 1. As used in this chapter, the following words shall, unless the context otherwise requires, have the following meanings:—“Abandoned property”, property presumed abandoned pursuant to this chapter.
“Claim”, demand for payment or surrender of property from the holder of same, whose duty it is to pay or surrender the property to the legitimate claimant.
“Date prescribed for payment or delivery”, the earliest date upon which the owner of property could become entitled to the payment, possession or delivery thereof by demand or other affirmative act.
“Person”, any individual, corporation, joint stock companies, estate, trust, partnership, association, government or political subdivision, public corporation or authority, any bank defined in section 1 of chapter 167, savings bank, savings and loan association, credit union, trust company, national banks, federal savings and loan association, co-operative banks, bank holding companies and bank subsidiaries, mutual funds and any issuer of traveler’s checks, money orders, outstanding checks and unclaimed wages or similar monetary obligations or commitments, whether organized or operated under state or federal law; utility companies, insurance companies; two or more persons having a joint or common trust or any legal or commercial entity.
“Property”, all intangible property, including: (i) money, money orders, checks, drafts, deposits, interest, dividends, income and bonds; (ii) credit balances, customer overpayments, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, mineral proceeds and unidentified remittances; (iii) stocks and other intangible ownership interests in business associations; (iv) money deposited to redeem stocks, bonds, coupons and other securities, or to make distributions; (v) amounts due and payable under the terms of an annuity or insurance policy; (vi) amounts distributed from a trust or custodial fund established under a plan to provide any health, pension, vacation, severance, retirement, death, stock purchase, profit sharing, employees savings, supplemental unemployment insurance, or similar benefit; and all tangible property, which includes all other property not defined herein as intangible.
“Treasurer”, the treasurer and receiver-general.
Chapter 200A: Section 10. Property surrendered to treasurer; claims; hearings; appeals Section 10. (a) Any person claiming an interest in property surrendered to the state treasurer under the provisions of this chapter may establish his claim at any time thereafter. In the event that said property has not been liquidated at the time said claim is filed the state treasurer shall, forthwith, delay liquidation proceedings that may be in process until such time as the rights of the claimant have been finally determined.
(b) The state treasurer shall possess full and complete authority to determine all such claims and shall, forthwith, send a written notice of such determination to the claimant. At any time within twenty days thereafter such claimant may apply for a hearing and redetermination of his claim. After an appropriate hearing before the state treasurer, or person duly designated by him, the state treasurer shall make a final determination.
(c) The state treasurer, or any person duly designated by him, is empowered to take testimony under oath and shall have the power to subpoena and require the attendance of witnesses and the production of books, papers and documents which may be pertinent to such hearing.
(d) The state treasurer shall render a decision within thirty days after such hearing. A claimant adversely affected by such decision may appeal to the district, municipal or superior court of the county wherein he resides and shall be entitled to a trial de novo. Such appeal shall be perfected by the claimant within twenty days after receiving notice from the state treasurer. Any party adversely affected by a decree or order of the district, municipal or superior court may appeal to the supreme judicial court within twenty days from the date of the decree.
(e) If the validity of a claim shall be determined in favor of the claimant, the treasurer shall pay over to the claimant only that amount which the treasurer actually received together with interest at the rate of one-twelfth of one per cent per month from the time when it was received by the treasurer to the time when it was paid by him to the claimant; provided, however, that if the property claimed was interest bearing to the owner on the date of surrender by the holder then the treasurer shall instead add interest at a rate not to exceed five-twelfths of one per cent per month or such lesser rate as the property earned while in the possession of the holder. Such interest on interest bearing property shall begin to accumulate on the date property is delivered to the state treasurer and shall cease on the earlier of the expiration of fourteen years following delivery or the date on which payment is made to the owner. No interest on such interest bearing property shall be payable for any period prior to the effective date of this paragraph. Any holder who pays to the owner property which has been delivered to the commonwealth and which if claimed from the treasurer, would be subject to this section as interest-bearing property shall add interest as provided in this section. Such added interest shall be repaid to the holder by the treasurer in the same manner as the principal.
(f) If the claimant is domiciled in a country or state outside the United States or its territories and the state treasurer determines that there is not a reasonable assurance that the claimant will actually receive the payment to which he is entitled under this section in substantially full value, the superior court, upon petition of the state treasurer or an interested party, or in its discretion, may order that the state treasurer be permitted to liquidate the property if it has not already been liquidated and to turn over the amount of the payment to a recognized public or private agency for the purchase of goods in the form of necessaries of life, food, clothing and medicines, to be sent to the claimant upon his written request, order or assignment. Such order shall be final and binding upon all the parties in interest.
(g) All claims previously administered under the provisions of sections one hundred and forty-nine A to one hundred and forty-nine D, inclusive, of chapter one hundred and seventy-five shall be administered under the provisions of this section.
(h) If the claim is for property presumed abandoned under section five B which was sold by the treasurer within three years after the date of delivery, the amount payable for that claim is the value of the property at the time the claim was made or the net proceeds of sale, whichever is greater.
Chapter 200A: Section 10A. Dividends, interest, etc.
; credit to owner’s account Section 10A. Whenever any property is paid or delivered to the treasurer other than money under this act, the treasurer upon receipt, shall credit to the owner’s account any dividends, interest or other increments realized or accruing on the property at or before liquidation or conversion thereof into money.
Chapter 200A: Section 11. Actions by or in another state to reclaim property; costs; information Section 11. (a) At the request of another state, the attorney general may bring an action in the name of such other state in any court of competent jurisdiction in the commonwealth, or federal court within the commonwealth, to enforce the unclaimed property laws of such other state against a holder in the commonwealth of property subject to escheat or a claim of abandonment by such other state, if the other state has agreed to pay reasonable costs incurred by the attorney general in bringing the action.
(b) If the treasurer believes that a person in another state holds property subject to a claim of abandonment by the commonwealth under this chapter, the treasurer may request that the attorney general of the other state, or any other person, bring an action in the name of the commonwealth to enforce the provisions of this chapter against such person.
(c) The commonwealth shall pay all reasonable costs incurred in any action brought under the authority of this section. The treasurer may agree to pay to any person bringing such an action a fee not to exceed ten per cent of the value, after deducting reasonable costs, of any property recovered for the commonwealth as a direct or indirect result of the action; provided, however, that any cost or fee paid pursuant to this section shall not be deducted from the amount that is subject to the claim by the owner in accordance with this chapter.
(d) The treasurer may enter into an agreement to provide information needed to enable another state to audit or otherwise determine unclaimed property it may be entitled to escheat or subject to a claim of custody as abandoned property. The treasurer may, by regulation, require the reporting of information needed to enable him to comply with agreements made pursuant to this section and may prescribe the form including verification of the information to be reported and the time for filing of the reports.
Chapter 200A: Section 12. Treasurer; examination of books and records; reporting violations; penalty; costs; interest; limitation period for examinations; appeal of audit findings; written petition for review Section 12. (a) The treasurer may at any reasonable time and upon reasonable notice examine the records of any person to determine if said person has complied with the provisions of the chapter. In the event such person refuses to permit the treasurer to examine such records, the treasurer shall petition the superior court for an order to allow the treasurer or his agents to examine all appropriate business records of such person.
(b) If the treasurer believes that the holder of property has violated the provisions of section seven, he shall petition the superior court for an order to require the holder thereof to turn over said property to him.
(c) If the court shall determine that the holder of such property has violated the provisions of section seven, he shall be liable to a penalty of not more than five hundred dollars; provided, however, that no person shall be penalized for failure to report property as provided herein if the court shall find that such person has acted in good faith.
(d) In the event that the superior court shall order the holder of property to turn over said property to the treasurer pursuant to paragraph (b), the court may include in said order a per diem rate of one hundred and fifty dollars per examiner as the cost of conducting the examination provided for in paragraph (a).
(e) In addition to any damages, penalties, or fines for which a person may be liable under other provisions of law, any person who fails to report or deliver unclaimed property within the time prescribed by this chapter, shall pay to the treasurer interest at the rate of twelve per cent per annum, or such adjusted rate as is hereinafter established under Title 26, section 6621 of the United States Code, on such property or value thereof from the date such property should have been paid or delivered.
(f) Any examination undertaken by the treasurer, pursuant to this section, shall be conducted within a period of limitation; provided, however, that said period of limitation shall be defined as an abandonment period of three years pursuant to section 2, 3, 4, 5, 5A, 5B, 5C, 6, 6A, 6B or 6D, plus a six year statute of limitation period immediately following said abandonment period; provided, further, that unless otherwise provided, holders of abandoned property shall maintain records of the property for the period of limitation; and provided, further, that in the event a holder fails to comply with the provisions of subsection (d) of section 7, any examination undertaken by the treasurer shall not be temporally limited.
(g) If the treasurer finds that the holder of property has violated the provisions of section 7 pursuant to an audit finding, the holder may appeal said finding. The appeal shall be in writing on a form prescribed by the treasurer and received by the assistant state treasurer of the abandoned property division within 30 days of said finding. The assistant state treasurer of the abandoned property division may hold a hearing on such appeal at a time and place to be fixed by him, but not later than 30 days from the date the appeal was due, unless such time shall be extended by mutual agreement of both parties. The holder may appear in person or by agent or attorney at such hearing. To the extent the assistant state treasurer of the abandoned property division may consider practicable, the hearing shall be conducted as informally as possible and shall eliminate formal rules of evidence, practice and pleading. The assistant treasurer or his designee shall hear all pertinent evidence and determine the facts, and shall issue an appropriate decision or order reversing, affirming or modifying in whole or in part said finding. The decision or order shall be made in writing within 45 days after the hearing and a copy of the decision or order shall be sent by registered mail to the holder or his designee, and to all interested parties. Nothing herein shall be construed as preventing the assistant state treasurer of the abandoned property division from granting temporary relief if, in his discretion, such relief is justified, nor from informally adjusting or settling controversies with the consent of all parties.
(h) A holder aggrieved by the decision of the assistant treasurer of the abandoned property division may, within 30 days of the receipt of such decision, file a written petition for review, on a form prescribed by the treasurer, with the treasurer or his appointee. Said petition shall include a summary of the facts presented to the assistant state treasurer of the abandoned property division, a copy of the assistant treasurer’s decision, the issue in dispute, and any other relevant information. Within 45 days of receipt of the petition, the state treasurer or his appointee, shall either affirm or amend the decision of the assistant state treasurer. The treasurer’s decision shall be in writing and sent by first class mail to the holder and any interested parties stating the decision and outlining the reasons therefor.
(i) A holder aggrieved by the decision of the treasurer or his appointee may, after exhausting the processes described in paragraphs (g) and (h), file a claim in superior court pursuant to the requirements set forth in chapter 212.
Chapter 200A: Section 13. Agreements to recover property Section 13. All agreements to pay compensation to recover or assist in the recovery of property reported under section seven made within twenty-four months after the date payment or delivery is made under section eight A are unenforceable. Such an agreement made more than twenty-four months after payment or delivery is required under said section eight A is valid if: (a) it is in writing, signed by the owner and discloses the nature and value of the property and the name and address of the person or entity in possession of the property. (b) the fee or compensation does not exceed ten percent at any time.
Nothing in this section shall be construed to prevent an owner from asserting, at any time, that any agreement to locate property is based on excessive or unjust compensation.
Chapter 200A: Section 13A. Rules and regulations Section 13A. The treasurer is hereby authorized to make necessary rules and regulations to carry out the provisions of this section.
Chapter 200A: Section 13B. Extensions for filing reports of abandoned property Section 13B. The treasurer is hereby empowered to extend the date for filing of a report and turning over property for a period up to two months upon written request of a holder if he deems such extension is warranted. Where such extension is granted the requirement for notice and publication by the treasurer shall be extended by a like period not to exceed two months.
Chapter 200A: Section 14. Construction Section 14. Nothing in this chapter shall be construed to affect the provisions of section thirteen of chapter eighteen; section six of chapter one hundred and fifteen A; section seven, eight and nine of chapter one hundred and twenty-two; section twenty-seven of chapter one hundred and twenty-three; sections ninety-six A and ninety-six B of chapter one hundred and twenty-seven; section five A of chapter one hundred and twenty-eight A; chapter one hundred and thirty-four; chapter one hundred and thirty-five; and, sections forty-five to forty-eight, inclusive, of chapter twenty-two C.
Chapter 200A: Section 15. Insufficient funds; appropriations Section 15. If during any session of the legislature there are insufficient funds in the Abandoned Property Fund to pay all claims which have been allowed by the state treasurer or ordered to be paid by the court, the treasurer shall so certify to the legislature and shall request the legislature to appropriate from the General Fund to the Abandoned Property Fund an amount sufficient to pay such claims.
Chapter 200A: Section 15A. Delivery or payment of abandoned property as release and discharge Section 15A. The payment or delivery of any property except property other than cash, whether or not payable or deliverable under this chapter, to the treasurer by any holder shall terminate any legal relationship between the holder and the owner and shall release and discharge such holder from any and all liability to the owner, his heirs, personal representatives, successors and assigns and any state or governmental agency, whether federal or foreign, by reason of such delivery or payment, regardless of whether such property, and such delivery and payment may be pleaded as a bar to recovery, and shall be a conclusive defense in any suit or action brought by such owner, his heirs, personal representatives, successors and assigns, or any state or governmental agency whether federal or foreign, or any other claimant against the holder by reason of such delivery or payment.
Chapter 200A: Section 15B. Duplicate certificates of ownership; holders of interests under Sec. 5B Section 15B. The holder of an interest under section five B shall deliver a duplicate certificate or other evidence of ownership if the holder does not issue certificates of ownership to the treasurer. Upon delivery of a duplicate certificate to the treasurer, the holder and any transfer agent, registrar, or other person acting for or on behalf of a holder in executing or delivering the duplicate is relieved of all liability of every kind in accordance with the provision of section fifteen D to every person, including any person acquiring the original certificate or the duplicate of the certificate issued to the treasurer, for any losses or damages resulting to any person by the issuance and delivery to the treasurer of the duplicate certificate.
Chapter 200A: Section 15C. Charges and cessation of interest on abandoned property Section 15C. In connection with property heretofore or hereinafter reportable or reportable under this chapter, no holder may impose any charges in respect of dormancy or inactivity on a savings or checking account or cease payment of interest unless:—(1) such charges and such cessation of interest are provided for in a valid, enforceable and written contract between the holder and the customer which specifies the amount of such charges and that interest will cease;(2) the customer is notified prior to the imposition of such charges and cessation of interest; and(3) it is not the policy of the holder to waive such charges or to restore interest. No holder shall deduct from the amount of any draft, registered check, money order, certified check, cashier’s check or treasurer’s check or any similar written instrument any charges imposed by reason of the failure to present such items for encashment unless such charges are provided for in a valid enforceable and written contract and it is not the policy of the holder to waive such charges.
Chapter 200A: Section 15D. Good faith delivery to treasurer; defense and indemnification by commonwealth Section 15D. (1) If the holder pays or delivers property to the treasurer in good faith and thereafter another person claims the property from the holder or another state claims the money or property under its laws relating to escheat or abandoned or unclaimed property, the commonwealth, upon written notice to the treasurer of the claim, shall defend the holder against the claim and indemnify the holder against any liability on the claim.
(2) For the purposes of this section, “good faith” shall mean: (1) payment or delivery was made in a reasonable attempt to comply with this chapter; (2) the person delivering the property was not a fiduciary then in breach of trust in respect to the property and had reasonable basis for believing, based on the facts then known to him, that the property was abandoned for the purposes of this chapter; and (3) there is no showing that the records pursuant to which the delivery was made did not meet reasonable commercial standards of practice in the industry.
Chapter 200A: Section 16. Inconsistent provisions; repeal Section 16. All provisions of the General Laws inconsistent herewith are hereby repealed.
Chapter 200A: Section 17. Severability Section 17. If any section or clause of this chapter is held invalid or unconstitutional by a court of competent jurisdiction the remainder shall not be affected thereby.
Chapter 200A: Section 1A. Intangible personal property; presumption of abandonment Section 1A. Unless otherwise provided, intangible personal property is presumed abandoned under this chapter if the conditions for presumption of abandonment stated in section three, four, five, five A, five B, six A, six B or six D exist, and if any one of the following four conditions are met:—(a) the last known address of the apparent owner is in the commonwealth as shown on the records of the person in possession of property;(b) no address of the apparent owner appears on the records of the person in possession of the property and(1) the last known address of the apparent owner is in the commonwealth, or(2) the person in possession of property subject to this chapter is domiciled in the commonwealth and has not previously paid the property to the state of the last known address of the apparent owner, or(3) the holder is a government or governmental subdivision or agency of the commonwealth and has not previously paid the property to the state of the last known address of the apparent owner;(c) the last known address, as shown on the records of the person in possession of property, is in a state that does not provide by law for the escheat or custodial taking of such property and the person in possession of property is domiciled in the commonwealth or is a government or governmental subdivision or agency of the commonwealth; or(d) the last known address, as shown on the records of the person in possession of property, of the apparent owner is in a foreign nation and the person in possession of property is domiciled in the commonwealth or is a subdivision or agency of the commonwealth.
Chapter 200A: Section 2. Property; presumption of abandonment Section 2. (a) Property which has been bequeathed to any person, shall be presumed abandoned, if not claimed by that person or his heirs, legatees or distributees within three years after the death of the testator unless the will makes provision in case of a lapse, failure or rejection of the bequest for the disposition of the property.
(b) When a person, owning property, is not known for three successive years to be living and neither he nor his heirs or distributees can be located or proved for three successive years to have been living, he shall be presumed to have died without heirs or distributees, and his property shall be presumed abandoned.
