Monthly Archives: March 2012

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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NDAA Dangers Still Loom

In December, BBA President Lisa Goodheart urged President Obama to veto the National Defense Authorization Act for Fiscal Year 2012 (NDAA) because it was a radical departure from the rule of law established in the United States.  In particular, the detention principles in the bill pose serious threats to fundamental constitutional principles protecting individual civil rights and civil liberties.  Ultimately, President Obama signed the NDAA into law stating “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”  In a recent panel on the NDAA at the BBA, one expert described the bill as “the most alarming new law never heard of by most Americans.”  Here’s why.

Sections 1021 and 1022 of the NDAA allow for the indefinite detention of terror suspects – including American citizens arrested domestically – without a trial or charge.  The authority granted to the federal government by Sections 1021 and 1022 is clearly contrary to the principles of access to justice and civil rights that has served our country from its founding.  It also authorizes the military to make such detentions, holding U.S. citizens in military custody or prosecuting them in military tribunals.  This circumvents the U.S. Justice Department and avoids the federal court system which has successfully prosecuted hundreds of terrorism-related cases – including several here in Massachusetts.

Another troubling part of the bill is Section 1028.  This Section places undue roadblocks in the way for Guantanamo Bay detainees who have been cleared of wrongdoing and are trying to be transferred to foreign countries willing to accept them.  There are more than 170 men left in Guantanamo Bay – 89 have been cleared of wrongdoing and could be transferred immediately.  Section 1028 requires certain additional certifications and compliance in the use of funds to transfer detainees that only prolong the unjust detention of individuals found innocent of alleged crimes against the United States.

So where are we now?  The NDAA went into effect on March 1st.  In late February, President Obama issued Presidential Policy Directive 14 which sets out procedures for implementing Section 1022 of the NDAA.  Directive 14 contains a broad set of waivers that could be understood to mitigate the controversial Executive powers granted by the NDAA.   However, it is not a permanent solution.  Just because this President vows to not abuse the powers vested in the Executive by the NDAA, it does not eliminate the possibility of the next President – be it next January or 4 years from now – interpreting the NDAA differently.

The NDAA threatens our American ideals of civil rights.  Every time our rights are changed, our enemies win another victory.  Although the President has expressed his discomfort with the NDAA and issued Directive 14, this affront on our adherence to the rule of law is unacceptable and must be reversed.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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The Real Story on the MA Alimony Reform Act

An op-ed that ran on CNN.com last week took a critical and somewhat nonsensical look at the Alimony Reform Act of 2011.  Issue Spot has reported on how well-received the legislation was by the private bar, the Probate & Family Court and the Legislature.  It has been heralded as a model of grassroots activism, coalition building and real collaboration.  Last week’s op-ed oversimplifies the new law and ignores key parts of the legislation.  Allow Issue Spot the opportunity to set the record straight.

The op-ed begins by describing the Alimony Reform Act as “strangely arcane” and a few paragraphs later as “a dangerous bill.”  The structured blueprint for awarding alimony that is spelled out in the bill is clear and transparent.  As for it being dangerous — this bill wasn’t hastily drafted, and it doesn’t disguise what it proposes to do.  There was a public hearing and, remarkably, the bill won the bipartisan support of the House of Representatives and the Senate when it was passed unanimously.  The Task Force behind the bill was then lauded for their outstanding work and tireless efforts by Governor Patrick at the signing ceremony.

The article also points to victims of domestic abuse who “might feel pressured to stay in an abusive relationship to make it to a particular cut-off period.”  Abuse-based relief was actually written into the law whereas in the past it fell under the umbrella of “conduct.”  It was judge-dependent how much weight would be given to conduct when deciding this issue.

What the CNN guest contributor is also discounting, or not mentioning, is that there are short term marriages in which there is domestic violence.  In the past, it could be a terrifying prospect to leave an abusive marriage in which the victim was economically dependent, precisely because the old law made it difficult for spouses in short term marriages to obtain alimony orders.  With the new law, alimony is available to the short term marriages, which can give a leg-up to victims who need to get out of the marriage.  Under the old law, those victims may not have received relief due to the brevity of a marriage.

These charges against the Alimony Reform Act are unfounded.  Conveniently for the author’s argument, she omits that under the new law alimony is awarded according to specific timelines.  The new law still allows the court to deviate from the durational requirements for reasons set forth in the statute or for any other factor that the court deems relevant and material.  Although one of its appealing benefits is that it provides clarification and predictability for awarding alimony, the court must still take all factors into consideration when making any decisions.

As one family law expert told Issue Spot this summer “the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion.”  This makes the author’s example of a woman faced with homelessness if her alimony payments cease far-fetched.  What judge would ignore such a situation and condemn a woman to homelessness?

Besides, the author says that the alimony payments of the woman in this example will stop in two years under the new law.  This is not necessarily true.  For starters, payments don’t automatically end under the new law.  The payor has to file a complaint for modification.  It’s hard to know for sure what will ultimately become of the alimony payments, but any complaint for modification is an opportunity for further discussion.  To take an extreme case, as the author has, and hold it up as an example of what durational limits will do without acknowledging that this woman has the ability and the legal grounds to seek additional relief is disingenuous, to say the least.

