Posts Categorized: Trusts and Estates

BBA Testimony at Judiciary Committee Hearings

We’ve recently reported on our testimony in support of H.2645 (tax basis for certain decedents’ beneficiaries), at the Joint Committee of the Revenue (which later reported the bill favorably to the House Committee on Ways and Means) and our testimony in support of full RUFADAA language (access to digital assets) before the Joint Committee on the Judiciary. Lest you think our public hearing participation is limited to Trusts and Estates issues, we’ve also had the opportunity to present testimony on three other legislative items at Judiciary Committee hearings held the past few weeks.

Housing Court Expansion

On Tuesday, May 2, the Judiciary Committee heard from the public on bills related to Court Administration, including legislation that would expand jurisdiction of the Housing Court to the full state, which the BBA supports.  We’ve spoken often in the past on the importance of this expansion, identified this as a budget priority, and even recorded a podcast on the matter.

Two identical bills were before the committee, H.978 sponsored by Representative Chris Walsh, and S. 946, sponsored by Senator Karen E. Spilka. These bills would expand access to the Housing Court, and all its accompanying benefits, to all residents of the Commonwealth, including the close to one-third who currently lack such access.

Interestingly, H.978 and S.946 were two of the most highly testified-upon bills at the hearing. Representatives Paul J. Donato and Jay R. Kaufman, Senator Sal N. DiDomenico, and Chief Justice of the Housing Court Judge Tim F. Sullivan all testified in support of the bills.  In addition to these public officials, the Committee heard testimony from a number of key advocates, including Annette Duke of the Massachusetts Law Reform Institute, Elizabeth Soule, Executive Director of MetroWest Legal Services and Laura Rosi, Director of Housing and Advocacy of Housing Families.

We were lucky enough to have Julia Devanthery, Attorney and Clinical Instructor in Housing Clinic of the Legal Services Center of Harvard Law School and member of the BBA Delivery of Legal Services Section, presenting testimony on behalf of the BBA as part of a panel, alongside Jeff Catalano of Todd & Weld, president of the Massachusetts Bar Association, and James T. Van Buren, Commissioner of the Access to Justice Commission.

Attorney Devanthery offered specific insight from the perspective of her extensive work supervising the Lawyer for the Day Program in Housing Court, which, since 1999, offers advice, mediation, and case litigation for unrepresented tenants and landlords on Eviction Day at the Housing Court.  She spoke to the importance of expanding this service statewide given the complexity of housing cases, the lack of alternative affordable housing options, and the vulnerability of many pro se tenants and landlords.  She also spoke movingly about her experience representing victims of domestic violence, noting that this clientele, which is uniquely vulnerable, is able to have their cases adjudicated by Housing Court in a manner which takes into account abuse, while taking advantage of the specialized legal protections in place to defend survivors and their children.

We’ll keep you updated on the report of the Joint Committee on the Judiciary on H.978 and S.946, and be sure to watch this space for our soon-to-come Senate budget update (Spoiler Alert: Unlike the House Ways and Means Budget proposal, the Senate Ways and Means budget does include funding and authorizing language for Housing Court Expansion).

UCCJEA

Earlier this week, the Committee held its second day of hearings on Probate and Family matters, this time taking up two topics on which the BBA has worked for a number of years. First up, An Act relative to the Uniform Child Custody Justice Enforcement Act (UCCJEA), S.806, filed once again by Senator Cynthia Stone Creem.  As we’ve outlined in the past, enactment of this bill would remedy conflicts that occur under current Massachusetts law when one of the parents of the child moves to another state. Currently, Massachusetts is the only state in the US which has not enacted the UCCJEA!

As it stands now, Massachusetts law cedes jurisdiction over our own custody orders to the home state of the custodial parent and child after six months of their residency in the new venue.  But under the UCCJEA, once a state has exercised jurisdiction over custody, that state retains exclusive jurisdiction as long as a parent, the child, or someone acting as a parent remains in the original issuing state. Overall, adoption of the UCCJEA would help to prevent one parent from forum-shopping by seeking a more favorable outcome in another state and also prevent the problem of dueling lawsuits in different jurisdictions.

A panel with representatives from the BBA, MBA, and the Women’s Bar Association (WBA), all of whom support passage of the bill now that domestic-violence concerns have been addressed with new language in the bill, presented testimony on behalf of the UCCJEA. Judge Edward Ginsburg spoke on behalf of the BBA, and as usual offered compelling reasons for Massachusetts adoption. If you’ll recall, Judge Ginsburg has spent nearly twenty years advocating for Massachusetts to change the law.