Chapter 200A: Section 3. Property on deposit; presumption of abandonment Section 3. Any deposit of property with a person having a residence or place of business in the commonwealth, or authorized to do business therein, together with the increments thereon, shall be presumed abandoned unless the owner has, within three years next preceding the date as of which reports are required by section seven:—(1) Communicated in writing with the person concerning the deposit; or(2) Been credited with interest on a passbook or certificate of deposit at his request; or(3) Had a transfer, disposition of interest or other transaction noted of record in the books or records of the person; or(4) Increased or decreased the amount of deposit; or(5) Owned other property for which clause (1), (2), (3) or (4) is applicable; provided, however, that the holder communicates in writing with the owner with regard to such property that would otherwise be presumed abandoned under this section at the address at which communications regarding such other property regularly are received; or(6) Had another relationship with the holder concerning which the owner has:(i) communicated in writing with the holder, or(ii) otherwise indicated an interest as evidenced by a memorandum on file prepared by an employee of the holder; provided, however, that if the holder communicates in writing with the owner with regard to the property that would otherwise be presumed abandoned under this section at the address at which communications regarding the other relationship regularly are received.
Chapter 200A: Section 3A. Automatically renewable abandonment periods Section 3A. The abandonment period of any property set forth in section three that is automatically renewable shall commence upon the expiration of its initial time period except that, in the case of any renewal to which the owner consents at or about the time of renewal by communicating in writing with the person holding the property or otherwise indicating such consent as evidenced by a memorandum on file prepared by an employee, the abandonment period shall commence upon the expiration of the last time period for which consent was given.
Chapter 200A: Section 4. Property deposited as security; presumption of abandonment Section 4. Subject to the provisions of section one A, any deposit of property made to secure payment for services rendered or to be rendered, or to guarantee the performance of service or duties, or to protect against damage or harm, and the increments thereof, shall be presumed abandoned, unless claimed by the person entitled thereto within three years after the occurrence of the event that would obligate the holder or depository to return it or its equivalent.
Chapter 200A: Section 5. Dividends, stock, bonds, etc.
; presumption of abandonment Section 5. Subject to the provision of section one A, all intangible personal property not otherwise presumed to have been abandoned under any other section of this chapter, including but not limited to all certificates of ownership, dividends, stocks, bonds, money, drafts and claims for money and credits, except deposits and the increments thereon referred to in section three that are held or owing in the commonwealth in the ordinary course of the person’s business, including all such property held by any fiduciary, shall be presumed abandoned unless claimed by the beneficiary or person entitled thereto within three years after the date prescribed for payment or delivery. Any dividend, distribution, interest, accrual, or payment on principal declared, set aside, accumulated, provided for or owed with respect to property presumed abandoned under the foregoing provisions of this section shall itself be presumed abandoned.
Notwithstanding the provisions of the preceding paragraph, any outstanding credit balances to a vendor or commercial customer from a vendor resulting from a transaction occurring in the normal and ordinary course of business shall be exempt from the provisions of this chapter. This exemption shall not apply to unallocated distributions from securities held by financial intermediaries including, but not limited to, brokers, mutual funds, custodians, trust companies and depositories and owing to unknown beneficiaries but held in the intermediary’s nominee names.
Chapter 200A: Section 5A. Insurance proceeds; presumption of abandonment Section 5A. (a) Subject to the provisions of section one A, funds held or owing by a life insurance company under any life or endowment insurance policy or annuity contract which has matured or terminated shall be presumed abandoned if unclaimed and unpaid for more than three years after the funds became due and payable as established from the records of the company.
(b) If a person other than the insured or annuitant is entitled to the funds and no address of such person is known to the company or if it is not definite and certain from the records of the company what person is entitled to the funds, it is presumed that the last known address of the person entitled to the funds is the same as the last known address of the insured or annuitant according to the records of the company. This presumption is a presumption affecting the burden of proof.
(c) A life insurance policy not matured by actual proof of the death of the insured according to the records of the company is deemed to be matured and the proceeds due and payable if:—(1) the insured has attained, or would have attained if he were living, the limiting age under the mortality table on which the reserve is based;(2) the policy was in force at the time the insured attained, or would have attained, the limiting age specified in paragraph (1); and,(3) neither the insured nor any other person appearing to have an interest in the policy has within the preceding three years, according to the records of the company (i) assigned, readjusted, or paid premiums on the policy, (ii) subjected the policy to loan, or (iii) corresponded in writing with the life insurance company concerning the policy.
(d) Any funds otherwise payable according to the records of the company are deemed due and payable although the policy or contract has not been surrendered as required.
Chapter 200A: Section 5B. Dividends, etc. of business associations; presumption of abandonment Section 5B. (a) Subject to section one A, any dividend, profit, distribution, interest, payment on principal, or other sum held or owing by a business association for or to its shareholder, certificate holder, member, bondholder, or other security holder, or a participating patron of a cooperative, who has not claimed it, or corresponded in writing with the business association concerning it, or otherwise indicated an interest as evidenced by a memorandum or other record on file with the association within three years after the date prescribed for payment or delivery is presumed abandoned.
(b) Subject to section one A, any intangible interest in a business association, as evidenced by the stock records or membership records of the association is presumed abandoned if (1) the interest in the association is owned by a person who for more than three years has neither claimed a dividend or other sum referred to in subsection (a) nor corresponded in writing with the association or otherwise indicated an interest as evidenced by a memorandum or other record on file with the association and (2) the association does not know the location of the owner at the end of such three year period. With respect to such interest the business association shall be deemed the holder.
(c) Subject to section one A, any dividends or other distributions held for or owing to a person at the time the stock or other security to which they attach are presumed abandoned also shall be presumed abandoned as of the same time.
(d) For the purposes of subsections (a) and (b) of this section a record of the sending of an Internal Revenue Service Form 1099, or its equivalent, to the persons enumerated in those subsections and a record of its not being returned by the United States Postal Service or its successor, shall be an indication of interest.
Chapter 200A: Section 5C. Employee benefit trust distributions; presumption of abandonment Section 5C. All employee benefit trust distributions and any income or other increment thereon shall be presumed abandoned if the owner within three years after it becomes payable or distributable has not accepted the distribution, corresponded in writing concerning the distribution, or otherwise indicated an interest as evidenced by a memorandum or other record on file with the fiduciary of the trust or custodial fund or administrator of the plan under which the trust or fund is established.
Chapter 200A: Section 5D. Gift certificates; validity; expiration Section 5D. A gift certificate, as defined in section 1 of chapter 255D, sold or offered to be sold shall be valid for not less than 7 years after its date of issuance. The date of issuance and the expiration date shall be clearly identified on its face, subject to section 75C of chapter 266, or, if an electronic card with a banked dollar value, clearly printed upon a sales receipt transferred to the purchaser of the electronic card upon the completed transaction, or otherwise made available to the purchaser or holder of the electronic card through means of an Internet site or a toll free information telephone line. A gift certificate not clearly marked with an expiration date or for which the expiration date is not otherwise made available as provided in this section shall be redeemable in perpetuity. Once an expiration date has been reached, the issuer of the gift certificate shall not be subject to section 7. Notwithstanding any general or special law to the contrary, upon a gift certificate being redeemed for at least 90 per cent of its face value, a consumer shall make an election to receive the balance in cash or to continue with the gift certificate.
Chapter 200A: Section 6. Money paid into court; presumption of abandonment Section 6. Monies paid into any court within the commonwealth for distribution, and the increments thereof, shall be presumed abandoned if not claimed within three years after the date of payment into court, or as soon after the three year period as all claims filed in connection with it have been disallowed or settled by the court.
Chapter 200A: Section 6A. Property distributable upon dissolution or liquidation; presumption of abandonment Section 6A. All property distributable in the course of a voluntary or involuntary dissolution or liquidation of a person that remains unclaimed by the person entitled thereto, within one year after the date of final distribution or liquidation, shall be presumed abandoned. This section shall apply to all tangible personal property located in the commonwealth and subject to the provisions of section one A to all intangible personal property.
Chapter 200A: Section 6B. Traveler’s checks and other written instruments; presumption of abandonment Section 6B. (a) Subject to subsection (b) of this section and section 1A, a sum payable on a certified check, draft, cashier’s check, treasurer’s check, registered check, or other similar written instrument, other than a third-party bank check, on which a person is directly liable shall be presumed abandoned under this section if it has been outstanding for more than 3 years from the date it was payable, or from the date of its issuance if payable on demand or, in the case of a traveler’s checks, has been outstanding for more than 15 years or, in the case of a money order, has been outstanding for more than 7 years from the date of its issuance, unless the owner has within 3 years, or within 15 years in the case of a traveler’s checks, or within 7 years in the case of a money order, correspond in writing with the person concerning it, or otherwise indicated an interest as evidenced by a memorandum on file with the person. A new person shall be directly liable if it is the actual holder of the fund representing the face amount of such instrument at the time of presumed abandonment under this section.
(b) Any sum payable on a money order, traveler’s check, certified check, draft, cashier’s check, treasurer’s check, or other similar written instrument, other than a third-party bank check, on which a person is directly liable is presumed abandoned if:—(1) the books and records of such person show that such money order, certified check, registered check, draft, cashier’s check, treasurer’s check, traveler’s check, or similar written instrument was purchased in the commonwealth;(2) the person has its principal place of business in this commonwealth and its books and records do not show the state in which such money order, certified check, draft, cashier’s check, treasurer’s check, traveler’s check, or similar written instrument was purchased; or(3) the person has its principal place of business in the commonwealth and its books and records show the state in which such certified check, registered check, draft, cashier’s check, treasurer’s check, money order, traveler’s check, or similar written instrument was purchased, and the laws of the state of purchase do not provide for the escheat or custodial taking of the sum payable on such instrument.
(c) Notwithstanding the provisions of subsection (b) this section shall apply to sums payable on certified checks, drafts, cashier’s checks, treasurer’s checks, money orders, traveler’s checks, registered checks and similar written instruments deemed abandoned on or after February first, nineteen hundred and sixty-five, except to the extent that such sums have been paid over to a state prior to January first, nineteen hundred and seventy-four. For the purposes of this subsection, the words “deemed abandoned” shall have the same meaning as those words have as used in an Act of Congress identified in Section 604 of Public Law 93-495 and approved on October twenty-eighth, nineteen hundred and seventy-four, (88th Statutes at Large 1500).
(d) Sums payable on certified checks, drafts, cashier’s checks, treasurer’s checks, money orders, traveler’s checks, and similar written instruments deemed abandoned prior to February first, nineteen hundred and sixty-five, shall be reportable pursuant to subsection (a).
Chapter 200A: Section 6C. Traveler’s checks and other written instruments; records; penalty Section 6C. (a) Any person that sells in the commonwealth certified checks, drafts, cashier’s checks, treasurer’s checks, registered checks, traveler’s checks, money orders, or other similar written instruments on which such person is directly liable, or that provides such certified checks, drafts, cashier’s checks, treasurer’s checks, registered checks, traveler’s checks, money orders, or similar written instruments to others, for sale in the commonwealth shall maintain a record indicating those traveler’s checks, money orders, or similar written instruments that are purchased from it in the commonwealth.
(b) The records required by this section must be retained for a period of five years from the date the report is filed.
(c) Any person that willfully fails to comply with this section shall be liable to the commonwealth for a civil penalty of five hundred dollars for each day of failure to comply, which penalty may be recovered in an action brought by the treasurer.
Chapter 200A: Section 6D. Property payable in course of demutualization; presumption of abandonment Section 6D. Notwithstanding any provision of this chapter to the contrary, unclaimed property payable or distributable in the course of a demutualization or related reorganization of an insurance company shall be presumed abandoned 3 years after the earlier of: (a) the date of last contact with the policyholder; (b) the date of last activity on the account of the policyholder, as defined in 960 CMR 4.
02; or (c) the date the property becomes payable or distributable.
Before presuming property abandoned pursuant to this section, the treasurer shall determine that the insurance company holding the unclaimed proceeds from its demutualization or related reorganization has made all reasonable, good faith efforts to locate, contact and inform the policyholder or other apparent owner of the existence of the property.
Chapter 200A: Section 6E. Mineral proceeds; abandonment Section 6E. (a) Mineral proceeds includes all obligations to pay resulting from the production and sale of minerals, including net revenue interests, royalties, overriding royalties, production payments, and joint operating agreements.
(b) All mineral proceeds that are held or owing by the holder and that have remained unclaimed by the owner for longer than three years after they become payable or distributable and the owners underlying right to receive those mineral proceeds are presumed abandoned.
At the time any owners underlying right to receive mineral proceeds is presumed abandoned under this section, any mineral proceeds then held for or owing to the owner as a result of the underlying right and any mineral proceeds accruing after that time as a result of the underlying right and not previously presumed abandoned are presumed abandoned.
Chapter 200A: Section 7. Report; form; contents Section 7. (a) Every person holding property declared by this chapter to be presumed abandoned shall report to the treasurer as provided in this section.
(b) The report shall be on a form prescribed by the treasurer and shall include:—(1) Except with respect to traveler’s checks, registered checks and money orders, the name, if known, and last known address, if any, of each person appearing from the records of the holder to be the owner of any property of the value of one hundred dollars or more presumed abandoned under this chapter.
(2) In the case of presumed abandoned funds of life insurance companies, the full name of the insured or annuitant, and his last known address, according to the records of the life insurance company.
(3) The nature and identifying number, if any, or description of any intangible property and the amount appearing from the records to be due, except that items of value under one hundred dollars each shall be reported in aggregate.
(4) Except for any property reported in the aggregate, the date when the property became payable, demandable, or returnable, and the date of the last transaction with the owner with respect to the property.
(5) Other information which the treasurer prescribes by rule as necessary for the administration of this section.
(c) If the holder is a successor to other persons who previously held the property for the owner, or if the holder has changed his name while holding the property, he shall file with his report all prior known names and addresses of each holder of the property.
(d) The report shall be filed no later than November first of each year as of June thirtieth or the end of the fiscal year next preceding but the report of life insurance companies, and persons holding unclaimed proceeds from the demutualization or related reorganization of a life insurance company shall be filed before May first of each year as of December thirty-first next preceding.
(e) The report shall be made under penalty of perjury, and if made by an individual, by the individual; if made by a partnership, by a partner; if made by an unincorporated association or private corporation, by an officer; and, if made by a public corporation, by its chief fiscal officer.
Chapter 200A: Section 7A. Notice to property owner at last known address Section 7A. If the person in possession of property in an amount of one hundred dollars or more presumed abandoned under this chapter has the last known address of the apparent owner which the person’s records do not disclose to be inaccurate, the holder shall at least sixty days before filing the annual report send a notice by first class mail to inform the owner of the process necessary to rebut the presumption of abandonment.
Chapter 200A: Section 7B. Property owner’s last known address; record Section 7B. Every person required to file a report under section seven, except holders in possession of property subject to section six C, shall, as to any property for which it has obtained the address of the owner, maintain a record of the name of the owner and last known address for five years or such other period as the treasurer shall prescribe by regulation.
Chapter 200A: Section 8. Notice of certain unclaimed property; publication; form Section 8. (a) The treasurer shall cause a notice to be published, not later than March first or, in the case of life insurance companies, September first of the same year following the report, at least once a week for two consecutive weeks in a newspaper of general circulation which is printed in English in each county in which an apparent owner had a last known address.
(b) Each published notice shall be entitled “notice of names of persons appearing to be owners of abandoned property”, and shall contain the names in alphabetical order of:—(1) those apparent owners listed in the reports as having a last known address within the county;(2) those apparent owners listed as having a last known address outside this commonwealth or as having no last known address in a report filed by a holder with his principal place of business within the county; and(3) the insured or annuitant in the case of funds described in section five A if: (i) the report does not list the name of the apparent owner and his last known address; and (ii) the last known address of the insured or annuitant is within the county.
(c) Each published notice shall also contain:(1) a statement that information concerning the amount or description of the property and the name and address of the holder may be obtained by any persons possessing an interest in the property by addressing an inquiry to the treasurer.
[There is no clause (2).
] (d) The treasurer is not required to publish in such notice any items of less than one hundred dollars value unless he deems such publication to be in the public interest.
(e) By March first or September first in the case of life insurance companies, the treasurer shall mail a notice to each person having an address listed therein who appears to be entitled to property of the value of one hundred dollars or more presumed abandoned under this chapter.
(f) The mailed notice shall contain:—(1) a statement that, according to a report filed with the treasurer, property is being held to which the addressee appears entitled;[There is no clause (2).
] (g) This section shall not apply to sums payable on traveler’s checks, money orders, and similar written instruments that are presumed abandoned under section six B.
Chapter 200A: Section 8A. Delivery or payment of abandoned property to state treasurer Section 8A. (a) A person who has filed a report as provided in section 7 shall, by November 1 or, in the case of life insurance companies and persons holding unclaimed proceeds from demutualization or related reorganization of a life insurance company, May 1, pay or deliver to the treasurer at the time of filing the report all property presumed abandoned specified in the report.
[There is no paragraph (b) or (c).
] (d) Payment of any intangible property to the treasurer shall be made at the office of the treasurer in Boston or at such other location as the treasurer by regulation may designate.
Chapter 200A: Section 8B. Recovery of property by another state Section 8B. (a) At any time after property has been paid or delivered to the treasurer under this chapter, another state is entitled to recover the property if:—(1) for property presumed abandoned under clause (b) of section one A because no address of the apparent owner of the property appeared on the records of the holder when the property was presumed abandoned under this chapter, the last known address of the apparent owner was in fact in such other state, and, under the laws of the state, the property escheated to or was subject to the custodial taking of that state;(2) the last known address of the apparent owner of the property appearing on the records of the holder is in such other state and, under the laws of that state, the property escheated to or was subject to the custodial taking of that state;(3) the property is the sum payable on a traveler’s check, registered check, money order, or other similar instrument that was presumed abandoned under section six B, the traveler’s check, registered check, money order, or other similar instrument was in fact purchased in such other state, and under the laws of that state, the property escheated to or was subject to the custodial taking of that state.
(b) The claim of another state to recover abandoned property under this section shall be presented in writing to the treasurer, who shall consider the claim within ninety days after it is presented. He may hold a hearing and receive evidence. He shall allow the claim if he determines that the other state is entitled to the abandoned property.
(c) Subparagraphs (1) and (2) of paragraph (a) shall not apply to property described in subparagraph (3) of said paragraph (a).
