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With the conclusion of the 2022 Maryland legislative session, there are several estates and trusts law changes – from the rules involving remote and electronic execution of estate planning documents, to changes regarding RULONA, and the signing of Maryland’s new Supported Decision-Making Statute.
Below are 7 key takeaways related to estate planning from this year’s legislative session. Please feel free to reach out to our office for further information or greater clarity on any of these new laws.
1. Supported Decision-Making Title Enacted
One of the more significant additions to Maryland law was the enactment of the new Supported Decision-Making Statute for adults in need. This statute allows any person over the age of 18 to enter into an agreement with another adult known as a “Supporter.” The Supporter is expected to take on the responsibilities of a legal guardian, yet with separate, less restrictive rights over the adult whom they support. If requested, Supporters are permitted to be present during an adult’s meetings with legal counsel, medical professionals, and financial representatives.
In Maryland, Supporters have no rights or authority to make important decisions on behalf of the adult for whom they support but can assist with:
- Financial consultation
- Organizing transportation
- Scheduling appointments
- Other everyday considerations
In the context of estates and trusts law, Supporters are solely responsible for providing copies of their Supported Decision-Making Agreement (SDM Agreement) to any duly appointed guardian or agent under their power of attorney or advanced directive, or trustee under an adult’s revocable trust. In Maryland, an SDM Agreement cannot supplant an agent’s rights under an adult’s power of attorney, advance directive, or any guardianship order. Supporters are permitted to work in tandem with these agreements.
2. Changes to Remote and Electronic Estate Planning
The 2022 Maryland legislative session revised the e-wills statute that was introduced during the COVID-19 pandemic. These amendments include:
- The removal of the exclusion of wills and trusts from electronic notarization.
- Self-proving affidavits required for e-wills now must be signed before certification.
- Notaries are no longer required for e-wills previously certified by a supervising attorney or testator. Certified e-wills may also be notarized under the Maryland Revised Uniform Law on Notarial Acts, or RULONA.
3. RULONA Amendments
Additional amendments to the Maryland Revised Uniform Law on Notarial Acts introduced in the 2022 legislative session include:
- Provisions related to credential analysis and identity proofing no longer apply so long as the notary can reasonably identify the person whose signature is being notarized.
- Remote ink notarizations are now permitted, providing an alternative for those choosing to forego an electronic signature.
- The Maryland Secretary of State is authorized to increase the fee for an original notarial act from $4 to $25 for an original notarial act and from $4 to $50 for electronic notarization.
4. Changes to Attorney’s Fees and Personal Representatives’ Commissions
Maryland estates and trusts law has been amended to allow personal representatives to pay commissions and attorney’s fees under a certain amount without the need for review or approval by state Orphans’ Courts if all parties consent. This amendment does not apply to consents filed simultaneously with the final account, nor in reports filed under a modified administration. Regardless of the new amendment, Orphans’ Courts may still retain the legal authority to deny certain attorney’s fees in certain instances due to ambiguous language used in the statute.
5. Changes to the Register of Wills’ Probate Fees
New changes to Maryland estates & trusts law may provide good news for those with smaller estates, but increased probate fees for those with larger estates. Below is the current schedule in place for fees from the Maryland Register of Wills’. Estates in the range of:
- $0- $50,000: $0 fee.
- $50,000-$100,000: $100
- $100,000-$500,000: $200
- $500,000-$1,000,000: $1,000
- $1,000,000-$2,500,000: $2,000
- $2,500,000-$5,000,000: $5,000
- $5,000,000-$7,500,000: $7,500
- $7,500,000-$10,000,000: $10,000
- $10,000,000: $10,000 plus .02% of excess over $10,000,000
6. Amendments to the Corporations & Association Article
In a reversal of a ruling made by the Maryland Court of Special Appeals in 2021, the 2022 legislative session saw new changes to the Corporations & Associations Article. Under the new amendments, limited liability company operating agreements and partnership agreements are permitted to include clear directions and provisions regarding the disposition of membership interests and partnership interests following the death of a member or partner.
These provisions now apply regardless of whether the transferee in question is another member or partner of the company. Per the new amendment, operating agreements and partnership agreements are not considered testamentary, and any transfer following the death of a member or partner will be effective under the terms of the agreements.
7. Partition of Real Property Statute
During last year’s legislative session, a new partition law was introduced to the Estates & Trusts section of the Maryland Code. Per the new statute, following the death of an owner of a piece of real estate (subject to Subtitle 7 – Partition of Real Property), Maryland courts are required to take the following actions:
- Reasonably determine the fair market value of a piece of real estate owned by multiple cotenants before any partition sale or division.
- Provide a greater opportunity for cotenants to be well informed of the partition proceeding.
- Provide cotenants with ample time to arrange for the acquisition, financing, or other disposition of the property in a reasonable manner fair to the parties and preserves the value of the property.
We at Sessa & Dorsey pledge to continuously inform our clients of new legislation relevant to Maryland’s estates and trusts law each year. To learn more or to schedule a consultation with our team of estates and trusts attorneys, get in touch with our offices today.
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