-: SJC-13393 In the Matter of Patricia Ann Slavin.
-: So, Attorney Itzkowitz,
you're on your own here, huh?
-: I'm on my own, Your Honor.
Thank you very much. (chuckles)
Good morning, Your Honors.
Mark Itzkowitz and along with me, Ken Kolpan
for the petitioner appellant, Kathleen Slavin.
Your Honors, Ms. Slavin is in the court with her brother,
one of her brothers.
I understand other members of the family,
not all of whom live in-state,
are actually monitoring on the virtual.
And I only bring that up to point out that,
as I pointed out in the brief, that the Slavin family
is solidly behind Kathleen's efforts in this case.
This is not the situation that had come up
in the Marco case where the administrator was trying to get
around and keep money for herself.
This is the family solidly behind.
It's our position, Your Honors,
that the law authorizes a voluntary personal representative
to obtain additional authority
by being formally appointed as personal representative
beyond the three-year limitation period
of General Laws Chapter 190B, Section 3-108.
And for that proposition,
we rely on four sources of authority.
The first is the nature
of the voluntary personal representative provision itself,
General Laws Chapter 190B, Section 3-1201,
which, as we suggest, is a type of informal proceeding.
Justice Gaziano: Is that an appointment?
-: The language in the statute says it's an appointment.
The last paragraph says
that having gone through that process,
the voluntary personal representative can get
a certificate of appointment.
"Appointment" is not a term defined by the statute,
and in a document that was prepared
by the judges of the Probate Court
for the general edification of the public,
they actually use the term "official appointment."
And "official appointment" is not a term defined
by the statute, and the statute has a definition section
that runs to approximately 40 different definitions
that come up frequently in the statute.
"Appointment" is not among them.
-: It seems like the court's drawing a distinction
between formal and informal appointment
by a judge versus the registrar, essentially.
-: It is, but that's part
of the reason why it's important to keep in mind
what 1201(b) is actually providing.
This is not sort of self-help probate, as it were.
This is not self-enforcing.
I couldn't go in, for example,
after we finish here today, I couldn't go up
to the Probate Court, put down the filing fee and say,
"I wanna be appointed the voluntary representative
of Mr. Kolpan's estate."
Forgive me.
There's a bunch of materials that have to be submitted
to the court for the court to review to determine...
First of all, there isn't a state that has to be, you know,
there is somebody that's-
-: You say these materials are submitted
to the court.
Are they?
Or they're submitted to the registrar?
-: They're submitted to the personnel of the Probate Court,
for lack of a better way of putting it.
It doesn't go to a judge.
It doesn't have to go to a judge.
Doesn't necessarily have to go to a clerk magistrate.
Has to go to somebody, though,
that has to review the requirements
of the statute to make sure
that whoever is applying has complied with those.
And the form which is included-
-: That person is who, the registrar?
-: There's nobody that's technically named in the statute
to say that, you know, it's this official.
My experience, Your Honor, I mean,
the statute, of course, is fairly new.
It only dates about 12 years.
But when I started practicing 40 years ago
and was doing general practice with Carmen Durso,
I would get sent up periodically to the Probate Court
for various filings,
and the way the process worked back then
was that there was a wall, basically a long wall
with a bunch of very thin shelving materials, sort of files.
And you'd pick out the form that you thought you needed,
and you would wait on a very long line,
and eventually you'd get up to somebody, you know,
behind the counter who would then review the form
and tell you whether, "Yes, you filled out the right form,
and we'll let you go forward," or "No, go back,
and take out form XYZ, and fill that one out."
The difference today is that this is all computerized
and, you know, you can fill this in the self-fill form,
but it's basically the same process
in the sense that it has to go
to people within the Probate Court to review it.
Now-
-: So does voluntary personal representative
get a certificate of appointment?
-: By statute, yes.
-: But no, actually, in fact?
-: The Probate Court, the MUPC Guide says
that the Probate Court judges say they will not give it.
But when they say that, they say explicitly,
they're very forthright about this,
they say the statute states otherwise.
-: And so because they're following that guide,
they did not actually issue-
-: That appears to be-
-: A certificate of appointment to your client.
-: Yes, that appears to be the case, Your Honor.
That guide lacks a-
-: I'm just following up on Justice Wendlandt.
When you actually file it electronically now,
does anything come back saying you filed the right form,
or nothing, it's into the ether?
-: You know, Your Honor, in this case,
the form is electronic.
I don't know whether you actually have to physically
bring it into the Probate Court.
That's what I've done.
That's what Ms. Slavin did with her brother.
I don't know if you can actually file
that technically electronically,
but somebody is reviewing it in any event.
-: So when you bring it to them,
does someone say you filled out the right form?
It's the same process now
with just a little extra computerized?