Chapter 200A: Section 9. Property surrendered to treasurer; liquidation; funds Section 9. (a) Property which has been surrendered to the state treasurer under provisions of this chapter shall vest in the commonwealth, subject, nevertheless, to provisions of section ten.
(b) The treasurer shall proceed with the liquidation of property not earlier than one year after its delivery to him under the provisions of this chapter except that property presumed abandoned pursuant to subsection (b) of section five B shall not be liquidated earlier than three years after it was delivered unless the treasurer shall in his opinion find it is in the best interests of the state to do so. If the treasurer sells any securities delivered pursuant to section five B before the expiration of the three year period, any person making a claim pursuant to this chapter before the end of the three year period is entitled to either the proceeds of the sale of the securities or the market value of the securities at the time the claim is made, whichever amount is greater. A person making a claim under this chapter after the expiration of this period is entitled to receive either the securities delivered to the treasurer by the holder, if they still remain in the hands of the treasurer, or the proceeds received from sale, but no person has any claim under this chapter against the commonwealth, the holder, any transfer agent, registrar, or other person acting for or on behalf of a holder for any appreciation in the value of the property occurring after delivery by the holder to the treasurer.
(c) If the liquidation requires that the property be sold the state treasurer shall sell it to the highest bidder at public sale in whatever city in the commonwealth affords, in the state treasurer’s judgment, the most favorable market for the particular property involved. The state treasurer may decline the highest bid and reoffer the property for sale if he considers the price offered insufficient. The sale shall be advertised in a newspaper in the county wherein the property was located at the time that it was presumed abandoned, but where the sale will be made in a different county it shall likewise be advertised in such county immediately preceding the sale. The state treasurer may refuse to offer such property at public sale if, in his opinion, it is valueless or of such little value that the cost of sale would exceed the public proceeds therefrom.
(d) All monies received by the treasurer from the holder thereof, or from the liquidation of the property under paragraphs (a) to (c), inclusive, shall be placed in a special fund as provided in paragraph (e) after deducting therefrom the costs incurred in connection with any liquidation of abandoned property, any costs of mailing and publication in connection with any abandoned property, and cost incurred in examining records of holders of abandoned property and collecting such property from such holders and reasonable service charges.
(e) Monies received by the treasurer under the proceedings of this chapter shall be placed in a special fund to be known as the Abandoned Property Fund. Whenever such fund exceeds five hundred thousand dollars, the excess shall be credited to the General Fund. Payments made by the treasurer under the provisions of paragraph (e) of section ten shall be made from said Abandoned Property Fund.
(f) All sales of property made by the state treasurer under provisions of this chapter shall pass absolute title to the purchaser thereof.
Chapter 200A: Section 9A. City or town checks not cashed; notice; claims; disposition Section 9A. (a) On or before November 1 of each year, the treasurer of a city or town holding checks issued by the city or town which have not been cashed and which are deemed abandoned under section 5 may issue a written determination that it is in the best interests of the city or town to follow the procedures set out in this section rather than the procedures set out in sections 7, 7A, 7B, 8, 8A, 8B, 9, 10, 10A and 11. In the event that the treasurer of a city or town issues a written determination that it is in the best interests of the city or town to follow the procedures set out in this section, all checks in the possession of the city or town which were issued by that city or town and which are deemed abandoned under section 5 shall be governed by subsections (b), (c), (d) and (e) rather than said sections 7, 7A, 7B, 8, 8A, 8B, 9, 10, 10A and 11.
(b) The treasurer of a city or town holding checks each in an amount of less than $100 issued by the city or town, which have not been cashed and which are deemed abandoned under section 5, shall send a notice to the last known address of each apparent owner by first class mail and, if the city or town maintains an official Internet website, it shall post conspicuously on the website, for a period of not less than 60 days, a notice to inform the apparent owner of each check of the process necessary to rebut the presumption of abandonment, provided that the records of the city or town do not disclose that the address is inaccurate. After 60 days from the mailing or posting of the notice, if the apparent owner fails to respond, the amount may be credited to the general treasury of the city or town.
(c) The treasurer of a city or town holding checks each in an amount of $100 or more issued by the city or town which have not been cashed and are deemed abandoned under section 5, shall send a notice to the last known address of each apparent owner by first class mail and, if the city or town maintains an official Internet website, it shall post conspicuously on the website for a period of not less than 60 days, a notice to inform the apparent owner of each check of the process necessary to rebut the presumption of abandonment, provided that the records of the city or town do not disclose that the address is inaccurate. After 60 days from the mailing or posting of the notice, if the apparent owner fails to respond, the treasurer shall cause a notice of the checks to be published in a newspaper of general circulation which is printed in English in the county in which the city or town is located.
Each published notice or Internet website posting shall be entitled, “Notice of Names of Persons Appearing to be Owners of Checks Issued by (city or town), Which Have Not Been Cashed and are Deemed Abandoned” and shall contain the names in alphabetical order and last known address of each of the apparent owners.
Each published or posted notice shall also contain a statement that information about each check may be obtained by a person expressing an interest in the check by addressing an inquiry to the treasurer of the city or town whose name and address shall be included in the notice.
(d) Any person claiming an interest in a check issued by a city or town, which has not been cashed and which has been deemed abandoned under section 5, may establish a claim at any time on or before 1 year after the date of the publication. The treasurer of the city or town shall determine all such claims and shall send a written notice of his determination to the claimant immediately following such determination. At any time within 20 days after such notice, the claimant may apply for a hearing and redetermination of his claim. After an appropriate hearing before the treasurer of the city or town or his designee, the treasurer shall make a final determination.
The treasurer of a city or town or his designee may take testimony under oath and may subpoena and require the attendance of witnesses and the production of books, papers and documents which may be pertinent to the hearing. The treasurer of the city or town shall render a decision within 30 days after a hearing. A claimant adversely affected by a decision may appeal within 20 days to the district, municipal or superior court of the county in which the city or town is located. The claimant shall have a trial de novo. An appeal shall be perfected by the claimant within 20 days after receiving notice of an adverse determination from the treasurer of the city or town. A party adversely affected by a decree or order of the district, municipal or superior court may appeal to the appeals court or the supreme judicial court within 20 days from the date of the decree.
If the validity of a claim shall be determined in favor of the claimant, the treasurer of the city or town shall pay over to the claimant the amount of the check at issue in the claim, with interest at the rate of 1/12 of 1 per cent per month from the date that the claimant first made his claim.
If the claimant is domiciled in a country or state outside the United States or its territories and the treasurer of a city or town determines that there is no reasonable assurance that the claimant will actually receive the payment to which he is entitled under this section in substantially full value, the superior court, in its discretion or upon a petition by the city or town treasurer, may order that the city or town retain such payment.
(e) A city or town in possession of a check issued by the city or town which has not been cashed and which has been deemed under section 5 to be abandoned and which has not been determined to belong to a claimant within 1 year of the date the check has been deemed abandoned may retain the check. The check shall thereafter be credited to the general treasury of the city or town.
JURISDICTION Chapter 201: Section 1. Probate, district or juvenile court; power over appointments Section 1. The probate court may, if it appears necessary or convenient, appoint guardians of minors, mentally ill persons, mentally retarded persons, persons unable to make or communicate informed decisions due to physical incapacity or illness, and spendthrifts and conservators of the property of persons by reason of mental weakness, mental retardation or, physical incapacity unable to properly care for their property, who are inhabitants of or residents in the county or who reside out of the commonwealth and have estate within the county. The district or juvenile court may, when it appears necessary or convenient, appoint guardians of minors if the person who is the subject of the petition is a minor and there is a proceeding before such district or juvenile court.
For the purposes of this chapter, a mentally retarded person is a person who, as a result of inadequately developed or impaired intelligence, is substantially limited in his ability to learn or adapt, as determined in accordance with established standards for the evaluation of a person’s ability to function in society.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 10. Spendthrifts; petition to appoint guardian; recording; effect on contracts Section 10. A copy of the petition, with the order of notice thereon, may be recorded in the registry of deeds for the county and district where any land of the alleged spendthrift is located; and if a guardian is appointed upon such petition, all contracts, except for necessaries or relative to land, and all gifts, sales or transfers of personal property made by the spendthrift after an order of notice upon the petition has been issued by the probate court, and all contracts relative to and sales and conveyances of land made by the spendthrift after such record in the registry of deeds for the county and district where the land lies, and before the termination of the guardianship, shall be void.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 11. Spendthrifts; transfer of certain property to spouse Section 11. Any probate court having jurisdiction of the property of a person who is under guardianship as a spendthrift may, on petition of such ward, and after such notice as the court may determine, authorize the guardian of the ward to pay or convey such portion of the ward’s real or personal estate, either principal or income, as the court may designate, to the spouse or any child, or children, or grandchildren, of the ward; and such property, when so paid or conveyed, shall become the property of the donee or grantee.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 12. Powers; bond Section 12. The guardian of a mentally ill or mentally retarded person or spendthrift shall have the care and custody of the person of his ward, except as provided in section twenty-four, and the management of all his estate, and shall give the bond prescribed in section one of chapter two hundred and five; provided, however, that in the case of a guardian of a mentally ill person or spendthrift, the condition prescribed by clause Second of paragraph 6 of said section one of said chapter two hundred and five relative to the education of the ward shall be omitted.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 13. Termination of guardianship Section 13. The guardian of a mentally ill or mentally retarded person or spendthrift may be discharged by the probate court, upon the application of the ward or otherwise, when it appears that the guardianship is no longer necessary; except that in the case of a mentally retarded person seven days’ notice of the petition shall be given to the department of mental retardation in the case of a guardianship established pursuant to section six A. In the event of the death, resignation or removal of the guardian of a mentally ill or mentally retarded person, the court, on the application of the former ward and after notice to his heirs apparent or presumptive, including the husband or wife, if any, and to the said department, may certify that the said ward is discharged by operation of law and, if it so appears, that guardianship of said ward is no longer necessary.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 13A. Mentally ill and mentally retarded persons; removal of guardian; petition Section 13A. A mentally ill person under guardianship or any person, agency or corporation authorized by section six to petition for the appointment of a guardian for a mentally ill person may file a petition for the removal of such guardian. A mentally retarded person under guardianship or any person, agency or corporation authorized by section six A to petition for the appointment of a guardian for a mentally retarded person may file a petition for the removal of such guardian.
TEMPORARY GUARDIANS Chapter 201: Section 14. Appointment of temporary guardians; removal; commitment of minors, mentally ill, etc.
; treatment with antipsychotic medication Section 14. (a) Upon the petition of any agency within the executive office of health and human services or the boards of education or higher education or other person in interest, the court may, if it finds that the welfare of a minor, a mentally ill or mentally retarded person or person unable to make or communicate informed decisions due to physical incapacity or illness or spendthrift requires the immediate appointment of a temporary guardian of his person and estate, appoint a temporary guardian of such minor, mentally ill or mentally retarded person or person unable to make or communicate informed decisions due to physical incapacity or illness or spendthrift, with or without notice, and may in like manner remove or discharge him or terminate the trust; or in the absence of a person to serve as temporary guardian, the court by order or decree may authorize and monitor, as appropriate, medical treatment; provided, however, that if the court makes the findings required in paragraph (c) it shall authorize treatment with antipsychotic medication and shall, in the absence of a person to serve as temporary guardian, appoint a suitable person to monitor the treatment process to ensure that the treatment plan approved by the court is followed. A temporary guardian may proceed and continue in the execution of his duties, notwithstanding an appeal from the decree appointing him, until it is otherwise ordered by the supreme judicial court, or until the appointment of a permanent guardian, or until the trust is otherwise legally terminated. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as the court may determine.
(b) No temporary guardian so appointed shall have the authority to cause to admit or commit such minor, mentally ill or mentally retarded person or spendthrift to a mental health or retardation facility unless the court specifically finds the same to be in the best interests of such person and specifically authorizes such admission or commitment by its order or decree; provided, however, that authority to consent to the administration of antipsychotic medications may not be granted to any guardian appointed for a person unable to make or communicate informed decisions due to physical incapacity or illness.
(c) No temporary guardian so appointed shall have the authority to consent to treatment with antipsychotic medication, provided that the court shall authorize such treatment when it (i) specifically finds using the substituted judgment standard that the person, if competent, would consent to such treatment and (ii) specifically approves and authorizes an antipsychotic medication treatment plan by its order or decree.
(d) The court shall not authorize such admission or commitment or treatment with antipsychotic medication except after a hearing for the purpose of which counsel shall be provided for any indigent person subject to such admission or commitment or such treatment and the court shall require the attendance of such person at such hearing unless the court finds that there exists extraordinary circumstances requiring his absence, in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively on affidavits and other documentary evidence if it (1) determines after careful inquiry and upon representation of counsel, that there are not contested issues of fact, and (2) includes in its findings the reasons that oral testimony was not required; provided, however, that in cases of extreme emergency the court may authorize an admission or commitment by an ex parte proceeding, if it finds that the remedies under the emergency provisions of section twelve of chapter one hundred and twenty-three are not applicable or would not be available to deal with the present emergency.
(e) No separate petition shall be necessary for the appointment of a temporary guardian, and, except as otherwise specified herein, the procedures relative to filing, notice, hearings, and related matters normally incident to equitable proceedings and relief prior to final decree, shall apply to these proceedings, provided that a hearing on a request to authorize the administration of antipsychotic medication shall be held as soon as is practicable, and the principles of equity normally applicable to the issuance, denial and expiration of temporary or preliminary relief and orders shall also so apply.
(f) Whenever a temporary guardian is so appointed, the decree or order shall indicate the nature of the emergency requiring such appointment and the particular harm sought to be avoided, and shall state that the temporary guardian so appointed is only authorized to take such actions with regard to the ward as are reasonably necessary to avoid the occurrence of that harm.
(g) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this section, for the purpose of obtaining treatment of a mentally ill or mentally retarded person; provided, however, that such person has been informed prior to making such communications that they may be used for such purpose and has waived the privilege.
TEMPORARY GUARDIANS Chapter 201: Section 15. Powers and duties Section 15. Such temporary guardian shall, until otherwise ordered, or until his removal or the appointment of a permanent guardian, have the same powers and duties relative to the person and estate of the ward as permanent guardians, and may be decreed the custody of the person of a minor, if the court finds the parent or parents unfit therefor or if it finds one of them unfit therefor and the other consents to such custody by the temporary guardian or if a temporary guardian is serving or appointed to serve in place of a temporary guardian removed. If such temporary guardian of a minor is appointed pending proceedings for an order for custody under section five or for the removal of a guardian of a minor, he shall have the sole custody and control of the ward during the pendency of such proceedings. Upon the termination of his powers, a temporary guardian shall deliver to the guardian or such person as is otherwise lawfully authorized to receive it the estate of the ward in his hands. A guardian may be admitted to prosecute an action commenced by a temporary guardian.
CONSERVATORS Chapter 201: Section 16. Appointment Section 16. If a person by reason of mental weakness is unable to properly care for his property, the probate court may, upon his petition or upon the petition of one or more of his friends, or if a person by reason of physical incapacity is unable to properly care for his property the probate court may, upon his petition or with his written assent, and in each case if after notice as provided in section seventeen and after hearing it appears that such person is incapable of properly caring for his property, appoint a conservator to have charge and management of his property, subject to the direction of the court.
CONSERVATORS Chapter 201: Section 16A. Military persons M.
I.
A. or P.
O.
W.
; appointment Section 16A. If a person is declared missing in action or a prisoner of war while serving in the armed forces of the United States, the probate court may, upon the petition of one or more of his relatives or friends, after the notice and hearing provided for in section seventeen, appoint a conservator to have charge and management of his property, subject to the direction of the court.
CONSERVATORS Chapter 201: Section 16B. Mentally retarded persons; appointment Section 16B. A parent of a mentally retarded person, two or more of his relatives or friends, a nonprofit corporation organized under the laws of the commonwealth whose corporate charter authorizes the corporation to act as a conservator of a mentally retarded person, or any agency within the executive office of human services may file a petition in the probate court asking to have a conservator appointed for such mentally retarded person. If, after notice as provided in section seventeen and a hearing, the court finds that the person is mentally retarded to the degree that he is incapable of making informed decisions with respect to the conduct of his financial affairs and that the failure to appoint a conservator would create an unreasonable risk to his property, it may appoint a conservator to have charge and management of his property, subject to the direction of the court. The court shall not so find unless the petition is accompanied by a report from a clinical team consisting of a physician, a licensed psychologist and a social worker or certified psychiatric nurse clinical specialist, each of whom is experienced in the evaluation of mentally retarded persons, that it has examined the person and has determined that the person is mentally retarded to the degree that he is incapable of making informed decisions with respect to the conduct of his financial affairs. In the case of a mentally retarded person of majority age who is wholly or substantially self-supporting by means of his wages or earnings from employment or other financial entitlement, the court may, upon the recommendation of such clinical team, exempt the property of the mentally retarded person from the powers of a conservator as described in section twenty to the extent of his wages or other financial entitlement, or three hundred dollars per month, whichever is less.
CONSERVATORS Chapter 201: Section 17. Notice Section 17. Upon the filing of such petition the court shall appoint a time and place for a hearing, and shall cause not less than seven days’ notice thereof to be given to the person for whom a conservator is to be appointed, except that the court may for cause shown direct that a shorter notice be given. No appointment shall be made without such notice to the heirs apparent or presumptive of such person, including the husband or wife, if any, and, if such person is entitled to any benefit, estate or income paid or payable by or through the United States veterans’ bureau or its successor, to said bureau or its successor, as the court may order. If the person for whose property the conservator is to be appointed is himself the petitioner or assents in writing to the petition, no notice shall be required, except to said bureau or its successor if such person is so entitled.
CONSERVATORS Chapter 201: Section 18. Discharge Section 18. A conservator may be discharged by the probate court upon the application of the ward, or otherwise, when it appears that the conservatorship is no longer necessary. But a conservator of the property of a married person shall not be discharged without such notice as the court may order to the husband or wife of such person. In the event of the death, resignation or removal of a conservator, the court, on the application of the former ward and after notice to his heirs apparent or presumptive, including the husband or wife, if any, may certify that the said ward is discharged by operation of law, and if it so appears, that conservatorship of the property of said ward is no longer necessary.
