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Massachusetts Agencies

Guardians: Estate Plan

Probate

G.L.c. 201, §38, in the first paragraph, before the concept of estate plans is introduced, makes provision for the sale of the wards's property "upon obtaining a license therefor," when it is necessary to raise funds for the support of the ward.

Once the estate plan concept is introduced (third paragraph) the statute makes provision for petitions by the guardian or conservator for the "conveyance or release of the ward's contingent or expectant interest in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety . . . .." The statute further provides that the guardian or conservator can be authorized to make the "gifts" of personal property and real estate, "but transfers of real estate shall be subject to the requirements of chapter two hundred two." Interestingly enough, a sale of the property under the first portion of the statute refers to a "license" as the basis of authority for such a conveyance, but that portion of the statute that deals with gifts or the release of contingent and expectant interests makes no mention of a license, but only that the "requirements" G.L.c. 202 must be observed. It seems that the "requirements" that must be met are those in connection with notice and procedure, but not those concerning form (i.e., license). This makes sense, because G.L.c. 202 deals with sales and those paragraphs of G.L.c. 201, §38 under discussion have to do with estate plans—there is no "sale," but rather a realignment of property rights "in keeping with the ward's wishes so far as they can be ascertained" consistent with estate planning strategy, including gifting. An authorization by the court permitting the donative transfer would seem to be enough to support the execution of the conveyance by the fiduciary. The legislature in drafting G.L.c. 201, §38 was well aware of the distinction between a license and procedural requirements and it says something where that body elected to use the word "license" at one point in the statute and "requirements" in another.