Tag Archives: MUPC

2012 Public Policy by the Numbers

2012 was a productive year for the BBA, and Issue Spot would like to look back on the numbers.

2 Amicus Briefs – The BBA filed amicus briefs in Rachel A. Bird Anderson v. BNY Mellon, N.A. trustee and others and Fisher v. University of Texas at Austin.  The SJC referenced the BBA’s Bird brief in its decision this summer.  The BBA recruited 38 law firms, companies and organizations to join our Fisher brief and was one of 71 amici to file briefs in the high profile case.

2 Court Standing Orders – The Boston Municipal Court made permanent a Criminal Offender Record Information (CORI) sealing order and the Supreme Judicial Court instituted a pro hac vice admission fee which yielded $49,000 in the first quarter it was collected. Both standing orders were endorsed by the BBA.

7 Laws Took Effect – Seven pieces of legislation the BBA supported took effect in 2012.

 700 Attorneys Attended Walk to the Hill – Lawyers from across Massachusetts filled the State House for the 13th annual Walk to the Hill for Civil Legal Aid.  More than 50 law firms and organizations were represented.

100+ Lawyers Attended Court Advocacy Day – More than 100 attorneys trekked to the State House to show support for adequate court funding.

2012 was a successful year and we are committed to topping these numbers for 2013.  We still have unfinished business in the Massachusetts Legislature. There are also emerging federal issues we are preparing to tackle.  But as 2012 wraps up, we have much to celebrate.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Bird Decision is Another Victory for T&E Attorneys

Tuesday’s  SJC decision in Rachel A. Bird Anderson vs. BNY Mellon, N.A. trustee and others, helped reinforce our belief that there’s no one tool for achieving public policy goals. When we failed to secure the passage of legislation that would repeal an overly broad 2009 amendment to the adopted children statute yielding unintended consequences, we turned our energies to an amicus brief. Our brief identified the confusion resulting from the 2009 amendment; in its decision in Bird, the SJC provided essential clarification.

It’s rewarding to read the SJC’s decision on many levels.  It settles a family dispute, provides trustees with much needed assurances and also means that the BBA won’t need to re-file legislation we’ve supported since 2009.  The BBA’s bill, An Act to Repeal the Adopted Children Statute, was drafted as a statutory fix to the problem that the Bird decision just solved.

When this issue was first brought to our attention, the BBA worked quickly to file legislation that would repeal language that had broad and far reaching implications on trust instruments dealing with adopted children.  As we described in Issue Spot, the BBA succeeded in obtaining a one year postponement of the original effective date of this new law and has been working since then to repeal it.

This past legislative session, the BBA’s repeal of the adopted children statute became part of a number of pieces of legislation to address various trusts and estate problems.  These bills included a proposed Massachusetts Uniform Trust Code (MUTC), technical corrections to the Massachusetts Uniform Probate Code (MUPC), and an estate tax patch.  Now that the SJC has weighed in on the adopted children statute, we can claim victory for all but a small portion of our trusts and estates agenda. Earlier this summer Issue Spot reported on the passage of the MUTC and technical corrections to the MUPC.

Our success is particularly gratifying because it can be difficult to catch the attention of the Legislature on trusts and estates matters.  They aren’t splashy or as headline grabbing as, say, casinos or health care reform. Our dedicated and highly knowledgeable members deserve the credit for volunteering their time to testify, meet with legislators and draft impeccable amicus briefs. We will next focus our trusts and estates energies on the estate tax patch and any other emerging issues in this area.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Practitioners’ Perspectives: The Massachusetts Uniform Probate Code

The Massachusetts Uniform Probate Code (MUPC) takes effect on March 31st and Issue Spot reached out to some BBA members for their take on the new law.  Below are the independent thoughts of the expert trusts and estates attorneys we surveyed:

Peter Shapland – Day Pitney LLP

Most attorneys agree that the greatest benefit from the MUPC will be in the greater ease of “probating” wills and in the administration of testate estates.  The “informal probate” process will permit executors to begin their work in most cases without any undue delay and without any formal reporting to the Probate Court along the way.

The MUPC will not dramatically change my advice to estate planning clients, since I’ve never felt that the Massachusetts probate system was all that unduly burdensome.  The MUPC does permit some additional flexibility in the drafting of wills (e.g., disposition of tangibles), but most of the changes will come in the greater efficiency of administration of estates.

I can think of no cases where the outcome would differ under the new MUPC, but I can think of many cases where an estate would’ve been administered more easily under the MUPC, making the outcome come out sooner.

Brad Bedingfield – Wilmer Cutler Pickering Hale and Dorr LLP

Perhaps the biggest benefit I see from the MUPC for my practice is virtual representation.  The ability to file cases without necessarily having to use a guardian ad litem will streamline certain matters.

In addition, the new rules regarding limitation of actions against trustees who present final accounts or statements to beneficiaries (but don’t necessarily seek formal approval of the court of the trustee’s accounts) will give some certainty to trustees who provide sufficient information to beneficiaries but don’t want to procure assents or incur the expense of court proceedings.

Cameron Casey – Ropes & Gray LLP

I expect that the greatest benefit of the new probate law will be that many estates can be administered informally, meaning that the beneficiaries of the estate, rather than the Probate Court, have primary oversight over the personal representative’s actions.  In informal administration, the appointment of the personal representative – whom we used to call the “executor” – can be accomplished quickly (as soon as a week after the decedent’s death), and the estate settlement process is greatly simplified.  In addition, in many cases, trustees of testamentary trusts will be relieved from having to regularly account to the Probate Court and petition to have their accounts allowed – a process that in the past has entailed a significant investment of time and expense for the trustee.

