COURT OF APPEALS STANDING COMMITTEE

Court rules

Ask Donna

What actually matters in this document.

Text

ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee virtually held

via Zoom for Government on September 10, 2020.

Members present:

Hon. Alan M. Wilner, Chair

H. Kenneth Armstrong, Esq.

Julia Doyle Bernhardt, Esq.

Hon. Vicki Ballou-Watts

Julia D. Bernhardt, Esq.

Hon. Pamila J. Brown

Stan Derwin Brown, Esq.

Hon. Yvette M. Bryant

Sen. Robert G. Cassilly

Hon. John P. Davey

Del. Kathleen M. Dumais

Alvin I. Frederick, Esq.

Pamela Q. Harris, State Court

Administrator

Victor H. Laws, III, Esq.

Dawne D. Lindsey, Clerk

Donna Ellen McBride, Esq.

Stephen S. McCloskey, Esq.

Hon. Douglas R. M. Nazarian

Hon. Paula A. Price

Scott D. Shellenberger, Esq.

Gregory K. Wells, Esq.

Hon. Dorothy J. Wilson

Thurman W. Zollicoffer, Esq.

In attendance:

Sandra F. Haines, Esq., Reporter

Colby L. Schmidt, Esq., Deputy Reporter

Heather Cobun, Esq., Assistant Reporter

Meredith A. Drummond, Esq., Assistant Reporter

Hon. Matthew J. Fader, Chief Judge, Court of Special Appeals

Allan J. Gibber, Esq., Neuberger, Quinn, Gielen, Rubin & Gibber,

P.A.

Lisa H. Goldberg, Esq., Baltimore City State’s Attorney’s Office

Amber Herrmann, Deputy Director, District Court Admin. Services

Jonathan G. Lasley, Esq., Stewart, Plant & Blumenthal, LLC

Lauren R. Lipscomb, Esq., Baltimore City State’s Attorney’s

Office

Byron Macfarlane, Esq., Register of Wills, Howard County

Lisa M. Mannisi, Esq., Circuit Court for Anne Arundel County

Richard Montgomery, Director of Legislative Relations, MSBA

Hon. John P. Morrissey, Chief Judge, District Court of Maryland

Michaela Cavanaugh Muffoletto, Esq., Neuberger, Quinn, Gielen,

Rubin & Gibber, P.A.

Stephen J. Musselman, Esq., Office of the Public Defender

Michele M. Nethercott, Esq., Director, Univ. of Baltimore

Innocence Project

Scott Patterson, Esq., State’s Attorney for Talbot County

Thomas Stahl, Esq., Spencer & Stahl, P.C.

Hon. Dennis M. Sweeney, Ret.

Gillian Tonkin, Esq., Staff Attorney, District Court Chief

Clerk’s Office

Mark H. Weisner, Esq., Levin & Gann, P.A.

Carrie Williams, Esq., Director, Office of Attorney General,

Criminal Appeals Division

Brian Zavin, Esq., Deputy Chief Attorney, Office of the Public

Defender, Appellate Division

The Chair convened the meeting.

He said that the Rules

Committee has submitted the 203rd, 204th, and 205th reports to the

Court of Appeals and they were approved.

He announced that the

Committee is working on several major projects.

A workgroup is

finalizing a complete revision of the Rules governing juvenile

proceedings and preparing to provide its draft to the Juvenile

Subcommittee.

The Attorneys and Judges Subcommittee is

discussing revisions to the Attorney Grievance Commission Rules.

The Committee is also working to amend Rule 5-702 (Testimony by

Experts) following the Court of Appeals ruling in Stanley

Rochkind v. Starlena Stevenson, No. 47, Sept. Term 2019 (opinion

on Aug. 28, 2020) which adopted the Daubert standard for expert

testimony (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993)).

Finally, the Committee is discussing what may

be required when the remaining jurisdictions move to Maryland

Electronic Courts (MDEC).

Ms. Haines reminded Committee members and attendees that

the meeting is being recorded and anyone who speaks is

consenting to the recording.

She also told attendees to mute

themselves when they are not speaking.

Agenda Item 7. Consideration of proposed amendments to: Rule

19-202 (Application for Admission), Rule 19-205 (Character

Questionnaire), Rule 19-206 (Notice of Intent to Take the UBE in

Maryland), Rule 19-207 (Notice of Intent to Transfer a

Qualifying UBE Score), Rule 19-210 (Re-Examination After

Failure), Rule 19-215 (Eligibility of Out-of-State Attorney for

Admission without Examination), and Rule 19-216 (Admission of

Out-of-State Attorney without Examination – Procedure).

The Chair said that the Committee would take items on the

agenda out of order, beginning with Item 7.

Mr. Frederick presented Rule 19-202, Application for

Admission; Rule 19-205, Character Questionnaire; Rule 19-206,

Notice of Intent to Take the UBE in Maryland; Rule 19-207,

Notice of Intent to Transfer a Qualifying UBE Score; Rule 19210, Re-Examination After Failure; Rule 19-215, Eligibility of

Out-of-State Attorney for Admission without Examination; and

Rule 19-216, Admission of Out-of-State Attorney without

Examination – Procedure, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-202 (b) by clarifying

that the withdrawal of a character

questionnaire constitutes a withdrawal of an

application for admission, as follows:

RULE 19-202.

APPLICATION FOR ADMISSION

. . .

(b)

Withdrawal of Application

At any time, an applicant may

withdraw an application by filing with the

Board written notice of withdrawal. Where

an individual has filed a character

questionnaire pursuant to Rule 19-205 (c)

without then filing a Notice of Intent,

withdrawal of the character questionnaire

pursuant to Rule 19-205 (f) shall constitute

withdrawal of the application. No fees will

be refunded.

. . .

Rule 19-202 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 19-202

(b) clarifies that a character questionnaire

filed then later withdrawn pursuant to Rule

19-205 (f) constitutes withdrawal of an

application, whether a notice of intent has

been filed pursuant to Rule 19-206 or 19207.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-205 by adding new section

(f), as follows:

RULE 19-205.

(a)

CHARACTER QUESTIONNAIRE

Who May File

An individual who meets the

requirements of Rule 19-201(a)(1) may

commence an application for admission to the

Bar of this State by filing with the Board a

completed Character Questionnaire and the

prescribed fee.

Cross reference: See Rule 19-206 (Notice of

Intent to Take the UBE in Maryland) and Rule

19-207 (Notice of Intent to Transfer a

Qualifying UBE Score).

(b)

Form of Questionnaire

(1) Generally

The character questionnaire shall be

on a form prescribed by the Board and shall

be answered under oath. The questionnaire

shall elicit the information the Board

considers appropriate concerning the

applicant's character, education, and

eligibility to become an applicant and (A)

require the applicant to provide the

applicant's Social Security number, and (B)

include an authorization to release

confidential information pertaining to the

applicant's character and fitness for the

practice of law to a Character Committee,

the Board, and the Court.

(2) Pre-legal education

The character questionnaire shall be

accompanied by satisfactory evidence that

the applicant meets the pre-legal education

requirements of Rule 19-201 (a)(1).

(c)

Time for Filing

The character questionnaire shall be

filed prior to or contemporaneously with any

Notice of Intent to Take the UBE in Maryland

pursuant to Rule 19-206 or any Notice of

Intent to Transfer a Qualifying UBE Score

pursuant to Rule 19-207.

(d) Preliminary Determination of

Eligibility

On receipt of a character

questionnaire, the Board shall determine

whether the applicant is eligible to file a

character questionnaire pursuant to section

(a) of this Rule. If the Board concludes

that the requirements have been met, it

shall forward the character questionnaire to

a Character Committee. If the Board

concludes that the requirements have not

been met, it shall promptly notify the

applicant in writing.

(e)

Updated Character Questionnaire

If a character questionnaire has been

pending for more than three years since the

date of the applicant's most recent

character questionnaire or updated character

questionnaire, the applicant shall file with

the Board an updated character questionnaire

contemporaneously with filing any Notice of

Intent to Take the UBE in Maryland or any

Notice to Transfer a Qualifying UBE Score.

The updated character questionnaire shall be

under oath, filed on the form prescribed by

the Board, and accompanied by the prescribed

fee.

(f)

Withdrawal of Character Questionnaire

At any time, an applicant may

withdraw a character questionnaire by filing

with the Board written notice of withdrawal.

Withdrawing a character questionnaire shall

result in withdrawal of the application for

admission under 19-202 (b). No fees will be

refunded.

Source: This Rule is new in part and

derived from former Rule 19-202 (2018) in

part.

Rule 19-205 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed new section (f) to Rule

19-205 explains the effect of the withdrawal

of a character questionnaire. An

application for admission consists of a

notice of intent pursuant to either Rule 19206 or 19-207 and a character questionnaire.

The proposed amendment to Rule 19-202

(b) clarifies that the withdrawal of a

character questionnaire, which can be filed

contemporaneously to the notice of intent,

constitutes withdrawal of an application.

The proposed amendment to Rule 19-205 restates this concept.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-206 by clarifying the

prerequisites for filing a notice of intent

in subsection (a)(3), by adding certain

requirements to the filing procedure in

section (a), by correcting an internal

reference in section (b) and a cross

reference following section (b), and by

making stylistic changes, as follows:

RULE 19-206. NOTICE OF INTENT TO TAKE THE

UBE IN MARYLAND

(a)

Filing

An applicant may file a Notice of

Intent to Take the UBE in Maryland if the

applicant:

(1) meets the pre-legal educational

requirements of Rule 19-201 (a)(1),;

(2) unless the requirements of Rule 19201 (a)(2) have been waived pursuant to Rule

19-201 (b), meets the legal education

requirements of Rule 19-201 (a)(2), or will

meet those requirements before the first day

of taking the UBE in Maryland,; and

(3) contemporaneously files, or has

previously filed, a completed character

questionnaire pursuant to Rule 19-205 that

has not been withdrawn pursuant to Rule 19202 (b) 19-205 (f), and the applicant has

not withdrawn or been denied admission

pursuant to Rule 19-203, or rejected

pursuant to Rule 19-204.

The Notice of Intent shall be under

oath, filed on the form prescribed by the

Board, and accompanied by the prescribed

fee.

(b)

Request for Test Accommodation

An applicant who seeks a test

accommodation under the ADA for the bar

examination shall indicate that request on

the Notice of Intent to Take the UBE in

Maryland, and shall file with the Board an

“Accommodation Request” on a form prescribed

by the Board, together with the supporting

documentation that the Board requires. The

form and documentation shall be filed no

later than the deadline stated in section

(c)(d) of this Rule for filing the Notice of

Intent to Take the UBE in Maryland. The

Board may reject an accommodation request

that is (1) substantially incomplete or (2)

filed untimely. The Board shall notify the

applicant in writing of the basis of the

rejection and shall provide the applicant an

opportunity to correct any deficiencies in

the accommodation request before the filing

deadline for the current examination or, if

the current deadline has passed, before the

filing deadline for the next administration

of the examination.

Committee note: An applicant who may need a

test accommodation is encouraged to file an

Accommodation Request as early as possible.

Cross reference: See Rule 19-205 19-208 for

the procedure to appeal a denial of a

request for a test accommodation.

. . .

Source: This Rule is derived from former

Rule 19-204 (2018).

Rule 19-206 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed amendments to Rule 19-206

(a)(3) clarify the prerequisites for filing

a notice of intent, which can only be filed

if the applicant has contemporaneously or

previously filed a character questionnaire

which has not been withdrawn and their

application has not been denied pursuant to

the character review process. The amendment

references new Rule 19-205 (f), which states

the effect of the withdrawal of a character

questionnaire. A requirement that the

filing be made under oath, in the form

prescribed, and accompanied by the

prescribed fee makes the Rule consistent

with Rule 19-207 and Rule 19-102 (h).

Procedures pertaining to the appeal of

a denial of a request for a test

accommodation, formerly in Rule 19-205, have

been transferred to Rule 19-208. Proposed

amendments to Rule 19-206 correct an

internal reference in section (b) and update

the cross reference following section (b) to

reflect the new location of the procedures

for appeal.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-207 by clarifying the

prerequisites for filing a notice of intent

in subsection (a)(3), by adding new section

making stylistic changes, as follows:

RULE 19-207. NOTICE OF INTENT TO TRANSFER A

QUALIFYING UBE SCORE

(a)

Filing

Beginning on July 1, 2019, an

applicant may file a Notice of Intent to

Transfer a Qualifying UBE Score if the

applicant:

(1) meets the pre-legal educational

requirements of Rule 19-201 (a)(1) to become

admitted to the Maryland Bar,;

(2) unless the requirements of Rule 19201 (a)(2) have been waived pursuant to Rule

19-201 (b), meets the legal education

requirements of Rule 19-201 (a)(2),;

(3) contemporaneously files or has

previously filed a completed character

questionnaire pursuant to Rule 19-205 that

has not been withdrawn pursuant to Rule 19202 (b) 19-205 (f), and the applicant has

not withdrawn or been or denied admission

pursuant to Rule 19-204,; and

(4) has achieved a qualifying UBE score

in another UBE State.

