January 9, 2017
RE: "Dead Defendant Bill"
Dear MATA Members:
I am pleased to report that Governor Baker has just signed H.1194 into law, Chapter 364 of the Acts of 2016. This law will correct a procedural omission in the Uniform Probate Code which will save you time and money. It will be effective April 6, 2017.
In 1993, the statute allowing for the three year statute of limitations, G.L.c. 197 § 9A, was amended by Chapter 319 of the Acts of 1993 to add a second paragraph:
If an executor or administrator has not been appointed, then an action allowed under this §may be maintained without such appointment, and shall be maintained naming the decedent as the defendant. In such event any service of process that may be necessary shall be made upon the entity providing the insurance or bond.
The Uniform Probate Code effective in March of 2012, incorporated the original first paragraph of c. 197, §9A as c. 190B, §3-803(d)(2), but omitted the second paragraph. The problem created by the Uniform Probate Code’s omission was even greater than the original problem remedied by 1993 amendment, because a creditor’s administration is not possible under the UPC. While creditors can petition for someone else to be appointed as personal representative under certain conditions, the UPC is not a model of clarity in these situations.
MATA understood that the omission presented a difficulty to plaintiffs’ practice and set out to remedy the situation. H. 1194 re-inserted the language of what was the second paragraph of c. 197, §9A. . For over two years, the Massachusetts Academy of Trial Attorneys (MATA) has been actively advocating for the passage of this bill by providing testimony and meeting with lawmakers.
Through the diligent work of MATA Legislative Chair Timothy Kelleher, MATA Auto Section Co-chair Michael Najjar, and our legislative team at Quinn & Morris, we were able to get this issue on the radar screen of the legislature and ultimately, the Governor’s desk. We also appreciate the collaboration of our friends at the Massachusetts Bar Association on this effort.
We thank Speaker DeLeo, Senate President Rosenberg, and Governor Baker for appreciating the importance of passing legislation given the voluminous number they have to review.
Thank you for your membership and support of MATA’s mission. Happy New Year!
Very truly yours,