Stay tuned to find out if this will finally be the year that Massachusetts becomes the 50th state to adopt the UCCJEA!

Shared Parenting

Finally, Jessica Dubin of Lee & Rivers, our Family Law Section co-chair, spoke about a number of bills being heard that would amend Section 31 of Chapter 208 of the Massachusetts General Laws, dealing with child custody and shared parenting.  While the BBA has not specifically endorsed any of the bills pending in the Judiciary Committee, in 2015, the Family Law Section Steering Committee worked hard to develop principles related to shared parenting that would guide the BBA’s analysis of all related legislation. For example, the principles call for the availability of alternative terminology such as “parenting time”, “residential responsibility” and “decision-making responsibility,” in place of the divisive and outdated terms, “visitation” and “custody.”  The principles also offer support for provisions that provide increased guidance on the content to be included in parenting plans and oppose any provision that takes any focus away from the best interests of the child or ties the hands of judges.

Attorney Dubin offered the BBA’s appreciation to the Judiciary Committee for its consideration of the similar legislation last session and its openness to the input of the bar on the pending bills.  She expressed a hope that the BBA would have the same opportunities this session and relayed the current work being done to study Senator Will Brownsberger’s bill, S.775, An Act relative to determining the best interest of children in Probate and Family Court.

As usual, watch this space to find out what happens!

Many more hearings are set to be scheduled for the coming months, and we’ll report back on our continued activity!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

In March, we updated you on the BBA’s endorsement, at the request of the Trusts and Estates Law Section, of the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the Commonwealth.

To briefly recap, RUFADAA was promulgated by the Uniform Law Commission in 2016 in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, Instagram, online banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies, if they have any policies on the matter at all. RUFADAA helps to add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 30 other states have adopted RUFADAA in some form. (Check out our previous blog post on this for a full refresher on the contents of RUFADAA.)

On Monday, the Joint Committee on the Judiciary (“the Committee”) heard testimony from three different panels on bills that deal with access to digital assets.

The Committee first heard testimony from the Ajemian siblings in support of, S.822, “An Act Relative to Access to a Decedent’s Electronic Mail Accounts,” sponsored by Senator Cynthia Stone Creem. As you’ll recall, the Ajemian siblings are parties to Ajemian v. Yahoo!, Inc., regarding the contents of an e-mail account established by their late brother.  There, the Supreme Judicial Court is currently determining whether the federal Stored Communications Act (SCA), 18 U.S.C. § 2702, prohibits disclosure of the contents of a deceased e-mail account-holder’s account to the administrators of his or her estate. In that case, the Ajemian siblings, the administrators of their brother’s estate, argue, in part, that they should have access under an exception to the Act, as agents for the decedent.

S.822 applies only to e-mail accounts but allows greater access to those accounts than the requirements set forth in RUFADAA. The bill allows personal representatives to gain access to the contents of an e-mail account upon a notarized written request by the personal representative or an order of the probate court that has jurisdiction over the estate of the decedent. Upon receipt of the request, the service provider has 60 days to comply, and this requirement supersedes provisions in e-mail service provider contracts, terms and conditions, or privacy policy unless the provider can show “by clear and convincing evidence, that it offered opt-out language, separate and distinct from the standard agreement or terms of service, whereby the decedent affirmatively declined to have the decedents electronic mail account released after dead.”

Next up, representatives from Facebook and NetChoice testified in opposition to S.822 and in support of Senator Lesser’s S.885, “An Act Relative to the Privacy of a Decedent’s Electronic Communication” (and Representative Livingstone’s identical H.3083, “An Act for Uniform Fiduciary Access to Digital Assets”). These bills are largely the same of RUFADAA, except the language limits the definition of “fiduciary” to a personal representative, while RUFADAA would cover personal representatives, conservators, trustees, and agents acting under the power of attorney. Notably, the Facebook witness also stated that they would be completely comfortable with the adoption of the full RUFADAA language instead of the more narrow S.885 or H.3083. These witnesses opposed S.822 because of the broader access to accounts the bill allows, as they worry it will push them to violate privacy guarantees, put them in conflict with the federal SCA, and tie them up in litigation.