The Notice of Intent shall be under

oath, filed on the form prescribed by the

Board, and accompanied by the prescribed

fee.

(b)

Verification of Legal Education

The applicant shall cause the Board

to receive an official transcript that

reflects the date of the award to the

applicant of a qualifying law degree under

Rule 19-201 (a) prior to or

contemporaneously with filing the Notice of

Intent to Transfer a Qualifying UBE Score,

unless the official transcript already is on

file with the Board or the applicant has

received a waiver under Rule 19-201 (b).

(c)

Time for Filing

An applicant who intends to apply for

admission by transferring a qualifying UBE

score shall file the Notice of Intent to

Transfer a Qualifying UBE Score no later

than the last day that the transferred score

constitutes a qualifying UBE score as

defined by Board Rule.

Source:

This Rule is new.

Rule 19-207 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 19-207

(a)(3) clarifies the prerequisites for

filing a Notice of Intent, which can only be

filed if the applicant has contemporaneously

or previously filed a character

questionnaire which has not been withdrawn

and their application has not been denied

pursuant to the character review process.

The amendment references proposed new

section (f) of Rule 19-205, which states the

effect of the withdrawal of a character

questionnaire.

Proposed new section (c) clarifies that

the time for filing a Notice of Intent to

Transfer a Qualifying UBE Score expires when

the score no longer constitutes a qualifying

UBE Score as defined by Board Rule.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-210 by adding a reference

to Rule 19-206, as follows:

RULE 19-210.

RE-EXAMINATION AFTER FAILURE

(a) Notice of Intent to Take Another

Scheduled UBE in Maryland

An unsuccessful applicant may file

another Notice of Intent to Take the UBE in

Maryland pursuant to Rule 19-206. The

Notice of Intent shall be on the form

prescribed by the Board and shall be

accompanied by the required examination fee.

. . .

Rule 19-210 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 19-210

clarifies that the Rule 19-206 prerequisites

for filing a notice of intent apply to a reexamination application. Amendments to Rule

19-206 explain the character questionnaire

requirements which must be met

contemporaneously to or prior to filing a

notice of intent.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-215 (c) by correcting a

reference to Rule 19-216, as follows:

RULE 19-215. ELIGIBILITY OF OUT-OF-STATE

ATTORNEY FOR ADMISSION WITHOUT EXAMINATION

. . .

(c)

Practitioner of Law

(1) Subject to subsections (c)(2) and

(3) of this Rule, a practitioner of law is

an individual who has regularly engaged in

the authorized practice of law:

(A) in a state;

(B) as the principal means of earning

a livelihood; and

responsibilities have been sufficient to

satisfy the Board that the individual should

be admitted under this Rule and Rule 19-213

19-216.

(2) As evidence of the requisite

professional experience, for purposes of

subsection (c)(1)(C) of this Rule, the Board

may consider, among other things:

(A) the extent of the individual's

experience in the practice of law;

(B) the individual's professional

duties and responsibilities, the extent of

contacts with and responsibility to clients

or other beneficiaries of the individual's

professional skills, the extent of

professional contacts with practicing

attorneys and judges, and the individual's

professional reputation among those

attorneys and judges; and

that the individual has written.

(3) The Board may consider, as the

equivalent of practice of law in a state,

practice outside the United States if the

Board concludes that the nature of the

practice makes it the functional equivalent

of practice within a state.

. . .

Rule 19-215 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 19-215

admission of out-of-state attorneys. The

applicant must have sufficient professional

experience to be admitted under Rules 19-215

and 19-216.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 200 – ADMISSION TO THE BAR

AMEND Rule 19-216 by correcting

subsection numbering in section (a), as

follows:

RULE 19-216. ADMISSION OF OUT-OF-STATE

ATTORNEY WITHOUT EXAMINATION – PROCEDURE

(a)

Petition

(1) Beginning on July 1, 2019, an

individual eligible pursuant to Rule 19-215

may file with the Board a petition under

oath on a form prescribed by the Board. The

petition shall be accompanied by (A) the

fees required by the Board and the costs

assessed for the character and fitness

investigation and report by the National

Conference of Bar Examiners, and (B) the

supporting documents and information

required by the Board as to the petitioner's

professional experience and character and

fitness to practice law in Maryland.

(2) The petitioner shall list (A) each

state in which the petitioner has been

admitted to the Bar and whether each

admission was by examination, by diploma

privilege or on motion; and (B) the

additional facts showing that the petitioner

meets the requirements of section (a)(3) of

Rule 19-215 or should be qualified under

section (e) of Rule 19-215.

(4)(3) The petitioner shall be under a

continuing obligation to report to the Board

any material change in information

previously furnished.

. . .

Rule 19-216 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 19-216

(a) corrects the numbering to remove a blank

subsection.

Mr. Frederick said that the amendments were all pro forma

and asked the Committee to approve them.

There being no motion

to amend or reject the proposed Rules, they were approved as

presented.

Agenda Item 3. Consideration of proposed Rules changes

pertaining to the elective share of a surviving spouse.

Mr. Laws presented Rules 6-411, Election to Take Elective

Share; Rule 6-416, Attorney’s Fees or Personal Representative’s

Commissions; Rule 6-418, Statement and Certification of Elective

Share; Rule 6-434, Transmitting Issues; and Rule 6-107,

Extension of Time, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

AMEND Rule 6-411 by changing references

from “statutory share” to “elective share,”

by specifying where an election shall be

filed, by adding a reference to the code

section in the form of election, by altering

forms to allow for an unrepresented party to

provide contact information, by adding

subsection (a)(2) to allow a specifically

authorized guardian or agent to make the

election with certain notice requirements,

by allowing the guardian or agent to

petition for an extension of time, by adding

cross references, and by making stylistic

changes, as follows:

Rule 6-411. ELECTION TO TAKE STATUTORY

ELECTIVE SHARE

(a)

Form of Election

(1) By Surviving Spouse

A surviving spouse may elect to take

a statutory an elective share by the timely

filing of an election in the court in which

the personal representative of the decedent

was appointed. If the election is filed

prior to the appointment of the personal

representative, the spouse may file with the

was domiciled or in any county in which the

decedent resided on the date of the

decedent’s death or in which real property

or a leasehold interest in real property of

the decedent is located.

The election shall be substantially

in the following form:

[CAPTION]

ELECTION TO TAKE STATUTORY ELECTIVE SHARE OF

ESTATE

I, ____________________, surviving spouse of

______________________, late of the County

(City) of ________________________________,

renounce all provisions of my spouse's will

pertaining to myself and elect to take my

statutory elective share of the decedent’s

estate subject to election under § 3-403 of

the Estates and Trusts Article of the

Annotated Code of Maryland.

Witness:

____________________

___________________

Surviving Spouse

Date: _____________

_____________________

Attorney

If There is No

Attorney:

_____________________

Address

___________________

Surviving Spouse’s

Address:

_____________________

Telephone Number

___________________

Surviving Spouse’s

Telephone Number:

_____________________

Facsimile Number

___________________

Surviving Spouse’s

Facsimile Number:

_____________________

Email Address

___________________

Surviving Spouse’s

Email Address:

Cross reference: Code, Estates and Trusts

Article, § 3-203 § 3-408.

(2) By the Guardian or Agent

(A) Subject to subsection (B), a

specifically authorized guardian or agent of

the surviving spouse may exercise the right

of the surviving spouse to elect to take an

elective share by timely filing the election

substantially in the following form:

[CAPTION]

ELECTION TO TAKE ELECTIVE SHARE OF ESTATE

I, __________________, in my capacity as the

specifically authorized guardian or agent of

_______________________, surviving spouse

of_______________________, late of the

County (City) of ________________, elect to

take the surviving spouse’s elective share

of the decedent’s estate subject to election

under § 3-403 of the Estates and Trusts

Article of the Annotated Code of Maryland.

Witness:

____________________

___________________

Guardian/Agent

Signature

Date: _____________

_____________________

Attorney

If There is No

Attorney:

_____________________

Address

___________________

Guardian or Agent’s

Address:

_____________________

Telephone Number

___________________

Guardian or Agent’s

Telephone Number:

_____________________

Facsimile Number

___________________

Guardian or Agent’s

Facsimile Number:

_____________________

Email Address

___________________

Guardian or Agent’s

Email Address:

Cross reference: Code, Estates and Trusts

Article, § 3-405 (b).

(B) Prior to or concurrent with the

filing of an election pursuant to subsection

(a)(2)(A) of this Rule, the guardian or

agent promptly shall deliver notice of the

election to (i) all interested persons in

the decedent’s estate and (ii) all persons

who would inherit from the surviving spouse

if the surviving spouse died intestate and

unmarried at the time the election is made.

by a guardian or agent is valid unless (i)

within 30 days after delivery of notice

under subsection (a)(2)(B) a person with

standing makes an objection in the court in

which the election was filed and (ii)

following a hearing the court finds that the

election is not in the best interests of the

surviving spouse.

Cross reference: Code, Estates and Trusts

Article, § 3-405 (c).

(b)

Time Limitation for Making Election

An election to take a statutory an

elective share shall be filed within the

later of nine months after the date of the

decedent's death or six months after the

date of the first appointment of a personal

representative under a will, unless extended

pursuant to this Rule.

Cross reference: Code, Estates and Trusts

Article, § 3-407.

(c)

Extension of Time for Making Election

Within the period for making an

election, the surviving spouse or the

specifically authorized guardian or agent of

the surviving spouse may file with the court

a petition for an extension of time. The

petitioner shall deliver or mail a copy of

the petition to the personal representative.

For good cause shown, the court may grant

extensions not to exceed three months at a

time, provided each petition for extension

is filed before the expiration of the period

originally prescribed or before the

expiration of any period extended by a

previous order. The court may rule on the

petition without a hearing or, if time

permits, with a hearing.

If an extension is granted without a

hearing, the register shall serve notice on

the personal representative and such other

persons as the court may direct. The notice

shall be in the following form:

[CAPTION]

NOTICE OF EXTENSION OF TIME

TO ELECT STATUTORY ELECTIVE SHARE

On the ____ day of __________, __________,

(month)

(year)

an extension of time to elect a statutory an

elective share of the estate was

granted to _______________________, the

decedent's surviving spouse or specifically

authorized guardian or agent of the

surviving spouse. The extension expires on

the ____ day of ____________, __________.

(month)

(year)

If you believe there is good cause to object

to the extension, within 20 days after

service of this notice you may file with the

court, in writing, a petition to shorten the

time for filing an election. A copy of the

petition shall be served on the surviving

spouse or specifically authorized guardian

or agent of the surviving spouse.

(d)

Withdrawal

The surviving spouse or the

specifically authorized guardian or agent of

the surviving spouse may file with the

time before the expiration of the time, or

any extension thereof granted by the court,

for filing an election.

Rule 6-411 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed amendments to Rule 6-411

implement Chapter 435, 2019 Laws of Maryland

(HB 99), which is effective October 1, 2020.

The Code exclusively uses the term

“elective share,” rather than “statutory

share,” and Rule 6-411 has been amended to

conform terminology to the law. The form in

subsection (a)(1) is amended to comply with

the statute and modified to allow for a pro

se surviving spouse to provide contact

information. New subsection (a)(2)(A)

creates a process for a specifically

authorized guardian or agent to make the

election and includes a form modeled after

(a)(1). Subsections (a)(2)(B) and (a)(2)(C)

incorporate the notice and objection

procedure from the Code. Sections (c) and

(d) are amended to allow a guardian or agent

to petition for an extension or to withdraw

the election.

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

AMEND Rule 6-416 by adding new

subsection (a)(1)(A) to describe the general

contents of a petition for compensation, by

requiring that a petition state anticipated

or previously allowed fees in connection

with an elective share, by adding new

subsection (a)(1)(B) to describe the

contents of a petition for additional fees

and commissions in connection with an

elective share, by adding a Committee note

after subsection (a)(1)(B) stating that such

compensation is presumed reasonable under

certain circumstances, by adding new

subsection (b)(1)(A) to describe the

procedure for obtaining payment of

compensation by consent, by specifying that

payment of additional compensation in

connection with an elective share may be

obtained by consent in certain

circumstances, by altering the form in

subsection (b)(2)(B) to delineate

compensation for regular estate

administration and for additional

compensation in connection with an elective

share, and by making stylistic changes, as

follows:

RULE 6-416. ATTORNEY’S FEES OR PERSONAL

REPRESENTATIVE’S COMMISSIONS

(a)

Subject to Court Approval

(1) Contents of Petition

(A) Generally

When a petition for the allowance

of attorney’s fees or personal

representative’s commissions is required, it

shall be verified and shall state in

reasonable detail the basis for the current

request and (A)(i) the amount of all fees or

commissions previously allowed, (B)(ii) the

amount of fees or commissions that the

petitioner reasonably estimates will be

requested in the future, (C)(iii) the amount

of fees or commissions currently requested,

(iv) any additional fees or commissions

anticipated or previously allowed in

connection with an election by or on behalf

of a surviving spouse to take an elective

share, and (E)(v) that the notice required

by subsection (a)(3) of this Rule has been

given.

