Revocable trusts and other will substitutes have become commonplace in today’s estates and trusts practice. The development of will substitutes and other non-probate devices has largely developed outside of the statutory framework that governs testamentary dispositions. This is, in fact, the main selling point of will substitutes: such devices avoid probate. The fact that these devices avoid the substantive law of testamentary dispositions, however, can create unintended results:
“Transferors use will substitutes to avoid probate, not to avoid the subsidiary law of wills. The subsidiary rules are the product of centuries of legal experience in attempting to discern transferors’ wishes and suppress litigation. These rules should be treated as presumptively correct for will substitutes as well as for wills.”
John H. Langbein, The Non-Probate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108, 1136-37 (1984).
The subsidiary rules governing testamentary instruments contain default rules which act as savings clauses for wills. By the terms of the statute, however, this protection does not extend to non-probate transfers. For example, as noted in previously, a divorce occurring after the execution of a will revokes all of the provisions in the will related to the ex-spouse. Md. Code Ann., Est. & Trusts § 4-105. The divorce decree does not have a similar effect in the non-probate setting. PaineWebber v. East, 363 Md. 408, 768 A.2d 1029 (2001) (holding divorce does not revoke pre-divorce IRA designation to ex-spouse); Cassiday v. Cassiday, 256 Md. 5, 259 A.2d 299 (1969) (finding that divorce decree does not extinguish pre-divorce insurance beneficiary designation to ex-spouse). Estates and Trusts Article § 8-103 places a six-month limitation on the presentation of claims against an estate. Md. Code Ann., Est. & Trusts § 8-103. However, it is unclear whether this statute of limitations applies to revocable trusts.
The Maryland State Bar Association has attempted, from time to time, to extend certain of the statutory protections available for the probate estate to non-probate transfers. House of Delegates Bill 1111, filed in the 2001 Maryland General Assembly, purposed to extend these rules in an effort to achieve parity between the probate and non-probate systems:
“The recent explosion of the use of revocable trusts to avoid probate has had an unintended consequence: it separates those transfers from the various protective provisions of the Estates and Trusts law. Over many years, the General Assembly has constructed “fail-safe” provisions in Maryland law to protect individuals during the process of succession if that happens in the probate setting. Unfortunately these rules do not carry over – by definition – to the use of revocable trusts as Will substitutes. To use one example, a bequest left to a spouse in a Will becomes void upon a divorce regardless of whether the decedent got around to changing his or her Will after the divorce. This very common sense rule may not apply to a bequest left in a revocable trust to a spouse. The law governing the execution of Wills, to cite another example, is designed to minimize fraud by requiring two witnesses who are aware of the Testator’s act and his or her condition at the time of signing. A revocable trust could be executed wholly without witnesses. The proposal is to make the rules governing Wills extend to revocable trusts when they are operating as Will substitutes.
Two code sections would be altered by these proposals: current Sections 8-103 and 14-102 of the Estates and Trusts Article. Section 8-103 sets forth the statute of limitations for claims against an estate. The change would clarify that claims against an estate – whether passing through a revocable trust at death or through a Will at death – must be presented within six months from the death of a decedent. Section 14-102 would be modified to extend specific provisions of the Estates and Trusts Article to revocable trusts. These provisions are focused on the basics: execution, revocation, effect of divorce, effect of an In Terrorem clause, etc. The most notable change for the practitioners would be that revocable trusts would need two witnesses like Wills. Florida has a similar statute. To protect practitioners from being surprised by the provision, this part of the new law would govern only revocable trusts executed [on a delayed basis].”
Summary, H.D. 1111, 2001 Gen. Assem. (Md. 2001). To date, no legislative remedy has been enacted.