Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 9 of chapter 191 of the General Laws is hereby amended by adding the following paragraph:-

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.

SECTION 2. The General Laws are hereby amended by inserting after chapter 191A, as so appearing, the following chapter:- `tuc CHAPTER 191B. `t+1 UNIFORM STATUTORY WILL ACT.

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.

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.

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."

Section 4. The statutory will estate shall pass as provided in sections five to nine, inclusive.

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.

Section 6. Property held in trust under the provisions of subclause (iii) of clause (2) of subsection (a) of section five(a)(2)(iii) 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 those discretionary payments, the principal must be administered as two separate shares, which at the inception of the trust must 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.

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.

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 must 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.

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.

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.

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.

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 must be appointed by the court.

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 or 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.

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.

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.