(B) Compensation in Connection with an

Elective Share

When a petition for the allowance

of additional attorney’s fees or personal

representative’s commissions in connection

with an election by or on behalf of a

surviving spouse to take an elective share

under Code, Estates and Trusts Article, § 7603(b) is required, it shall be verified and

shall state in reasonable detail the basis

for the current request and (i) the amount

of all fees or commissions previously

allowed, (ii) the amount of fees or

commissions that the petitioner reasonably

estimates will be requested in the future,

(iii) the amount of fees or commissions

currently requested, (iv) the amount of fees

or commissions under this subsection

consented to by all interested persons, and

(v) that the notice required by subsection

(a)(3) of this Rule has been given. A

petition under this subsection may be

combined with a petition under subsection

(a)(1)(A) of this Rule.

Committee note: Code, Estates and Trusts

Article, § 7-603 (b)(2) states that the

amount of compensation or attorney’s fees

consented to by all interested persons is

presumed to be reasonable.

(2) Filing – Separate or Joint Petitions

Petitions for attorney’s fees and

personal representative’s commissions shall

be filed with the court and may be filed as

separate or joint petitions.

(3) Notice

The personal representative shall

serve on each unpaid creditor who has filed

a claim and on each interested person a copy

of the petition accompanied by a notice in

the following form:

NOTICE OF PETITION FOR ATTORNEY’S FEES OR

PERSONAL REPRESENTATIVE’S COMMISSIONS

You are hereby notified that a petition for

allowance of attorney’s fees or personal

representative’s commissions has been filed.

You have 20 days after service of the

petition within which to file written

exceptions and to request a hearing.

(4) Allowance by Court

Upon the filing of a petition, the

court, by order, shall allow attorney’s fees

or personal representative’s commissions as

it considers appropriate, subject to any

exceptions.

(5) Exception

An exception shall be filed with the

court within 20 days after service of the

petition and notice and shall include the

grounds therefor in reasonable detail. A

copy of the exception shall be served on the

personal representative.

(6) Disposition

If timely exceptions are not filed,

the order of the court allowing the

attorney’s fees or personal representative’s

commissions becomes final. Upon the filing

of timely exceptions, the court shall set

the matter for hearing and notify the

personal representative and other persons

that the court deems appropriate of the

date, time, place, and purpose of the

hearing.

(b) Payment of Attorney’s Fees and

Personal Representative’s Commissions

Without Court Approval

(1) Payment of Contingency Fee for

Services Other Than Estate Administration

Payment of attorney’s fees may be

made without court approval if:

(A) the fee is paid to an attorney

representing the estate in litigation under

a contingency fee agreement signed by the

decedent or by a previous personal

representative;

(B) the fee is paid to an attorney

representing the estate in litigation under

a contingency fee agreement signed by the

current personal representative of the

decedent’s estate provided that the personal

representative is not acting as the retained

attorney and is not a member of the

attorney’s firm;

of the contingency fee agreement;

(D) a copy of the contingency fee

agreement is on file with the register of

wills; and

(E) the attorney files a statement

with each account stating that the scope of

the representation by the attorney does not

extend to the administration of the estate.

(2) Consent in Lieu of Court Approval

(A) Procedure

Upon the filing of a completed

Consent to Compensation for Personal

Representative and/or Attorney form

substantially in the form set forth in

subsection (b)(2)(B) of this Rule, Payment

payment of attorney’s fees and personal

representative’s commissions may be made

without court approval if the combined sum

of all payments of attorney’s fees and

personal representative’s commissions

authorized under Code, Estates and Trusts

Article, § 7-603(a) does not exceed the

amounts provided in Code, Estates and Trusts

Article, § 7-601; and. In addition,

attorney’s fees and personal

representative’s commissions authorized

under Code, Estates and Trusts Article, § 7603(b) may be included in the Consent form

and paid without court approval if the total

combined sum of all payments of attorney’s

fees and personal representative’s

commissions authorized under Code, Estates

and Trusts Article, §§ 7-603(a) and 7-603(b)

does not exceed the amounts provided in

Code, Estates and Trusts Article, § 7-601.

(B) Form of Consent

a written The consent stating the

amounts of the payments shall be signed by

(i) each creditor who has filed a claim that

is still open and (ii) all interested

persons, is and filed with the register

substantially in the following form:

BEFORE THE REGISTER OF WILLS FOR

_____________, MARYLAND

IN THE ESTATE OF: __________ Estate No.

__________________

CONSENT TO COMPENSATION FOR PERSONAL

REPRESENTATIVE AND/OR ATTORNEY

I understand that the law, Estates and

Trusts Article, § 7-601, provides a formula

to establish the maximum total commissions

to be paid for personal representative’s

commissions. If the total compensation for

personal representative’s commissions and

attorney’s fees being requested falls within

the maximum allowable commissions, and the

request is consented to by all unpaid

creditors who have filed claims and all

interested persons, this payment need not be

subject to review or approval by the Court.

A creditor or an interested party may, but

is not required to, consent to these fees.

The formula sets total compensation at 9% of

the first $20,000 of the adjusted estate

subject to administration PLUS 3.6% of the

excess over $20,000. Based on this formula,

the adjusted estate subject to

administration known at this time is

__________. The total allowable statutory

maximum commission based on the adjusted

estate subject to administration known at

this time is __________, LESS any personal

representative’s commissions and attorney’s

fees previously approved as required by law

and paid. To date, $ __________ in personal

representative’s commissions and $

__________ in attorney’s fees have been

paid.

IF ALL REQUIRED CONSENTS ARE NOT OBTAINED, A

PETITION SHALL BE FILED, AND THE COURT SHALL

DETERMINE THE AMOUNT TO BE PAID.

Cross reference:

(2005).

See 90 Op. Att’y. Gen. 145

Total combined fees being requested are

$_________, including $_________ under Code,

Estates and Trusts Article, § 7-603(a) and

$_________ under Code, Estates and Trusts

Article § 7-603(b), to be paid as follows:

Amount

Name of Personal

Representative/Attorney

______________

________________________

______________

________________________

______________

________________________

______________

________________________

I have read this entire form and I hereby

consent to the payment of personal

representative and/or attorney’s fees in the

above amount.

Date

Signature

Name (Typed or

Printed)

____________________________________________

_________________

Attorney

___________________

Personal

Representative

__________________

Address

___________________

Personal

Representative

__________________

Telephone Number

__________________

Facsimile Number

__________________

Email Address

Committee note: Nothing in this Rule is

intended to relax requirements for approval

and authorization of previous payments.

(3) Designation of Payment

When rendering an account pursuant

to Rule 6-417 or a final report under

modified administration pursuant to Rule 6455, the personal representative shall

designate any payment made under this

section as an expense.

Cross reference: Code, Estates and Trusts

Article, §§ 7-502, 7-601, 7-602, 7-603, and

7-604.

Rule 6-416 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed amendments to Rule 6-416

implement Chapter 435, 2019 Laws of Maryland

(HB 99), which permits a petition for

attorney’s fees or personal representative’s

commissions to seek additional fees or

commissions in connection with an election

to take an elective share by or on behalf of

a surviving spouse.

Subsection (a)(1) is restructured to

create new subsection (a)(1)(A), which

contains the current required contents of a

petition for the allowance of fees and

commissions. The subsection is reorganized

and a reference to additional fees and

commissions anticipated in connection with

the elective share election is added to the

requirements.

New subsection (a)(1)(B) outlines the

required contents of a petition for the

allowance of the additional fees, which

mirrors the requirements in (a)(1)(A) but

also asks the petitioner to state the amount

of the additional fees and commissions to

which the interested persons have consented.

A Committee note following subsection

(a)(1)(B) highlights the presumption in the

statute that consented-to compensation is

reasonable. A petition under subsection

(a)(1)(B) may be combined with a petition

under subsection (a)(1)(A).

Subsection (b)(2) is amended to add

subsection (b)(2)(A), outlining the

procedure for payment of attorney’s fees and

personal representative’s commissions that

are consented to by interested persons and

creditors and that do not exceed the

statutory maximums in Code, Estates and

Trusts Article, § 7-601. The subsection

specifies that the consent process can

include additional fees and commissions

related to the elective share so long as the

combined payments of all fees and

commissions do not exceed the statutory

maximums.

Subsection (b)(2)(B) is restyled to

describe the form of consent, and the form

is amended to include references to

compensation under Code, Estates and Trusts

Article, §§ 7-603(a) and 7-603(b).

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

ADD New Rule 6-418, as follows:

Rule 6-418. STATEMENT AND CERTIFICATION OF

ELECTIVE SHARE

(a)

Statement of Elective Share

(1) On final payment, the personal

representative of the decedent, the trustee

of any revocable trust of the decedent, or

the person responsible for filing the estate

tax return, as appropriate, shall file with

the register a signed statement verified by

the surviving spouse stating the value of

the elective share and that the elective

share has been paid in full.

(2) The statement of the elective share

shall be served on each person entitled to

request a certification under section (b)

prior to filing.

(3) On request of the surviving spouse,

personal representative, trustee of any

revocable trust of the decedent, or the

person responsible for filing the estate tax

return, the register shall redact the value

of the elective share.

(b)

Certification of Accuracy

(1) The surviving spouse, the personal

representative of the decedent, the trustee

of any revocable trust of the decedent, the

person responsible for filing the estate tax

return, any payor of any portion of the

elective share, and any other person having

an interest in the assets from which the

elective share has been paid may request

that the register certify in writing the

accuracy of the calculation and payment of

the portion of the augmented estate subject

to election.

(2) A request for certification shall be

filed no more than 30 days from the date of

service of the statement of the elective

share.

(3) If a certification is requested, the

and documentation the register deems

necessary to verify the calculation and

payment.

Cross reference: Code, Estates and Trusts

Article, § 3-412.

Rule 6-418 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed new Rule 6-418 implements

Chapter 435, 2019 Laws of Maryland (HB 99)

and establishes the process for filing a

statement of the elective share after it has

been paid and for an interested party to

seek certification of accuracy of the

calculation and payment, pursuant to Code,

Estates and Trusts Article, § 3-412.

Subsection (a)(1) states the

requirement from the statute. Subsection

(a)(2) requires the filer to serve the

statement on individuals who are entitled to

request certification of accuracy of

calculation and payment of the elective

share. Once the statement is served,

individuals authorized by the statute have

30 days to request the register certify the

accuracy of the calculation and payment of

the elective share. Attorneys, including

one involved in the drafting of the

legislation, advised that there should be a

time period to request certification and

suggested 30 days.

If certification is requested,

subsection (b)(3) permits the register to

make written requests for information and

documentation. The statute does not specify

how the register can request the necessary

information, and attorneys recommended

specifying that the request be in writing.

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

AMEND Rule 6-434 by restyling section

(a) to refer to transmitting issues on

petition, by adding new section (b) to allow

for transmission of elective share issues,

by clarifying a reference to the orphans’

court in section (c), and by making

stylistic changes as follows:

RULE 6-434.

(a)

TRANSMITTING ISSUES

Petition Transmitting on Petition

In any proceeding, the orphans’

court, upon petition by a person with

standing, may transmit contested issues of

fact within its jurisdiction for trial to

the circuit court of the county in which the

orphans’ court is located.

(1) Contents

The petition shall set forth

separately each issue to be transmitted.

Each issue shall present a single, definite,

and material question of fact.

(b)(2) Response

A response may include objections to

the issues set forth in the petition and

offer additional issues.

(b)

Transmitting Elective Share Issues

In a proceeding where the surviving

spouse has made an election under Code,

Estates and Trusts Article, § 3-403, the

court, on its own initiative, may transmit

issues of fact relating to the value or

sources of payment of an elective share for

trial to the circuit court of the county in

which the election is filed.

Cross reference: Code, Estates and Trusts

Article, § 3-413.

(c)

Framing of Issues

The orphans’ court, by order, shall

frame the issues to be transmitted and

transmit them to the appropriate circuit

court. The order may designate the plaintiff

and defendant for purposes of trial in the

circuit court.

(d) Amendment, Modification or

Supplementation of Issues

Upon petition, the orphans’ court may

amend, supplement or modify issues

previously transmitted to a circuit court.

If the change is made within 15 days of a

scheduled trial date, leave of the circuit

court must be obtained.

Cross reference: Code, Estates and Trusts

Article, § 2-105.

Committee note: See Nugent v. Wright, 277

Md. 615 (1976) (issues of law are

impermissible). See also Hill v. Lewis, 21

Md. App. 121 (1974). Section (d) changes

the rule set forth in Pegg v. Warford, 4 Md.

385 (1853), and recently reaffirmed in Kao

v. Hsia, 309 Md. 366 (1987).

Rule 6-434 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed amendments to Rule 6-434

implement Chapter 435, 2019 Laws of Maryland

(HB 99). Code, Estates and Trusts Article §

3-413 permits an orphans’ court, on its own

initiative, to transmit issues of fact

relating to the elective share to the

appropriate circuit for trial. New section

(b) provides for this power in addition to

section (a), which allows for transmission

of issues on petition of a party.