CONSERVATORS Chapter 201: Section 19. Bond of conservator appointed pursuant to Sec. 16 or Sec. 16A Section 19. A conservator appointed pursuant to section sixteen or section sixteen A shall give the bond prescribed in section one of chapter two hundred and five except that the conditions set out in clause Second of paragraph 6 of said section one of said chapter two hundred and five regarding custody and education of the ward shall be omitted.
GUARDIANS OF MINORS Chapter 201: Section 2. Guardians of minors; appointment Section 2. If a minor is under fourteen the probate court may nominate and appoint his guardian. If a bond is required for an appointment under the provisions of this section, a parent of a minor child may file a bond, without sureties, relative to his appointment as guardian of said child. If he is above that age he may nominate his own guardian, who, if approved by the court, shall be appointed accordingly. Such nomination may be made before a justice of the peace, notary public or city or town clerk within the commonwealth who shall certify the fact to the probate court. Upon the filing of a petition for the appointment of a guardian under this section, the court shall appoint a time and place for a hearing, and shall cause not less than seven days’ notice thereof to be given to the mother and father of said minor, if living, unless they have assented to the filing of said petition; otherwise notice shall be given to the nearest relatives of full age, and if there are no known relatives within the commonwealth notice shall be given by publication as directed by the court. If the person nominated is not approved by the court, or if the minor resides out of the commonwealth, or if the minor after being cited neglects to nominate a suitable person, the court may nominate and appoint his guardian in the same manner as if he were under fourteen. If the minor is a married woman no guardian shall be appointed without such notice to her husband as the court may order. In the matter of said appointment and all subsequent proceedings relating thereto, the United States veterans’ bureau or its successor shall be deemed to be a party in interest and shall receive such notice as the court may order, if the ward or proposed ward is entitled to any benefit, estate or income paid or payable by or through said bureau or its successor. If the minor is or was a recipient of any type of public assistance, the court shall notify the IV-D agency, as set forth in chapter 119A, of all proceedings relating to the appointment of a guardian for the minor and the IV-D agency shall be permitted to intervene in such proceedings on behalf of the department of transitional assistance, the department of social services, the division of medical assistance, or any other public assistance program of the commonwealth.
CONSERVATORS Chapter 201: Section 20. Powers Section 20. A conservator shall have the management of all of the estate of his ward, except as provided in section sixteen B, and all laws relative to the jurisdiction of the probate court over the estate of a person under guardianship as a mentally ill person, including the management, sale or mortgage of his property and the payment of his debts, shall be applicable to the estate of a person under conservatorship.
CONSERVATORS Chapter 201: Section 21. Temporary conservator; appointment; removal; discharge Section 21. Upon the petition of a person of mental weakness or of a friend or upon the petition of the department of public welfare, or upon the petition or with the written assent of a person who by reason of physical incapacity is unable to properly care for his property, the probate court may, if it finds that the welfare of the person of mental weakness or physical incapacity requires the immediate appointment of a temporary conservator of his property, appoint such temporary conservator, with or without notice, and may in like manner remove or discharge him or terminate the trust. A temporary conservator shall have the same powers and duties as a permanent conservator and may proceed and continue in the execution thereof, notwithstanding an appeal from the decree appointing him, until it is otherwise ordered by the supreme judicial court, or until the appointment of a permanent conservator or guardian or until the trust is otherwise legally terminated. He shall be subject to all laws relative to permanent conservators so far as applicable. No separate petition shall be necessary for the appointment of a temporary conservator and, except as specified herein, the procedures relative to filing, notice, hearings and related matters normally incident to equitable proceedings and relief prior to final decree shall apply to these proceedings, and the principles of equity normally applicable to the issuance, denial, and expiration of orders for temporary or preliminary relief shall also apply.
CONSERVATORS Chapter 201: Section 22. Allowance for defense Section 22. If a conservator or a guardian for a mentally ill or mentally retarded person or spendthrift is appointed, the court shall make an allowance, to be paid by the conservator or guardian, for all reasonable expenses incurred by the ward in opposing the petition.
GUARDIANS AND CONSERVATORS OF MARRIED WOMEN Chapter 201: Section 23. Repealed, 1978, 381, Sec. 3 GUARDIANS AND CONSERVATORS OF MARRIED WOMEN Chapter 201: Section 24. Custody, etc.
, of ward Section 24. The guardian of a married person unless authorized by the court for causes which the court considers sufficient, shall not have the care, custody or education of his ward, except in case of the mental illness of the spouse of such person, or of his abandoning such person and making no sufficient provision therefor.
GUARDIANS AND CONSERVATORS OF MARRIED WOMEN Chapter 201: Section 25. Married person; application of property for support; leave of court Section 25. The guardian or conservator of a married person shall not, except as provided in sections twenty-six and thirty-two of chapter one hundred and twenty-three, apply the property of his ward to the maintenance of such person and his family while married, unless he is thereto authorized by the probate court on account of the inability of the spouse of such person suitably to maintain them, or for other cause which the court considers sufficient.
GUARDIANS AND CONSERVATORS OF MARRIED WOMEN Chapter 201: Section 26. Incompetency of married woman to release homestead; appointment of guardian Section 26. If a married woman is by reason of mental illness incompetent to release her right of homestead, a guardian may be appointed for her in the same manner as if she were sole, with the powers and duties given to guardians of married women who own property, and the husband or any suitable person may be appointed such guardian.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS Chapter 201: Section 27. Appointment Section 27. If a person who is liable to be put under guardianship or conservatorship under this chapter resides out of the commonwealth and has any estate therein, a friend of such person or any one interested in his estate, in expectancy or otherwise, may apply to the probate court for a county where there is such estate, which, after notice to all persons interested and a hearing, may appoint a guardian or conservator for him.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS Chapter 201: Section 28. Powers and duties Section 28. Such guardian or conservator shall have the same powers and duties relative to any estate of the ward found within the commonwealth, and also in the case of a guardian, relative to the person of the ward if he comes to reside therein, as other guardians or conservators appointed under this chapter.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS Chapter 201: Section 29. Bond Section 29. Such guardian or conservator shall give the same bond as is required of other guardians and conservators appointed under this chapter, except that the conditions relative to inventory, disposal of the estate and effects, and the account to be rendered by him shall be confined to such estate and effects as come to his hands in this commonwealth.
GUARDIANS OF MINORS Chapter 201: Section 2A. Application of general guardianship statutes to standby or emergency guardianship proxies Section 2A. The provisions of this chapter relating to guardians shall apply to standby and emergency short-term guardianship proxies, except insofar as sections two B to two H, inclusive, provide otherwise.
GUARDIANS OF MINORS Chapter 201: Section 2B. Designation of standby or emergency guardianship proxy Section 2B. A parent or parents may designate, in writing, an adult person or persons to be appointed as standby guardianship proxy or proxies hereinafter referred to as proxy of the person or estate, or both, of a minor, whether or not such minor is born at the time of such designation.
A person who is not the natural parent of the minor but who has been awarded custody of said minor by a court of competent jurisdiction may also designate a standby guardian pursuant to this chapter.
A parent or parents may designate, in writing, an adult person or persons to be appointed as successor proxy of a minor’s person or estate, or both, whether or not such minor is born at the time of designation.
The designation of both proxy and successor proxy shall be witnessed by two or more persons, at least eighteen years of age, neither of whom is to be designated as the proxy. Said designation may be proved by any evidence. If a designation is executed and attested in the same manner as a will, pursuant to section two of chapter one hundred and ninety-two, it shall be presumed to be valid.
GUARDIANS OF MINORS Chapter 201: Section 2C. Appointment of proxy or successor proxy; affidavit Section 2C. Upon the filing of a petition for the appointment of a proxy or a successor proxy, the court may appoint the proxy and successor proxy of the person or estate, or both, of a minor in accordance with the standards established under this chapter.
The petition may be accompanied by an affidavit, which may include the facts concerning (a) the consent of the minor’s parent or parents to the appointment of the proxy; (b) the willingness and ability of the minor’s parent or parents, if any, to make and carry out day-to-day child care decisions concerning the minor; and (c) the parent or parents’ wishes regarding future custodial arrangements and permanency planning for the minor. In all actions to appoint a proxy the parent’s or parents’ affidavits and any other papers, documents or reports filed in connection therewith shall not be available for inspection, unless a judge of the court where such orders are kept, for good cause shown, shall otherwise order. Such affidavits, papers, documents and record books shall be segregated. The parent or parents, or their attorney, shall have access to and the right to obtain copies of the affidavits, papers, documents, record books and judgment in actions pursuant to this chapter. The petitioner’s appearance in court shall not be required, if the petitioner is medically unable to appear, except upon motion and for good cause shown.
GUARDIANS OF MINORS Chapter 201: Section 2D. Commencement of authority of proxy; duration Section 2D. The proxy’s authority to act shall commence upon; (i) the death of the minor’s parent or parents; (ii) the consent of the minor’s parent or parents; or (iii) the incapacity of the minor’s parent or parents to make and carry out day-to-day child care decisions concerning the minor for whom the proxy has been appointed, as established by the written certification of a licensed physician.
Immediately upon the death or consent of the minor’s parent or parents, or upon the written certification of incapacity as established by a licensed physician, the proxy shall assume all duties as proxy of the minor as previously determined by the order appointing the proxy.
The proxy shall not be valid unless accompanied by the dated consent form, physician’s letter or death certificate. The proxy of the minor shall have the authority to act as a guardian of the minor without direction of the court for a period of up to ninety consecutive days, provided that the authority of the proxy may be limited or terminated by a court of competent jurisdiction.
Upon the commencement of authority of the proxy, pursuant to the consent of the minor’s parent or parents, such authority shall not, itself, divest the parent or parents of any parental or guardianship rights, but shall confer upon the proxy concurrent authority with respect to the minor. Within ninety consecutive days of the commencement of authority of the proxy, the proxy shall file or cause to be filed, pursuant to section two, a petition for the appointment of a guardian of the person or estate, or both, of the minor.
GUARDIANS OF MINORS Chapter 201: Section 2E. Revocation of proxy designation Section 2E. A petitioner or designee may revoke a designation or a proxy not yet appointed by the court, by notifying all necessary parties in writing of the revocation. A petitioner, or the proxy approved by the court, may vacate the appointment by filing with the court a written revocation and by promptly notifying all necessary parties of the revocation.
GUARDIANS OF MINORS Chapter 201: Section 2F. Withdrawal of consent to proxy Section 2F. If a parent who has consented to the commencement of authority of the proxy withdraws such consent, the proxy shall again become inactive and the proxy shall return to having standby authority, under the same terms and conditions as prior to the commencement of authority, with respect to the minor.
If a licensed physician determines that the parent or parents have regained capacity, the authority of the proxy, which commenced pursuant to a determination of incapacity, shall again become inactive and the proxy shall return to having standby authority, under the same terms and conditions as prior to the commencement of authority pursuant to section two D.
The successor proxy shall assume all duties and responsibilities as proxy of the minor as previously determined by the order appointing the successor proxy.
GUARDIANS OF MINORS Chapter 201: Section 2G. Appointment of emergency proxy Section 2G. A parent or parents, may appoint, in writing, without court approval, an adult person or persons to serve as short-term emergency guardianship proxy or proxies hereinafter referred to as emergency proxy of a minor, whether or not such minor is born at the time of appointment. The written instrument appointing the emergency proxy shall be dated and shall identify the appointing parent or parents, the minor and the person or persons appointed to be the emergency proxy. The written instrument shall be signed by, or at the direction of, the appointing parent or parents, in the presence of at least two witnesses at least eighteen years of age, neither of whom is the person or persons to be appointed as the emergency proxy. The emergency proxy shall also sign the written instrument, but need not sign at the same time as the appointing parent or parents.
A parent shall not appoint an emergency proxy of a minor, if the minor has another living parent whose parental rights have not been terminated, whose whereabouts are known and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of appointment. The appointment of the emergency proxy shall be effective immediately upon the date the written instrument is executed, unless the written instrument provides for the appointment to become effective upon a later specified date or event. The emergency proxy shall have authority to act as guardian of the minor for a period of sixty days from the date the appointment becomes effective, unless the written instrument provides for the appointment to terminate upon an earlier specified date or event. Only one written instrument appointing an emergency proxy may be in force at any given time.
Every appointment of an emergency proxy may be amended or revoked by the appointing parent or parents at any time by promptly notifying all necessary parties of the amendment or revocation. The commencement of an emergency proxy’s authority pursuant to the consent of a parent or parents shall not itself, divest the parent or parents of any parental or guardianship rights, but shall confer upon the emergency proxy concurrent authority with respect to the minor.
GUARDIANS OF MINORS Chapter 201: Section 2H. Authority of emergency proxy; duration of appointment Section 2H. Immediately upon the effective date of appointment, the emergency proxy shall assume all duties as guardian of the minor and shall have authority to act, without direction of the court, for the duration of the appointment which shall in no case exceed a period of sixty days. The authority of the emergency proxy may be limited or terminated by a court of competent jurisdiction.
Unless specifically limited by the instrument appointing the emergency proxy, said emergency proxy shall have the authority to act as guardian of the person of a minor, but shall not have any authority to act as guardian of the estate of the minor, except that an emergency proxy shall have the authority to apply for and receive on behalf of the minor benefits to which the minor may be entitled from or under federal, state or local organizations or programs.
GUARDIANS OF MINORS Chapter 201: Section 3. Testamentary guardian Section 3. A father or mother may by will appoint a guardian for a minor child, whether born at the time of making the will or afterward, to continue during minority or for a less time, effective when the guardian accepts appointment by filing his bond in acceptable form, except that if a guardian has already been appointed, whether testamentary or otherwise, a later testamentary appointment shall become effective only when approved by the court. A testamentary guardian appointed by will of a parent shall have the same powers and perform the same duties relative to the property of the ward, and, if the other parent is not living, relative to the person of the ward, as a guardian appointed under section two. If application is made to the probate court for approval of the appointment of a testamentary guardian after the appointment of a guardian, whether testamentary or otherwise, has become effective, notice of such application shall be given to such previous guardian, and thereafter the court may remove such previous guardian and approve the appointment in his place of the person applying for approval of appointment as testamentary guardian or it may appoint any other suitable person, or it may approve the appointment of the person making such application to serve as guardian with the guardian already in office.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS Chapter 201: Section 30. Claims against ward’s estate; rights of nonresident guardian and ward; procedure Section 30. If a resident of another state is entitled to real or personal property of any description in this commonwealth, and is under the guardianship of a guardian appointed in any state other than this commonwealth, who produces to the probate court of the county where such property or the principal part thereof is situated a full and complete and duly exemplified or authenticated transcript from the records of a court of competent jurisdiction in such other state, showing that he has there been appointed such guardian, and has given a bond and security in double the value of the property of such ward, such transcript may be recorded in such probate court, and such guardian shall be entitled to receive from such court letters of guardianship of the estate of such ward in this commonwealth which shall authorize him to care for and manage the real and personal property of such ward, to collect the rents and profits therefrom and to demand, sue for and recover any such property, and to remove any of the movable property or estate of such ward out of this commonwealth, if such removal will not conflict with the terms and limitations attending the right by which the ward holds the same. Such probate court may also order any guardian, executor or administrator appointed by a court of this commonwealth who has any of the estate of such ward to deliver the same to any person who has taken out letters of guardianship as aforesaid.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS Chapter 201: Section 31. Ward; removal from state; transfer of property to foreign guardian Section 31. A guardian or conservator appointed within this commonwealth, whose ward removes from or resides out of this commonwealth, may transfer and pay over the whole or any part of the ward’s personal property to a guardian, conservator, trustee, committee or other official appointed by competent authority in the state or country where the ward resides, upon such terms and in such manner as the probate court by which he was appointed may, after notice to all parties interested, decree upon petition filed therefor.
GUARDIANS AND CONSERVATORS OF NON-RESIDENTS Chapter 201: Section 32. Repealed, 1970, 120, Sec. 3 REMOVALS, RESIGNATIONS, ETC. Chapter 201: Section 33. Removal; vacancy; filing; resignation; successor; appointment Section 33. If a guardian or conservator becomes mentally ill or otherwise incapable of performing his trust or is unsuitable therefor, the probate court, after notice to him and to all other persons interested, may remove him. If the petition for removal contains a prayer therefor the court may, upon such notice as it considers reasonable, appoint a successor to fill any vacancy caused by such removal, without the filing of a separate petition for that purpose. Upon the request of a guardian or conservator, the probate court may allow him to resign his trust. Upon such removal or resignation, and upon the death of a guardian or conservator, another may be appointed in his stead by the same court.
GUARDIAN AD LITEM AND NEXT FRIEND Chapter 201: Section 34. Appointment; effect Section 34. If, under the terms of a written instrument or otherwise, a minor, a mentally retarded person, an autistic person, or person under disability, or a person not ascertained or not in being, may be or may become interested in any property real or personal, or in the enforcement or defense of any legal rights, the court in which any action, petition or proceeding of any kind relative to or affecting any such estate or legal rights is pending may, upon the representation of any party thereto, or of any person interested, appoint a suitable person to appear and act therein as guardian ad litem or next friend of such minor, mentally retarded person, autistic person, or person under disability or not ascertained or not in being; and a judgement, order or decree in such proceedings, made after such appointment, should be conclusive upon all persons for whom such guardian ad litem or next friend was appointed.
GUARDIAN AD LITEM AND NEXT FRIEND Chapter 201: Section 35. Expenses Section 35. The reasonable expenses of such guardian ad litem or next friend, including compensation and counsel fees, shall be determined by the court and paid as it may order, either out of the estate or by the plaintiff or petitioner. If such expenses are to be paid by the plaintiff or petitioner execution therefor may issue in the name of the guardian ad litem or next friend.
