HB 1266
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader
House Bill 1266 (Delegate W. Fisher)
Judiciary Judicial Proceedings
Estates and Trusts - Wills - Custodianship
This bill alters provisions governing the custodianship and deposit of wills by
(1) establishing duties and requirements applicable to a custodian of a will; (2) allowing a
person having custody of a will, other than the testator (person who made the will) or the
testator’s agent, to deposit the will for safekeeping with a Register of Wills; and
(3) authorizing an attorney to dispose of a will in a specified manner under certain
conditions.
Fiscal Summary
State Effect: The bill does not materially affect State government operations or finances.
Local Effect: The bill does not affect local government operations or finances.
Small Business Effect: Minimal.
Analysis
Bill Summary: The bill establishes that except as otherwise provided under the bill’s
provisions and other existing provisions governing the custodianship and deposit of wills,
a person having custody of a will who is not the testator of the will has a duty to maintain
custody of the will and unless authorized by the testator may not (1) destroy or dispose of
the will; (2) disclose the contents of the will to any other person; or (3) deliver the will to
any person other than the testator.
Adding to an existing provision applicable to the deposit of a will by the testator or the
testator’s agent, the bill allows for a will to also be deposited for safekeeping by any other
person having custody of the will, with the register of the county in which the testator
resides or in which the testator resided when the will was executed.
The bill requires the custodian of a testator’s will to deliver the will, on demand, to (1) the
testator; (2) a court-appointed guardian of the testator’s property; or (3) an attorney in fact
acting under a durable power of attorney signed by the testator expressly authorizing the
attorney in fact to demand custody of the will.
The bill authorizes an attorney that has custody of a will to dispose of the will if the
following conditions are satisfied:
 the attorney is licensed to practice law in the State;
 at least 25 years have elapsed since the date of the execution of the will;
 the attorney has no knowledge of and, after diligent inquiry 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 to revoke a will or devise.
An attorney authorized to dispose of a will must file the will (subject to a specified fee)
with the Register of Wills of the county where the testator resided when the will was
executed along with an affidavit certifying that the conditions above have been met. Once
the will and affidavit are filed, the register may destroy the will but is required to keep an
electronic copy of both the will and affidavit.
An attorney authorized to dispose of a will under the above conditions may destroy the will
without filing the will and without notice to any person or court if the will has not been
offered for probate within 10 years following the death of the testator.
The disposal or destruction of a will in accordance with these provisions may not be
construed as a revocation of the will, and the contents of a will disposed of or destroyed
may be proven by other types of evidence.
A violator of the bill’s provisions or other existing provisions governing the custodianship
and deposit of wills is liable to a person aggrieved for the damages sustained as a result of
the violation. However, an attorney or Register of Wills who disposes of a will in
accordance with the bill’s provisions is not liable to the testator or any other person for
damages sustained by the testator or other person as a result of the disposal.
The bill adds to the “Maryland Statutory Form Limited Power of Attorney” under the
Maryland General and Limited Power of Attorney Act by including, under the optional
specific grants of authority, an option to authorize an agent to demand the delivery of the
HB 1266/ Page 2
principal’s will from the custodian of the will and, on delivery of the principal’s will, take
custody of the will subject to statutory requirements.
Current Law: A testator or a testator’s agent may deposit a will, for safekeeping, with
the Register of Wills of the county in which the testator resides. The register must give a
receipt for the will, on the payment of the required fee. After being informed of the death
of the testator, the register must take specified actions, including opening the will and
notifying the personal representative named in the will, and any other person the register
considers appropriate, that the will is on deposit with the register.
Following a testator’s death, a custodian of a testator’s will must deliver it to the register
for the county in which administration should be had (pursuant to statutory provisions
governing the determination of venue for administrative or judicial probate). The custodian
may inform an interested person of the contents of the will. A custodian who willfully fails
or refuses to deliver a will to the register after being informed of the death of the testator
is liable to a person aggrieved for the damages sustained by reason of the failure or refusal.
Additional Information
Prior Introductions: None.
Designated Cross File: SB 700 (Senator West) - Judicial Proceedings.
Information Source(s): Comptroller’s Office; Judiciary (Administrative Office of the
Courts); Register of Wills; Department of Legislative Services
Fiscal Note History: First Reader - February 19, 2021
rh/sdk Third Reader - March 17, 2021
Analysis by: Donavan A. Ham Direct Inquiries to:
(410) 946-5510
(301) 970-5510
HB 1266/ Page 3


Statutes affected:
Text - First - Estates and Trusts - Wills - Custodianship: 4-201 Estates and Trusts, 4-204 Estates and Trusts, 4-105 Estates and Trusts, 4-205 Estates and Trusts, 17-203 Estates and Trusts, 3-403 Estates and Trusts, 2-513 Estates and Trusts
Text - Third - Estates and Trusts - Wills - Custodianship: 4-201 Estates and Trusts, 4-204 Estates and Trusts, 4-105 Estates and Trusts, 4-205 Estates and Trusts, 17-203 Estates and Trusts, 3-403 Estates and Trusts, 2-513 Estates and Trusts