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

AMEND Rule 6-107 by rewording a cross

reference, as follows:

Rule 6-107.

(a)

EXTENSION OF TIME

By Request to Register or Court

The court or the register, upon

written request, may extend to a specified

date the time for filing an inventory (Rule

6-402), an information report (Rule 6-404),

an application to fix inheritance tax on

non-probate assets (Rule 6-405), or an

account (Rule 6-417). The request may be

made ex parte.

(b)

By Petition

Except as otherwise provided in this

section, when these rules, an order of

court, or other law require or allow an act

to be done at or within a specified time,

the court, upon petition filed pursuant to

Rule 6-122 and for good cause shown, may

extend the time to a specified date. The

court may not extend the time for filing a

claim, a caveat, or a notice of appeal or

for taking any other action where expressly

prohibited by rule or statute.

Cross reference: Code, Estates and Trusts

Article, §§ 5-304 and 5-406. For extension

of time to elect statutory to take a spousal

elective share, see Rule 6-411. For

extension of time to file a final report and

make distribution in a modified

administration, see Rule 6-456.

Rule 6-107 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 6-107

makes a conforming change to the cross

reference following section (b). Chapter

435, 2019 Laws of Maryland (HB 99), which is

effective October 1, 2020, exclusively uses

the term “elective share.”

Mr. Laws explained that a 2019 statute changes the elective

share law in Maryland to include both probate and non-probate

assets in an augmented estate.

A surviving spouse can elect to

take a statutory share of those assets under the statute.

said that the Probate and Fiduciary Subcommittee approved a

series of Rule amendments and new Rules to implement the

statute.

Mr. Laws stated that Rule 6-411 is amended to clarify terms

and modify forms.

Rule 6-416 addresses attorney’s fees and

personal representative’s commissions, which are capped by

statute.

The amendments reflect that the elective share law

allows for additional fees and commissions for work in

connection with the spousal election.

New Rule 6-418 provides

for the certification of the amount of the elective share and

verification by the surviving spouse that it has been paid.

Rule 6-434 is amended to permit the transmission of elective

share issues to the circuit court for factual determinations.

Rule 6-107 is amended to change a cross reference.

There being

no motion to amend or reject the proposed Rules, they were

approved as presented.

Agenda Item 4. Consideration of proposed Rules changes

pertaining to revocable trusts.

Mr. Laws presented Rule 6-413, Claim Against Decedent –

Procedure, and new Title 10, Chapter 800, Revocable Trusts, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

AMEND Rule 6-413 by adding new

subsection (a)(2), by adding a crossreference after subsection (a)(2), by adding

new section (d) providing for a certain

notice to the trustee of a certain revocable

trust, by adding to section (f) notice to

the trustee of a certain revocable trust of

disallowance of a claim, and by allowing a

certain trustee to file a petition pursuant

to section (g), as follows:

RULE 6-413.

PROCEDURE

(a)

CLAIM AGAINST ESTATE DECEDENT –

Presentation of Claim

(1) A claimant may make a claim against

the estate, within the time allowed for

presenting claims, (1)(A) by serving it on

the personal representative, (2)(B) by

filing it with the register and serving a

copy on the personal representative, or

(3)(C) by filing suit. If the claim is

filed prior to the appointment of the

personal representative, the claimant may

file the claim with the register in the

county in which the decedent was domiciled

or in any county in which the decedent

resided on the date of the decedent’s death

or in which real property or a leasehold

interest in real property of the decedent is

located.

(2) Except in a small estate proceeding,

a claim properly presented under this rule

preserves a claim against property of a

trust that was revocable at the death of the

decedent-settlor, subject to disallowance

pursuant to section (f).

Cross reference: See Code, Estates and

Trusts Article, § 14.5-508 (b)(1) for

preservation of claims against revocable

trust property.

(b)

Content of Claim

A claim against the decedent’s estate

shall indicate (1) the basis of the claim,

(2) the name and address of the claimant,

(3) the amount claimed, (4) if the claim is

not yet due, the date when it will become

due, (5) if the claim is contingent, the

nature of the contingency, and (6) if the

claim is secured, a description of the

security. Unless the claim is made by filing

suit, it shall be verified.

(c)

Form of Claim

A claim against a decedent’s estate

may be filed or made substantially in the

following form:

In the Estate of:

Estate No.__________

______________________ Date _______________

CLAIM AGAINST DECEDENT’S ESTATE

The claimant certifies that there is due and

owing by the decedent in accordance with the

attached statement of account or other basis

for the claim the sum of $________.

I solemnly affirm under the penalties of

perjury that the contents of the foregoing

claim are true to the best of my knowledge,

information, and belief.

________________

_____________________

Name of Claimant

Signature of claimant or

person authorized to

make verifications on

behalf of claimant

________________

_____________________

Name and Title of

Person Signing

Claim

Address

_____________________

Telephone Number

CERTIFICATE OF SERVICE

I hereby certify that on this ___ day of

__________ (month), _____ (year), I [ ]

delivered or [ ] mailed, first class,

postage prepaid, a copy of the foregoing

Claim to the personal representative,

____________________

(name and address)

____________________

Signature of Claimant

Instructions:

1. This form may be filed with the Register

of Wills upon payment of the filing fee

provided by law. A copy must also be sent

to the personal representative by the

claimant.

2. If a claim is not yet due, indicate the

date when it will become due. If a claim is

contingent, indicate the nature of the

contingency. If a claim is secured,

describe the security.

(d)

Notice to Trustee of Revocable Trust

(1) If the personal representative has

knowledge of the existence of a revocable

trust for which the decedent was settlor,

the personal representative shall notify the

trustee of the existence of a claim.

(2) Prior to allowance of a claim in

whole or in part, the personal

representative shall notify the trustee of

the intended allowance. A trustee who

wishes to dispute the allowance shall

petition the court to intervene within 20

days after receipt of the notice.

(d)(e) Disallowance of Claim or Petition

for Determination of Validity

If the claim or any part thereof is

not to be allowed, the personal

representative shall either disallow the

claim in whole or in part in the manner

provided by section (e)(f) of this Rule, or

petition the court for determination of the

validity of the claim.

(e)(f)

Form of Disallowance of Claim

Upon disallowing a claim the personal

representative shall file with the register

and mail to the claimant and the trustee of

each revocable trust known to the personal

representative for which the decedent was

settlor a notice in the following form:

[CAPTION]

NOTICE OF DISALLOWANCE

Your claim has been allowed in the amount of

$________ and disallowed in the amount of

$________. Your claim in the amount

disallowed will be forever barred against

the estate and any revocable trust of the

decedent-settlor unless within 60 days after

the mailing of this notice you file a

petition for allowance of the disallowed

amount in the Orphans’ Court or a suit

against the personal representative. If

your claim has not been filed timely

pursuant to the Code, Estates and Trusts

Article, § 8-103, your claim will not be

paid and it is forever barred.

_______________________________

Personal Representative

CERTIFICATE OF SERVICE

I certify that the disallowance of claim was

mailed, postage prepaid, this ______________

day of _________________ (month), _________

(year), to _________, claimant, at

_________.

__________________________________

Personal Representative/Attorney

__________________________________

Name (printed)

__________________________________

Address

__________________________________

Telephone Number

(f)(g)

Claimant’s Petition

(1) No Action Taken

If no action has been taken by the

personal representative disallowing the

claim in whole or in part, the claimant or

trustee of a revocable trust of the

decedent-settlor may petition the court for

determination of the validity of the claim.

(2) After Disallowance

A claimant whose claim has been

disallowed in whole or in part may file with

the court a petition for allowance within 60

days after mailing of the notice of

disallowance.

(g)(h)

Hearing

Upon the filing of a petition by the

personal representative or a claimant, the

court shall hold a hearing on the petition

after notice to the personal representative,

the claimant, and such other persons as the

court may direct.

(h)(i)

Notice to Register of Suit

If suit is filed against the personal

representative by a claimant whose claim is

disallowed in whole or in part, the personal

representative shall notify the register in

writing of the pendency of the suit within

ten days after being served with the

complaint.

Rule 6-413 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Chapter 100, 2015 Laws of Maryland (HB

666) added to Code, Estates and Trusts

Article, § 14.5-508 provisions to protect

the property, trustee, and beneficiaries of

a trust that was revocable at the time of

the death of the settlor from claims of

creditors not presented within the time

periods in § 8-103 or within six months of

publication of notice by the trustee if a

proceeding for a regular or modified estate

has not been commenced. The law was

designed to allow trustees to avail

themselves of the same protections afforded

to personal representatives rather than

subject them to limitations periods of

anywhere from three to twelve years.

Proposed amendments to Rule 6-413 seek

to clarify the process for personal

representatives, trustees, and creditors

where an estate other than a small estate is

open and a creditor wishes to preserve the

creditor’s claim against the decedentsettlor’s trust property.

New subsection (a)(2) states that a

properly presented claim under the Rule

preserves a claim against trust property. A

cross reference to the Code section is added

after subsection (a)(2).

New section (d) requires notice of a

claim to the trustee and notice prior to the

allowance of a claim, in whole or in part.

Subsection (d)(2) allows the trustee to

intervene to dispute the validity of the

claim.

Re-lettered section (f) is amended to

require the personal representative to mail

notice of disallowance to the trustee. The

Committee is advised that often the

representative and trustee are the same

individual; however, if there is a thirdparty trustee, the added notice provisions

ensure that the trustee is alerted to the

claim.

The notice of disallowance form in

section (f) informs the creditor that claims

against the estate and any revocable trust

property will be barred unless the creditor

acts within the specified time. Subsection

(g)(1) allows the creditor or trustee to

petition the court to determine the validity

of a claim if the personal representative

does not act.

MARYLAND RULES OF PROCEDURE

TITLE 10 – GUARDIANS AND OTHER FIDUCIARIES

CHAPTER 800 – REVOCABLE TRUSTS

ADD New Rule 10-801, as follows:

RULE 10-801.

(a)

NOTICE UPON DEATH OF SETTLOR

Notice to Personal Representative

If a proceeding other than for a

small estate under Code, Estates and Trusts

Article Title 5, Subtitle 6 is commenced to

administer the estate of the decedentsettlor of a trust that was revocable at the

time of death, the trustee of the trust

shall notify the personal representative of

the existence of the trust and the identity

of each trustee within 60 days after the

date the trustee acquires knowledge of the

decedent’s death.

Cross reference: See Code, Estates and

Trusts Article, § 14.5-508(b)(1) for the

effect of a claim filed in an estate

proceeding on trust property. See Rule 6413 for the right of a trustee to intervene

before a claim is allowed in the estate

proceeding.

(b)

Notice to Surviving Spouse

If the decedent-settlor is survived

by a spouse, the trustee shall notify the

surviving spouse of the existence of the

trust, the identity of each trustee, and of

the surviving spouse’s right to request a

copy of the trust instrument within 60 days

of after the date the trustee acquires

knowledge of the decedent’s death.

Cross reference: For the duties of a

trustee in connection with the calculation

and payment of the elective share, see Code,

Estates and Trusts Article, § 3-409.

Rule 10-801 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed new Title 10, Chapter 800 is

intended to implement Chapter 100, 2015 Laws

of Maryland (HB 666), which was brought to

the Committee’s attention as a potential

area requiring clarification, and Chapter

435, 2019 Laws of Maryland (HB 99), which

changes the elective share law to an

augmented estate format.

HB 666 extended protections to the

trustee, trust property, and beneficiaries

of a trust that was revocable at the death

of the decedent-settlor if a claim is not

presented within certain statutory

deadlines. If an estate proceeding other

than a small estate is commenced, the

creditor must present the claim within the

required time to preserve a claim against

any revocable trust property. If no estate

or a small estate proceeding is commenced,

the trustee may obtain protection by

publishing his or her own notice to

creditors, which is outlined in proposed new

Rule 802.

Section (a) requires notice to the

personal representative, if one exists, of

the existence of a trust. Practitioners

noted that the personal representative has

no way to know about revocable trusts of the

decedent unless the personal representative

also serves as the trustee or some other

circumstance brings it to the attention of

the personal representative. Similarly, a

trustee who is not otherwise involved in the

estate proceeding has no definitive way to

be alerted to claims filed in the estate,

which the personal representative may act to

allow or disallow, impacting the trust. New

Rule 10-801 provides a mechanism for the

trustee to receive notice of claims against

the decedent that are presented in the

estate proceeding. A cross reference to

Code, Estates and Trusts Article, § 14508(b)(1) and Rule 6-413 follows section

(a).

Section (b) requires notice to the

surviving spouse, if one exists, as mandated

by the new elective share law.

MARYLAND RULES OF PROCEDURE

TITLE 10 – GUARDIANS AND OTHER FIDUCIARIES

CHAPTER 800 – REVOCABLE TRUSTS

ADD New Rule 10-802, as follows:

RULE 10-802. LIABILITY FOR CLAIMS AGAINST

DECEDENT-SETTLOR

(a)

Generally

After the death of a settlor, subject

to Code, Estates and Trusts Article, § 14.5508(b)(1) and the right of the settlor to

direct the source from which liabilities

will be paid, the property of a trust that

was revocable at the death of the settlor is

subject to claims of the creditors of the

decedent-settlor.

