Massachusetts Estates and Trusts

Who can be Personal Representative of an Estate?

Massachusetts Uniform Probate Code (MUPC) Section 3-203(a) provides for the following order of priority for appointment as Personal Representative:

1. the person with priority as determined by a probated Will including a person nominated by a power conferred in a Will;

2. the surviving spouse of the decedent who is a devisee of the decedent;

3. other devisees of the decedent;

4. the surviving spouse of the decedent;

5.  other heirs of the decedent;

6. if there is no known spouse or next of kin, a public administrator appointed pursuant to chapter one hundred ninety-four.

MUPC Section 3-203(c) permits the persons described in (2) through (5) above to renounce the right to be appointed Personal Representative and to nominate a Personal Representative.

This statutory order of priority should be considered when choosing a Personal Representative or successor Personal Representative. When an individual is doing estate planning prior to death, he or she has freedom to choose his or her own Personal Representative and successor Personal Representative.

The individual can choose to give the Personal Representative the power to nominate another Personal Representative to serve in his or her place.

A Personal Representative should be someone trustworthy and capable of carrying out the duties of a Personal Representative. If dissent among the family is likely, there may be less contention if a disinterested Personal Representative is appointed, such as a trusted relative; accountant; attorney; other professional advisor; a bank or a trust company.

What are the Legal Duties of a Personal Representative?

MUPC Sections 3-701 to 720 relate to the duties and powers of a Personal Representative. Generally, the Personal Representative has a duty to administer the estate in an efficient and timely manner, including collecting and preserving assets, paying family allowances, distributing exempt assets upon request, paying or negotiating debts, paying administration expenses, and distributing the assets to the heirs or devisees. If there is a Will, the Personal Representative has a duty to administer and distribute the estate as directed in the Will.

A Personal Representative is permitted under MUPC Section 3-709 to leave real property or tangible personal property with the person presumptively entitled thereto unless and until the Personal Representative decides it is necessary to take possession.

After being appointed Personal Representative, the Personal Representative has three months to prepare an Inventory of the estate's assets. The Personal Representative also has a duty to prepare one or more Accountings to show what happened to the assets and income that came into his or her possession.

Whether the Inventory and Accountings must be filed with the Court and/or mailed to the heirs and devisees depends on the type of probate proceedings, the preferences of the Personal Representative and the requests, if any, of the heirs and devisees.

A Personal Representative may not sell real estate without a license to sell from the Probate and Family Court unless there is a probated Will that gives the Personal Representative the power to sell real estate.

A Personal Representative is held to the standards of a Trustee with respect to the collection and management of estate assets.