This brings us to the final panel, which instead of testifying in support of any of the current bills, called for adoption of the full RUFADAA language, even though it hasn’t yet been filed in Massachusetts. BBA Trusts and Estates Section Co-Chair Joe Bierwirth, of Hemenway & Barnes, testified on behalf of the BBA, alongside Colin Korzec, of U.S. Trust, and Marc Bloostein, of Ropes and Gray, on behalf of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (“Standing Committee”).

Joe Bierwirth, Colin Korzec, and Marc Bloostein (right to left) testify in support of RUFADAA at Joint Committee on the Judiciary hearing. 

Overall, the panel presented the reasons for adoption of the complete RUFADAA language, including the balance it strikes in allowing access while also protecting privacy, and the clarity and certainty it will offer for fiduciaries, digital account users, and digital account service providers. The witnesses also stressed the unified support this language has achieved, both nationally, with adoption by more and more states in rapid succession over the past two years, and locally, with the BBA, the Massachusetts Bar Association, and the Massachusetts Bankers Association having all officially endorsed the RUFADAA language. (The written testimony offered by the panel also included the Standing Committee’s Massachusetts-specific analysis of RUFADAA, complete with proposed edits to the ULC’s model language in order to ensure it complies with the Massachusetts General Laws).

One thing all witnesses agreed on is that this is an issue crying out for action from the Legislature, in order to provide some clarity to what is now quite a grey area. As always, we’ll keep you posted on RUFADAA throughout the legislative session!

In related news, the BBA isn’t just sticking with legislative testimony to get the word out about RUFADAA. You won’t want to miss our podcast featuring Trusts and Estates co-chairs, Joe Bierwirth and Andy Rothstein, of Goulston & Storrs.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Will This Be the Year? Hearing on Longstanding BBA Probate and Family Law Bills

The BBA’s Trusts and Estates and Family Law Sections have long been amongst the most involved with policy and thus it was fitting that representatives from both were in the State House to testify on long-time BBA bills of interest on Wednesday.  The Judiciary Committee held the first of two hearings on probate and family issues and we provided testimony on three of the fifty-one bills on the agenda.

H1291 – An Act making Corrections to the adopted children’s act

The BBA been worked on this issue both through litigation and legislation.  Bear with us, as the full explanation is a bit technical, but in simplest terms, the bill changes the law to align with the SJC ruling in Bird v. BNY Mellon, a case that restored a 1958 law regarding trusts.  Got it so far?  Here is the detailed explanation prepared with the invaluable help of Brad Bedingfield of Choate and Marc Bloostein of Ropes and Gray.

In 1958, the Legislature modernized the law to presume that adopted persons are included in terms like “child, “grandchild” and “issue” unless the instrument plainly states otherwise. But it made the new law applicable only to instruments executed after its effective date.  The old law, which presumed adopted persons to be excluded unless they were adopted by the testator or settlor himself or herself, continued to apply to pre-1958 instruments. For the next 50 years, families adapted to this presumption for older trusts, making compensating and often irrevocable arrangements for adopted descendants who were not beneficiaries of these old trusts.

However, in 2008, that all changed. Chapter 524 of the Acts of 2008 (which became effective in 2010) reached back to pre-1958 trusts and reversed the legal presumption, providing simply that the 1958 rule of construction (presuming inclusion of adopted people) would now apply to all instruments whenever executed.  This shift came as a complete surprise to the trusts and estates bar, banks, and other professional trustees, who knew nothing about the law until after its enactment and likely would have strongly opposed this sudden and disruptive change.

The problem was that from 1958 to 2008, lawyers had counseled numerous clients about how to provide for adopted children who were not benefited by pre-1958 family trusts. In many cases where such trusts benefitted only biological descendants, parents and grandparents with both biological and adopted descendants adjusted their estate plans to compensate the adopted descendants who were not thought to be beneficiaries under the pre-1958 trusts.  These plans could not always be changed to account for the 2008 change, which undermined the reasonable expectations of those who had created estate plans in the preceding decades.  It also removed existing interests in trusts by bringing in adopted beneficiaries to share in the trust benefits, unexpectedly diluting the interests of the long-standing beneficiaries and resulting in a windfall for adopted beneficiaries, who effectively got double shares where families had made corrective estate plans.

