Before we break to celebrate Thanksgiving, let’s pause to remember what we’re thankful for. . .
- The fact that the Massachusetts Declaration of Rights provides for three co-equal branches of government: Executive, Legislative, and the Judiciary.
- The work of our Amicus Committee in Bird and Fisher. Our Bird brief brought clarity and predictability to the estate planning process, and our Fisher brief articulated our long held commitment to diversity and inclusion in the legal profession.
- The passage of the Massachusetts Alimony Reform Act, a great example of true grassroots activism, coalition building and collaboration. Democracy is not always efficient, but the process was exemplary, allowing stakeholders to speak and be heard.
- The passage of the Transgender Equality Rights bill. This bill was 5 years in the making, and it was high time that Massachusetts provided important protections to the transgender community.
- The CORI Sealing Order was made permanent by the Boston Municipal Court. This will allow multiple motions from different districts to be heard in one of the courts with jurisdiction over a case to be sealed. More important it facilitates re-entry.
Government Relations Director
Boston Bar Association
With the start of the 2nd half of the 187th Massachusetts Legislative Session set to begin on January 4th, the BBA is still advocating for several bills in the waning days of the informal session. Back in January 2011, the BBA was the lead sponsor for 17 bills and a co-sponsor of a handful of other bills. Just about all of our bills were referred to the Judiciary Committee.
Overall, 5,388 bills were filed at the beginning of this session. Roughly 900 of those bills were referred to the Judiciary Committee. This constitutes over 15% of all bills filed in the Legislature and gives the Judiciary Committee the distinction of having the highest volume of non-budgetary legislation referred to any committee. To put this in perspective, the Public Service Committee has the next biggest number of bills at just over 600. Not surprisingly, issues concerning the state courts, criminal procedure and penalties, torts, privacy, real estate, probate and judicial management end up in Judiciary.
Admittedly, not all of the 900 bills are unique. Some of the bills are the same piece of legislation just filed separately in each branch. For instance, the BBA often tries to find both a House and Senate sponsor of its bills especially if the issue at hand is one that may require leadership in both branches.
Since public hearings began in March, the Judiciary Committee has held eleven hearings. These take place in small hearing rooms or in the larger Gardner Auditorium and are always well attended. The Judiciary Committee hearings last for hours, often late into the night. These hearings are packed with lawmakers and members of the public. The BBA has experienced this firsthand. We patiently waited several hours for our turn to testify in Gardner Auditorium twice this year and in the smaller hearing rooms several other times this session.
Here are just some examples of bills for which the BBA has advocated this session and which already received a favorable report from the Judiciary Committee:
- Alimony reform was released from the committee and signed into law on September 26th and will become effective on March 1, 2012.
- Transgender civil rights will go into effect in the Commonwealth on July 1, 2012.
- A major court reform bill that included a provision to keep the Probation Department in the Judicial Branch as well as providing for the hiring of a professionally trained, non-judicial court administrator was signed by the Governor on August 4th and will become law on July 1, 2012.
Now that those three bills have already been signed into law, the Judiciary Committee can begin focusing on other equally important bills.
Some of the other bills that have been released from the Judiciary Committee thus far but that have not made their way to the Governor’s desk just yet include the BBA’s access to DNA bill, the Uniform Trust Code and the corrections to the MUPC. Elsewhere in the Legislature, budget requests are being reviewed and budget priorities are beginning to take shape. When formal session resumes in a few weeks, there will be more public hearings, meetings with lawmakers and other opportunities to advance our agenda.
Director of Government Relations
Boston Bar Association
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.
Government Relations Director