Legislative Update: New Estates & Trusts Laws
Last month, I examined the new Maryland SAFE Act recently passed by the Maryland legislature and set to go into effect on October 1, 2021. Along with the SAFE Act, there are three additional new Maryland laws in the Estates & Trust/elder law realm worth being familiar with: (1) remote witnessing of estate planning documents, (2) disposition of wills, and (3) the prohibition on certain distributions or disbursements of guardianship property without court authorization or confirmation.
Remote Witnessing of Estate Planning Documents
Early in the COVID-19 pandemic, Governor Larry Hogan issued an executive order authorizing the practice of remote witnessing of wills, powers of attorney, and advance directives. Shortly after this emergency order, legislation was drafted that would extend the provisions in Governor Hogan’s Executive Order. That legislation, Senate Bill 820/House Bill 1261 – Wills, Powers of Attorney and Advance Directives – Electronic Execution, was approved by the Maryland General Assembly during the 2021 session and is set to go into effect on October 1, 2021. This bipartisan legislation was introduced by Delegate Wanika Fisher of Prince George’s County as well as Senator Chris West.
Specifically, this legislation permits wills and powers of attorney to be executed electronically and/or remotely witnessed – similar to Governor Hogan’s executive order. Further, the new law authorizes advanced directives to be witnessed remotely. Electronic presence for the purposes of remote witnessing is defined within the legislation, and protections and requirements for the proper use of electronic signing and remote witnessing are provided within the Act.
Unlike a typical lawyer-client relationship, the parties in real estate transactions are not normally known to one another; as such, the legislation includes a particular provision regarding remote execution of powers of attorney in real estate transactions. Further, the bill includes a retroactive clause, which asserts that this Act shall be construed to apply to any will, power of attorney or advance directive executed on or after March 10, 2020.
Disposition of Wills
Senate Bill 700/House Bill 1266 – Disposition of Wills – was also passed and goes into effect on October 1, 2021. This legislation, which will be found in Estates & Trusts §4-201 through 4-206, will increase the methods of disposition of wills.
Pursuant to Maryland law, a custodian of a will has a duty to maintain the custody of the will. Without authorization, with limited exceptions a custodian may not: (a) destroy or dispose of the will; (b) disclose the contents of the will; or (c) deliver the will to anyone other than the testator.
Previously, only a testator or testator’s agent was able to deposit a will in safekeeping in the Register of Wills in the county where the testator resides or in which the testator resided at the time the will was executed. However, this new legislation expands the ability to deposit a will for safekeeping to any custodian of a will.
Regarding the requirements of safekeeping of wills by the Register of Wills, the same previous provisions still apply. Specifically, a custodian of a will is required to deliver the will on demand to: (a) the testator; (b) a court appointed guardian; and (c) an attorney-in-fact, if he or she is authorized to demand custody of the will. Following the death of a testator, a custodian is required to deliver the will to the Register of Wills.
Noteworthy to members of the Bar, any Maryland attorney with custody of a will that is over 25 years old may file that will with the Register of Wills in the county where the testator resided at the time the will was executed. When the 25-plus year old will is filed at the Register of Wills, the attorney custodian must also include an affidavit certifying the will is over 25 years old, the attorney has no knowledge of the testator’s current address, after a diligent search the attorney cannot ascertain the address of the testator, and to the best of the attorney’s knowledge the will is not subject to a contract to make or not revoke a will or devise.
Pursuant to Estates & Trusts § 2-206, each county’s Register of Wills is required to collect the required $5.00 fee when the will is filed. After the filing of the will, the Register of Wills may either retain the paper copy of the will and affidavit or destroy the originals and retain an electronic copy.
Furthermore, if a Maryland attorney maintains custody of a will following the death of a testator, and that will has not been offered for probate within 10 years following the date of death, the Maryland attorney may destroy the will without notice to any person or the court.
As I previously discussed in a prior article, I believe it is the best practice to place original wills in safekeeping at the Register of Wills in the county in which the testator is domiciled to ensure the will remains protected. However, for attorneys maintaining possession of older wills, they now have additional options regarding the disposition of those wills.
Prohibition on Certain Distributions or Disbursements in Guardianship.
Also passed in the last legislative session and set to go into effect on October 1, 2021 is House Bill 1000 Estates and Trusts – Guardian of Property of Minor or Disable Person – Prohibition on Distribution or Disbursement. The intent of this bill is to prohibit a guardian of the property of either a minor or disabled person from distributing or disbursing guardianship property without court authorization or confirmation in specific instances. This new law can be found in Estates & Trusts § 13-214.
Under this Act, a guardian of the property who is not a family member of the minor or disabled person may not distribute or disburse property without court authorization or confirmation if the distribution or disbursement would benefit: 1) the guardian (except for reasonable compensation and reimbursement for expenses), or 2) a family member of the guardian. “Family member” is defined under § 13-214(A) as a child, parent, spouse, grandparent, brother, sister, uncle, or aunt by either blood, adoption or marriage.
Should a guardian of the property violate this Act, the guardian will be liable for breach of the guardian’s fiduciary duty to the minor or disabled person, or to the interested persons, for resulting damage or loss to the same extent as a trustee of an express trust.
Zachary W. Worshtil is an attorney at the Law Office of Ralph W. Powers, Jr., P.C. He is also a member of the PGCBA Board of Directors and co-chair of the Probate, Estates, Trusts & Elder Law Section. He concentrates his practice primarily in estate administration and probate litigation.