GUARDIAN AD LITEM AND NEXT FRIEND Chapter 201: Section 36. Construction Section 36. Nothing in this chapter shall affect the power of a court to appoint a guardian to defend the interests of a minor impleaded in such court, or interested in a suit or matter there pending, nor the power of such court to appoint or allow a person, as next friend for a minor, to commence, prosecute or defend a suit in his behalf.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 37. Payment of debts; representation of ward in suits; liabilities Section 37. A guardian or conservator shall pay all just debts which are due from his ward out of the personal property, if sufficient, and, if not, out of the real property, upon obtaining a license for the sale thereof as provided in chapter two hundred and two. He shall settle all accounts of his ward and demand, sue for and receive all debts due to him or, with the approval of the probate court, may compromise the same and give a discharge to the debtor. He shall appear for and represent his ward in all actions, suits and proceedings, unless another person is appointed therefor as guardian ad litem or next friend.
Individual liability of the conservator or guardian shall be determined as follows:(a) Unless otherwise provided in the contract, a conservator or guardian shall not be individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he failed to reveal his representative capacity and identify the estate in the contract.
(b) A conservator or guardian shall be individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he was personally at fault.
(c) Claims based on contracts entered into by a conservator or guardian in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator or guardian in his fiduciary capacity, whether or not the conservator or guardian is individually liable therefor.
(d) Any question of liability between the estate and the conservator or guardian individually may be determined in an accounting, surcharge, indemnification or other appropriate proceeding or action.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 38. Management of estate; support of ward and family; custody of wills; estate plan Section 38. He shall manage the estate of his ward frugally and without waste, and shall, except as otherwise provided, apply the same, so far as may be necessary, to the comfortable and suitable maintenance and support of the ward and his family. If the income and profits are insufficient for that purpose, he may sell the real estate upon obtaining a license therefor, and shall apply the proceeds of such sale, so far as may be necessary, for the maintenance and support of the ward and his family. Such license and the application therefor shall state whether the ward is married or single. He shall have custody of all wills, codicils, and other instruments purporting to be testamentary dispositions executed by his ward.
The probate court, upon petition of a conservator or guardian, other than the guardian of a minor, and after such notice to all other persons interested as it directs, may authorize such conservator or guardian to exercise any or all powers over the estate and business affairs of the ward which the ward could exercise if present and not under disability. The court may authorize the taking of such action, or the application of such funds as are not required for the ward’s own maintenance and support, in such fashion as the court shall approve as being in keeping with the ward’s wishes so far as they can be ascertained. In ascertaining and carrying out the ward’s wishes the court may consider, but shall not be limited to, minimization of state or federal income, estate or inheritance taxes, and provisions of gifts to such charities, relatives and friends as would be likely recipients of donations from the ward. The ward’s wishes as best they can be ascertained are to be carried out, whether or not tax savings are involved.
Such action or application of funds may include but shall not be limited to the making of gifts, to the conveyance or release of the ward’s contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to the exercise or release of his powers as donee of a power of appointment, the making of contracts, the creation of revocable or irrevocable trusts of property of the ward’s estate which may extend beyond his disability or life amendment of any such trust which is revocable or amendable, the exercise of options of the ward to purchase securities or other property, the exercise of his rights to elect options and to change beneficiaries under insurance and annuity policies, and the surrendering of policies for their cash value, the exercise of his right to an elective share in the estate of his deceased spouse, and the renunciation or disclaimer of any interest acquired by testate or intestate succession or by inter-vivos transfer.
The guardian or conservator in his petition shall briefly outline the action or application of funds for which he seeks approval, the results expected to be accomplished thereby and the tax savings, if any, expected to accrue. The proposed action or application of funds may include gifts of the ward’s personal property or real estate, but transfers of real estate shall be subject to the requirements of chapter two hundred and two. Gifts may be for the benefit of prospective legatees, devisees or heirs apparent of the ward or may be made to individuals or charities in which the ward is believed to have an interest. The conservator or guardian shall also indicate in the petition that any planned disposition is consistent with the intentions of the ward insofar as they can be ascertained, and if the ward’s intentions cannot be ascertained, the ward will be presumed to favor reduction in the incidence of the various forms of taxation and the partial distribution of his estate as herein provided. The conservator or guardian shall not, however, be required to include as a beneficiary any person whom he has reason to believe would be excluded by the ward.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 38A. Guardian or conservator; payment of funeral expenses of deceased member of ward’s family Section 38A. The probate court, upon the application of a guardian or conservator or of a member of his ward’s family, and after such notice to all persons interested as it directs, may authorize and require such guardian or conservator to expend funds from the ward’s estate for or towards the funeral and burial expenses of a deceased member of the ward’s family. For the purposes of this section, the ward’s lineal ancestors and descendants and the ward’s spouse shall be deemed to be members of the ward’s family, without however, thereby limiting the same.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 39. Partition Section 39. A guardian or conservator may make partition of his ward’s real property if lying in common and undivided, either upon petition for partition or otherwise, as fully and in like manner as the ward could do if he were under no disability, may assign and set out dower in his ward’s estate to any widow entitled thereto, and may appoint an appraiser of real property on an execution either against or in favor of his ward; except that when the guardian or conservator has an interest adverse to that of his ward no partition shall be made without the appointment of a guardian ad litem.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 39A. Funeral expenses of parents; payment from minor’s estate; limitations Section 39A. If the estate of a minor under guardianship includes the proceeds of an insurance policy or benefit certificate, the payment of which was contingent upon the death of his parent, the guardian of such minor, if authorized by the probate court, may pay not more than one thousand dollars for expenses for the funeral of such parent, but if said proceeds amount to less than two thousand dollars such payment shall in no event exceed one half of the amount of said proceeds; provided, that such payment shall be so authorized or made only in case the estate of such parent is insufficient to pay said expenses.
GUARDIANS OF MINORS Chapter 201: Section 4. Powers Section 4. The guardian of a minor unless sooner discharged according to law shall continue in office until the minor attains the age of eighteen years and shall have the care and management of all his estate.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 40. Minor child; support by parents Section 40. The probate court may, upon the petition of a guardian entitled to the custody of his minor ward, during the lifetime of either or both of his parents, and after notice to all parties interested, order and require said parents or either of them to contribute to the support and maintenance of such minor in such amounts and at such times as it determines are just and reasonable, and may issue process of attachment and execution on the property of the parents or either of them, and sections thirteen and fourteen of chapter two hundred and eight shall apply thereto so far as appropriate. Such parent or parents may be required to give a bond conditioned to comply with such order and payable to the judge of said court and his successors in such sum and with such sureties as the court orders. The court may from time to time, upon application of either party, revise or alter such order or make such new order or decree as the circumstances of the parents or the benefit of the minor may require.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 41. Minor’s property; application for his support Section 41. If a minor, who has a parent living, has property sufficient for his maintenance and education in a manner more expensive than the parent can reasonably afford, regard being had to the situation of the parent’s family and to all the circumstances of the case, the probate court may order that such expenses of the maintenance and education of such child as it determines are reasonable may be defrayed out of his own estate; and, if necessary, his real property upon obtaining license therefor may be sold for that purpose by the guardian.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 42. Mentally ill or mentally retarded ward; support of children Section 42. The probate court may, upon the application of the guardian of a mentally ill or mentally retarded person or of a child or the guardian of a child of a mentally ill or mentally retarded person, after notice to all other persons interested, authorize and require the guardian of such mentally ill or mentally retarded person to apply to the maintenance and education of any child or children of said ward such portion as the court orders of the estate of the ward, which is not required for his maintenance and support.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 43. Mentally ill or mentally retarded ward; support Section 43. The probate court for the county where a guardian of a mentally ill or mentally retarded person has been appointed may make an allowance out of the estate of such mentally ill or mentally retarded person for the support of the spouse of such person, to be paid by the guardian during the continuance of the guardianship in such manner as the court orders.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 43A. Mentally ill and mentally retarded ward; support of dependent parents Section 43A. The probate court, upon the application of the guardian or dependent parent of a mentally ill or mentally retarded person, and after such notice to all other persons interested as it directs, may authorize such guardian to apply towards the support of such dependent parent such portion of the estate of such mentally ill or mentally retarded person not required for his own maintenance and support as it may order.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 44. Interests in realty; purchase or release Section 44. The probate court may, after notice to all persons interested, authorize a guardian or conservator to obtain by purchase the release and conveyance of a right of homestead, life estate, estate for years or other interest, vested or contingent, held or owned by any person in or to any real property of his ward, and to make any contract relative to such right or interest which may be necessary to effect such purchase.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 45. Election; waiver; exercise of power Section 45. If property, rights or benefits given by will or by law depend upon the election, waiver or other act of a person incompetent by reason of mental illness, mental retardation, or minority to perform the same, his guardian may make such election or waiver or perform such act; provided, that no waiver of the provisions of a will under this section shall be valid until approved by the probate court after notice to such persons, if any, as the court shall deem proper and a hearing thereon, and provided also that if a power is vested in a mentally ill or mentally retarded person for his own benefit, or his consent is required for the exercise of any power where the power of consent is in the nature of a beneficial interest in himself, his guardian may, by order of the probate court, made after notice to such persons, if any, as the court shall deem proper, exercise the power or give the consent in such manner as shall be authorized or directed by the order. If, in any case where the guardian of a ward incompetent by reason of mental illness, mental retardation, or minority has not waived the provisions of the will of the ward’s spouse or brought a petition under this section for approval of a waiver of the provisions thereof and a guardian ad litem has been appointed under section one B of chapter one hundred and ninety-two, such guardian ad litem is of opinion that a waiver of the provisions thereof is for the benefit and for the best interests of the ward, and the guardian fails to take such action after written demand made upon him, such guardian ad litem as next friend may waive the provisions thereof, subject to the approval of the probate court as hereinbefore provided.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 46. Appraisal of estate Section 46. Upon taking an inventory, the estate and effects comprised therein shall be appraised in the manner required by section six of chapter one hundred and ninety-five.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 47. Personalty of ward; sale Section 47. The probate court may, upon the application of a guardian or conservator or of any person interested in the estate of a ward, after notice to all other persons interested, authorize or require the guardian or conservator to sell and transfer any personal property held by him as guardian or conservator and to invest the proceeds thereof and all other money in his hands in such manner as may be for the best interest of all concerned. Said court, after such notice, if any, as it may require, may make such further order and give such directions as the case may require for the management, investment and disposition of the estate in the hands of the guardian or conservator.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 47A. Investment of funds; life insurance; endowment or annuity contracts Section 47A. The probate court, upon the application of a guardian, may authorize him to invest income or principal of the estate of his ward in policies of life or endowment insurance or annuity contracts, issued by a life insurance company duly authorized to transact business in the commonwealth under chapter one hundred and seventy-five, on the life of the ward or on the life of a person in whose life the ward has an insurable interest.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 48. Embezzled property of ward; recovery Section 48. Upon complaint to the probate court by a guardian, conservator, ward, creditor or other person interested in the estate of a ward or by a person having claims thereto in expectancy as heir or otherwise, against any one suspected of having fraudulently received, concealed, embezzled or conveyed away any of the property, real or personal, of the ward, the court may cite and examine such suspected person, although he is the guardian or conservator, in the manner and subject to the penalties provided in section forty-four of chapter two hundred and fifteen.
GENERAL POWERS AND DUTIES OF GUARDIANS AND CONSERVATORS Chapter 201: Section 48A. Burial expenses of wards; deposit; payment Section 48A. Upon application therefor by a conservator or by a guardian of a mentally ill or mentally retarded person or a spendthrift, whose ward is a resident of the commonwealth, the probate court, after such notice as it deems necessary, and a hearing, may authorize such conservator or guardian to deposit for the purpose hereinafter stated, in a savings bank, or in the savings department of a trust company, within the commonwealth, or on paid-up shares and accounts of and in a co-operative bank, a sum not exceeding one thousand dollars, or may authorize said conservator or guardian to purchase a share account of a federal savings and loan association or a savings and loan association located within the commonwealth, in a sum not exceeding one thousand dollars, to be expended solely for, or towards the expense of, the burial of his ward. Such deposit or purchase shall be made in the name of the judge of probate for the time being, and shall be subject to the order of the judge and of his successors in office. The person making such deposit or purchase shall file in the probate court a memorandum thereof and the deposit book or share account book, and the amount so deposited or purchased shall, for the purpose of the accounting by said guardian or conservator, be allowed as payment. Upon the death of such ward, the probate court may, upon application and after like notice and hearing, order the payment of such deposit or purchase, together with any accrued interest thereon, hereinafter referred to as such deposit or purchase, to the executor of the will of such ward or to the administrator of the estate, to be expended by him only for the purpose hereinbefore stated, and, in case no executor or administrator is appointed, said court may order payment from such deposit or purchase together with any accrued interest thereon to any undertaker or other person, of any charge for such burial or sum expended therefor which it finds to be proper, but not exceeding the amount of such deposit or purchase together with any accrued interest thereon, or may apportion such deposit or purchase together with any accrued interest thereon between several claimants for such charges or expenses but in no event to exceed the total amount of such charges, or expenses; provided that any balance remaining after the payment of such charges or expenses shall become general assets of the estate. The provisions of chapter two hundred A shall not be applicable to funds deposited under this section.
AGENTS OF NON-RESIDENT GUARDIANS AND CONSERVATORS Chapter 201: Section 49. Laws applicable Section 49. Sections eight, nine and ten of chapter one hundred and ninety-five shall apply to non-resident guardians and conservators.
GUARDIANS OF MINORS Chapter 201: Section 5. Minors; custody and education; marriage; effect Section 5. The guardian of a minor shall have the custody of his person and the care of his education, except that the parents of the minor, jointly, or the surviving parent shall have such custody and said care unless the court otherwise orders. The probate court may, upon the written consent of the parents or surviving parent, order that the guardian shall have such custody; and may so order if, upon a hearing and after such notice to the parents or surviving parent as it may order, it finds such parents, jointly, or the surviving parent, unfit to have such custody; or if it finds one of them unfit therefor and the other files in court his or her written consent to such order. The marriage of a person under guardianship as a minor shall deprive his guardian of all right to the custody and education of such person but not of the care and possession of such person’s property. If a corporation is appointed guardian of a minor, the court may, subject to the right of his parents, or of the spouse of a minor, as provided in this section, award the custody to some suitable person. The court may revoke the appointment of a guardian if the party petitioning for revocation proves a substantial and material change of circumstances and if the revocation is in the child’s best interest.
AGENTS OF NON-RESIDENT GUARDIANS AND CONSERVATORS Chapter 201: Section 50. Repealed, 1981, 276, Sec. 1 AGENTS OF NON-RESIDENT GUARDIANS AND CONSERVATORS Chapter 201: Section 51. Religious freedom of ward Section 51. It shall be the duty of all guardians appointed under this chapter to protect and preserve the ward’s right of freedom of religion and religious practice.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 6. Mentally ill persons; appointment of guardians; commitment; treatment with antipsychotic medication Section 6. (a) A parent of a mentally ill person, two or more relatives or friends of a mentally ill person, a nonprofit corporation organized under the laws of the commonwealth whose corporate charter authorizes the corporation to act as a guardian of a mentally ill person or any agency within the executive office of health and human services or the boards of education or higher education may file a petition in the probate court asking to have a guardian appointed for such mentally ill person and if, after notice as provided in section seven and a hearing, the court finds that he is incapable of taking care of himself by reason of mental illness, it shall appoint a guardian of his person and estate. The court may require additional medical or psychological testimony as to the mental condition of the person alleged to be mentally ill and may require him to submit to examination. It may also appoint one or more physicians, certified psychiatric nurse clinical specialists, or licensed psychologists, expert in mental illness, to examine such person and report their conclusions to the court. Reasonable expenses incurred in such examination shall be paid out of the estate of such person, by the petitioner, or by the commonwealth, as the court may determine.
(b) No guardian so appointed shall have the authority to cause to admit or commit such person to a mental health or retardation facility unless the court specifically finds the same to be in the best interests of such person and specifically so authorizes such admission or commitment by its order or decree. The court shall not authorize such admission or commitment except after a hearing for the purposes of which counsel shall be provided for any indigent, allegedly mentally ill person.
(c) No guardian so appointed shall have the authority to consent to treatment with antipsychotic medication, provided however, that the court shall authorize such treatment when it (1) specifically finds using the substituted judgment standard that the person, if competent, would consent to such treatment and (2) specifically approves and authorizes an antipsychotic medication treatment plan by its order or decree, after considering the testimony or affidavit of a licensed physician or certified psychiatric nurse clinical specialist regarding such plan. The court shall not authorize such treatment plan except after a hearing for the purpose of which counsel shall be provided for any indigent mentally ill person. Said hearing shall be held as soon as is practicable; provided, however, that if the petitioner requests a temporary order on the grounds that the welfare of the ward requires an immediate authorization of treatment with antipsychotic medications, the court shall act on such request in accordance with the procedures set forth in section fourteen.
(d) The court may delegate to a guardian the authority to monitor the treatment process to ensure that an antipsychotic medication treatment plan is followed, provided a guardian is readily available for such purpose. Approval of a treatment plan shall not be withheld, however, because a guardian is not available to serve as monitor. In such circumstances, the court shall appoint a suitable person to monitor the treatment process to ensure that the antipsychotic medication treatment plan is followed. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as the court may determine.
(e) At a hearing relative to authority to cause to admit or commit or authority to administer antipsychotic medication, the court shall require the attendance of the allegedly mentally ill person unless the court finds that there exists extraordinary circumstances requiring his absence, in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively upon affidavits and other documentary evidence if it (1) determines, after careful inquiry and upon representations of counsel, that there are no contested issues of fact and (2) includes in its findings the reasons that oral testimony was not required. The court may also appoint one or more persons experienced in the evaluation, care and treatment of mentally ill persons to examine such person and report their conclusions to the court.
