In the Matter of the Estate of Slavin

• Court: Massachusetts Supreme Judicial Court
• Decided: July 31, 2023
• Docket: SJC 13393
• Status: Published

Opinion

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SJC-13393

IN THE MATTER OF THE ESTATE OF PATRICIA ANN SLAVIN.

Bristol. May 1, 2023. - July 31, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Executor and Administrator, Voluntary administrator, Appointment. Uniform Probate Code. Statute, Construction.

Petition filed in the Bristol Division of the Probate and Family Court Department on August 5, 2016.

A petition for formal appointment, filed on September 25, 2020, was heard by Katherine A. Field, J.

The Supreme Judicial Court granted an application for direct appellate review.

Mark F. Itzkowitz (Kenneth I. Kolpan also present) for the petitioner.

LOWY, J. General Laws c. 190B, § 3-108, requires probate,

testacy, and appointment proceedings to be filed within three

years of a decedent's death. See G. L. c. 190B, § 3-108.

Section 3-108, however, provides several exceptions to this 2

rigid three-year time limit, including for "appointment

proceedings relating to an estate in which there has been a

prior appointment." The issue in this case is whether the

position of voluntary personal representative, charged with

administering a small estate pursuant to G. L. c. 190B, § 3-

1201, constitutes a "prior appointment" within the meaning of

§ 3-108's exception to the three-year limit. We conclude that

it does. We therefore reverse the judgment dismissing the

petition for formal appointment and remand for further

proceedings.

Background. Patricia Slavin (decedent) was murdered on May

10, 2016, in circumstances allegedly giving rise to claims for

wrongful death under G. L. c. 229, § 2. On August 5, 2016, the

decedent's daughter, Kathleen Slavin (petitioner), filed a

voluntary administration statement, along with other documents

required under G. L. c. 190B, § 3-1201, in the Probate and

Family Court. Upon being duly filed, the register of probate

certified the statement of voluntary administration pursuant to

G. L. c. 190B, § 3-1201. At this point, the petitioner became

the voluntary personal representative of the decedent's estate.

Subsequently, the petitioner suspected that her authority

as voluntary personal representative under G. L. c. 190B, § 3-

1201, might have been insufficient to pursue wrongful death 3

claims on behalf of the decedent's estate.1 Accordingly, on

September 25, 2020, the petitioner filed in the Probate and

Family Court a petition for formal probate, seeking appointment

as personal representative, pursuant to G. L. c. 190B, § 3-402.2

The petition form for the appointment as personal representative

under G. L. c. 190B, § 3-402, contains certain statements to

which a petitioner must aver. One such statement is that the

petition "is filed within the time permitted by law," under

G. L. c. 190B, § 3-108, because either "[t]hree years or less

[had] passed since the [d]ecedent's death," or "the . . .

circumstances authorize tardy proceedings." In her petition,

the petitioner clarified under this statement that the three-

year time limit for probate proceedings in G. L. c. 190B, § 3-

108, was inapplicable because "this is . . . an estate in which

there has been a prior appointment." All five of the decedent's

other children assented in writing to their sister's petition

for appointment as personal representative under G. L. c. 190B,

§ 3-402, and waived notice.

1 In Marco v. Green, 415 Mass. 732, 739 (1993), this court held that a voluntary administratrix under G. L. c. 195, § 16, repealed by St. 2008, c. 521, § 14 (the predecessor statute to G. L. c. 190B, § 3-1201, see infra) lacked authority to bring or settle a wrongful death claim.

2 In her petition, the petitioner also sought appointment as special personal representative, pursuant to G. L. c. 190B, § 3- 614. She later filed a motion requesting the same. 4

Thereafter, a Probate and Family Court judge conducted a

hearing. At the hearing, the judge expressed doubt that the

position of voluntary personal representative under G. L.

c. 190B, § 3-1201, constitutes a "prior appointment" under G. L.

c. 190B, § 3-108, such that a subsequent formal petition for

appointment under G. L. c. 190B, § 3-402, could be filed more

than three years after the decedent's death. The judge

requested briefing on the issue. After the petitioner filed an

unopposed brief in support of her petition of appointment as

personal representative, the judge dismissed the petition as

untimely.3 The petitioner appealed.4 We allowed her application

for direct appellate review.

Discussion. In 2008, the Legislature enacted the

Massachusetts Uniform Probate Code, G. L. c. 190B (MUPC). St.