Cross-reference: See Code, Estates and

Trusts Article, § 14.5-508(a)(5).

(b) Responsibilities of Trustee Where

Estate Proceeding Commenced

If a proceeding has been commenced to

administer the estate of a decedent-settlor

other than a small estate, the trustee,

property, and beneficiaries of a revocable

trust are not liable for claims of creditors

of the settlor that are not presented in the

estate proceeding pursuant to Rule 6-413.

Estate Proceeding Commenced

(1) If a proceeding to administer the

estate of the decedent-settlor has not been

commenced, or if a small estate has been

commenced, the trustee of a revocable trust

of which the decedent was a settlor may

publish a notice pursuant to subsections

(c)(2) and (3) of this Rule. Publication of

the notice shall afford the trust property,

trustee, and beneficiaries of the trust with

the protections afforded in Code, Estates

and Trusts Article, § 8-103, for claims

presented more than six months after the

date of the first publication of the notice.

(2) The trustee’s notice to creditors

shall be substantially in the following

form:

Notice to Creditors of a Settlor of a

Revocable Trust

To all persons interested in the trust

of ___________:

This is to give notice that

__________________ died on or about

__________. Before the decedent's death,

the decedent created a revocable trust for

which the undersigned, ___________________,

whose address is

__________________________________, is now a

trustee.

To have a claim satisfied from the

property of this trust, a person who has a

claim against the decedent shall present the

claim on or before the date that is six

months after the date of the first

publication of this notice to the

undersigned trustee at the address stated

above. The claim shall include the

following information:

1. A verified written statement of the claim

indicating its basis;

2. The name and address of the claimant;

3. If the claim is not yet due, the date on

which it will become due;

4. If the claim is contingent, the nature of

the contingency;

5. If the claim is secured, a description of

the security; and

6. The specific amount claimed.

Any claim not presented to the trustee

on or before that date or any extension

provided by law is unenforceable.

(Signature of Trustee)

Date of first publication: _______________.

(3) The trustee shall publish the notice

once a week for three successive weeks in a

newspaper of general circulation in what

would otherwise be the proper venue for an

administration of judicial probate for that

decedent.

(4) Claims against the decedent-settlor

are forever barred as against the trust

property, trustee, and beneficiaries of the

trust unless, within six months of first

publication of notice, the creditor (A)

files an action against the trustee and

serves a copy of the complaint on the

trustee within 30 days of filing or (B)

presents a claim to the trustee with the

information required by the notice.

(5) If the trustee disallows the claim

wholly or in a stated amount, the claimant

is forever barred to the extent of the

disallowance unless the claimant files an

action against the trustee or against any

person to whom the trust property has been

distributed within 60 days after the mailing

of the notice of disallowance by the trustee

to the claimant. The notice informing the

claimant of the disallowance shall contain a

warning to the claimant concerning the time

limitation for commencing an action.

Cross-reference: Code, Estates and Trusts

Article, § 14.5-508 (b)(2)-(6).

Rule 10-802 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed new Title 10, Chapter 800 is

intended to implement Chapter 100, 2015 Laws

of Maryland (HB 666).

In Rule 10-802, section (a) states the

principle in Code, Estates and Trusts

Article, Title 14.5, the Maryland Trust Act,

that the property of a revocable trust may

be subject to the claims of creditors after

the death of the settlor.

Section (b) applies where an estate

proceeding other than a small estate has

been commenced to administer the decedentsettlor’s estate. Claims against the

settlor or trust property in those estates

are governed by Rule 6-413, as amended.

Section (c) outlines the notice and

claim process against a trust when no estate

has been opened or a small estate proceeding

has been opened. It follows § 14.5508(b)(2)-(6).

MARYLAND RULES OF PROCEDURE

TITLE 10 – GUARDIANS AND OTHER FIDUCIARIES

CHAPTER 800 – REVOCABLE TRUSTS

ADD New Rule 10-803, as follows:

RULE 10-803.

(a)

AUGMENTED ESTATE

Generally

A trust that is revocable at the time

of death of the settlor is part of the

decedent-settlor’s augmented estate for the

purposes of calculating the estate subject

to election by a surviving spouse pursuant

to Code, Estates and Trusts Article, Title

3, Subtitle 4.

(b)

Duties of Trustee

On receipt of a written request by

the decedent-settlor’s surviving spouse, the

trustee of a revocable trust shall deliver

all information necessary to calculate the

elective share.

Cross-reference: Code, Estates and Trusts

Article, § 3-409.

(c)

Value and Sources of Payment

The orphans’ court may issue orders

that may be necessary to determine or modify

the value or sources of payment of an

elective share.

Cross-reference: Code, Estates and Trusts

Article, §§ 2-102 and 3-413.

Rule 10-803 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Chapter 435, 2019 Laws of Maryland (HB

99) changes the elective share law to an

augmented estate format and includes

revocable trusts in the augmented estate.

The law requires the trustee of a revocable

trust of the decedent-settlor to deliver

information to the surviving spouse, on

request, and gives the orphans’ court the

power to issue orders necessary to calculate

the elective share and determine sources of

payment.

Mr. Laws said that a 2015 statute pertaining to claims

against deceased settlors of revocable trusts was brought to the

attention of the Subcommittee.

The law created a claim process

for creditors and bars claims that are not promptly presented in

an estate proceeding, if one is opened.

If there is no

qualifying estate proceeding, the statute allows the trustee to

publish notice like a personal representative would.

Claims are

barred if they are not filed with the trustee in the statutory

time period.

Mr. Laws said that the amendments to Rule 6-413 accommodate

claims impacting trust assets.

New Chapter 800 in Title 10

deals with revocable trusts and the duties of trustees.

Rule

10-801 establishes a requirement that the trustee notify the

personal representative of the existence of the trust and notify

the surviving spouse, as required by the elective share law.

Rule 10-802 outlines the claim process if there is no estate and

recites the rule of liability from the 2015 statute.

Rule 10-

803 codifies the duty in the elective share statute to provide

information to the surviving spouse.

There being no motion to

amend or reject the proposed Rules, they were approved as

presented.

Agenda Item 5. Consideration of proposed new Rule 6-423

(Administration after Final Account – Newly Discovered Small

Check).

Mr. Laws presented Rule 6-423, Administration after Final

Account – Newly Discovered Check, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 6 – SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

ADD new Rule 6-423, as follows:

Rule 6-423. ADMINISTRATION AFTER CLOSING OF

ESTATE — NEWLY DISCOVERED SMALL CHECK

(a)

When New Appointment Not Necessary

Except as provided in section (d) of

this Rule, if a check payable to a decedent

or the estate of a decedent for a sum not

exceeding $1,000 is discovered after an

estate has been closed and the appointment

of the personal representative has

terminated pursuant to Rule 6-421, the

court, on a verified petition made by an

interested person, may enter an order

authorizing the interested person to indorse

and deposit the check into the interested

person’s bank account for the limited

purpose of distributing the funds in

accordance with the will or, if the decedent

died intestate, in accordance with Code,

Estates and Trusts Title 3, Subtitle 1.

(b)

Petition

A petition pursuant to this Rule

shall be filed in the jurisdiction where the

decedent’s estate was administered and

include the estate number, a brief

description of the check, the interest of

the person filing the petition, the names

and addresses of the interested persons, a

statement that the conditions in section (d)

do not apply to the requested order, and a

brief statement of the anticipated

distribution of the funds.

(c)

Exceptions

Unless a hearing is requested by an

interested person, the court may enter an

order under this Rule without a hearing.

(d)

Conditions

The court may not enter an order

under this Rule if:

(1) the estate of the decedent was

insolvent when it closed,

(2) the value of the discovered check

increases the value of the estate above the

value that qualifies under Code, Estates and

Trusts § 5-601 for administration of a small

estate, or

(3) any additional fees and inheritance

taxes due as a result of the newly

discovered check are not paid with the

filing of the petition.

(e)

Distribution

The distribution of funds by an

interested person under this Rule shall be

made within 60 days after the court’s order

authorizing the distribution.

(f)

Effect of Order

An order issued under this Rule does

not require the court to reopen the estate.

Cross reference: Code, Estates and Trusts

Article, § 10-104.

Rule 6-423 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Chapter 239, 2020 Laws of Maryland (HB

543) allows for the distribution of a check

discovered after an estate has been closed

without reopening it. Proposed new Rule 6423 outlines the process for interested

persons to indorse, deposit, and distribute

funds from checks made out to the decedent

or his or her estate, valued at $1,000 or

less, which are discovered after an estate

has been closed and the appointment of the

personal representative has been terminated.

Proponents of the bill testified that

when an estate is closed and the decedent’s

bank account has been closed, there are

limited options for dealing with a newlydiscovered check, which may come from a

refund or class action settlement payment.

In the case of smaller checks, the cost of

reopening the estate often exceeds the value

of the check.

The bill provides that a court may

enter an order authorizing an interested

person to indorse and deposit the check in

their personal account for the limited

purpose of distributing funds in accordance

with the will or, if the decedent died

intestate, with the Estates and Trusts

article. The court is prohibited from

entering the order if the estate was

insolvent when it was closed, the value of

the discovered check increases the value of

the estate above the value for a small

estate, or additional fees and inheritance

taxes due have not been paid.

Rule 6-423 requires the petition to

include similar information mandated by Rule

6-422, Administration After Final Account –

Newly Discovered Property, but removes the

provision about requesting a new personal

representative and adds a requirement that

the petition state that the exceptions in

section (d) of this Rule do not apply.

Mr. Laws said that a new law permits a small check

discovered after an estate is closed to be negotiated and

deposited without reopening the estate or appointing a personal

representative.

He explained that there is a technical

amendment that was distributed via email to the Committee to add

a missing word to the title, which should read “Administration

after Final Account – Newly Discovered Check.”

to approve Rule 6-423 as amended.

Mr. Laws moved

The motion was seconded and

the Committee approved the amendment by majority vote.

Agenda Item 6. Consideration of proposed “housekeeping”

amendments to Rule 6-209 (Notice of Appointment), Rule 6-311

(Notice of Appointment), Rule 6-455 (Modified Administration),

and Rule 6-501 (Application by Foreign Personal Representative

to Set Inheritance Tax).

Mr. Laws presented Rule 6-209, Notice of Appointment; Rule

6-311, Notice of Appointment; Rule 6-455, Modified

Administration; and Rule 6-501, Application by Foreign Personal

Representative to Set Inheritance Tax, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 6 - SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 200 - SMALL ESTATE

AMEND Rule 6-209 by removing a clause

in the form notice in section (a) referring

to the statutory deadline for deaths

occurring prior to October 1, 1992, as

follows:

Rule 6-209.

(a)

NOTICE OF APPOINTMENT

Notice

When notice of appointment is

required to be published by the order of the

file the notice in duplicate in the

following form:

(FILE IN DUPLICATE)

__________________________

(name and address of attorney)

SMALL ESTATE

NOTICE OF APPOINTMENT

Estate No. _____

NOTICE TO CREDITORS

NOTICE TO UNKNOWN HEIRS

TO ALL PERSONS INTERESTED IN THE ESTATE OF

______________________. Notice is given that

was on

(date)

appointed personal representative of the

small estate of ___________________________

(name & address)

who died on

will.

(with) (without) a

(date)

Further information can be obtained by

reviewing the estate file in the office of

the Register of Wills or by contacting the

personal representative or the attorney.

All persons having any objection to the

appointment shall file their objections with

the Register of Wills within 30 days after

the date of publication of this notice. All

persons having an objection to the probate

of the will shall file their objections with

the Register of Wills within six months

after the date of publication of this

Notice.

All persons having claims against the

decedent must serve their claims on the

undersigned personal representative or file

them with the Register of Wills with a copy

to the undersigned on or before the earlier

of the following dates:

(1) Six months from the date of the

decedent's death, except if the decedent

died before October 1, 1992, nine months

from the date of the decedent's death; or

(2) Thirty days after the personal

representative mails or otherwise delivers

to the creditor a copy of this published

notice or other written notice, notifying

the creditor that the claims will be barred

unless the creditor presents the claim

within thirty days from the mailing or other

delivery of the notice. Any claim not served

or filed within that time, or any extension

provided by law, is unenforceable

thereafter.

____________________

Personal Representative(s)

____________________

True Test Copy

Name and Address of Register

of Wills for _______________

Name of newspaper designated by personal

representative

____________________________________________

. . .

Rule 6-209 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

A proposed amendment to Rule 6-209

updates the form for notice of appointment

by removing a reference to the statutory

deadline for deaths occurring prior to

October 1, 1992.

MARYLAND RULES OF PROCEDURE

TITLE 6 - SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 300 – OPENING ESTATES

AMEND Rule 6-311 by removing a clause

in the form notice in section (a) referring

to the statutory deadline for deaths

occurring prior to October 1, 1992, as

follows:

Rule 6-311.

