An Act To Amend the Maine Uniform Probate Code
Maine Legislature, Session 130, LD 0145
Committee: Judiciary
Amends: 18-C MRSA §3, 18-C MRSA §5, 18-C MRSA §8

Legislative Document
No. 145
H.P. 101
House of Representatives, January 21, 2021
An Act To Amend the Maine Uniform Probate Code
(EMERGENCY)
Reported by Representative HARNETT of Gardiner for the Probate and Trust Law 
Advisory Commission pursuant to the Maine Revised Statutes, Title 18-C, section 1-803, 
subsection 2.
Received by the Clerk of the House on January 19, 2021.  Referred to the Committee on 
Judiciary pursuant to Joint Rule 308.2 and ordered printed.
ROBERT B. HUNT
Clerk
Emergency preamble.  Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, the Maine Uniform Probate Code took effect September 1, 2019, but the 
new confidentiality of records provisions applicable to adult guardianships and 
conservatorships were delayed until January 1, 2021 to allow the development and adoption 
of rules governing those records by the Supreme Judicial Court; and
Whereas, the rules governing confidentiality of Probate Court records have not yet 
been adopted; and
Whereas, the effective date of the statutory provisions should be delayed until the rules 
are adopted and any appropriate statutory amendments can be made; and
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  18-C MRSA §3-108, sub-§1, ¶D, as amended by PL 2019, c. 417, Pt. A, 
§4, is further amended to read:
D.  An Regardless of whether the decedent dies before, on or after the effective date of 
this Code, an informal appointment or a formal testacy or appointment proceeding may 
be commenced more than 3 years after the decedent's death if no proceeding 
concerning the succession or estate administration has occurred within the 3-year 
period after the decedent's death, but the personal representative has no right to possess 
estate assets as provided in section 3‑709 beyond that necessary to confirm title in the 
successors to the estate, and claims other than expenses of administration may not be 
presented against the estate;
Sec. 2.  18-C MRSA §5-308, sub-§4, as enacted by PL 2019, c. 417, Pt. A, §30, is 
amended to read:
4.  Effective date.  This section takes effect January 1, 2021 2023.
Sec. 3.  18-C MRSA §5-409, sub-§4, as enacted by PL 2019, c. 417, Pt. A, §62, is 
amended to read:
4.  Effective date.  This section takes effect January 1, 2021 2023.
Sec. 4.  18-C MRSA §5-423, sub-§2, ¶E, as amended by PL 2019, c. 417, Pt. A, 
§80, is further amended to read:
E.  An annual credit report of the individual subject to conservatorship and, to To the 
extent feasible, a copy of the most recent reasonably available financial statements 
evidencing the status of bank accounts, investment accounts and mortgages or other 
debts of the individual subject to conservatorship, with all but the last 4 digits of the 
account numbers and the individual's social security number redacted, and, if ordered 
by the court, a credit report of the individual subject to guardianship;
Sec. 5.  18-C MRSA §5-431, sub-§8, as enacted by PL 2017, c. 402, Pt. A, §2 and 
affected by PL 2019, c. 417, Pt. B, §14, is amended to read:
8.  Safeguard rights of individual.  Unless the court otherwise orders for good cause, 
before terminating or modifying a conservatorship, the court shall follow the same 
procedures to safeguard the rights of the individual subject to conservatorship that apply to 
a petition for conservatorship.
Sec. 6.  18-C MRSA §8-301, sub-§2, ¶A-1, as amended by PL 2019, c. 598, §8, 
is further amended to read:
A-1.  The intestate succession provisions of Article 2, Part 1, Subpart 1, the elective 
share provisions of Article 2, Part 2 and, the exempt property and allowances 
provisions of Article 2, Part 4 and the wrongful death provisions of section 2-807 apply 
to the estates of decedents who die on or after the effective date;
Sec. 7.  Retroactivity. Those sections of this Act that amend the Maine Revised 
Statutes, Title 18-C, section 5-308, subsection 4 and section 5-409, subsection 4 apply 
retroactively to January 1, 2021.
Emergency clause.  In view of the emergency cited in the preamble, this legislation 
takes effect when approved.
SUMMARY
This bill contains recommendations of the Probate and Trust Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 18-C, section 1-803, subsection 
2.
1.  This bill amends Title 18-C, section 3-108 to resolve an ambiguity as to whether the 
provision applies to decedents who died prior to the effective date of Title 18-C.  
Section 3-108, subsection 1, paragraph D allows the probate of a will of a decedent 
more than 3 years after death in a formal proceeding, but as a result of the limitations 
imposed by section 8-301, subsection 2, paragraph A, the probate is permitted only for a 
decedent who died after the September 1, 2019 effective date of Title 18-C.  Section 3-108, 
subsection 1, paragraph D appears to allow an appointment of a personal representative, in 
an informal or formal proceeding, more than 3 years after death regardless of whether the 
date of death was before, on, or after the September 1, 2019 effective date of Title 18-C.
