HOUSE BILL 1266
N2 1lr2856
CF SB 700
By: Delegate W. Fisher
Introduced and read first time: February 8, 2021
Assigned to: Judiciary
A BILL ENTITLED
1 AN ACT concerning
2 Estates and Trusts – Wills – Custodianship
3 FOR the purpose of requiring a person having custody of a will to maintain custody of the
4 will except under certain circumstances; prohibiting the custodian of a will from
5 taking certain actions related to the will except under certain circumstances;
6 authorizing the custodian of a will to deposit the will for safekeeping with a certain
7 register of wills under certain circumstances; requiring the custodian of a will to
8 deliver the will to certain persons under certain circumstances; establishing the
9 liability of certain custodians of a will for failure or refusal to deliver a will under
10 certain circumstances; authorizing a certain attorney to dispose of a will in a certain
11 manner under certain circumstances; requiring a register of wills to maintain an
12 electronic copy of a will if the register destroys the will under certain circumstances;
13 authorizing an attorney to destroy a will under certain circumstances; providing that
14 the disposal or destruction of a will by an attorney in accordance with this Act may
15 not be construed as a revocation of the will and authorizing the contents of the will
16 to be proven by other types of evidence; establishing the liability of certain persons
17 for certain violations under this Act; providing that certain persons who dispose of a
18 will in accordance with this Act are not liable for certain damages under certain
19 circumstances; altering a certain statutory form for a power of attorney relating to
20 authority of an agent to demand delivery of the principal’s will; making stylistic
21 changes; and generally relating to the custodianship of wills.
22 BY adding to
23 Article – Estates and Trusts
24 Section 4–201, 4–204, and 4–205 to be under the amended subtitle “Subtitle 2.
25 Custodianship, Deposit, and Disposal of Wills”
26 Annotated Code of Maryland
27 (2017 Replacement Volume and 2020 Supplement)
28 BY repealing and reenacting, with amendments,
29 Article – Estates and Trusts
EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW.
[Brackets] indicate matter deleted from existing law.
*hb1266*
2 HOUSE BILL 1266
1 Section 4–201 through 4–203 and 17–203
2 Annotated Code of Maryland
3 (2017 Replacement Volume and 2020 Supplement)
4 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,
5 That the Laws of Maryland read as follows:
6 Article – Estates and Trusts
7 Subtitle 2. CUSTODIANSHIP, Deposit, AND DISPOSAL of Wills.
8 4–201.
9 EXCEPT AS OTHERWISE PROVIDED IN THIS SUBTITLE, A PERSON HAVING
10 CUSTODY OF A WILL WHO IS NOT THE TESTATOR OF THE WILL HAS A DUTY TO
11 MAINTAIN CUSTODY OF THE WILL AND UNLESS AUTHORIZED BY THE TESTATOR MAY
12 NOT:
13 (1) DESTROY OR DISPOSE OF THE WILL;
14 (2) DISCLOSE THE CONTENTS OF THE WILL TO ANY OTHER PERSON;
15 OR
16 (3) DELIVER THE WILL TO ANY PERSON OTHER THAN THE TESTATOR.
17 [4–201.] 4–202.
18 (a) (1) [A] SUBJECT TO SUBSECTION (B) OF THIS SECTION, A will may be
19 deposited [by] FOR SAFEKEEPING:
20 (I) BY the testator, or by the testator’s agent, [for safekeeping] with
21 the register of the county [where] IN WHICH the testator resides; OR
22 (II)
BY ANY PERSON HAVING CUSTODY OF THE WILL, OTHER
23 THAN THE TESTATOR OR THE TESTATOR’S AGENT, WITH THE REGISTER OF THE
24 COUNTY IN WHICH THE TESTATOR RESIDES OR IN WHICH THE TESTATOR RESIDED
25 WHEN THE WILL WAS EXECUTED.
26 (2) The register shall give a receipt for the will, on the payment of the
27 required fee.