(a)

NOTICE OF APPOINTMENT

Notice

The petitioner shall file with the

appointment in the following form:

(FILE IN DUPLICATE)

__________________________

(name and address of attorney)

NOTICE OF APPOINTMENT

NOTICE TO CREDITORS

NOTICE TO UNKNOWN HEIRS

Estate No. _____

TO ALL PERSONS INTERESTED IN THE ESTATE OF

____________________. Notice is given that

(name and address)

was on

(date)

appointed personal representative of the

estate of _____________ who died on

(date)

, (with) (without) a will.

Further information can be obtained by

reviewing the estate file in the office of

the Register of Wills or by contacting the

personal representative or the attorney.

All persons having any objection to the

appointment (or to the probate of the

decedent's will) shall file their objections

with the Register of Wills on or before the

__________ day of

(6 months from date of appointment),

(year)

Any person having a claim against the

decedent must present the claim to the

undersigned personal representative or file

it with the Register of Wills with a copy to

the undersigned on or before the earlier of

the following dates:

(1) Six months from the date of the

decedent's death, except if the decedent

died before October 1, 1992, nine months

from the date of the decedent's death; or

(2) Two months after the personal

representative mails or otherwise delivers

to the creditor a copy of this published

notice or other written notice, notifying

the creditor that the claim will be barred

unless the creditor presents the claims

within two months from the mailing or other

delivery of the notice. A claim not

presented or filed on or before that date,

or any extension provided by law, is

unenforceable thereafter. Claim forms may be

obtained from the Register of Wills.

____________________

Personal Representative(s)

____________________

True Test Copy

Name and Address of

_______________

Name of newspaper designated by personal

representative:

___________________________________________

. . .

Rule 6-311 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

A proposed amendment to Rule 6-311

updates the form for notice of appointment

by removing a reference to the statutory

deadline for deaths occurring prior to

October 1, 1992.

MARYLAND RULES OF PROCEDURE

TITLE 6 - SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 400 – ADMINISTRATION OF ESTATES

AMEND Rule 6-455 by removing a clause

in the form notice in section (d) referring

to deaths occurring on or after January 1,

1998 in the instructions on Supporting

Schedule A, as follows:

Rule 6-455.

MODIFIED ADMINISTRATION

. . .

(d)

Final Report

(1) Filing

A verified final report shall be

filed no later than 10 months after the date

of the personal representative's

appointment, unless the personal

representative discovers property of the

decedent after the time for filing a

verified final report in which case the

personal representative must file the

verified report with respect to the afterdiscovered property within 90 days of the

discovery of the property.

(2) Copies to Interested Persons

Unless an interested person waives

notice of the verified final report under

modified administration, the personal

representative shall serve a copy of the

final report on each interested person.

(3) Contents

A final report under modified

administration shall be in the following

form:

BEFORE THE REGISTER OF WILLS FOR __________,

MARYLAND

ESTATE OF _____________

Estate No. ____

Date of Death _________

Date of Appointment

of Personal

Representative

___________________

ELECTION OF PERSONAL REPRESENTATIVE FOR

MODIFIED ADMINISTRATION

(Must be filed within 10 months after the

date of appointment)

I, Personal Representative of the estate,

report the following:

1. The estate continues to qualify for

Modified Administration as set forth in the

Election for Modified Administration on file

with the Register of Wills.

2. Attached are the following Schedules and

supporting attachments:

Total Schedule A: Reportable Property

……

$___

Total Schedule B: Payments and Disbursements …… $(__)

Total Schedule C: Distribution of Net Reportable Property

$___

3. I acknowledge that:

(a) Final distributions shall be made within

12 months after the date of my appointment

as personal representative, unless I

discover property of the decedent after the

time for making final distributions in which

case I must make final distribution of the

after-discovered property within 90 days of

the discovery of the property.

(b) If Modified Administration is revoked,

the estate shall proceed under

Administrative Probate, and I will file a

formal Inventory and Account, as required,

until the estate is closed.

I solemnly affirm under the penalties of

perjury that the contents of this document

are true to the best of my knowledge,

information, and belief and that any

property valued by me which I have authority

as personal representative to appraise has

been valued completely and correctly in

accordance with law.

___________________

Attorney Signature

__________________

Personal Representative

___________________

Address

__________________

Personal Representative

___________________

Address

__________________

Personal Representative

_________________________

Telephone Number

_________________________

Facsimile Number

_________________________

E-mail Address

CERTIFICATE OF SERVICE OF FINAL REPORT UNDER

MODIFIED ADMINISTRATION

I hereby certify that on this __________ day

of __________, I delivered or mailed,

postage prepaid, a copy of the foregoing

Final Report Under Modified Administration

and attached Schedules to the following

persons:

Names

Addresses

__________________

___________________

__________________

___________________

__________________

___________________

__________________

___________________

__________________

___________________

Attorney Signature

__________________

Personal Representative

___________________

Address

__________________

Personal Representative

___________________

Address

__________________

Personal Representative

_________________________

Telephone Number

_________________________

Facsimile Number

_________________________

E-mail Address

FOR REGISTER OF WILLS USE

Distributions subject to __________ Tax

thereon __________ tax

at __________ %

Exempt distributions to __________________

(Identity of the recipient)

Exempt distributions to __________________

(Identity of the recipient)

Exempt distributions to __________________

(Identity of the recipient)

Total Inheritance Tax due

______________

Total Inheritance Tax paid

______________

Gross Estate ___________ Probate Fee & Costs

Collected

_____________

FINAL REPORT UNDER MODIFIED ADMINISTRATION

SUPPORTING SCHEDULE A

REPORTABLE PROPERTY

ESTATE OF ________ Estate No. ______________

Item No.

Description

Basis of

Valuation

Value

TOTAL REPORTABLE PROPERTY OF THE DECEDENT $___

(Carry forward to Schedule C)

____________________________________________

INSTRUCTIONS

ALL REAL AND PERSONAL PROPERTY MUST BE

INCLUDED AT DATE OF DEATH VALUE. THIS DOES

NOT INCLUDE INCOME EARNED DURING

ADMINISTRATION OR CAPITAL GAINS OR LOSSES

REALIZED FROM THE SALE OF PROPERTY DURING

ADMINISTRATION. ATTACHED APPRAISALS OR COPY

OF REAL PROPERTY ASSESSMENTS AS REQUIRED:

1. Real and leasehold property: Fair market

value must be established by a qualified

appraiser. For decedents dying on or after

January 1, 1998, in In lieu of a formal

appraisal, real and leasehold property may

be valued at the full cash value for

property tax assessment purposes as of the

most recent date of finality. This does not

apply to property tax assessment purposes on

the basis of its use value.

2. The personal representative may value:

Debts owed to the decedent, including bonds

and notes; bank accounts, building, savings

and loan association shares, money and

corporate stocks listed on a national or

regional exchange or over the counter

securities.

3. All other interests in tangible or

intangible property: Fair market value must

be established by a qualified appraiser.

____________________________________________

ATTACH ADDITIONAL SCHEDULES AS NEEDED

FINAL REPORT UNDER MODIFIED ADMINISTRATION

SUPPORTING SCHEDULE B

Payments and Disbursements

ESTATE OF ____ Estate No. __________________

Item No.

Description

Basis of

Valuation

(Carry forward to Schedule C)

Value

____________________________________________

INSTRUCTIONS

1. Itemize all liens against property of the

estate including mortgage balances.

2. Itemize sums paid (or to be paid) within

twelve months from the date of appointment

for: debts of the decedent, taxes due by the

decedent, funeral expenses of the decedent,

family allowance, personal representative

and attorney compensation, probate fee and

other administration expenses of the estate.

ATTACH ADDITIONAL SCHEDULES AS NEEDED

FINAL REPORT UNDER MODIFIED ADMINISTRATION

SUPPORTING SCHEDULE C

Distributions of Net Reportable Property

1. SUMMARY OF REPORTABLE PROPERTY

Total from Schedule A ………………

_________

Total from Schedule B ………………

_________

Total Net Reportable Property ……

_________

(Schedule A minus Schedule B)

2. SPECIFIC BEQUESTS (If Applicable)

Name of Legatee or Heir

Distributable Share

of Reportable Estate

Inheritance

Tax Thereon

3. DISTRIBUTION OF BALANCE OF ESTATE

Name of Legatee or Heir

Distributable Share

of Reportable Estate

Inheritance

Tax Thereon

Total Reportable Distributions

$ _______

Inheritance Tax

$ _______

ATTACH ADDITIONAL SCHEDULES AS NEEDED

(4) Inventory and Account. The provisions

of Rule 6-402 (Inventory) and Rule 6-417

(Account) do not apply.

. . .

Rule 6-455 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

A proposed amendment to Rule 6-455

updates the form for a final report under

modified administration by removing a

reference to deaths occurring on or after

January 1, 1998 in the instructions on

Supporting Schedule A.

MARYLAND RULES OF PROCEDURE

TITLE 6 - SETTLEMENT OF DECEDENTS’ ESTATES

CHAPTER 500 – MISCELLANEOUS PROVISIONS

AMEND Rule 6-501 by removing a clause

in the form notice in section (b) referring

to the statutory deadline for deaths

occurring prior to October 1, 1992, as

follows:

Rule 6-501. APPLICATION BY FOREIGN PERSONAL

REPRESENTATIVE TO SET INHERITANCE TAX

. . .

(b) Form of Notice of Appointment of

Foreign Personal Representative

__________________________

(name and address of personal

Representative or attorney)

NOTICE TO CREDITORS OF

APPOINTMENT OF FOREIGN

PERSONAL REPRESENTATIVE

NOTICE IS GIVEN that the _______________

court of ___________ county,

appointed

(state)

as the

(title)

(name of decedent)

(date)

(name and address)

of the Estate of

who died on

domiciled in (state and country) .

The Maryland resident agent for service of

process is _______________________ whose

address is _____________________.

At the time of death, the decedent owned

real or leasehold property in the following

Maryland counties:

____________________________________________

All persons having claims against the

decedent must file their claims with the

County with a copy to the foreign personal

representative on or before the earlier of

the following dates:

(1) Six months from the date of the

decedent's death, except if the decedent

died before October 1, 1992, nine months

from the date of the decedent's death; or

(2) Two months after the foreign

personal representative mails or delivers to

the creditor a copy of this published notice

or other written notice, notifying the

creditor that the claim will be barred

unless the creditor presents the claim

within two months from the mailing or other

delivery of the notice. Claims filed after

that date or after a date extended by law

will be barred.

__________________________

Foreign Personal Representative

Name of Newspaper:

__________________________

Address

________________________

Date of first publication

Cross reference: Code, Estates and Trusts

Article, §§ 5-503(b), 5-504, and 7-103.

. . .

Rule 6-501 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

A proposed amendment to Rule 6-501

updates the form for notice of appointment

of foreign personal representative by

removing a reference to the statutory

deadline for deaths occurring prior to

October 1, 1992.

Mr. Laws said that the proposed amendments remove obsolete

date references.

He noted that the Committee was emailed

“Version 1.1” of the proposed amendments prior to the meeting.

The updated version corrected formatting and technical problems.

Mr. Laws moved to approve Version 1.1 of the proposed Rules.

The motion was seconded and the Committee approved the amendment

by majority vote.

Agenda Item 1. Consideration of proposed amendments to Rule 4262 (Discovery in District Court) and Rule 4-263 (Discovery in

Circuit Court), proposed new Rule 5-617 (Pretrial Eyewitness

Identification Evidence – Criminal Cases), and proposed

amendments to Rule 4-325 (Instructions to the Jury).

The Chair said that the proposed amendments and new Rule

contained in Agenda Item 1 emanated from the Court of Appeals

decision in Small v. State, 464 Md. 68 (2019).

Specifically,

the concurring opinion asked the Committee to look at the use of

eyewitness identification testimony.

He said that the Committee

discussed the matter at the October 18, 2019 meeting and voted

to refer the issue to the Evidence Subcommittee for further

study.

He explained that the subcommittee looked at literature

and studies and consulted with the Criminal Pattern Jury

Instructions Committee of the Maryland State Bar Association as

well as the Innocence Project at the University of Baltimore

School of Law and the national Innocence Project.

He thanked

Michele Nethercott from the University of Baltimore and Alexis

Agathocleous from the national Innocence Project for their

assistance.

Mr. Armstrong presented Rule 4-263, Discovery in Circuit

Court, and Rule 4-262, Discovery in District Court, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND Rule 4-263 by adding to

subsection (d)(7)(B) a requirement that the

State’s Attorney disclose certain

information to the defense regarding

pretrial identifications involving

participation by law enforcement agency

personnel, as follows:

Rule 4-263.

DISCOVERY IN CIRCUIT COURT

(a)

Applicability

This Rule governs discovery and

inspection in a circuit court.

Committee note: This Rule also governs

discovery in actions transferred from

District Court to circuit court upon a jury

trial demand made in accordance with Rule 4301 (b)(1)(A). See Rule 4-301 (c).