The article ends with a typical refrain thrown at members of the Legislature: lawmakers only answer to the whims of lobbyists.  The process used to reform the alimony laws in Massachusetts was exhaustive and inclusive.  The Task Force assembled by the Legislature drew all stakeholders to the table – the BBA, the Massachusetts Bar Association, representatives from the court, attorneys who represent the very wealthy and those that represent the poor, concerned citizens, and even the Women’s Bar Association.  Instead of celebrating and acknowledging the contributions of those involved, the article diminishes their work.  The new alimony law in Massachusetts, despite what is claimed by critics, is not an oppressive, automatic cut off; it is a framework with a built-in mechanism for a judge to consider facts in order to make fair alimony determinations.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Change is in the Air at the Probate & Family Court

A hat tip to the Massachusetts Probate and Family Court for embracing change.  Legislative reforms enacted in the last 2.5 years have completely transformed the way business affecting guardianship, conservatorship and alimony is conducted in the Probate and Family Court.  More changes in the area of estate practice will become law by March 31, 2012.

Article V of the Massachusetts Uniform Probate Code, which became effective July 1, 2009, codifies the new laws for guardianship and conservatorship.  These changes provide a person, oftentimes a family member, with legal tools to manage the affairs of an individual who is not legally competent to manage his own affairs.  These new laws also create alternatives to guardianship taking into consideration situations where a person’s incapacity might not impact all aspects of the person’s life.

On March 1, 2012, the new alimony law went into effect (read all about alimony reform in Issue Spot).  At last week’s BBA event “Alimony Reform: Here and Now,” Chief Justice Paula Carey advised attorneys to read the bill and then read it again and again.

And after much anticipation, the remainder of the Massachusetts Uniform Probate Code, which will change estate practice significantly, will become law by the end of this month.  This will substantially change the way business is done in Probate and Family Court.  There’s a lot to know in that area too (Issue Spot has you covered here).

So what is the Probate and Family Court in Massachusetts doing to respond to these things?  Check out their website.  The Probate and Family Court has gone to great lengths to provide practical instructional materials for the public.  Not only does the website have downloadable and printable forms, but the forms can be filled out online.  This might not seem like a big deal but it is and for a couple of reasons:

  1. There is a large and growing population of pro se litigants who appear in court and these are cases that involve family, housing, employment, and financial issues – all of which are of great personal importance.  Cases involving pro se litigants often require more time from judges and court staff to explain the procedures and court rules to pro se litigants.   The self-help resources that are available online are excellent and useful tools.
  2. Having these forms available to the public also saves the Court money.  They no longer have to print the forms and distribute them to the fourteen Probate and Family Court divisions across the state.  The Probate and Family Court is really leading the way in protecting the rights of individuals whose abilities may be compromised due to mental illness or deficiencies.

The new changes to the law in these areas mean a great deal to the courts, but will mean even more to the people who use our courts every day.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Breaking Down Our Advocacy for the Trial Court

To date, we’ve met with the Chief Justices of every trial court department about conditions in their courts.  We’ve also met with Senate President Murray and Speaker DeLeo recently to discuss our concerns about inadequate funding for the state’s trial courts.  Now we’re preparing to go to the State House on March 19th with our colleagues from across the state to make our case on Court Advocacy Day.  We will be asking the Legislature to fund the Trial Court at $593.9 million.

What the Numbers Mean:

  • Governor Patrick’s proposed budget – released in January – would fund the Trial Court at $568.3 million.  A good start, but still $24.6 million below the Trial Court’s budget request.
  • The Trial Court’s budget request for Fiscal Year 2013 – beginning July 1, 2012 – is $593.9 million.  The $593.9 million will maintain the Trial Court’s current operations and will also help them meet critical personnel and non-personnel needs, including restoring some basic services that have been cut over the last three years.
  • The number of people who work in the Trial Court has declined by nearly 1,300 from July 1, 2007 to February 1, 2012.  As of late February 2012, there were 6, 327 Trial Court employees.  The $593.9 million will allow the Trial Court to finally fill critically needed positions – the highest priority being court officers to ensure public safety.

What the BBA is doing:

As Issue Spot has written, court funding advocacy is now a year-round effort.  The BBA has spoken out on this each of the past three years (FYs 2010, 2011 and 2012).  We’ve described – and it cannot be overstated – the importance of a capable, independent and adequately funded judicial system.  We’ve chronicled the negative impacts cuts to the judiciary’s budget have had on the administration of justice and our community.  Need we speak about the horrendous delays facing any litigant with a civil matter?

Court Advocacy Day on March 19th is just the beginning.  The BBA’s Administration of Justice Section will host a State of the Courts event on April 12th.  This timely event comes just one day after the House of Representatives is scheduled to release its state budget on April 11th.  Following the House debate on the budget we will turn our focus to the Senate.  In early May, the BBA will convene a virtual lobbying day, asking every one of its more than ten thousand members to call or email their Senators about state court funding.

As lawyers who use the courts every day, we know that the impact of court funding shortfalls is as wide as it is deep.  It is essential that the private bar speak out and speak up about the dangerous effects of an underfunded judiciary.  On March 19th, please show up at the State House and let lawmakers know just how important an adequately funded court system is to the Commonwealth.

 

 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail issuespot@bostonbar.org