As a result, if a decedent died more than 3 years prior to the September 1, 2019 effective 
date, with a purported will, it would not be possible to probate the will under current law 
because of the limitation imposed by section 8-301, subsection 2, paragraph A.  However, 
it appears that the decedent's heirs could, under section 3-108, subsection 1, paragraph D, 
still obtain an informal or formal appointment of a personal representative because the 
appointment is permitted regardless of the date of death.  The heirs would submit an 
informal application or a formal petition for appointment of a personal representative, 
indicate that they are aware of an unrevoked testamentary instrument and explain that it is 
not being probated because it cannot be probated due to section 8-301, subsection 2, 
paragraph A.  There is ambiguity, however, as to whether the limitations of section 8-301, 
subsection 2, paragraph A prevent the appointment of a personal representative more than 
years after the date of death.
The interplay between section 3-108, subsection 1, paragraph D and section 8-301, 
subsection 2, paragraph A appears to create unintended inconsistencies in outcomes 
regarding the appointment of a personal representative and the probate of a will that can be 
cured by making it clear that section 3-108, subsection 1, paragraph D applies regardless 
of the date of the decedent's death. 
2.  This bill amends section 5-308, subsection 4 and section 5-409, subsection 4 to 
delay the effective date of the confidentiality of records provisions governing guardianships 
of adults and governing conservatorships.  When Title 18-C was enacted, with a September 
1, 2019 effective date, the provisions of section 5-308 and section 5-409 had a delayed 
effective date of January 1, 2021.  The purpose of the delayed effective date was to give 
the Supreme Judicial Court time to address confidentiality of court records in the state 
courts and perhaps in the Probate Courts, and then give the commission an opportunity to 
propose amendments to sections 5-308 and 5-409 to ensure consistency with confidentiality 
of records provisions adopted by the Supreme Judicial Court.  With an effective date of 
August 21, 2020, the Supreme Judicial Court adopted the Maine Rules of Electronic Court 
Systems, which contains extensive provisions governing the confidentiality of records filed 
with the Supreme Judicial Court, the Superior Court and the District Court.  The Supreme 
Judicial Court has not yet had an opportunity to consider rules governing confidentiality of 
records filed with the Probate Courts.  This bill further delays the effective date of sections 
5-308 and 5-409 to January 1, 2023 to provide additional time for the Supreme Judicial 
Court, in conjunction with the commission and the Advisory Committee on Probate Rules, 
to complete its review and approval of rules governing confidentiality of records in the 
Probate Courts.  Because this bill will not take effect before January 1, 2021, these changes 
are made retroactive to January 1, 2021.
3.  This bill amends section 5-423, subsection 2, paragraph E to remove the mandatory 
credit report for the individual subject to conservatorship from the conservator's annual 
report and accounting and make the credit report a requirement only if ordered by the court.  
The reason for the amendment is because it is difficult, and sometimes impossible, for the 
conservator to obtain a credit report for the individual subject to conservatorship and the 
credit report requirement is interfering with the timely submission of conservators' annual 
reports and accountings.  The statutory requirement of submission of copies of recent 
financial statements along with the detailed accounting schedules provide sufficient court 
monitoring of conservators for most situations and the Probate Court will have flexibility 
to order a credit report if the court deems the credit report an appropriate element of the 
conservator's report and accounting.
4.  This bill amends section 5-431, subsection 8 to clarify that the subsection applies to 
both the termination and modification of a conservatorship.  The headnote for section 5-431 
is "Termination or modification of conservatorship," but subsection 8 refers only to the 
termination of a conservatorship, with no reference to modification.  Section 5-319, 
subsection 6, which is the counterpart provision that applies to adult guardianships, 
includes both terminations and modifications of adult guardianships.  The uniform act, on 
which section 5-431, subsection 8 is based, mentions only termination and not 
modification; however, the uniform comment to the corresponding paragraph of the 
uniform act describes both terminating and modifying conservatorships.  It appears that 
reference to modification of a conservatorship was inadvertently omitted from section 
5-431, subsection 8 and that the drafting error originated in the uniform act.  To correct the 
apparent inadvertent omission, this bill amends subsection 8 to cover modifications of adult 
guardianships as well as terminations. 
5.  This bill amends section 8-301, subsection 2, paragraph A-1 to add a reference to 
the wrongful death provisions of section 2-807 of Title 18-C to avoid ambiguity as to 
whether the intestacy provisions of former Title 18-A or the intestacy provisions of Title 
18-C govern the distribution of a recovery of a wrongful death claim.  The first 2 sentences 
of section 2-807, subsection 2 require the distribution of a recovery of a wrongful death 
claim to be paid to the decedent's heirs without becoming part of the decedent's probate 
estate.
The intestate succession provisions of Title 18-C are materially different, in a number 
of respects, from the intestate succession provisions of former Title 18-A.  Although section 
8-301, subsection 2, paragraph A-1 already states that the intestate succession provisions 
of Article 2, Part 1, Subpart 1 apply to the estates of decedents who die on or after the 
effective date, there remains ambiguity as to whether actions for wrongful death brought 
after the effective date, for deaths occurring before the effective date, are governed by the 
provisions of former Title 18-A or by the provisions of Title 18-C.  The amendment 
resolves any ambiguity by making it clear that the date of death of the decedent will control 
which provisions apply.