Lawyers Pine For Probate Improvement | Measure runs afoul of bond industry
After years of discussions and debate, probate reform looked likely to receive approval on Beacon Hill this summer.
But then it stalled.
While not the sexiest of topics, reforming the state’s antiquated probate laws could have a major impact on the region’s legal community, not to mention the thousands of Bay State residents who deal with estate, conservator or guardianship matters within the probate court system each year. But the initial proposal put the reforms at odds with the surety bond industry, which currently plays an important — and lucrative — role in the probate process.
However, many in the legal community say they’re willing to compromise with the surety firms in order to get the long-awaited changes approved.
Bill Brawl
Many that work within the probate system complain that the system’s checks and balances can stretch simple matters out over months and years unnecessarily.
“There are so many hidden rules and procedures. It’s a very archaic system,” said Martin Healy, general counsel for the Massachusetts Bar Association, which has been lobbying for the reforms at the legislature.
“It’s been a long, long process and I hope it’s about to be over,” said Marvin S. Silver, a partner at the law firm of Seder & Chandler LLP, which has offices in Worcester and Westborough.
Many thought it would be over after the 300-page reform bill — known as the Uniform Probate Code — was approved by the House in July. But the measure stalled in Senate, partly due to concerns expressed by the surety industry.
The reform measure as approved by the House would have created an “opt in” model for surety bonds in uncontested probate cases. As a result, a judge or a party to an estate probate matter would have to request that a surety bond be posted. Surety bonds are a type of insurance policy meant to cover parties if the executor of a will absconds with the estate’s assets. They are typically priced based on the size of the estate, say $10 per $1,000 in estate assets. The cost is usually absorbed by the estate.
Naturally, the surety bond industry wasn’t pleased with the possibility of losing business through the opt-in reform and paid the Boston firm Johnson Haley LLP $10,000 to speak upon their behalf at the Capitol. The industry lobbied to have surety bonds required as the default, unless all the parties in the case agree to forgo it.
Bill Peterson, vice president and public affairs officer of Chicago-based CNA Surety, the nation’s largest publicly traded surety company, said his industry is supportive of the Uniform Probate Code, just not specific proposal as it relates to surety bonds.
“It’s not an organized opposition…” he said. “What we’re asking for, it’s really a small change that doesn’t change intent of the UPC.” He said that surety bonds provide an important protection for people involved in probate matters.
The legal community’s position on the matter this summer was to “let the surety companies have their way,” according to Ray Young, an attorney at the Boston-based law firm of Young & Bayle.
He said there’s still “a remote possibility” that the reforms could be passed during the current informal session. If not, the reforms would have to gain House and Senate approval when the new formal session begins next year.
Frederick Misilo Jr., an attorney at the Worcester law firm of Fletcher, Tilton & Whipple, is also on the side of seeing the probate system streamlined.
“We want our clients to have an experience that is not bogged down in delay or inconvenience,” he said.
But not all are convinced that an act buy legislature is required.
“I don’t have a tremendous amount of lawyers saying we need to do this...” said Stephen Abraham, who is up for reelection in November for his post as Register of Probate for Worcester County.
However, he acknowledged the reform is likely. “I think eventually it’s going to pass, but the timing has to be right,” he said.
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