Who can be the personal representive (formerly known as executor)?
The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.
Under the MUPC, the person in charge of the estate of a deceased person is called a “personal representative”. Before the MUPC, we used the terms "executor"--if a person died with a Will--and "administrator"--if a person died without a Will.
Whether or not there is a Will, § 3-203(a) of the MUPC has a “priority ladder,” which establishes who has priority to be appointed as the personal representative. Generally, the order is as follows: (1) the person named in the Will, (2) the surviving spouse who is also a devisee, (3) other devisees, (4) the surviving spouse, (5) other heirs of the decedent, (6) if no known spouse or next of kin, a court-appointed public administrator.
As a side note, a "devisee" is the term referring to a person who is to inherit property under the Will, "heirs of the decedent" are those who would inherit in the absence of a Will, and "decedent" is the term referring to the person who died.
A person with priority may decline to serve as personal representative. Moreover, a person named as personal representative in the Will can decline and nominate a successor if and only if the Will explicitly provides that the named personal representative has the power to nominate a successor.
Rather than let the law determine who will be in charge of your estate, one should have an estate plan and name a personal representative in one's Will. One should also name a successor personal representative (backup person) and/or give your named personal representative the power to nominate a successor of his or her choosing.
Nothing in this blog should be considered legal advice as this is a complicated area of the law.
The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney serving clients in Easton, MA, as well as nearby towns and cities, including Abington, MA, Attleboro, MA, Avon, MA, Bridgewater, MA, Brockton, MA, Canton, MA, East Bridgewater, MA, Foxboro, MA, Mansfield, MA, North Attleboro, MA, Norwood, MA, Norton, MA, Plainville, MA, Randolph, MA, Raynham, MA, Rehoboth, MA, Rockland, MA, Sharon, MA, Stoughton, MA, Walpole, MA, West Bridgewater, MA, and Whitman, MA.
Brigitte, a graduate of Boston College School of Nursing and an honors graduate of Loyola University of Chicago Law School, stands out from other elder law and estate planning attorneys in that she worked as a registered nurse for four years and earned a Master of Science in Taxation with high distinction from Bentley College. This unique combination of legal, nursing and taxation backgrounds enables Brigitte to provide outstanding legal guidance to her clients in their time of need. Call (508) 238-3005 for a free phone conversation with Brigitte to learn if she can help. You also may reach her through her website at www.vonweisslaw.com.