2008, c. 521. See G. L. c. 190B, § 1-101. Article III of

c. 190B governs probate proceedings. In § 3-108 of art. III,

the Legislature imposed what it termed an "ultimate time limit"

for probate proceedings, which provides that "[n]o informal

3 On the petitioner's motion for appointment of special representative, the judge wrote in a margin endorsement: "This petition cannot be filed beyond [three] years and shall be dismissed."

4 The petitioner subsequently filed a so-called late and limited petition for appointment as personal representative, which was allowed. Under such an appointment, however, the petitioner still lacks the full authority granted by formal appointment. See G. L. c. 190B, § 3-108 (4). 5

probate or appointment proceeding or formal testacy or

appointment proceeding . . . may be commenced more than [three]

years after the decedent's death." G. L. c. 190B, § 3-108.

Several exceptions to this ultimate time limit are set out in

§ 3-108, including, as relevant here, for the commencement of

"appointment proceedings relating to an estate in which there

has been a prior appointment." Id.

When the Legislature enacted the MUPC, it adopted the

"ultimate time limit," and its exceptions, directly from the

Uniform Probate Code (UPC). Indeed, much of the MUPC is adopted

wholesale from the UPC.5 Importantly, though, the Legislature

rejected a provision of the UPC governing the administration of

small estates.6 The Legislature instead chose to retain and

5 In addition to the official comments to each section prepared by the National Conference of Commissioners on Uniform State Laws, there are Massachusetts comments, prepared by the reporter of the Massachusetts Bar Association and Boston Bar Association Joint Committee on the UPC (Massachusetts comments), which discuss Massachusetts-specific provisions or edits to the UPC. See Massachusetts Bar Association and Boston Bar Association Joint Committee on the Uniform Probate Code, MUPC (July 2012) https://www.mass.gov/doc/mupc-table-of- contents/download [https://perma.cc/4F79-R2B3] (table of contents); https://www.mass.gov/doc/article-iii-probate-of- wills-and-administrations/download [https://perma.cc/L5PD-XF96] (art. III).

6 See Massachusetts comment to G. L. c. 190B, § 3-1201 ("Rather than utilizing the UPC method of collection of assets by affidavit without [c]ourt involvement, this section adopts G. L. c. 195, §§ 16 and 16A, which provide for informal voluntary administration of estates . . ."). 6

integrate into the MUPC a preexisting Massachusetts provision

that allows for the administration of small estates by a

voluntary personal representative who files and verifies by oath

or affirmation a statement of voluntary administration, which is

attested by the register.7 See G. L. c. 190B, § 3-1201.

At issue here is whether the petitioner's status as

voluntary personal representative under § 3-1201 constituted a

"prior appointment" within the meaning of § 3-108's exception to

the ultimate time limit for "appointment proceedings relating to

an estate in which there has been a prior appointment," such

that her subsequent formal petition for appointment as personal

representative could be filed outside the three-year time limit.

Based upon the plain language of § 3-108 and § 3-1201, the

structure of art. III and the MUPC as whole, and the purposes

underlying each, we conclude that it did.

We begin, as we must, with the plain language of the

statute. See Plymouth Retirement Bd. v. Contributory Retirement

Appeal Bd., 483 Mass. 600, 604 (2019). While the MUPC contains

a "definitions" section, defining many of its terms, it does not

define the term "appointment." See G. L. c. 190B, § 1-201.

7 Section 3-1201 governs estates "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 $25,000 in value." This section raised the prior limit of $15,000 to $25,000. See Massachusetts comment to G. L. c. 190B, § 3-1201. 7

"When a statute does not define its words we give them their

usual and accepted meanings, as long as these meanings are

consistent with the statutory purpose. . . . We derive the

words' usual and accepted meanings from sources presumably known

to the statute's enactors, such as their use in other legal

contexts and dictionary definitions." Williams v. Board of

Appeals of Norwell, 490 Mass. 684, 693-694 (2022), quoting

Commonwealth v. Morasse, 446 Mass. 113, 116 (2006). Where a

statute contains specific definitions, but does not define the

word at issue, "[i]t is particularly appropriate . . . to

interpret the word according to its common usage." Commonwealth

v. Palmer, 464 Mass. 773, 778 n.6 (2013). The term

"appointment" is commonly understood to mean "[t]he choice or

designation of a person . . . for a job or a duty." Black's Law

Dictionary 124 (11th ed. 2019).