(f) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this chapter, for the purpose of obtaining treatment of a mentally ill person; provided, however, that such person has been informed prior to making such communications that they may be used for such purpose and has waived the privilege.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 6A. Mentally retarded persons; appointment of guardians; commitment; treatment with antipsychotic medication Section 6A. (a) A parent of a mentally retarded person, two or more relatives or friends of a mentally retarded person, a nonprofit corporation organized under the laws of the commonwealth whose corporate charter authorizes the corporation to act as guardian of a mentally retarded person, or any agency within the executive offices of human services or educational affairs may file a petition in the probate court asking to have a guardian appointed for such mentally retarded person. If, after notice as provided in section seven and a hearing, the court finds that the person is mentally retarded to the degree that he is incapable of making informed decisions with respect to the conduct of his personal and financial affairs, that failure to appoint a guardian would create an unreasonable risk to his health, welfare and property, and that appointment of a conservator pursuant to section sixteen B would not eliminate such risk, it may appoint a guardian of his person and estate. The court shall not so find unless the petition is accompanied by a report from a clinical team consisting of a physician, a licensed psychologist and a social worker or certified psychiatric nurse clinical specialist, each of whom is experienced in the evaluation of mentally retarded persons, that it has examined the said person and has determined that he is mentally retarded to the degree that he is incapable of making informed decisions with respect to the conduct of his personal and financial affairs. The court shall not, pursuant to this section, appoint as guardian any person or organization which, in its opinion, has any interest, responsibilities or powers which would render such person or organization unable to perform the duties of guardian in the best interest of the mentally retarded person. A copy of such appointment shall be sent by mail by the register to the department of mental retardation. The court may require additional testimony as to the existence and degree of mental retardation, and may require the person subject to the petition to submit to examination.
(b) No guardian so appointed shall have the authority to cause to admit or commit such mentally retarded person to a mental health or retardation facility unless the court specifically finds the same to be in the best interests of such person and specifically authorizes such admission or commitment by its order or decree. The court shall not authorize such admission or commitment except after a hearing for the purposes of which counsel shall be provided for any indigent mentally retarded person.
(c) No guardian so appointed shall have the authority to consent to treatment with antipsychotic medication, provided that the court shall authorize such treatment when it (1) specifically finds using the substituted judgment standard that the person, if competent, would consent to such treatment and (2) specifically approves and authorizes an antipsychotic medication treatment plan by its order or decree. The court shall not authorize such treatment plan except after a hearing for the purpose of which counsel shall be provided for any indigent mentally retarded person. Said hearing shall be held as soon as is practicable; provided, however, that if the petitioner requests a temporary order on the grounds that the welfare of the ward requires an immediate authorization of treatment with antipsychotic medications, the court shall act on such request in accordance with the procedures set forth in section fourteen.
(d) The court may delegate to a guardian the authority to monitor the treatment process to ensure that an antipsychotic medication treatment plan is followed, provided a guardian is readily available for such purpose. Approval of a treatment plan shall not be withheld, however, because a guardian is not available to serve as monitor. In such circumstances, the court shall appoint a suitable person to monitor the treatment process to ensure that the antipsychotic medication treatment plan is followed. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as may be determined by the court.
(e) At a hearing relative to authority to cause to admit or commit or authority to administer antipsychotic medication, the court shall require the attendance of such allegedly mentally retarded person unless the court finds that there exists extraordinary circumstances requiring his absence, in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively upon affidavits and other documentary evidence if it (1) determines, after careful inquiry and upon representations of counsel, that there are no contested issues of fact and (2) includes in its findings the reason that oral testimony was not required. The court may also appoint one or more persons experienced in the evaluation, care and treatment of mentally retarded persons to examine such person and report their conclusions to the court.
(f) Reasonable expenses incurred in any examination conducted pursuant to this section shall be paid by the petitioner, the estate of such persons, or by the commonwealth as the court may determine.
(g) The guardian of a mentally retarded person shall act to protect the welfare of such person and may utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to such person including, but not limited to, counseling services, advocacy services, legal services, and other aid as he deems to be in the interest of such person.
(h) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this chapter, for the purpose of obtaining treatment of a mentally retarded person; provided, however, that such person has been informed prior to making such communication that they may be used for such purpose and has waived the privilege.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 6B. Persons unable to make or communicate informed decisions; appointment of guardians Section 6B. The court may appoint a guardian for a person who is unable to make or communicate informed decisions due to physical incapacity or illness in a like manner, subject to the same limitations, and filed by such persons who may file a petition under section six.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 7. Notice Section 7. Upon such petition the court shall cause not less than seven days’ notice of the time and place appointed for the hearing to be given to the alleged mentally ill or mentally retarded person, to the department of mental retardation in the case of a petition filed pursuant to section six A and, if the alleged mentally ill or mentally retarded person is entitled to any benefit, estate or income paid or payable by or through the United States veterans’ bureau or its successor, to said bureau or its successor, except that the court may, for cause shown, direct that a shorter notice be given. No appointment shall be made without such notice to the heirs apparent or presumptive of the alleged mentally ill or mentally retarded person, including the husband or wife, if any, as the court may order. In the matter of said petition and all subsequent proceedings relating thereto said bureau or its successor shall be deemed to be a party in interest if the alleged mentally ill or mentally retarded person is so entitled.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 8. Spendthrifts; petition for appointment of guardian Section 8. A person who, by excessive drinking, gaming, idleness, or debauchery of any kind, so spends, wastes or lessens his estate as to expose himself or his family to want or suffering, or the department of public welfare, to charge or expense for his support or for the support of his family, may be adjudged a spendthrift. The department of public welfare or a relative of the alleged spendthrift, may file a petition in the probate court, stating the facts and circumstances of the case and praying that a guardian be appointed. If after notice as provided in the following section, and after hearing, the court finds that he is a spendthrift, it shall appoint a guardian of his person and estate.
GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS Chapter 201: Section 9. Notice Section 9. Upon such petition the court shall cause not less than seven days’ notice of the time and place appointed for the hearing to be given to the alleged spendthrift, except that the court may, for cause shown, direct that a shorter notice be given. If the alleged spendthrift is married, no guardian shall be appointed without such notice to said married person’s spouse as the court may order.
Chapter 201A: Section 1. Definitions Section 1. As used in this chapter the following words shall, unless the context requires otherwise, have the following meanings:—“Adult”, an individual who has attained the age of twenty-one years.
“Broker”, a person lawfully engaged in the business of effecting transactions in securities or commodities for the person’s own account or for the account of others.
“Court”, the probate and family court.
“Custodian”, a person so designated under section nine or a successor or substitute custodian designated under section eighteen.
“Custodial property”, (i) any interest in property transferred to a custodian under this chapter and (ii) the income from and proceeds of that interest in property.
“Financial institution”, a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law.
“Guardian”, a person appointed or qualified by a court to act as guardian of a minor’s property or a person legally authorized to perform substantially the same functions.
“Legal representative”, an individual’s personal representative or guardian.
“Member of the minor’s family”, the minor’s parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
“Minor”, an individual who has not attained the age of twenty-one years.
“Person”, an individual, corporation, organization, or other legal entity.
“Personal representative”, an executor, administrator, successor, personal representative, or voluntary administrator of a decedent’s estate or a person legally authorized to perform substantially the same functions.
“State”, includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
“Transfer”, a transaction that creates custodial property under section nine.
“Transferor”, a person who makes a transfer under this chapter.
“Trust company”, a financial institution, corporation, or other legal entity, authorized to exercise general trust powers.
Chapter 201A: Section 10. Single Custodianship Section 10. A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship.
Chapter 201A: Section 11. Validity and Effect of Transfer Section 11. (a) The validity of a transfer made in a manner prescribed in this chapter is not affected by:(1) failure of the transferor to comply with subsection (c) of section nine concerning possession and control;(2) designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under subsection (a) of said section nine; or(3) death or incapacity of a person nominated under section three or designated under said section nine as custodian or the disclaimer of the office by that person.
(b) A transfer made pursuant to said section nine is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this chapter and neither the minor nor the minor’s legal representative has any right, power, duty or authority with respect to the custodial property except as provided in this chapter.
(c) By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this chapter.
Chapter 201A: Section 12. Care of Custodial Property Section 12. (a) A custodian shall:(1) take control of custodial property;(2) register or record title to custodial property if appropriate; and(3) collect, hold, manage, invest, and reinvest custodial property.
(b) In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. Subject to such standard, custodial property may include undivided interests in any kind of real or personal property, so long as the minor’s interest is that of a tenant in common and is fixed; provided, however, that a custodian, in the custodian’s discretion and without liability to the minor or the minor’s estate, may retain any custodial property received from a transferor.
(c) A custodian may invest in or pay premiums on life insurance or endowment policies on (i) the life of the minor only if the minor or the minor’s estate is the sole beneficiary, or (ii) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor’s estate, or the custodian in the capacity of custodian, is the beneficiary.
(d) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words, “as a custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”.
(e) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen years.
Chapter 201A: Section 13. Powers of Custodian Section 13. (a) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.
(b) This section does not relieve a custodian from liability for a breach of section twelve.
Chapter 201A: Section 14. Use of Custodial Property Section 14. (a) A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (i) the duty or ability of the custodian personally or of any other person to support the minor, or (ii) any other income or property of the minor which may be applicable or available for that purpose.
(b) On petition of an interested person or the minor if the minor has attained the age of fourteen years, the court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
(c) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and shall not affect any obligation of a person to support the minor.
Chapter 201A: Section 15. Custodian’s Expenses, Compensation, and Bond Section 15. (a) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian’s duties.
(b) Except for one who is a transferor under section four, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
(c) Except as provided in paragraph (f) of section eighteen, a custodian need not give a bond for the faithful performance of his duties.
Chapter 201A: Section 16. Exemption of Third Person From Liability Section 16. A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, shall not be responsible for determining:(1) the validity of the purported custodian’s designation;(2) the propriety of, or the authority under this chapter for, any act of the purported custodian;(3) the validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or(4) the propriety of the application of any property of the minor delivered to the purported custodian.
Chapter 201A: Section 17. Liability to Third Persons Section 17. (a) A claim based on (i) a contract entered into by a custodian acting in a custodial capacity, (ii) an obligation arising from the ownership or control of custodial property, or (iii) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
(b) A custodian shall not be personally liable:—(1) on a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or(2) for an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
(c) A minor shall not be personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless such minor is personally at fault.
Chapter 201A: Section 18. Renunciation, Resignation, Death, or Removal of Custodian; Designation of Successor Custodian Section 18. (a) A person nominated under section three or designated under section nine as custodian may decline to serve in a writing delivered to the person who made the nomination or to the transferor or the transferor’s legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under said section three, the person who made the nomination may nominate a substitute custodian under said section three, otherwise the transferor or the transferor’s legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for the kind of property under subsection (a) of section nine. The custodian so designated has the rights of a successor custodian.
(b) A custodian at any time may designate a trust company or an adult other than a transferor under section four as successor custodian by will or by executing and dating an instrument of the designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor is revocable and does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
(c) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of fourteen years and to the successor custodian and by transfer of possession or control of the custodial property to the successor custodian.
(d) If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of fourteen years, the minor may designate as successor custodian, in the manner prescribed in paragraph (b), an adult member of the minor’s family, a guardian of the minor, or a trust company. If the minor has not attained the age of fourteen years or fails to act within sixty days after the ineligibility, death, or incapacity, the guardian of the minor becomes successor custodian. If the minor has no guardian or the guardian declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor’s family, or any other interested person may petition the court to designate a successor custodian who may serve without bond.
(e) A custodian who declines to serve under paragraph (a) or resigns under paragraph (c), or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession or control of the successor custodian. The successor custodian by action may enforce the obligation to transfer possession or control of the custodial property and records and becomes responsible for each item as received.
(f) A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian of the minor, or the minor if the minor has attained the age of fourteen years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under section four or to require the custodian to give appropriate bond.
Chapter 201A: Section 19. Accounting by and Determination of Liability of Custodian Section 19. (a) A minor who has attained the age of fourteen years, the minor’s guardian, an adult member of the minor’s family, a transferor, or a transferor’s legal representative may petition the court (i) for an accounting by the custodian or the custodian’s legal representative; or (ii) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under section seventeen to which the minor or the minor’s legal representative was a party.
(b) A successor custodian may petition the court for an accounting by the predecessor custodian.
(c) The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian’s legal representative to account.
(d) If a custodian is removed under paragraph (f) of section eighteen, the court shall require an accounting and order transfer of possession or control of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.
Chapter 201A: Section 2. Scope and Jurisdiction Section 2. (a) Except as otherwise provided in section twenty-two, this chapter shall apply to a transfer that refers to this chapter in the designation under subsection (a) of section nine by which the transfer is made if, at the time of the transfer, the transferor, or the minor, or the custodian is a resident of the commonwealth or the custodial property is located in the commonwealth. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from the commonwealth.
(b) A person designated as custodian under this chapter is subject to personal jurisdiction in the commonwealth with respect to any matter relating to the custodianship.
(c) A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state, is governed by the law of the designated state and may be executed and is enforceable in the commonwealth if at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.
Chapter 201A: Section 20. Termination of Custodianship Section 20. The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of:(1) the minor’s attainment of twenty-one years of age with respect to custodial property transferred to a custodian nominated as provided in section three or transferred under section four or section five;(2) the minor’s attainment of majority under the laws of the commonwealth, other than this chapter, with respect to custodial property transferred under (i) section six; or (ii) section seven, except in the case of a transfer to a custodian nominated as provided in section three; or(3) the minor’s death.
Chapter 201A: Section 21. Applicability Section 21. This chapter applies to a transfer within the scope of section two made after its effective date if:(1) the transfer purports to have been made under the Massachusetts Uniform Gifts to Minors Act; or(2) the instrument by which the transfer purports to have been made uses in substance the designation “as custodian under the Uniform Gifts to Minors Act” or “as custodian under the Uniform Transfers to Minors Act” of any other state, and the application of this chapter is necessary to validate the transfer.
Chapter 201A: Section 22. Effect on Existing Custodianships Section 22. (a) Any transfer of custodial property as now defined in this chapter made at a time when this chapter was entitled the Uniform Gifts to Minors Act is validated notwithstanding that there was no specific authority in the Massachusetts Uniform Gifts to Minors Act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
(b) This chapter applies to all transfers made before it became the Uniform Transfers to Minors Act in a manner and form prescribed in the Massachusetts Uniform Gifts to Minors Act except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on the effective date of this chapter.
(c) Sections one and twenty with respect to the age of a minor for whom custodial property is held under this chapter shall not apply to custodial property held in a custodianship that terminated because of the minor’s attainment of the age of majority before the date this chapter became the Uniform Transfers to Minors Act.
Chapter 201A: Section 23. Uniformity of Application and Construction Section 23. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
Chapter 201A: Section 24. Short title Section 24. This chapter may be cited as the “Massachusetts Uniform Transfers to Minors Act”.
Chapter 201A: Section 3. Nomination of Custodian Section 3. (a) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”. The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.
(b) A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under subsection (a) of section nine.
(c) The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under said section nine. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to said section nine.
Chapter 201A: Section 4. Transfer by Gift or Exercise of Power of Appointment Section 4. A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to section nine.
Chapter 201A: Section 5. Transfer Authorized by Will or Trust Section 5. (a) A personal representative or trustee may make an irrevocable transfer pursuant to section nine to a custodian for the benefit of a minor as authorized in the governing will or trust.
(b) If the testator or settlor has nominated a custodian under section three to receive the custodial property, the transfer shall be made to such custodian.
(c) If the testator or settlor has not nominated a custodian under said section three, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection (a) of section nine.
Chapter 201A: Section 6. Other Transfer by Fiduciary Section 6. (a) Subject to subsection (c), a personal representative or trustee may make an irrevocable transfer to another adult or another trust company as custodian for the benefit of a minor pursuant to section nine, in the absence of a will or under a will or trust that does not contain an authorization to do so.
(b) Subject to subsection (c), a guardian may make an irrevocable transfer to another adult or another trust company as custodian for the benefit of the minor pursuant to section nine.
(c) A transfer under subsection (a) or (b) may be made only if (i) the personal representative, trustee, or guardian considers the transfer to be in the best interest of the minor, (ii) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument, and (iii) the transfer is authorized by the court if it exceeds ten thousand dollars in value.
Chapter 201A: Section 7. Transfer by Obligor Section 7. (a) Subject to subsections (b) and (c), a person not subject to section five or section six who holds property of or owes a liquidated debt to a minor not having a guardian may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to section nine.
(b) If a person having the right to do so under section three has nominated a custodian under said section three to receive the custodial property, the transfer shall be made to such custodian.
(c) If no custodian has been nominated under said section three or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor’s family or to a trust company unless the property exceeds ten thousand dollars in value.
Chapter 201A: Section 8. Receipt for Custodial Property Section 8. A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this chapter.
Chapter 201A: Section 9. Manner of Creating Custodial Property and Effecting Transfer; Designation of Initial Custodian; Control Section 9. (a) Custodial property is created and a transfer is made whenever:(1) an uncertificated security or a certificated security in registered form is either (i) registered in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”, or (ii) delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (b);(2) money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”;(3) the ownership of a life or endowment insurance policy or annuity contract is either (i) registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”, or (ii) assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words, “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”;(4) an irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words, “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”;(5) an interest in real property is recorded or registered in the name of the transferor, an adult other than the transferor or a trust company followed in substance by the words, “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”;(6) a certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either (i) issued in the name of the transferor, an adult other than the transferor or a trust company followed in substance by the words, “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”, or (ii) delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: “as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act”; or(7) an interest in any property not described in paragraphs (1) to (6), inclusive, is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (b).
(b) An instrument in the following form satisfies the requirements of clause (ii) of paragraphs (1) and (7) of subsection (a):“TRANSFER UNDER THE MASSACHUSETTS UNIFORM TRANSFERS TO MINORS ACTI, ___ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to ___ (name of custodian), as custodian for ___ (name of minor) under the Massachusetts Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it).
Date: __________________________ (Signature)________ (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Massachusetts Uniform Transfers to Minors Act.
Dated: __________________________” (Signature of Custodian)(c) A transferor shall place the custodian in control of the custodial property as soon as practicable.
Chapter 201B: Section 1. Durable power of attorney; definition Section 1. (a) A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact and the writing contains the words, “This power of attorney shall not be affected by subsequent disability or incapacity of the principal”, or “This power of attorney shall become effective upon the disability or incapacity of the principal”, or similar words showing the intent of the principal that the authority conferred shall continue notwithstanding the subsequent disability or incapacity of the principal.