28 (b) (1) The will shall be enclosed in a sealed wrapper, which shall have
29 endorsed on it “Will of,” followed by:
30 (i) The name of the testator;
HOUSE BILL 1266 3
1 (ii) The testator’s address; and
2 (iii) The testator’s Social Security number, if available.
3 (2) The register shall endorse on the will:
4 (i) The date it was received; and
5 (ii) The name of the person from whom it was received.
6 (3) The will is not to be delivered or opened except as provided in this
7 subtitle.
8 (c) During the lifetime of the testator a deposited will may be delivered only to
9 the testator, or to a person authorized by the testator in writing to receive it.
10 (d) After being informed of the death of the testator, the register shall:
11 (1) Open the will;
12 (2) Notify the personal representative named in the will, and any other
13 person the register considers appropriate, that the will is on deposit with the register;
14 (3) Retain the will as a deposited will until it is offered for probate; and
15 (4) Keep a photographic copy of a will transmitted elsewhere for probate.
16 [4–202.] 4–203.
17 (A)A PERSON HAVING CUSTODY OF THE TESTATOR’S WILL SHALL DELIVER
18 THE WILL TO:
19 (1) THE TESTATOR, ON DEMAND OF THE TESTATOR;
20 (2)
A COURT APPOINTED GUARDIAN OF THE TESTATOR’S PROPERTY,
21 ON DEMAND OF THE GUARDIAN; OR
22 (3) AN ATTORNEY IN FACT ACTING UNDER A DURABLE POWER OF
23 ATTORNEY SIGNED BY THE TESTATOR EXPRESSLY AUTHORIZING THE ATTORNEY IN
24 FACT TO DEMAND CUSTODY OF THE WILL, ON DEMAND OF THE ATTORNEY IN FACT.
25 [(a)] (B) (1) After the death of a testator, a person having custody of the
26 testator’s will shall deliver the [instrument] WILL to the register for the county in which
27 administration should be had pursuant to § 5–103 of this article.
4 HOUSE BILL 1266
1 [(b)] (2) The custodian may inform an interested person of the contents of the
2 will.
3 (c) A custodian who willfully fails or refuses to deliver a will [to the register after
4 being informed of the death of the testator] AS REQUIRED UNDER THIS SECTION is liable
5 to a person aggrieved for the damages sustained by reason of the failure or refusal.
6 4–204.
7 (A)
AN ATTORNEY WHO HAS CUSTODY OF A WILL MAY DISPOSE OF THE WILL
8 IN ACCORDANCE WITH THIS SECTION IF:
9 (1) THE ATTORNEY IS LICENSED TO PRACTICE LAW IN THE STATE;
10 (2) AT LEAST 25 YEARS HAVE ELAPSED SINCE THE DATE OF THE
11 EXECUTION OF THE WILL;
12 (3)
THE ATTORNEY HAS NO KNOWLEDGE OF AND, AFTER DILIGENT
13 INQUIRY CANNOT ASCERTAIN, THE ADDRESS OF THE TESTATOR; AND
14 (4)
TO THE BEST OF THE ATTORNEY’S KNOWLEDGE, THE WILL IS NOT
15 SUBJECT TO A CONTRACT TO MAKE OR NOT TO REVOKE A WILL OR DEVISE.
16 (B) (1) EXCEPT AS PROVIDED UNDER SUBSECTION (C) OF THIS SECTION,
17 AN ATTORNEY AUTHORIZED TO DISPOSE OF A WILL UNDER THIS SECTION SHALL
18 FILE THE WILL WITH THE REGISTER OF THE COUNTY WHERE THE TESTATOR
19 RESIDED WHEN THE WILL WAS EXECUTED ALONG WITH AN AFFIDAVIT CERTIFYING
20 THAT THE CONDITIONS OF SUBSECTION (A) OF THIS SECTION HAVE BEEN MET.
21 (2)