Defined as such, the language of § 3-1201 reflects that the

position of voluntary personal representative constitutes an

appointment. Section 3-1201 designates a person who follows the

procedures therein as the voluntary personal representative,

with the duty of administering the decedent's small estate. To

obtain such a designation, an interested person must file a

statement of voluntary administration, "verified by oath, or

affirmation," containing, inter alia, the person's relationship

to the decedent, a schedule of the estate's assets and their 8

estimated value, and "a statement that the petitioner has

undertaken to act as voluntary personal representative of the

estate of the deceased and will administer the same according to

law." G. L. c. 190B, § 3-1201. Upon proper payment of a fee,

the register issues an attested copy of the statement and may

also "issue a certificate of appointment to such voluntary

personal representative." Id.

Thereafter, the voluntary personal representative has

authority to receive payments of any debts or delivery of

chattel or assets scheduled in the statement, sell any chattel

so received, pay necessary funeral expenses and necessary

expenses of administration, and "pay the debts of the deceased

. . . and any other debts of the estate, and then distribute the

balance, if any," in accordance with the principles governing

intestate succession. Id. In other words, the voluntary

personal representative has virtually full authority to

administer the decedent's small estate. And any "person paying,

delivering, transferring, or issuing personal property or the

evidence thereof pursuant to [§] 3-1201 is discharged and

released to the same extent as if he dealt with a personal

representative of the decedent." G. L. c. 190B, § 3-1202.

Furthermore, the voluntary personal representative is liable for

administering the estate in the same manner as a personal 9

representative appointed by the court or a magistrate. G. L.

c. 190B, § 3-1201.

It is significant to our conclusion that § 3-108's

exception to the three-year time limit for "appointment

prior appointment" does not limit the type of prior appointment

that qualifies. Specifically, the exception does not say that

the prior appointment must be as a personal representative. See

Tze-Kit Mui v. Massachusetts Port Auth., 478 Mass. 710, 712

(2018) ("ordinarily we will not add language to a statute where

the Legislature itself has not done so"). Voluntary personal

representatives under § 3-1201 and personal representatives

under §§ 3-301 and 3-402,8 while alike in name and in some

functions, are different positions under the MUPC,9 and each

8 The appointment of a personal representative in formal probate proceedings is governed by G. L. c. 190B, § 3-402, while the appointment of a personal representative in informal probate proceedings is governed by G. L. c. 190B, § 3-301.

9 Unlike estates administered by voluntary personal representatives under § 3-1201, there is no monetary cap for estates administered by personal representatives under § 3-301 or § 3-402. Some examples of tasks that a personal representative may undertake when administering an estate that a voluntary personal representative may not include the ability to transfer or improve real property, vote or sell stocks, and continue an unincorporated business or incorporate a business of the decedent. Compare G. L. c. 190B, § 3-715, with G. L. c. 190B, § 3-1201. Additionally, as stated in note 1, supra, we interpreted the predecessor statute to § 3-1201 as barring a voluntary personal representative from bringing or settling a 10

achieves its position by different means. While a personal

representative must be appointed by a court or a magistrate, see

G. L. c. 190B, § 3-103, a voluntary personal representative need

not be under § 3-1201.10 Nevertheless, § 3-1201 allows a

voluntary personal representative to receive a certificate of

appointment by following the procedures therein. We do not

consider this language in the statute mere surplusage. See

Ropes & Gray LLP v. Jalbert, 454 Mass. 407, 412 (2009) ("A

statute should be construed so as to give effect to each word,

and no word shall be regarded as surplusage").

wrongful death claim on behalf of the estate. See Marco, 415 Mass. at 739.

10Section 3-103 of G. L. c. 190B, titled "Necessity of Appointment for Administration," provides that "to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person shall be appointed by order of the court or a magistrate, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters." G. L. c. 190B, § 3-103. To read § 3-103 consistently with § 3-1201, which permits a voluntary personal representative to administer a small estate, § 3-103 must be interpreted as governing the appointment of a personal representative for the administration of estates in formal and informal proceedings, while § 3-1201 governs the appointment of voluntary personal representatives for the administration of small estates. See Lockwood v. Adamson, 409 Mass. 325, 334 (1991) ("we construe statutory language [where possible] to be consistent with adjacent sections of the same statute"). This interpretation is bolstered by the fact that the letters issued to a personal representative to commence administration of an estate under § 3-103 serve the same purpose as a certificate of appointment issued to a voluntary personal representative under § 3-1201. See Massachusetts comment to G. L. c. 190B, § 3-103. 11

In denying the petitioner's petition for appointment as

personal representative, the judge relied on a procedural guide

published by the administrative office of the Probate and Family

Court, which provides that "the authority of a [voluntary

personal representative] is limited by law and does not result

in an official appointment by the court." See E.M. Moriarty,

R.A. Nesi, L.A. Roberts, T.P. Jalkut, C.G. Mehne, & E.J. Patsos,

MUPC Estate Administration Procedural Guide § 2.2 (2d ed. 2016).