. . .

(d)

Disclosure by the State's Attorney

Without the necessity of a request,

the State's Attorney shall provide to the

defense:

(1) Statements

All written and all oral statements

of the defendant and of any co-defendant

that relate to the offense charged and all

material and information, including

documents and recordings, that relate to the

acquisition of such statements;

(2) Criminal Record

Prior criminal convictions, pending

charges, and probationary status of the

defendant and of any co-defendant;

(3) State's Witnesses

As to each State's witness the

State's Attorney intends to call to prove

the State's case in chief or to rebut alibi

testimony: (A) the name of the witness; (B)

except as provided under Code, Criminal

Procedure Article, § 11-205 or Rule 16-912

(b), the address and, if known to the

State's Attorney, the telephone number of

the witness; and (C) all written statements

of the witness that relate to the offense

charged;

(4) Prior Conduct

All evidence of other crimes,

wrongs, or acts committed by the defendant

that the State's Attorney intends to offer

at a hearing or at trial pursuant to Rule 5404 (b);

(5) Exculpatory Information

All material or information in any

form, whether or not admissible, that tends

to exculpate the defendant or negate or

mitigate the defendant's guilt or punishment

as to the offense charged;

(6) Impeachment Information

All material or information in any

form, whether or not admissible, that tends

to impeach a State's witness, including:

(A) evidence of prior conduct to show

the character of the witness for

untruthfulness pursuant to Rule 5-608 (b);

(B) a relationship between the State's

Attorney and the witness, including the

nature and circumstances of any agreement,

understanding, or representation that may

constitute an inducement for the cooperation

or testimony of the witness;

pending charges, or probationary status that

may be used to impeach the witness, but the

State's Attorney is not required to

investigate the criminal record of the

witness unless the State's Attorney knows or

has reason to believe that the witness has a

criminal record;

(D) an oral statement of the witness,

not otherwise memorialized, that is

materially inconsistent with another

statement made by the witness or with a

statement made by another witness;

(E) a medical or psychiatric condition

or addiction of the witness that may impair

the witness's ability to testify truthfully

or accurately, but the State's Attorney is

not required to inquire into a witness's

medical, psychiatric, or addiction history

or status unless the State's Attorney has

information that reasonably would lead to a

belief that an inquiry would result in

discovering a condition that may impair the

witness's ability to testify truthfully or

accurately;

(F) the fact that the witness has

taken but did not pass a polygraph

examination; and

(G) the failure of the witness to

identify the defendant or a co-defendant;

Cross reference: See Brady v. Maryland, 373

U.S. 83 (1963); Kyles v. Whitley, 514 U.S.

419 (1995); Giglio v. U.S., 405 U.S. 150

(1972); U.S. v. Agurs, 427 U.S. 97 (1976);

Thomas v. State, 372 Md. 342 (2002);

Goldsmith v. State, 337 Md. 112 (1995); and

Lyba v. State, 321 Md. 564 (1991).

(7) Searches, Seizures, Surveillance,

and Pretrial Identification

All relevant material or information

regarding:

(A) specific searches and seizures,

eavesdropping, and electronic surveillance

including wiretaps; and

(B) pretrial identification of the

defendant by a State's witness including, if

the pretrial identification involved

participation by personnel from a law

enforcement agency (i) a copy of or an

electronic link to the written policies

relating to eyewitness identification

required by Code, Public Safety Article, §

3-506, and (ii) documents or other evidence

indicating compliance or non-compliance with

the requirements of Code, Public Safety

Article, § 3-506.1;

Committee note: In addition to disclosure

of a pretrial identification of a defendant

by a State's witness, in some cases,

disclosure of a pretrial identification of a

co-defendant by a State's witness also may

be required. See Green v. State, 456 Md. 97

(2017).

(8) Reports or Statements of Experts

As to each expert consulted by the

State's Attorney in connection with the

action:

(A) the expert's name and address, the

subject matter of the consultation, the

substance of the expert's findings and

opinions, and a summary of the grounds for

each opinion;

(B) the opportunity to inspect and

copy all written reports or statements made

in connection with the action by the expert,

including the results of any physical or

mental examination, scientific test,

experiment, or comparison; and

and conclusion by the expert;

(9) Evidence for Use at Trial

The opportunity to inspect, copy,

and photograph all documents, computergenerated evidence as defined in Rule 2504.3 (a), recordings, photographs, or other

tangible things that the State's Attorney

intends to use at a hearing or at trial; and

(10) Property of the Defendant

The opportunity to inspect, copy,

and photograph all items obtained from or

belonging to the defendant, whether or not

the State's Attorney intends to use the item

at a hearing or at trial.

. . .

Rule 4-263 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 4-263

adds certain information about pretrial

eyewitness identifications to the list of

disclosures that are required to be provided

to the defense by the State’s Attorney in

circuit court.

In 2014, the legislature amended Code,

Public Safety Article § 3-506 & added § 3506.1, expanding the statutory requirements

for each law enforcement agency’s

identification procedures in the State. The

Code requires that the agencies either adopt

the Maryland Police Training and Standards

Commission’s Eyewitness Identification Model

Policy or adopt a written policy satisfying

the requirements set forth in § 3-506.1.

Rule 4-263 (d)(7)(B) requires a State’s

Attorney to provide all relevant material or

information regarding a pretrial

identification of the defendant by a State’s

witness. The proposed amendment to Rule 4263 incorporates the requirements of Code,

Public Safety Article §§ 3-506 & 3-506.1

into the discovery rule, requiring a State’s

Attorney to provide a copy of the required

eyewitness identification policy and

evidence relating to compliance or noncompliance with procedural requirements for

pretrial eyewitness identifications. The

proposed amendment raises awareness of the

statutory requirements associated with

pretrial identifications involving

participation by law enforcement agency

personnel and ensures that complete

information concerning the identification is

disclosed to the defense.

A corresponding amendment is proposed

to Rule 4-262 concerning discovery in

district court.

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND 4-262 by adding to subsection

(d)(2)(C)(ii) a requirement that the State’s

Attorney, upon written request, disclose

specific information to the defense

regarding pretrial identifications involving

participation by law enforcement agency

personnel, as follows:

Rule 4-262.

(a)

DISCOVERY IN DISTRICT COURT

Applicability

This Rule governs discovery and

inspection in the District Court. Discovery

is available in the District Court in

actions that are punishable by imprisonment.

Committee note: This Rule also governs

discovery in actions transferred from

District Court to circuit court upon a jury

trial demand made in accordance with Rule 4301(b)(1)(B). See Rule 4-301(c).

. . .

(d)

Disclosure by the State's Attorney

(1) Without Request

Without the necessity of a request,

the State's Attorney shall provide to the

defense all material or information in any

form, whether or not admissible, that tends

to exculpate the defendant or negate or

mitigate the defendant's guilt or punishment

as to the offense charged and all material

or information in any form, whether or not

admissible, that tends to impeach a State's

witness.

Cross reference: See Brady v. Maryland, 373

U.S. 83 (1963); Kyles v. Whitley, 514 U.S.

419 (1995); Giglio v. U.S., 405 U.S. 150

(1972); U.S. v. Agurs, 427 U.S. 97 (1976);

Thomas v. State, 372 Md. 342 (2002);

Goldsmith v. State, 337 Md. 112 (1995); and

Lyba v. State, 321 Md. 564 (1991).

(2) On Request

On written request of the defense,

the State's Attorney shall provide to the

defense:

(A) Statements of Defendant and Codefendant

All written and all oral

statements of the defendant and of any codefendant that relate to the offense charged

and all material and information, including

documents and recordings, that relate to the

acquisition of such statements;

(B) Written Statements, Identity, and

Telephone Numbers of State's Witnesses

As to each State's witness the

State's Attorney intends to call to prove

the State's case in chief or to rebut alibi

testimony: (i) the name of the witness; (ii)

except as provided under Code, Criminal

Procedure Article, § 11-205 or Rule 161009(b), the address and, if known to the

State's Attorney, the telephone number of

the witness, and (iii) the statements of the

witness relating to the offense charged that

are in a writing signed or adopted by the

witness or are in a police or investigative

report;

and Pretrial Identification

All relevant material or

information regarding:

(i) specific searches and seizures,

eavesdropping, or electronic surveillance

including wiretaps; and

(ii) pretrial identification of the

defendant by a State's witness including, if

the pretrial identification involved

participation by personnel from a law

enforcement agency (i) a copy of or an

electronic link to the written policies

relating to eyewitness identification

required by Code, Public Safety Article, §

3-506, and (ii) documents or other evidence

indicating compliance or non-compliance with

the requirements of Code, Public Safety

Article, § 3-506.1;

Committee note: In addition to disclosure

of a pretrial identification of a defendant

by a State's witness, in some cases,

disclosure of a pretrial identification of a

co-defendant by a State's witness also may

be required. See Green v. State, 456 Md. 97

(2017).

(D) Reports or Statements of Experts

As to each State's witness the

State's Attorney intends to call to testify

as an expert witness other than at a

preliminary hearing:

(i) the expert's name and address,

the subject matter on which the expert is

expected to testify, the substance of the

expert's findings and opinions, and a

summary of the grounds for each opinion;

(ii) the opportunity to inspect and

copy all written reports or statements made

in connection with the action by the expert,

including the results of any physical or

mental examination, scientific test,

experiment, or comparison; and

(iii) the substance of any oral

report and conclusion by the expert;

. . .

Rule 4-262 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

The proposed amendment to Rule 4-262

adds certain information about pretrial

eyewitness identifications to the list of

disclosures that are required to be provided

to the defense by the State’s Attorney upon

written request in district court.

In 2014, the legislature amended Code,

Public Safety Article § 3-506 & added § 3506.1, expanding the statutory requirements

for each law enforcement agency’s

identification procedures in the State. The

Code requires that the agencies either adopt

the Maryland Police Training and Standards

Commission’s Eyewitness Identification Model

Policy or adopt a written policy satisfying

the requirements set forth in § 3-506.1.

Rule 4-262 (d)(2)(C)(ii) requires a

State’s Attorney to provide, on written

request, all relevant material or

information regarding a pretrial

identification of the defendant by a State’s

witness. The proposed amendment to Rule 482

262 incorporates the requirements of Code,

Public Safety Article §§ 3-506 & 3-506.1

into the discovery rule, requiring a State’s

Attorney to provide a copy of the eyewitness

identification policy and evidence relating

to compliance or non-compliance with

procedural requirements for pretrial

eyewitness identifications. The proposed

amendment raises awareness of the statutory

requirements associated with pretrial

identifications involving participation by

law enforcement agency personnel and ensures

that complete information concerning the

identification is disclosed to the defense

when requested.

A corresponding amendment is proposed

to Rule 4-263 concerning discovery in

circuit court.

Mr. Armstrong explained that Code, Public Safety Article, §

3-506 codifies that law enforcement agencies must adopt written

policies related to eyewitness identification and make those

policies available for public inspection, and § 3-506.1 details

what must be in those policies.

He said that the proposed

amendments to Rule 4-263 add the requirement that the prosecutor

provide a copy of or link to the written eyewitness

identification policy of the law enforcement agency and any

documents related to compliance or noncompliance with the

policy.

The information must be disclosed regardless of whether

the defendant makes a request.

Rule 4-262 is amended to make

disclosures related to eyewitness testimony mandatory on the

defendant’s request.

The Chair asked for comment on the proposed amendments.

Mr. Shellenberger said that he did not object and added that he

polled the Maryland State’s Attorneys’ Association and learned

that prosecutors already make these disclosures.

There being no

motion to amend or reject the proposed Rules, they were approved

as presented.

Mr. Armstrong presented Rule 5-617, Pretrial Eyewitness

Identification Evidence – Criminal Cases, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 600 - WITNESSES

Add new Rule 5-617, as follows:

Rule 5-617. PRETRIAL EYEWITNESS

IDENTIFICATION EVIDENCE – CRIMINAL CASES

(a)

Applicability

This Rule applies to evidence of an

eyewitness identification obtained pretrial

with the participation by personnel from a

law enforcement agency that is offered over

objection in a criminal case. Upon request

of a party, this Rule or parts of it may be

applied in other cases if relevant and it is

appropriate to do so.

(b)

Code Requirements

In determining whether eyewitness

identification evidence is suggestive or

reliable for purposes of admissibility, the

court shall consider whether there was

compliance with the requirements of Code,

Public Safety Article, §§ 3-506 and 3-506.1.

Source:

This Rule is new.

Rule 5-617 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Jurisdictions throughout the country

have acknowledged emerging concerns and

developing science associated with

eyewitness identifications, requiring

consideration of both systemic and estimator

variables. See State v. Henderson, 27 A.3d

872 (N.J. 2011); see also State v. Harris,

191 A.3d 119 (Conn. 2018); Commonwealth v.

Gomes, 22 N.E.3d 897 (Mass. 2015); State v.