THE REGISTER SHALL CHARGE AND COLLECT ANY FEE
22 ESTABLISHED UNDER § 2–206 OF THIS ARTICLE FOR THE FILING OF THE WILL AND
23 AFFIDAVIT.
24 (3)
ON THE FILING OF THE WILL AND AFFIDAVIT UNDER PARAGRAPH
25 (1) OF THIS SUBSECTION, THE REGISTER MAY DESTROY THE WILL BUT SHALL
26 RETAIN AN ELECTRONIC COPY OF THE WILL AND AFFIDAVIT.
27 (C) AN ATTORNEY AUTHORIZED TO DISPOSE OF A WILL UNDER THIS
28 SECTION MAY DESTROY THE WILL WITHOUT NOTICE TO ANY PERSON OR COURT IF
29 THE WILL HAS NOT BEEN OFFERED FOR PROBATE WITHIN 10 YEARS FOLLOWING THE
30 DEATH OF THE TESTATOR.
31 (D) (1) THE DISPOSAL OR DESTRUCTION OF A WILL IN ACCORDANCE
32 WITH THIS SECTION MAY NOT BE CONSTRUED AS A REVOCATION OF THE WILL UNDER
HOUSE BILL 1266 5
1 § 4–105 OF THIS TITLE.
2 (2)
THE CONTENTS OF A WILL DISPOSED OF OR DESTROYED IN
3 ACCORDANCE WITH THIS SECTION MAY BE PROVEN BY OTHER TYPES OF EVIDENCE.
4 4–205.
5 (A) A PERSON WHO VIOLATES ANY PROVISION OF THIS SUBTITLE SHALL BE
6 LIABLE TO A PERSON AGGRIEVED FOR THE DAMAGES SUSTAINED AS A RESULT OF
7 THE VIOLATION.
8 (B) AN ATTORNEY OR REGISTER WHO DISPOSES OF A WILL IN ACCORDANCE
9 WITH THIS SUBTITLE IS NOT LIABLE TO THE TESTATOR OR ANY OTHER PERSON FOR
10 ANY DAMAGES SUSTAINED BY THE TESTATOR OR OTHER PERSON AS A RESULT OF
11 THE DISPOSAL.
12 [4–203.] 4–206.
13 The robbery or larceny of a will shall be punished in the same manner as the robbery
14 or larceny of goods and chattels.
15 17–203.
16 “MARYLAND STATUTORY FORM LIMITED POWER OF ATTORNEY
17 PLEASE READ CAREFULLY
18 This power of attorney authorizes another person (your agent) to make decisions concerning
19 your property for you (the principal). You need not give to your agent all the authorities
20 listed below and may give the agent only those limited powers that you specifically indicate.
21 This power of attorney gives your agent the right to make limited decisions for you. You
22 should very carefully weigh your decision as to what powers you give your agent. Your
23 agent will be able to make decisions and act with respect to your property (including your
24 money) whether or not you are able to act for yourself.
25 If you choose to make a grant of limited authority, you should check the boxes that identify
26 the specific authorization you choose to give your agent.
27 This power of attorney does not authorize the agent to make health care decisions for you.
28 You should select someone you trust to serve as your agent. Unless you specify otherwise,
29 generally the agent’s authority will continue until you die or revoke the power of attorney
30 or the agent resigns or is unable to act for you.
31 Your agent is not entitled to compensation unless you indicate otherwise in the special
32 instructions of this power of attorney. If you indicate that your agent is to receive
6 HOUSE BILL 1266
1 compensation, your agent is entitled to reasonable compensation or compensation as
2 specified in the Special Instructions.
3 This form provides for designation of one agent. If you wish to name more than one agent
4 you may name a coagent in the Special Instructions. Coagents are required to act together
5 unanimously unless you specify otherwise in the Special Instructions.
6 If your agent is unavailable or unwilling to act for you, your power of attorney will end
7 unless you have named a successor agent. You may also name a second successor agent.
8 This power of attorney becomes effective immediately unless you state otherwise in the
9 Special Instructions.
10 If you have questions about the power of attorney or the authority you are granting to your
11 agent, you should seek legal advice before signing this form.