A "Practice Alert" in the guide states: "Despite the fact that

the MUPC currently says otherwise, there can be no [c]ertificate

of [a]ppointment issued to [a voluntary personal representative]

because no official appointment is made." Id. at § 2.4. As the

practice alert in the guide recognizes, this interpretation

conflicts with the plain language of § 3-1201. As explained,

the MUPC does not limit the term "appointment" to what the guide

refers to as "official appointments" performed by a court or

magistrate.

Where the term "appointment," under its common usage,

encompasses voluntary personal representatives, the language of

§ 3-108 does not limit the term "appointment" to those

appointments performed by a court or magistrate, and the plain

language of § 3-1201 refers to the position of voluntary

personal representative as an appointment, our principles of

statutory interpretation lead us to conclude that the 12

Legislature intended a person serving as voluntary personal

representative of an estate under § 3-1201 to fall within scope

of a "prior appointment" such that subsequent appointment

proceedings relating to that estate may be filed outside the

three-year time limit.

This interpretation, moreover, is consistent with the

purpose of the ultimate time limit. Section 3-108 is intended

to "establish[] a basic limitation period of three years within

which it may be determined whether a decedent left a will and to

commence administration of the estate." See Massachusetts Bar

Association and Boston Bar Association Joint Committee on the

Uniform Probate Code, MUPC § 3-108 comment (July 2012), quoting

Uniform Probate Code § 3-108 comment (1969),

https://www.mass.gov/doc/article-iii-probate-of-wills-and-

administrations/download [https://perma.cc/L5PD-XF96]. Where a

voluntary administration statement has been filed and certified,

and a person is serving as voluntary personal representative of

the estate, the determination whether a will exists has been

made, and administration of the estate has commenced. Thus,

allowing appointment proceedings to commence more than three

years after the decedent's death in such circumstances would not

extend the time for the two inquiries that the section intends

to limit to three years. 13

Furthermore, this interpretation is consistent with a key

attribute of art. III of the MUPC: flexibility. Indeed,

article III was designed for flexibility "to provide persons

interested in decedents' estates with as little or as much by

way of procedural and adjudicative safeguards as may be suitable

under varying circumstances." Uniform Probate Code, art. III,

general comment (2006). Article III's goal of flexibility is

furthered where the procedural safeguard of the ultimate time

limit -- the purpose of which has already been served -- yields

to allow a person serving as voluntary personal representative

under § 3-1201 to increase his or her authority to that of a

personal representative under G. L. c. 190B, § 3-402, beyond

three years.

More generally, the MUPC directs that its provisions "shall

be liberally construed and applied to promote its underlying

purposes and policies," including "to promote a speedy and

efficient system for liquidating the estate of the decedent and

making distribution to the decedent's successors." G. L.

c. 190B, § 1-102 (a), (b) (3). By integrating § 3-1201 into the

MUPC, the Legislature demonstrated a priority that small estates

be administered expeditiously, without the more arduous

requirements of appointment in formal and informal probate

proceedings. To treat a person designated as a voluntary

personal representative under § 3-1201 differently from how a 14

person designated as a personal representative under § 3-301 or

§ 3-402 is treated for the purpose of determining whether a

subsequent appointment proceeding may be filed outside the

three-year time limit, where the underlying purpose of the time

limit would not be undermined, would disincentivize the use of

voluntary administration for small estates. Such an

interpretation would be contrary to the Legislature's intent in

enacting this provision and would thwart the goal of flexible

and efficient administration, particularly for small estates.

Conclusion. Because we conclude that the position of

voluntary personal representative under G. L. c. 190B, § 3-1201,

is an appointment, falling within the exception to the three-

year time limit in § 3-108 for "appointment proceedings relating

to an estate in which there has been a prior appointment," the

petitioner's petition for formal appointment was timely. We

therefore reverse the judgment dismissing her petition and

remand for further proceedings consistent with this opinion.

So ordered.