In the 2012 Bird case, in which the BBA filed an amicus brief, after one aggrieved beneficiary of a pre-1958 trust filed suit, the SJC found the 2008 reversal of the old, pre-1958 presumption to be “not reasonable” in that case.  The SJC felt that the 2008 bill violated due process by taking away vested trust interests or other property rights without serving a sufficient public interest to outweigh that loss by trust beneficiaries.  However, while the Court indicated generally that its ruling presumably would apply to other situations, it did not rule on the constitutionality of the 2008 bill in all cases.  Consequently, the 2008 law is still on the books.  Our bill, H1291 would remove it, clarifying the law and assuring that estate plans are executed as designed.  To see our full written testimony, click here.

S746 – An Act relative to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A BBA panel comprised of retired Probate and Family Court Judge Edward Ginsburg, Senior Partners for Justice, Family Law Section Co-Chair Theresa Ramos, Tracey & Associates, P.C., and Family Law Section Public Policy Committee Co-Chair, Gayle Stone-Turesky, Stone, Stone & Creem, gave riveting testimony on the need for this bill.

family law panel

Judge Ginsburg shared his illustrative experience in the 1998 case of Cricenti v. Weiland, which set the precedent for this bill.  The Judge presided over the custody claims of a Massachusetts divorce.  The mother had remarried and wanted to move to Nebraska with her children.  This was concerning to the children’s father, who asked Judge Ginsburg what would happen if the wife ignored a potential parenting agreement – would he have to go to Nebraska to litigate the case?  Judge Ginsburg assured him that was ludicrous, that Massachusetts would have continuing jurisdiction over the case, and that he would personally see to it that the mother and children would have to come to Massachusetts should there be any issues.  With this assurance, the father signed the agreement, permitting the mother to bring the children with her to Nebraska.

Seven months later, the mother went to a court in Nebraska and changed the terms of their parenting agreement.  The husband took action.  She was served in Nebraska and Judge Ginsburg was ready to find her in contempt.  However, the Court of Appeals had other ideas, holding that Massachusetts does not have exclusive continuing jurisdiction.  After a party leaves for six months, she is free to start over in another state and there is nothing Massachusetts can do about it.

Since then, the Judge has spent nearly twenty years trying to change the law.  Massachusetts is the only state left that has not adopted the UCCJEA, and thus is the only state that cedes jurisdiction to the home state of the custodial parents after six months of residency in the new state. This arrangement is extremely unfair to the “left behind” parent who is then forced to travel and litigate the issue in another state.  It also promotes forum shopping.

The purpose of the bill is to remedy these interstate conflicts.  Under the bill, once a state has exercised jurisdiction over custody, that state has exclusive jurisdiction over potential changes in the judgment or order, so long as the parent, the child, or someone acting as a parent remains in the original state.  This construction is very similar to the current laws regarding child support in all fifty states (including Massachusetts), which have an “exclusive jurisdiction” design.

The bill will lift a burden on litigants, who are more mobile in the modern world, and on the courts.  Although, under the bill, Massachusetts courts will maintain jurisdiction over some custody cases, they will avoid the contentious battles that currently arise in removal cases, where parents are fighting both to keep their children and to keep any future custody litigation close to home.

To read more about this bill, click here.

S748 – An Act relative to the elective share of surviving spouses

Some of you may remember this issue, as it too has been on the BBA’s agenda for some time.  It is another issue that doesn’t skimp on complexity.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is generally entitled to claim at least one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s relevant assets, multiplied by a percentage based on the length of the marriage – ranging from three up to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is now applied when a marriage ends in divorce.

The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has since been replaced by a new bill which is similar, though not identical, to the Uniform Probate Code’s spousal elective share provision.  The ad hoc Elective Share Committee explained their proposed amendments in a 2012 report, which was submitted to the Committee at Wednesday’s hearing.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill and testified along with us on Wednesday.

spousal elective share panel

The panel consisted of:

They gave a great presentation, explaining not only the need for the bill and its complicated history, but also the technical aspects.

We also have another State House update: another BBA bill H3611 (formerly H1284), passed the House this week, following testimony by Real Estate Section Co-Chair Michael Fee, Pierce & Mandell P.C. at a May hearing.  The bill helps to protect consumers and other owners of improved real estate that violates zoning rules where a municipality has taken no enforcement action.  To learn more, read our testimony.  We will continue to track this bill as it moves through on the Senate side, and all the above discussed bills as they continue through the legislative process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association