12 DESIGNATION OF AGENT
13 This section of the form provides for designation of one agent.
14 If you wish to name coagents, skip this section and use the next section (“Designation of
15 Coagents”).
16 I, ___________________________________________________, name the following person
17 (Name of Principal)
18 as my agent:
19 Name of
20 Agent: _______________________________________________________________________
21 Agent’s
22 Address: _____________________________________________________________________
23 Agent’s Telephone
24 Number: _____________________________________________________________________
25 DESIGNATION OF COAGENTS (OPTIONAL)
26 This section of the form provides for designation of two or more coagents. Coagents are
27 required to act together unanimously unless you otherwise provide in this form.
28 I, ___________________________________________________________________________,
29 (Name of Principal)
30 Name the following persons as coagents:
31 Name of Coagent: ____________________________________________________________
HOUSE BILL 1266 7
1 Coagent’s Address: ___________________________________________________________
2 Coagent’s Telephone Number: _________________________________________________
3 Name of Coagent: ____________________________________________________________
4 Coagent’s Address: ___________________________________________________________
5 Coagent’s Telephone Number: _________________________________________________
6 Special Instructions Regarding Coagents: _______________________________________
7 ___________________________________________________________________________________
8 ___________________________________________________________________________________
9 ____________________________________________________________________
10 DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
11 If my agent is unable or unwilling to act for me, I name as my successor agent:
12 Name of Successor Agent: _____________________________________________________
13 Successor Agent’s
14 Address: _____________________________________________________________________
15 Successor Agent’s Telephone Number: __________________________________________
16 If my successor agent is unable or unwilling to act for me, I name as my second successor
17 agent:
18 Name of Second Successor
19 Agent: _______________________________________________________________________
20 Second Successor Agent’s
21 Address: _____________________________________________________________________
22 Second Successor Agent’s Telephone Number: ___________________________________
23 GRANT OF GENERAL AUTHORITY
24 I (“the principal”) grant my agent and any successor agent, with respect to each subject
25 that I choose below, the authority to do all acts that I could do to:
26 (1) Demand, receive, and obtain by litigation or otherwise, money or
27 another thing of value to which the principal is, may become, or claims to be entitled, and
28 conserve, invest, disburse, or use anything so received or obtained for the purposes
29 intended;
30 (2) Contract with another person, on terms agreeable to the agent, to
31 accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform,
32 restate, release, or modify the contract or another contract made by or on behalf of the
33 principal;
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1 (3) Execute, acknowledge, seal, deliver, file, or record any instrument or
2 communication the agent considers desirable to accomplish a purpose of a transaction,
3 including creating a schedule contemporaneously or at a later time listing some or all of the
4 principal’s property and attaching the schedule to this power of attorney;
5 (4) Initiate, participate in, submit to alternative dispute resolution, settle,
6 oppose, or propose or accept a compromise with respect to a claim existing in favor of or
7 against the principal or intervene in litigation relating to the claim;
8 (5) Seek on the principal’s behalf the assistance of a court or other
9 governmental agency to carry out an act authorized in this power of attorney;
10 (6) Engage, compensate, and discharge an attorney, accountant,
11 discretionary investment manager, expert witness, or other advisor;
12 (7) Prepare, execute, and file a record, report, or other document to
13 safeguard or promote the principal’s interest under a statute or regulation;
14 (8) Communicate with representatives or employees of a government or
15 governmental subdivision, agency, or instrumentality, on behalf of the principal;
16 (9) Access communications intended for, and communicate on behalf of the
17 principal, whether by mail, electronic transmission, telephone, or other means; and
18 (10) Do lawful acts with respect to the subject and all property related to the
19 subject.
20 (INITIAL each authority in any subject you want to include in the agent’s general
21 authority. Cross through each authority in any subject that you want to exclude. If you
22 wish to grant general authority over an entire subject, you may initial “All of the above”
23 instead of initialing each authority.)
24 SUBJECTS AND AUTHORITY
25 A. Real Property – With respect to this category, I authorize my agent to:
26 (___) Demand, buy, lease, receive, accept as a gift or as security for an
27 extension of credit, or otherwise acquire or reject an interest