-: Yes. -: Okay, I gotcha.
-: Yeah, you have or you haven't.
And what happened in this case, Your Honor, is that,
for example, as you saw on the record appendix,
there were a number of checks that were listed
in the schedule
and the voluntary personal representative application.
And what happened was after the death of her mother,
these checks had come in for her mother
and the bank would not negotiate them
because, of course, her mother is gone.
And so she and her brother went to the Probate Court
'cause that's what the bank told them to do,
and they said, "What do we do?"
And somebody behind the counter said,
"Well, there's a couple of different things you can do,"
'cause, again, that's the second point of authority
is that the MUPC
and the probate code allow different options
of ways to handle different issues as they arise.
So the person behind the counter said,
"Well, there's a couple of different things that you can do.
All of them for purposes of you negotiating these checks
will have exactly the same effect.
So how big is this estate?
What else is there?"
And she identified a car,
and she identified these three checks,
and there may have been something else,
but it was all small, below the statutory threshold.
And they said, "Well, you can file this document,
or you can file that document,
and the difference, frankly, is $150,
but they're both the same.
You're gonna come away with the same authority.
The bank will cash the checks no matter which one you file.
There's no reason to file the more expensive."
Now, she's not acting as a lawyer, of course,
and we're not suggesting that she is,
and we're not even suggesting that whoever was
behind the counter gave the wrong advice
because based on the immediate problem,
of Kat negotiating these three checks-
-: But the person behind the counter doesn't say,
"Oh, by the way, is there a wrongful death action?"
-: Exactly, and at that point in time,
there was no wrongful death action.
It was something that was looked into
and came up with later.
And so that's what brings us here today.
So having obtained the authority, because, again,
getting back to the statute,
once she's appointed voluntary personal representative,
she has legal status.
She serves as the representative of her mother's estate.
She has authority, you know, and she can,
according to the statute,
she can conclusively bind the estate,
she can collect and disperse assets, she can sell chattel,
she can negotiate litigation,
and she can convert it to cash.
And everything that she does is conclusive
with respect to the estate unless and until
the Probate Court formally appoints somebody else to serve
as personal representative.
So she has authority.
And getting back to you asked about appointment,
the language in 1201(b) uses the same terminology
that comes up elsewhere.
Appointment is one of those.
It also refers to administration.
So it says, for example,
that, "The voluntary personal representative
can be held liable for their misconduct
in administering the estate.
They can be held liable as a personal representative."
That's the seventh paragraph of that.
And there's nothing in any of the other language that says
that this is not an informal proceeding.
And in fact, the guide categorizes this as a type
of informal proceeding, okay?
Technically an informal proceeding
may require a clerk magistrate, but again,
we don't know who the person, you know, that's passing
on these papers is.
They're not identifying themselves
as a clerk magistrate necessarily,
but somebody is passing on this
-: Counsel, assuming you're correct in everything,
what's the best result?
Is it for us to do it, to just make the decision,
or is it to remand it with guidance to?
-: I would suggest both.
I would suggest sort of a combination of both, Your Honor.
One is I think that the court can deem her appointed
as the personal representative,
and I would request that that be done.
But I think that Your Honor's suggestion
is very, very important
'cause, quite honestly, especially when you're dealing
with 1201, you're by and large dealing with people
who are handling very small estates.
They're not lawyers.
They're not hiring lawyers.
They're dealing with people behind the counter who, again,
are giving good advice under the limited information
that they have, but they're not acting as lawyers.
And somebody needs to lay this out,
and, for example, the MUPC Guide,
which is the Probate Court trying to do this,
acknowledges forthrightly that they're doing it, you know,
in violation of the language of the statute.
So I would suggest
that this is the court's opportunity to explain this
because there is no case law anywhere else
in the country that we've found that addresses this issue.
And the guidance, I think, would be critical, particularly,
you know, for the Probate Court judges
to lay out more effectively and more accurately
what the authority is so that, you know,
the layperson who comes in to take out,
a voluntary personal representative
to cash a couple of checks
or pay a couple of bills is, you know,
properly educated as to what and how to do that.
-: Answer a question for me then.
What happens to the personal representative
if someone else comes in and is formally appointed?
Is it vacated?
Is there any-
-: No, it's not vacated,
and that actually is part of the reason, again,
why we're suggesting that the language,
the "other than" language of 3-108 allows
the voluntary personal representative to get authority
because among the other provisions of the statute,
there's a section that says
that the newly the personal representative,
once they're appointed, has explicit statutory authority
under 3701 to ratify the acts of other people,
meaning that the acts
of the voluntary personal representative, if they're done
for the benefit of the estate, can be ratified
by now the formerly appointed personal representative.
And similarly under the same provision, the actions
of the formerly appointed personal representative
will relay back to the time
when the voluntary personal representative had engaged
in that action.