I anticipate that we will advise many of our clients to choose informal administration, which will streamline the probate piece of the larger estate settlement process and reduce costs and headaches for the clients.  (There is a noticeable furrowing of clients’ brows when you tell them that, under current law, they must wait several weeks or even months to be appointed executor.)

In certain circumstances, we may also incorporate testamentary trusts into our estate planning for clients, which we have rarely done in the past because of the accounting burden discussed above.  So, for example, rather than create a new inter vivos trust or search for an existing trust to hold property for a client’s children until they reach a designated age, we may instead draft a simple, short-term trust under the client’s will.

Whether in the context of estate planning or probate matters, the new law adds to the trusts and estates  lawyer’s toolbox, giving her additional ways to help clients arrange their affairs in the simplest and most reasonable way.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Probate Bills Move Forward

Last Wednesday, in hearing room A-1 of the State House, the Judiciary Committee heard public testimony on 164 bills related to the broadly defined category of “crimes.”  Spanning the better part of the afternoon, the testimony addressed issues ranging from Governor Patrick’s high-profile gun crime bill to reinstating the death penalty to strengthening animal abuse laws.

Meanwhile, upstairs on the floor of the House, the details of a supplemental budget appropriation, which included $12 million in direct funds and $8 million in retained revenue fee collections for the Trial Court, was taken up and passed with a vote of 149-1.

While the supplemental budget and the crime bills captured the headlines the next day, the Judiciary Committee polled its members on the Massachusetts Uniform Probate Code (MUPC) technical corrections bill and the Massachusetts Uniform Trust Code (MUTC).  Both bills were ultimately reported out of committee favorably today.  These two pieces of legislation have been at the forefront of the BBA’s public policy agenda for years and represent the culmination of the efforts of task forces and a significant number of stakeholders.  We are encouraged that both bills have begun to move, particularly during such a busy and pressure-filled week for the legislature.

As of today, just 80 days remain until the estates portion of the MUPC takes effect; the guardianship portion became effective on July 1, 2009.  A delay in passing both the MUPC technical corrections and the MUTC legislation will result in unnecessary compliance costs, while also putting greater strain on an already overburdened Probate & Family Court.  The Court has been working around the clock to prepare for the implementation of the MUPC and any delays will only undermine their efforts to achieve a smooth transition.

Both bills address some of the shortcomings of the Commonwealth’s current trusts and estates statutes.  Although the two pieces of legislation are neither flashy nor easy to explain to non-lawyers, both are much-needed, commonsense measures seeking to ensure that soundness and equity prevail in Massachusetts law.  It is critically important to the bench, bar and the public that the legislature acts soon.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

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Passage of Probate Laws Needed ASAP

The Massachusetts Uniform Probate Code (UPC) will be effective for estates on January 2, 2012; it became effective for guardianship on July 1, 2009.  This landmark piece of legislation is something the BBA has worked on and supported for over 20 years.  Not only does the UPC improve what was a deplorable situation concerning the appointment and conduct of guardians, but it will simplify the probate process for families and our courts while expediting the process for administering estates. The UPC facilitates the appointments of executors and also provides options for choosing informal or formal procedures to open and close probate matters.  All in all, lawyers and the courts are pleased with it.

The Probate and Family Court has been educating its staff on the new law and working diligently to promulgate new forms that will be used when the rest of the UPC is rolled out in January.  To supplement their efforts, the BBA will offer a continuing legal education seminar introducing the new estate rules in November to help practitioners navigate the changes.

Now what? The Legislature needs to pass two more bills quickly.  The first, S704, contains technical corrections to the UPC.  These corrective changes address issues that came to light during the initial implementation and take into account things like missed cross references, typos and other oversights. The second bill, the Massachusetts Uniform Trust Code (MUTC), is a companion piece to the UPC.  Since the MUTC repeals most of Article VII of the UPC and replaces it with more current language, it would be advantageous to have all the statutory trust law provisions in the same place in the new MUTC and take effect as scheduled on January 2, 2012.

Like the UPC, the MUTC is a substantial bill that has been well-vetted.  It was produced by the Uniform Laws Commission after a five-year drafting period.  Then in 2005, an ad hoc committee of lawyers, including members of the BBA, was convened to review the bill in detail.  They debated each section of the MUTC and, as a result, what we have is a statute that will simplify and make the trusts laws in Massachusetts more accessible.

Here are just a few reasons that the MUTC should be passed:

  • The laws concerning trust will be uniform, comprehensive and easy to find.
  • It will make the administration of trusts more uniform among the states.
  • It will reduce uncertainty and costly and needless litigation.
  • It provides guidance and protection for trustees who, by the terms of the trust, are to take direction from a non trustee.
  • It simplifies judicial proceeding regarding non judicial settlement agreements and modification and termination of trusts.

January is less than five months away and, realistically, we are looking at a legislative schedule that at best might enact the bills by late September – not a lot of time to conduct the education and training necessary for a smooth implementation next January.  Whatever can be done to facilitate the prompt passage of the MUTC legislation should be done.  Adopting the MUTC will move Massachusetts into the 21st century in trust law.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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