(b) References in this chapter to the disability or incapacity of the principal shall mean the mental illness or other disability of the principal recognized under the General Laws.
Chapter 201B: Section 2. Effect of acts pursuant to durable power of attorney Section 2. All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal shall have the same effect and inure to the benefit of, and bind the principal and his successors in interest, as if the principal were competent and not disabled.
Chapter 201B: Section 3. Court appointed conservator, guardian of the estate, etc.
; powers; nomination by principal Section 3. (a) If, following execution of a durable power of attorney, a court appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the property of the principal or all of his property except specified exclusions, the attorney in fact shall be accountable to such fiduciary as well as to the principal. Such fiduciary shall have the same power to revoke or amend the power of attorney that the principal would have had if such principal were not disabled or incapacitated.
(b) A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court, if protective proceedings for the person or estate of such principal are thereafter commenced. The court shall make its appointment in accordance with the most recent such nomination by the principal except for good cause or disqualification.
Chapter 201B: Section 4. Death, disability or incapacity of principal; acts of attorney without actual knowledge Section 4. (a) The death of a principal who has executed a written power of attorney, durable or otherwise, shall not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under such power. Any such action so taken, unless otherwise invalid or unenforceable, shall bind a successor in interest of the principal.
(b) The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power shall not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under such power. Any such action so taken, unless otherwise invalid or unenforceable, shall bind the principal and his successor in interest.
Chapter 201B: Section 5. Good faith reliance; knowledge of termination of power Section 5. As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he did not have, at the time of exercise of the power, actual knowledge of the termination of the power by revocation or of the death, disability or incapacity of the principal shall be conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, such affidavit when authenticated for record shall be likewise recordable. This section shall not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the capacity of the principal.
Chapter 201B: Section 6. Application and construction Section 6. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
Chapter 201B: Section 7. Short title Section 7. This chapter may be cited as the Uniform Durable Power of Attorney Act.
Chapter 201C: Section 1. Transfer of property; statutory custodianship trustee; revocability Section 1. An adult person may, during his lifetime, transfer any property owned by him, in any manner otherwise consistent with law, to one or more named persons designated, in substance, as a “Statutory custodianship trustee”. Such transfer shall be sufficient to create a trust upon the terms set forth in this chapter as it is in effect at the date of the transfer without any further trust instrument or designation of terms and without appointment or qualification by any court, and shall be complete upon acceptance of the trust by the trustee or trustees manifested in any form. The trustee or trustees shall serve without giving bond or surety unless the transferor by written instrument, or the probate court upon the application of any person interested in the estate of the transferor and upon good cause shown, shall provide for a bond. All transfers in trust under this chapter shall be revocable by the transferor at any time he has legal capacity by a writing signed by him and delivered to the person, or if more than one to any person serving as trustee.
Chapter 201C: Section 2. Application of income and principal; accounting by trustee Section 2. During the life of the transferor the trustee or trustees shall apply the income and principal, by payment to the transferor or by direct expenditure, as may be necessary for the comfortable and suitable maintenance and support of the transferor and his family in accordance with the principles applicable to a conservator. Upon the death of the transferor the remaining property shall be delivered and paid over to the estate of the transferor. With respect to the property in the trust, except as modified in the instrument of transfer, the trustee or trustees shall have the statutory optional fiduciary powers as provided in chapter one hundred and eighty-four B and such additional rights and powers as the transferor may provide by written instrument. The trustee or trustees shall account at least annually to the transferor or to his guardian or conservator, if any, and after the death of the transferor to his executor or administrator. In the event of the incompetency of the transferor the trustee or trustees may apply to the probate court in the same manner as a guardian or conservator for authority to deal with property held in trust in any manner in which the court might authorize a guardian or conservator to deal with property of the transferor.
Chapter 201C: Section 3. Resignation or removal of trustee; appointment to fill vacancy Section 3. A trustee may resign by an instrument in writing delivered to the transferor or to his guardian or conservator, if any. A trustee may be removed by the transferor by an instrument in writing delivered to such trustee. If there is more than one person serving as trustee, a vacancy need not be filled, and until a successor is appointed the remaining trustee or trustees may act alone. In the event of a vacancy a successor may be appointed by the transferor, if legally competent, or as the transferor shall have provided by a written instrument, and otherwise by his guardian or conservator, if any, and if none, by his heirs presumptive, and such appointment shall become effective upon acceptance.
Chapter 201D: Section 1. Definitions Section 1. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings:—“Attending physician”, the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient, in whatever setting medical diagnosis or treatment is rendered. Where more than one physician shares such responsibility, any such physician may act as the attending physician.
“Capacity to make health care decisions”, the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.
“Facility”, any facility as defined in section seventy E of chapter one hundred and eleven.
“Health care”, any treatment, service or procedure to diagnose or treat the physical or mental condition of a patient.
“Health care agent” or “agent”, an adult to whom authority to make health care decisions is delegated under a health care proxy.
“Health care decision made by an agent under a health care proxy”, a decision which is made in accordance with the requirements of this chapter, is consistent with any limitations in the health care proxy, and is consistent with responsible medical practice.
“Health care provider”, an individual or facility licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or professional practice.
“Health care proxy”, a document delegating to an agent the authority to make health care decisions, executed in accordance with the requirements of this chapter.
“Principal”, a person who has executed a health care proxy.
Chapter 201D: Section 10. Coercion; execution of proxy Section 10. A person may not require or prohibit the execution of a health care proxy by an individual as a condition for providing health care services or insurance of such individual.
Chapter 201D: Section 11. Foreign proxies; enforceability Section 11. Nothing in this chapter shall limit the enforceability of a health care proxy or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction; provided, however, that no person or health care provider or facility shall be required to enforce such proxy where to do so would violate sections fourteen and fifteen herein; provided, further, that all the responsibilities of a person, health care provider or facility are fulfilled as required under said sections fourteen and fifteen.
Chapter 201D: Section 12. Suicide or mercy killing Section 12. Nothing in this chapter shall be construed to constitute, condone, authorize, or approve suicide or mercy killing, or to permit any affirmative or deliberate act to end one’s own life other than to permit the natural process of dying.
Chapter 201D: Section 13. Pain alleviation; comfort care procedures Section 13. Nothing in this chapter shall preclude any medical procedure deemed necessary by the attending physician to provide comfort care or pain alleviation. Such procedures shall include but not be limited to treatment with sedatives and pain-killing drugs; non-artificial oral feeding; suction; and hygenic care.
Chapter 201D: Section 14. Physicians; refusal to honor proxy Section 14. Notwithstanding any provisions herein to the contrary, nothing in this chapter shall be construed to require a physician to honor an agent’s health care decision that the physician would not honor if the decision had been made by the principal because the decision is contrary to the moral or religious views of the physician; provided, however, that the patient is transferred to another physician in the same facility, or in an equivalent facility that is reasonably accessible to the patient’s family, who is willing to honor the agent’s decision. If the physician or the agent is unable to arrange such a transfer, the physician shall seek judicial relief or honor the agent’s decision.
Refusal to carry out actions requested by the agent when those actions would be contrary to the moral or religious views of the physician or other individual health provider shall not be grounds for dismissal, suspension, demotion, failure to promote, discrimination in hiring, withholding of pay or refusal to grant financial assistance under any state aided project, or used in any way to the detriment of that individual in any hospital, clinic, medical, premedical, nursing, social work, or psychology school or state aided program or institution which is supported in whole or in part by the commonwealth; provided, however, that individuals fulfill all the responsibilities required under section fourteen or fifteen.
Chapter 201D: Section 15. Private facilities; refusal to honor proxy Section 15. Notwithstanding any provisions herein to the contrary, nothing in this chapter shall be construed to require a private facility to honor an agent’s health care decision that the facility would not honor if the decision had been made by the principal because the decision is contrary to a formally adopted policy of the facility that is expressly based on religious beliefs and the facility would be permitted by law to refuse to honor the decision if made by the principal, provided:(a) the facility has informed the patient or the health care agent of such policy prior to or upon admission, if reasonably possible; and(b) the patient is transferred to another equivalent facility that is reasonably accessible to the patient’s family and willing to honor the agent’s decision. If the facility or the agent is unable to arrange such a transfer, the facility shall seek judicial guidance or honor the agent’s decision.
Chapter 201D: Section 16. Lack of proxy; effect Section 16. In those instances that a health care proxy has not been executed, nothing herein shall preclude a health care provider from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law.
Nothing in this chapter shall invalidate a power of attorney delegating the authority to make health care decisions executed prior to the enactment of this chapter.
A competent adult’s failure to appoint a health care agent or to provide the agent with specific health care instructions pursuant to this article shall create no presumptions regarding the adult’s wishes about health care.
Chapter 201D: Section 17. Disputes; court proceedings Section 17. The health care provider, the conservator for, or guardian of the principal, members of the principal’s family, a close friend of the principal, or the commissioner of public health may commence a special proceeding in a court of competent jurisdiction, with respect to any dispute arising under this chapter, including, but not limited to, a proceeding to:(i) determine the validity of the health care proxy;(ii) have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations under this chapter or is acting in bad faith; or(iii) override the agent’s decision about health care treatment on the grounds that: the decision was made in bad faith or the decision is not in accordance with the standards set forth in section five.
Chapter 201D: Section 2. Appointment of health care agents; execution of proxy; alternate agents Section 2. Every competent adult shall have the right to appoint a health care agent by executing a health care proxy. Said health care proxy shall be in writing signed by such adult or at the direction of such adult in the presence of two other adults who shall subscribe their names as witnesses to such signature. The witnesses shall affirm in writing that the principal appeared to be at least eighteen years of age, of sound mind and under no constraint or undue influence. No person who has been named as health care agent in a health care proxy shall act as a witness to the execution of such proxy. For the purposes of this section, every adult shall be presumed to be competent and every health care proxy shall be presumed to be properly executed unless a court determines otherwise.
A competent adult may designate an alternate health care agent as part of a valid health care proxy. Said alternate may serve when the designated health care agent is not available, willing or competent to serve and the designated health care agent is not expected to become available, willing or competent to make a timely decision given the patient’s medical circumstances; or, the health care agent is disqualified from acting on the principal’s behalf pursuant to other requirements of this chapter.
Chapter 201D: Section 3. Eligibility to serve as agent Section 3. No person who is an operator, administrator or employee of a facility may be appointed as health care agent by an adult, who, at the time of executing the health care proxy is a patient or resident of such facility or has applied for admission to such facility unless said operator, administrator or employee is related to the principal by blood, marriage or adoption.
Chapter 201D: Section 4. Contents of proxy Section 4. The health care proxy shall:(i) identify the principal and the health care agent;(ii) indicate that the principal intends the agent to have authority to make health care decisions on the principal’s behalf;(iii) describe the limitation, if any, that the principal intends to impose upon the agent’s authority; and(iv) indicate that the agent’s authority shall become effective if it is determined pursuant to section six that the principal lacks capacity to make health care decisions.
Chapter 201D: Section 5. Authority of agent Section 5. An agent shall have the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.
After consultation with health care providers, and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects, the agent shall make health care decisions: (i) in accordance with the agent’s assessment of the principal’s wishes, including the principal’s religious and moral beliefs, or (ii) if the principal’s wishes are unknown, in accordance with the agent’s assessment of the principal’s best interests.
Notwithstanding any general or special law to the contrary, the agent shall have the right to receive any and all medical information necessary to make informed decisions regarding the principal’s health care, including any and all confidential medical information that the principal would be entitled to receive.
Health care decisions by an agent pursuant to a health care proxy on a principal’s behalf shall have the same priority over decisions by any other person, including a person acting pursuant to a durable power of attorney as would decisions by the principal, when competent, except as otherwise provided in the health care proxy or by specific court order overriding the proxy.
A physician who is provided with a health care proxy shall arrange for the proxy or a copy thereof to be inserted in the principal’s medical record.
A health care provider shall comply with health care decisions made by an agent under a health care proxy to the same extent as if such decisions have been made by the principal, subject to any limitations in the health care proxy, or in any specific court order.
Chapter 201D: Section 6. Incapacity of patient; regained capacity Section 6. The authority of a health care agent shall begin after a determination is made, pursuant to the provisions of this section, that the principal lacks the capacity to make or to communicate health care decisions. Such determination shall be made by the attending physician according to accepted standards of medical judgment. The determination shall be in writing and shall contain the attending physician’s opinion regarding the cause and nature of the principal’s incapacity as well as its extent and probable duration. This written determination shall be entered into the principal’s permanent medical record.
If the attending physician determines that a patient lacks capacity because of mental illness or developmental disability, the attending physician who makes the determination must have, or must consult with a health care professional who has, specialized training or experience in diagnosing or treating mental illness or developmental disabilities of the same or similar nature in making such determination.
A physician who has been appointed as a patient’s agent shall not make the determination of the patient’s capacity to make health care decisions.
Notice of a determination that a principal lacks capacity to make health care decisions shall promptly be given orally and in writing: (i) to the principal, where there is any indication of the principal’s ability to comprehend such notice; (ii) to the agent; and (iii) if the patient is in or is transferred from a mental health facility, to the facility director.
A determination made pursuant to this section that a principal lacks capacity to make health care decisions is solely for the purpose of empowering an agent to make health care decisions pursuant to a health care proxy.
Notwithstanding a determination pursuant to this section that the principal lacks capacity to make health care decisions, where a principal objects to a health care decision made by an agent pursuant to a health care proxy the principal’s decisions shall prevail unless the principal is determined to lack capacity to make health care decisions by court order.
In the event the attending physician determines that the principal has regained capacity:(i) the authority of the agent shall cease, but shall recommence if the principal subsequently loses capacity; and (ii) the principal’s consent for treatment shall be required.
Chapter 201D: Section 7. Revocation of proxy Section 7. A principal may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy.
For the purposes of this section, every principal shall be presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to court order.
A health care proxy shall also be revoked upon: (i) execution by the principal of a subsequent health care proxy, or (ii) the divorce or legal separation of the principal and his spouse, where the spouse is the principal’s agent under a health care proxy.
A physician who is informed of or provided with a revocation of a health care proxy shall immediately record the revocation in the principal’s medical record and notify orally and in writing the agent and any health care providers known by the physician to be involved in the principal’s care of the revocation. Any agent or member of the nursing staff informed of or provided with a revocation of a health care proxy pursuant to this section shall immediately notify the attending physician of such revocation.
Chapter 201D: Section 8. Liability of health care providers and agents Section 8. No health care provider or employee thereof shall be subject to criminal or civil liability or be deemed to have engaged in unprofessional conduct, for carrying out in good faith a health care decision by an agent pursuant to a health care proxy.
No person acting as agent pursuant to a health care proxy shall be subject to criminal or civil liability for making a health care decision in good faith pursuant to this chapter.
Chapter 201D: Section 9. Liability for health care costs Section 9. Liability for the cost of health care provided pursuant to an agent’s decision shall be the same as if the health care were provided pursuant to the principal’s decision.
PART 1. SHORT TITLE, DEFINITIONS, APPLICABILITY Chapter 201E: Section 101. Construction and application of chapter Section 101. (1) This chapter shall be known as and may be cited as the Uniform Transfer on Death Security Registration Act.
(2) This chapter shall be liberally construed and applied to promote its underlying purposes and policy and to make uniform the laws with respect to the subject of this chapter among states enacting it.
(3) Unless displaced by the particular provisions of this chapter, the principles of law and equity supplement its provisions.
PART 4. TERMS, CONDITIONS AND FORMS, RIGHTS OF CREDITORS Chapter 201E: Section 402. Rights of creditors Section 402. (a) If other assets of the estate are insufficient, a transfer resulting from registration under this chapter shall not be effective against the estate of a deceased party to the extent needed to pay claims against the estate and statutory allowances to the surviving spouse and children.
