Tag Archives: trusts

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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Trusts, Estates, Adopted Children, and Unintended Consequences

We’ve all had experiences where intentions and results are not always the same thing.  Assuming good faith, laws sometimes have unintended consequences.

Last year, legislation dealing with adopted children and trust instruments was passed that became known as Chapter 524 of the Acts of 2008. At the Boston Bar Association, warning bells went off among our Trusts and Estates Section.

A bit of background. . . What once seemed like a benign piece of narrowly written legislation had been filed numerous times over the years – without garnering much attention.  Public hearings were held and the bill would sometimes make its way out of committee or be put into a study order for further review.

During the last legislative session, this same bill finally found its way to a different committee whose jurisdiction seemingly had nothing to do with trusts and estates law. Following a public hearing, this bill received a favorable report from the committee.  The bill made its way through the process and eventually got signed into law by the Governor.

This sounds fine, but almost 10 months after the public hearing and the committee’s action, the bill was amended to include a group of people I’d find it hard to believe were contemplated by the original bill.

Much to the dismay of trusts and estates practioners, the new law actually changed the clearly understood rule of construction that applied to terms like “child,” “grandchild” and “issue” in wills, trusts and similar instruments executed before August 26, 1958.  (In 1958, the Legislature modernized our law to presume that adopted persons are included in these terms unless the instrument plainly states otherwise, and made the law applicable only to instruments executed after its effective date.)

Caught by surprise, the trusts and estates bar and banks and other professional trustees were left scrambling to review all pre-1958 trusts to determine which ones were affected by this sweeping change.

After analyzing the substance and implications of Chapter 524, the BBA and others began to work on a repeal of this new law.  The best we could do in the short term was secure a postponement of its implementation until July 1, 2010.  While this was a small victory, the process has begun again.

The BBA and others are still working on this issue. Amendment 367, filed in the House budget, will not only repeal chapter 524 but also create a retroactive, blanket immunity for trustees who either acted (or failed to act) in relation to it.

In the midst of a week of potentially tough votes, legislators are contemplating almost 870 amendments dealing with spending, revenue and reform.  Let’s hope that Amendment 367 will be adopted.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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