-: So you're saying basically this cross-pollinization means
that it's an appointment.
-: Yes, and it was anticipated, and it was provided for,
and there's other language in the statute.
-: But obviously the probate judges think differently.
That's what the guidance says.
-: It does, but, again, they don't give any reasoning
for why they're thinking differently.
There nothing in the guide.
There's nothing in Judge Field's opinion.
-: Has anyone written written...
I mean, 'cause we're...
I mean, we're at a disadvantage
'cause this is a one-sided argument.
Has another judge written anything that provides reasons
on this or-
Mark: Not that I've found, Your Honor.
-: And there's no guidance on this interpretation?
Mark: No, Your Honor.
-: We tend not to have a court act irrationally.
I'm just trying to get a sense of,
and also it seems impractical what they're doing, but-
Mark: Yes
-: Without any briefing on the other side,
I just don't know why they're doing this.
-: And, Your Honor, I'm not a probate lawyer
since my days as a general practitioner.
I very seldom go into the Probate Court.
I do mostly-
-: Let's say nonetheless, you're right
that clearly under 1201, this estate fits
because of its value.
And let's assume also, because of your cross-pollinization,
that there's an appointment
to be able to do certain things under 3-108.
What do you do with, looking at, for instance, 3-108(4),
and where do you fit in and file a wrongful death claim?
Mark: Well, 31-
-: Where does that fit into the powers that?
-: 3-108(4) will come up if there is no filing
within the first three years.
And I suspect in the not too distant future,
Your Honors will get that case
because there's now at least four cases that I know of
in the Superior Court where that issue has been before this.
-: So let's say that's right.
-: I'm sorry, Your Honor?
-: So that's right too.
Let's say you're right again.
-: Okay. -: But okay, now we know
that 1201 gave the ability based on,
I think the last paragraph, to do this,
3-108, it's a good appointment,
and three years, nothing's happened.
And then therefore, we go to the statute,
and where do we find and included
in those powers is file a wrongful death claim?
-: Well, the wrongful death statute is independent of this.
It's the-
-: I know, but, like, look at, for instance,
look at Subsection 4.
It's gonna list all the things that the informal appointment
or formal appointment or appointment proceeding,
what they can do, right?
There's things that they can do.
And I'm just asking you what is it that says
that one of the things that they can do
is file a wrongful death claim?
-: Well, it doesn't explicitly say that in 3-1084,
but, of course, we're not under 3-1084,
and that's why I say that that case will come
before Your Honor,
and the Superior Court has gone both ways.
So there there'll be, I suspect, people
on both sides of the issue,
and it'll be a much juicier argument
than perhaps this one is.
-: [Justice Wendlandt] Is the wrongful death action
a property of the estate?
-: The wrongful death action and the survival action
are both, under the language of the Wrongful Death Act,
they're both to be brought by executor or administrator.
Those are the people allowed.
What in the old days would've been a voluntary administrator
was not allowed to bring a wrongful death action
under the Marco case.
-: On behalf of the estate,
but they certainly could if they were one
of the people suffering the damages from the wrongful death.
That is their own claim as opposed to a tort claim arising
from the decedent's action.
-: And I apologize, Your Honor.
I lost the question.
I'm sorry.
-: Well, there's two sets of claims that happen
when somebody is, you know,
has a wrongful death-esque experience,
and one of them is the tort claims of the decedent,
the person who was actually deceased.
The other is the wrongful death statute, which gives rise
to damages to the surviving members of the family,
and those, as I understand it,
are not property of the estate.
-: They're not property of the state,
but the only person authorized to bring that case
under the language of the wrongful death action
is the executor or administrator.
The language has not been updated to reflect the changes
in terminology of the Uniform Probate Code.
That's part of the reason why we say
that Marco itself may, in fact, be somewhat in doubt
because the language hasn't been coordinated
by the legislature.
But still, that brings us back to the question
that brought us to the Probate Court in the first place
and now here is that, you know, just to resolve this issue
and to avoid the possibility that maybe Ms. Slavin
doesn't have the proper authority,
we went to the Probate Court to get the proper authority,
to have it explicitly stated
that she is the personal representative,
which under the current definition
under the Uniform Probate Code,
includes both executor and administrator.
That would clearly give her the authority
to bring the wrongful death action.
And, in fact, because of the commentary, and, again,
there's no case law interpreting this yet,
there's commentary from the drafters
of the Uniform Probate Code that says
that someone appointed executor in the will,
and Ms. Slavin was appointed executor in the will,
can bring that litigation
even without being appointed formally or informally.
But again, there's no case law interpreting it.
and so that again leads us to come back
just to put this issue to rest and make sure,
you know, everything is being done properly.
So that's why we came back to the Probate Court.