(b) A surviving party or beneficiary who receives payment of a security registered in accordance with this chapter shall be liable to account to the personal representative of the decedent for a proportionate share of the amount received to which the decedent, immediately before death, was beneficially entitled to the extent necessary to discharge the claims and allowances described in subsection (a) remaining unpaid after application of the decedent’s estate. A proceeding to assert the liability may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent. The proceeding shall be commenced within one year after death of the decedent. Sums recovered by the personal representative shall be administered as part of the decedent’s estate.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 1. Realty; sale to satisfy debts Section 1. If the personal property of a deceased person is insufficient to pay his debts, legacies and charges of administration, his executor or administrator shall, for the purpose of paying such debts, legacies or charges of administration, sell his real estate in the manner hereinafter provided, and the proceeds thereof shall be assets in the hands of the executor or administrator in like manner as if they had originally been part of the personal property of the deceased.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 10. Notice of petition; service Section 10. No license to sell real estate shall be granted to an executor or administrator until notice of the petition and of the time and place appointed for hearing the same has been given by serving such notice personally on all persons interested in the estate at least fourteen days before the time appointed for the hearing, or by publication at such times and in such newspaper as the court orders.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 11. Notice of petition; interested persons Section 11. No license to sell real estate shall be granted to a guardian or conservator until such notice as the court orders has been given to the next of kin of the ward, to all his heirs apparent or presumptive, and to all persons interested in the estate.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 12. License to guardian of spendthrift or person incapacitated by reason of mental illness; notice Section 12. No license to sell real estate shall be granted to the guardian of a spendthrift who resides in the commonwealth, or of a person who is incapacitated by reason of mental illness, unless seven days notice of the petition therefor has been given to the department of public welfare, or, in the case of a person incapacitated by reason of mental illness, to the department of mental health. Such notice may be served upon any member of said board or department.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 13. Bond; posting by interested party to satisfy debts; effect Section 13. No license shall be granted to an executor or administrator, if any person interested in the estate gives bond to him in a sum and with sureties approved by the court, conditioned to pay, so far as the personal property of the deceased shall be insufficient therefor, all legacies mentioned in the petition, all debts therein mentioned which shall eventually be found due from the estate and charges of administration.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 14. Public or private sale of realty Section 14. Upon a petition of an executor or administrator for a license to sell real estate of the deceased or of a guardian or conservator to sell real estate of his ward, the court may, if the petitioner so requests, authorize him to sell such property at public auction and to convey to the purchaser all the estate, right, title and interest which the deceased had therein at his death and which was then chargeable with the payment of his debts or which the ward has at the time of the sale. If the petitioner requests that such property may be sold by private sale and the court, upon a hearing, finds that an advantageous offer for the purchase thereof has been made to the petitioner, and that the interests of all parties will be promoted by an acceptance thereof, it may authorize a conveyance by private sale in accordance with such offer or upon other terms; but the petitioner so authorized may nevertheless sell such property by public auction in accordance with this chapter. The court, if satisfied that such action will not be prejudicial to the interests of the estate, may authorize the petitioner to become the purchaser of such real estate at public or private sale.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 15. Notice of sale by auction Section 15. An executor, administrator, guardian or conservator shall give notice of the time and place of a sale by auction by causing notices thereof to be posted, thirty days at least before the sale, in a public place in the town where the land lies, and in two adjoining towns, if there are so many in the county, or, if the court granting the license so orders, by publishing the notice once in each of three successive weeks in a newspaper.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 16. Affidavits; evidence of notice Section 16. An affidavit of the executor, administrator, guardian or conservator, or of a person in his behalf, filed and recorded with a copy of the notice in the registry of probate, or such affidavit made by any person and filed and recorded with such copy by permission of the court upon satisfactory evidence that the notice was given as ordered, shall be admitted as evidence of the time, place and manner in which the notice was given.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 17. Adjournment of sale Section 17. If at the time appointed for such sale the executor, administrator, guardian or conservator considers it for the interest of all persons concerned that the sale should be postponed, he may adjourn it for not more than fourteen days, and notice of such adjournment shall be given by a public declaration at the time and place first appointed for the sale. If the adjournment is for more than one day, further notice of the sale shall be given by posting or publishing, as time and circumstances may admit.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 18. Fraudulent conveyances; recovery Section 18. If an executor or administrator is licensed to sell land which has been fraudulently conveyed by the deceased or is fraudulently held by another person for him, or land to which the deceased had a right of entry or of action or of which he had a right to a conveyance, he may, within one year after such license, sell the land without first obtaining possession thereof by entry or action, or he may without a formal entry bring an action to obtain possession by virtue of such license, demanding the land as executor or administrator, and may sell the same within one year after possession is obtained.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 19. Distribution; sale of realty; procedure Section 19. The probate court may, upon petition of an administrator, administrator with the will annexed, or executor filed within one year after the date of the giving of the executor’s or administrator’s bond, or, if an administrator de bonis non shall be appointed within one year after the date of the original appointment of the executor or administrator, then within six months after the date of the giving of a bond by such administrator de bonis non, or within the remainder of said last mentioned period of one year, whichever is the longer period, with the consent of all parties interested or after notice, license him to sell the whole or any part of the real estate or any undivided interest therein belonging to the estate of the deceased, in such manner and upon such notice as the court orders; and the net proceeds of such sale, after deducting the expenses thereof and such amount as may be required for the payment of debts, legacies and charges of administration, in consequence of a deficiency in the personal property, shall be paid over to the person or persons who would have been entitled to such real estate and in the proportions to which they would have been entitled had it not been sold. Before any such license shall be issued, the petitioner shall file in the probate court an affidavit containing the names of all persons known to him as having or claiming any interest in said real estate derived from any deed of conveyance or mortgage by, through or under any of the heirs or devisees, and if it appears that there are any such persons, they shall be made parties to the proceedings, and notified in such manner as the court orders.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 2. Realty subject to sale Section 2. The real estate so liable to be sold shall include all land of the deceased, all rights of entry and of action and all other rights and interests in land, which would descend to his heirs or would have been liable to attachment or execution by a creditor of the deceased in his lifetime; but the title passed by any such sale shall, except as provided in the following section, be subject to the dower of the wife or curtesy of the husband of the deceased. No claim by entry or by action to land fraudulently conveyed by the deceased shall be made unless within five years after the decease of the grantor.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 20. Sale of realty for payment of debts; limitation of time Section 20. No interest in the real estate of a deceased person conveyed absolutely or in mortgage for value and in good faith by an instrument duly recorded shall be liable to be taken on execution, or sold under any judicial proceeding for payment of his debts, costs of court, or claims against his estate, except claims for taxes, municipal assessments or succession taxes, legacies or other charges created by will of the deceased, or the expenses or charges of administration, after the expiration of one year from the time of the first appointed executor or administrator first giving bond for the performance of his trust, unless in pursuance of a license to sell granted in consequence of an order for the retention of assets passed under the provisions of section thirteen of chapter one hundred and ninety-seven upon a petition filed within said year or before said conveyance or mortgage is recorded, or unless in pursuance of a license to sell granted upon a petition filed in the registry of probate within said year, or unless for the satisfaction in whole or in part of a claim of which notice has been filed in the registry of probate within said year, stating substantially the name and address of the claimant, the nature and amount of the claim and the court, if any, in which proceedings are pending to determine or enforce the same. Said notice shall be filed with the other proceedings in the case and entered upon the docket under the name of the estate of the deceased.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 20A. Estate expenses; execution on conveyed property; limitation of time Section 20A. No interest in the real estate of a deceased person conveyed absolutely or in mortgage for value and in good faith by an instrument duly recorded shall be liable to be taken on execution, or sold under any judicial proceeding for payment of expenses or charges of administration, after the expiration of six years from the time of such executor or administrator giving bond for the performance of his trust, unless in pursuance of a license to sell real estate granted upon a petition filed in the registry of probate within said six years.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIANS AND CONSERVATORS FOR MAINTENANCE OR INVESTMENT Chapter 202: Section 21. Purpose and nature of sale Section 21. If the income of the estate of a ward is insufficient to maintain him and his family or if it appears that it would be for his benefit that his real estate or any part thereof or any standing or growing wood thereon should be sold and the proceeds placed on interest or invested in a productive security, his guardian or conservator may sell such real estate or wood upon obtaining a license therefor and proceeding as hereinafter provided. If standing or growing wood is so sold, the guardian or conservator may grant to the purchaser the privilege of entering upon the land and cutting and carrying away such wood within such time as the guardian or conservator may allow.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIANS AND CONSERVATORS FOR MAINTENANCE OR INVESTMENT Chapter 202: Section 22. Petition and license; form Section 22. To obtain such license, the guardian or conservator shall file a petition setting forth the condition of the estate and the facts and circumstances on which the petition is founded. If after an examination, on the oath of the petitioner or otherwise, the court finds that it would be for the benefit of the ward that the sale should be made, it may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or in order that the proceeds may be placed on interest or invested as aforesaid.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIANS AND CONSERVATORS FOR MAINTENANCE OR INVESTMENT Chapter 202: Section 23. Maintenance; disposition of proceeds of sale Section 23. If the sale is made for the maintenance of the ward and his family, the guardian or conservator shall apply the proceeds, so far as necessary, to that purpose, and shall place the residue on interest or invest it according to his best judgment until the capital is wanted for such maintenance; in such case, the capital may be used for that purpose as if it had been personal property.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIANS AND CONSERVATORS FOR MAINTENANCE OR INVESTMENT Chapter 202: Section 24. Investment; disposition of proceeds of sale Section 24. If the property is sold in order to place on interest or invest the proceeds, the guardian or conservator shall make the investment according to his best judgment, or in pursuance of any order of the court relative thereto.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIANS AND CONSERVATORS FOR MAINTENANCE OR INVESTMENT Chapter 202: Section 25. Property of minors; persons authorized to sell Section 25. A sale of the property of a minor for the purpose of investment may be made upon the petition of the guardian or any friend of the minor, and the court may authorize the guardian or another person to sell and convey the property. The provisions of this chapter relative to licenses and sales upon the petitions of guardians shall, except as provided in the following section, apply to licenses and sales under this section.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIANS AND CONSERVATORS FOR MAINTENANCE OR INVESTMENT Chapter 202: Section 26. Property of minors; disposition of proceeds of sale Section 26. If the sale is made by a person other than the guardian, the proceeds shall forthwith be paid to the guardian upon his giving to the judge of probate a bond with sufficient sureties conditioned to account for such proceeds. If there is no guardian, the proceeds shall be placed on interest or invested by the person authorized to sell the property, in like manner as is required of a guardian.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES BY GUARDIAN OF NON-RESIDENT WARD Chapter 202: Section 27. Transfer of proceeds to foreign executor Section 27. A guardian or conservator appointed within the commonwealth, whose ward removes from or resides out of the commonwealth, may sell the real estate of his ward and transfer and pay over the whole or any part of the proceeds of such sale to a guardian, conservator, trustee, committee or other official appointed by competent authority in the state or country where the ward resides, upon such terms and in such manner as the probate court may, after notice to all parties interested, decree upon petition filed therefor.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS MORTGAGES Chapter 202: Section 28. Executor or administrator; authority to mortgage Section 28. The probate court may, upon petition and after notice to all persons interested, if upon a hearing it appears to be for the benefit of the estate, authorize an executor, administrator with the will annexed or administrator to mortgage any of the real estate for the purpose of paying debts, legacies or charges of administration or for the purpose of paying an existing lien or mortgage on the estate of the deceased; or it may authorize such executor or administrator to make an agreement for the extension or renewal of such existing mortgage.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS MORTGAGES Chapter 202: Section 29. Guardian or conservator; authority to mortgage Section 29. The probate court may, upon petition of a guardian or conservator, if, after notice and a hearing, it appears to be necessary or expedient, authorize him to mortgage any real estate of his ward.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 3. Realty subject to curtesy or dower; sale; proceeds Section 3. Upon a petition by an executor or administrator to sell real estate of a deceased person, if it shall appear that a surviving husband is or may be entitled to an estate of curtesy, or a surviving wife to an estate of dower in the premises to be sold, the probate court may, if the petitioner so requests, and after notice, license him to sell the same free and clear of any such interest or claim on the part of the surviving husband or wife. One third of the proceeds of the sale shall thereupon be set apart for the period during which such curtesy or dower may be claimed; and if a claim is duly made therefor, the court shall appoint a trustee to administer the same in accordance with section thirty-five of chapter two hundred and forty-one, unless the parties in interest shall otherwise agree upon a division of the proceeds without the appointment of a trustee, and the probate court may approve any such agreement on the part of the executor or administrator.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS MORTGAGES Chapter 202: Section 30. Petition and decree; form Section 30. A petition under either of the two preceding sections shall set forth a description of the estate to be mortgaged, the amount of money necessary to be raised and the purposes for which it is required; and the decree of the court upon such petition shall fix the amount for which the mortgage may be given and the rate of interest which may be paid thereon, and may order the whole or any part of the money secured by the mortgage to be paid from time to time out of the income of the property mortgaged.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS LEASES Chapter 202: Section 31. Realty of ward Section 31. The probate court may, upon the petition of a guardian or conservator setting forth a description of the real estate of his ward which he desires to lease, the reason why it is necessary or expedient to give a written lease thereof, and the length of the term, if, after notice and a hearing, it appears to be necessary or expedient, authorize such guardian or conservator to give a written lease of said real estate, and the decree of the court shall fix the term and the amount for which it may be leased.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS POWERS OF FOREIGN EXECUTOR, ETC. Chapter 202: Section 32. Foreign executor; license to sell realty Section 32. An executor or administrator appointed in another state or country upon the estate of a person who was not at the time of his death a resident of this commonwealth and upon whose estate administration has not been granted in this commonwealth, duly qualified and acting, may file an authenticated copy of the record of his appointment and of his bond in the probate court for any county where there is real estate of the deceased; and such executor or administrator, after such notice to the commissioner of revenue, creditors and all other persons interested as the court may order, may be licensed to sell said real estate or an undivided interest therein in such manner and upon such notice as the court orders. But such license shall not be granted unless the court finds that six months have expired since the death of the deceased, that the executor or administrator has given a sufficient bond and will be liable to account for the proceeds of the sale in the state or country where he was appointed that the executor or administrator has filed in the probate court a certificate of the commissioner of revenue showing either that the amount of tax under chapter sixty-five C has been paid, that payment thereof has been secured as provided in section ten of said chapter sixty-five C, or that no tax is due, and that no creditor or other person interested will be prejudiced thereby. The net proceeds of such sale, after deducting the expenses thereof and after the payment and satisfaction of all claims against said estate in this commonwealth, may be taken by said foreign executor or administrator out of the commonwealth to be accounted for in the court in which he received his appointment. For dates of death on or after January 1, 1997, said certificate of the commissioner shall not be required.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS POWERS OF FOREIGN EXECUTOR, ETC. Chapter 202: Section 33. Foreign guardian or conservator; license to sell realty of ward Section 33. If a person who resides out of the commonwealth is under guardianship or conservatorship in the state or country where he resides and has no guardian or conservator appointed in this commonwealth, the foreign guardian or conservator may file an authenticated copy of his appointment in the probate court for any county where there is real estate of the ward; after which upon petition he may be licensed to sell, mortgage or lease the real estate of the ward in any county, for the purposes, in the manner and upon the terms provided in this chapter for a guardian or conservator appointed in this commonwealth, except as provided in the following section.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS POWERS OF FOREIGN EXECUTOR, ETC. Chapter 202: Section 34. Bond; sufficiency; filing Section 34. If the court finds that such foreign guardian or conservator has given bond with sufficient surety or sureties, in the state or country where he was appointed, to account for the proceeds of such sale, mortgage or lease, and if an authenticated copy of such bond is filed in said court, no further bond shall be required; otherwise, before such license is granted, he shall give bond payable to the judge of said court and his successors with sufficient surety or sureties and with condition to account for and dispose of said proceeds according to law.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS POWERS OF FOREIGN EXECUTOR, ETC. Chapter 202: Section 35. Proceedings; notice Section 35. A foreign executor, administrator, guardian or conservator who has been licensed to sell real estate shall, except as otherwise provided, give notice of the time and place of sale, and otherwise proceed as is provided for an executor, administrator, guardian or conservator, appointed in this commonwealth; and the evidence of such notice may be perpetuated in the same manner.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES, MORTGAGES AND LEASES BY LEGAL REPRESENTATIVES OF CERTAIN PERSONS HOLDING REAL ESTATE UNDER TENANCIES BY THE ENTIRETY Chapter 202: Section 36. Tenants by entirety; joinder in sale, mortgage or lease of realty Section 36. On petition under any provision of this chapter by a guardian or conservator of a ward who is a tenant by the entirety of real estate or by a receiver, appointed under chapter two hundred, of an absentee person who is such a tenant by the entirety, for a license to sell, mortgage or lease such real estate, the probate court may, if the other tenant by the entirety assents in writing, authorize such guardian, conservator or receiver to join with such other tenant by the entirety in the conveyance, mortgage or lease of such real estate upon such terms as it may approve.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES, MORTGAGES AND LEASES BY LEGAL REPRESENTATIVES OF CERTAIN PERSONS HOLDING REAL ESTATE UNDER TENANCIES BY THE ENTIRETY Chapter 202: Section 37. Decree upon petition for leave to sell property; scope Section 37. The decree of a probate court upon a petition for leave to sell real or personal property shall be sufficient to authorize any action requiring a license by said court by any general or special law. A decree, authority, or order of said court shall contain a description of the real or personal property and the terms of sale.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES, MORTGAGES AND LEASES BY LEGAL REPRESENTATIVES OF CERTAIN PERSONS HOLDING REAL ESTATE UNDER TENANCIES BY THE ENTIRETY Chapter 202: Section 38. Presumptions; highest possible price Section 38. After the entry of a decree authorizing or licensing an executor, administrator, guardian, conservator or trustee to sell real estate at a public or private sale, provided: (a) the notice of the petition for license to sell real estate and of the time and place appointed for hearing, the same shall have been given by publication at such times and in such newspapers as the court orders, and (b) there shall have been no appearance entered against such sale prior to the entry of the decree or where such appearance shall have been entered and withdrawn prior to the entry of the decree, notwithstanding the fact that an appeal may have been taken prior to the expiration of the period allowed for an appeal therefrom, it shall be conclusively presumed that the amount of the advantageous offer stated in said petition for license to sell real estate is the highest possible price obtainable for the real estate described in such petition and that the executor, administrator, guardian, conservator, or trustee has fully satisfied his fiduciary duty to obtain the highest possible price for such real estate.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 4. Undevised realty; priority of disposition Section 4. Real estate not devised shall be first chargeable with the payment of debts, legacies or charges of administration in exoneration of real estate devised, unless a different intention appears by the will.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 4A. Rents and profits; payment of debts; limitations Section 4A. If the personal property of a deceased person appears to be insufficient to pay his debts, the probate court may, subject to the rights of the surviving spouse under section one of chapter one hundred and ninety-six, after notice, authorize the executor or administrator to take charge of the real property of the deceased or any part thereof and collect the rents thereof for such period of time as the court deems proper, and, during such period, to make necessary repairs and do all other things which it may consider needful for the preservation of such real property and as a charge on the interest of the decedent therein; provided, that if any person interested in the estate shall give bond as provided in section thirteen, no such authorization shall be given. The balance, if any, of said rents, subject to rights of dower and curtesy, and the rights of the surviving spouse and minor children of the decedent under section two of chapter one hundred and ninety-six, shall be assets in the hands of the executor or administrator for the payment of debts in like manner as are the proceeds of real property sold for the payment of debts. An order giving authority to the executor or administrator as aforesaid shall have effect, notwithstanding an appeal therefrom, until it is otherwise ordered by a justice of the supreme judicial court.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 5. Realty of ward; sale Section 5. If the personal property in the hands of a guardian or conservator is insufficient to pay the debts of the ward, with the charges of managing his estate, the guardian or conservator may be licensed to sell the ward’s real estate for that purpose or for the purpose of raising money with which to pay, in whole or in part, any encumbrance existing thereon when the title thereto came to his ward, in like manner and upon like terms, except as hereinafter provided, as are provided for a sale of real estate by an executor or administrator.
ADMINISTRATORS, GUARDIANS AND CONSERVATORS SALES Chapter 202: Section 6. Grant of license Section 6. A license to an executor
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