Lawson, 291 P. 3d 673 (Or. 2012). The Court

recently addressed the appropriate criteria

for assessing whether admission of the

State’s eyewitness identification evidence

in a criminal matter violates due process of

law due to the unreliability of the

evidence. In Small v. State, 464 Md. 68

(2019), the Court confirmed observance of

the criteria to assess eyewitness

identification evidence set forth in Manson

v. Brathwaite, 432 U.S. 98 (1977), Neil v.

Biggers, 409 U.S. 188 (1972), and Jones v.

State, 310 Md. 569 (1987. A Concurring

Opinion, however, expressed concerns about

the accuracy and reliability of the current

criteria, suggesting that the Rules

Committee “craft and propose rules of

procedure that bring scientific rigor to the

assessment of an eyewitness identification

that a defendant has challenged as unduly

suggestive and, ultimately, unreliable.” 464

Md. at 117.

A new Rule is proposed to be added to

Title 5, considering the suggestiveness and

reliability of eyewitness identifications in

terms of the admissibility of the evidence.

Section (a) of the proposed Rule addresses

its applicability.

Section (b) of the proposed Rule

requires the trial court to consider

compliance with Code requirements when

assessing the admissibility of eyewitness

identification evidence. In 2014, the

legislature amended Code, Public Safety

Article § 3-506 and added § 3-506.1,

codifying specific requirements for each law

enforcement agency’s identification

procedures in the State. The Code requires

that the agencies either adopt the Maryland

Police Training and Standards Commission’s

Eyewitness Identification Model Policy or

adopt a written policy satisfying the

requirements set forth in § 3-506.1. The

legislature did not include a remedy for

violation of the requirements within the

statute, in effect leaving decisions about

an appropriate remedy to individual trial

judges. Proposed section (b) requires the

trial court to consider the Code sections

when determining if the evidence is

suggestive or reliable for admissibility

purposes.

Mr. Armstrong said that the proposed Rule requires the

court to consider compliance with the requirements of Code,

Public Safety Article, §§ 3-506 and 3-506.1 in determining

whether eyewitness identification evidence is suggestive or

reliable.

He noted that the code sections do not carry a

sanction for failure to comply, which leaves any sanction to the

trial court’s discretion.

The Chair explained that the

amendments to Rule 4-262 and Rule 4-263 deal with discovery, and

the next issue is admissibility.

of admissibility to the court.

Rule 5-617 leaves the question

There being no motion to amend

or reject the proposed Rules, they were approved as presented.

Mr. Armstrong presented Rule 4-325, Instructions to the

Jury, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 300 – TRIAL AND SENTENCING

AMEND Rule 4-325 to add new section (e)

requiring the court, upon request, to

instruct a jury as to consideration of

certain evidence if pretrial eyewitness

identification evidence is admitted, to make

conforming amendments to subsequent

sections, and to update the sources of the

Rule as follows:

Rule 4-325.

(a)

INSTRUCTIONS TO THE JURY

When Given

The court shall give instructions to

the jury at the conclusion of all the

evidence and before closing arguments and

may supplement them at a later time when

appropriate. In its discretion the court

may also give opening and interim

instructions.

(b)

Written Requests

The parties may file written requests

for instructions at or before the close of

the evidence and shall do so at any time

fixed by the court.

(c)

How Given

The court may, and at the request of

any party shall, instruct the jury as to the

applicable law and the extent to which the

instructions are binding. The court may

give its instructions orally or, with the

consent of the parties, in writing instead

of orally. The court need not grant a

requested instruction if the matter is

fairly covered by instructions actually

given.

(d)

Reference to Evidence

In instructing the jury, the court

may refer to or summarize the evidence in

order to present clearly the issues to be

decided. In that event, the court shall

instruct the jury that it is the sole judge

of the facts, the weight of the evidence,

and the credibility of the witnesses.

(e)

Eyewitness Identification

If pretrial eyewitness identification

evidence obtained with the participation of

personnel from a law enforcement agency has

been admitted, the court, upon request,

shall instruct the jury, as relevant, that,

in considering the reliability of the

identification, the jury shall consider

evidence of:

(1) whether there was compliance with

the requirements of Code, Public Safety

Article, §§ 3-506 and 3-506.1;

(2) the opportunity of the witness to

view the individual identified during the

event, including such circumstances as the

lighting at the scene and the distance

between the witness and the individual

identified;

(3) the witness’s degree of attention to

the individual identified at the time of the

event, including the effect of any

distractions;

(4) whether the witness knew or had

previous contact with the individual

observed and whether the race of the witness

is the same as the race of the individual

observed;

(5) the witness’s ability to observe the

event, including any physical or cognitive

disabilities of the witness that may

reasonably affect the likelihood that the

witness would perceive, remember, and relate

the event correctly;

(6) the nature of the event being

observed and the likelihood that the witness

would perceive, remember, and relate it

correctly, including whether the event was

an ordinary one in the mind of the witness

during the time it was observed; and

(7) evidence of any other factor that

reasonably may bear on the reliability of

the identification.

(e)(f)

Objection

No party may assign as error the

giving or the failure to give an instruction

unless the party objects on the record

promptly after the court instructs the jury,

stating distinctly the matter to which the

party objects and the grounds of the

objection. Upon request of any party, the

court shall receive objections out of the

hearing of the jury. An appellate court, on

its own initiative or on the suggestion of a

party, may however take cognizance of any

plain error in the instructions, material to

the rights of the defendant, despite a

failure to object.

(f)(g)

Argument

Nothing in this Rule precludes any

party from arguing that the law applicable

to the case is different from the law

described in the instructions of the court

stated not to be binding.

Source:

This Rule is derived as follows:

Section (a) is derived from former Rule 757

Section (b) is derived from former Rule 757

Section (c) is derived from former Rule 757

Section (d) is derived from former Rule 757

Section (e) is new.

Section (e)(f) is derived from former Rule

757 f and h.

Section (f)(g) is derived from former Rule

757 g.

Rule 4-325 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Proposed amendments to Rule 4-325 add

new section (e) requiring trial courts, upon

request, to instruct the jury, as relevant,

about different factors to consider when

evaluating the reliability of pretrial

eyewitness identification evidence obtained

with the participation of personnel from a

law enforcement agency. Legal and scientific

developments have demonstrated the potential

for wrongful convictions involving

eyewitness testimony. The proposed addition

of section (e) highlights important

considerations for the trier of fact when

evaluating eyewitness identification

evidence.

Proposed subsection (e)(1) addresses

compliance with the requirements of Code,

Public Safety Article, §§ 3-506 and 3-506.1.

The Code section includes several system

variables that may impact eyewitness

identifications.

Subsections (e)(2) through (e)(6) of

the proposed amendment identify several

estimator variables, beyond the control of

the criminal justice system, that may impact

an eyewitness identification. Subsection

(e)(7) of the proposed amendment serves as a

catchall provision for consideration of any

other factors that may reasonably impact the

reliability of the identification.

Proposed conforming amendments to the

remainder of the Rule update the subsequent

sections and the listed sources.

Mr. Armstrong told the Committee that the Criminal Rules

Subcommittee and Evidence Subcommittee jointly considered the

eyewitness identification Rules.

He explained that there were

several options before the subcommittees for Rule 4-325.

The

subcommittees could leave the Rule as it was, which was not

seriously contemplated.

The second option was to add the

provisions in proposed subsections (e)(1) and (e)(7), which

require the court to instruct the jury to consider compliance

with the Code sections and “evidence of any other factor that

reasonably may bear on the reliability of the identification.”

The third option was to add subsections (e)(1) through (e)(7),

including the “estimator variables” contained in (e)(2) through

(e)(6).

The subcommittees voted on a motion to recommend only

the adoption of subsections (e)(1) and (e)(7), but the motion

failed.

The subcommittees approved a motion to send all seven

subsections to the full Committee for consideration.

Mr.

Armstrong said that the subcommittees had a philosophical

discussion about whether to include detailed jury instructions

in the Maryland Rules at all and he noted that members were

unaware of another instance of that occurring.

He said that the

MSBA Criminal Pattern Jury Instructions Committee also formed a

subcommittee, headed by Judge Dennis M. Sweeney, to discuss

changing the eyewitness identification instruction to reflect

current science and case law.

A draft of the revised

instructions was included in the meeting materials and one

section covers the same substantive issues as Rule 5-617 (e)(2)

through (e)(6).

He added that the subcommittee is still working

on an instruction for cross-racial identifications.

Judge

Sweeney said that the project began after the Small decision and

the subcommittee met four or five times to prepare a draft for

the full Criminal Pattern Jury Instructions Committee.

The

draft provided to the Rules Committee has been tentatively

approved with the caveat that the cross-racial identification

issue has not been addressed yet.

The Chair told the Committee that part of the discussion at

the subcommittee level was the concern that including

subsections (e)(2) through (e)(6) would give rise to more

requests for expert testimony on the estimator variables.

there are no instructions from the court, he said that it is

more likely there will be expert testimony from both parties.

If there is a jury instruction, it could provide more guidance

to the jury and the judge has discretion to determine if expert

testimony is necessary.

Mr. Armstrong added that there was some

discussion of a Committee note that would refer to the Maryland

Pattern Jury Instructions.

Mr. Shellenberger thanked Mr. Armstrong for his balanced

presentation of the subcommittees’ discussion.

He questioned

changing Rule 4-325 at all to add one substantive law subject

and require the judge to provide certain instructions when no

other subject is treated that way.

He endorsed Judge Sweeney’s

draft jury instructions and proposed that the issue should

remain in jury instructions only, not the Rules.

He also noted

that the amendments were driven by a concurring opinion in

Small, not a view espoused by the majority.

The Chair pointed

out that Small was a case about admissibility, not weight to be

given to an eyewitness identification.

He observed that many

other states have found the governing Supreme Court cases out of

date and inaccurate.

Judge Price questioned why the MSBA is

working on jury instructions if the proposed Rule requires the

judge to instruct the jury on the same issue.

The Chair

explained that the subcommittees did not have a draft from the

group working on pattern jury instructions at the time the Rule

was drafted.

He said that subsections (e)(2) through (e)(6)

were in rules adopted in other states.

Ms. Bernhardt asked if

other states have substantive issues like this elsewhere in

their rules.

The Chair responded that he was not sure and noted

that there was broad consensus for adopting subsections (e)(1)

and (e)(7).

Judge Sweeney said that the draft jury instructions

are a template for circuit court judges to instruct jurors to

consider these issues.

He reiterated that Small was about

admissibility but once evidence is admitted, what should a jury

be told?

Judge Ballou-Watts moved to adopt subsections (e)(1)

and (e)(7) only.

The motion was seconded.

Mr. Laws suggested

that the Rule apply to all eyewitness identifications, not just

those involving law enforcement.

The Chair said that Title 4

governs criminal cases but suggested a parallel provision in

Title 2 for civil cases.

Mr. Laws said that he was not

contemplating applicability in a civil case but commented that

the draft pattern instructions appear to be broader than the

Rule.

He said he supported Judge Ballou-Watts’ motion.

The

Chair asked Judge Ballou-Watts if she wanted to incorporate Mr.

Laws’ suggestion or go forward with her motion and she requested

a vote on her motion only.

The amendments were approved by a

majority vote.

Mr. Armstrong raised the possibility of a Committee note

referring to the Maryland Pattern Jury Instructions.

Del.

Dumais said that a cross reference makes sense but added that

she liked Mr. Laws’ suggestion of separating out law enforcement

participation in identifications and other identifications.

The

Chair asked if any other states apply the eyewitness

identification rule more broadly.

Ms. Nethercott said that she

was not certain, but her impression is most rules deal with law

enforcement.

The Chair asked for a motion.

Del. Dumais moved

to amend the Rule to add a cross reference to the Maryland

Pattern Jury Instructions, in anticipation of their successful

completion.

The motion was seconded and the Committee approved

the amendment by majority vote.

Agenda Item 2. Consideration of proposed amendments to Rule 5611 (Mode and Order of Interrogation and Presentation: Control

by Court; Scope of Cross-Examination; Leading Questions) and

Rule 5-615 (Exclusion of Witnesses).

Mr. Armstrong presented Rule 5-611, Mode and Order of

Interrogation and Presentation: Control by Court; Scope of

Cross-Examination; Leading Questions, and Rule 5-615, Exclusion

of Witnesses, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 600 – WITNESSES

AMEND Rule 5-611 (a) to include a

cross-reference to the Court Dog and Child

Witness Program, as follows:

Rule 5-611. MODE AND ORDER OF INTERROGATION

AND PRESENTATION: CONTROL BY COURT; SCOPE

OF CROSS-EXAMINATION; LEADING QUESTIONS

(a)

Control by Court

The court shall exercise reasonable

control over the mode and order of

interrogating witnesses and presenting

evidence so as to (1) make the interrogation

and presentation effective for the

ascertainment of the truth, (2) avoid

needless consumption of time, and (3)

protect witnesses from harassment or undue

embarrassment.

Cross reference: For the Court Dog and

Child Witness Program, see Code, Courts

Article, § 9-501.

. . .

Rule 5-611 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Chapters 161/162, 2020 Laws of Maryland

(HB 311/SB 101), effective October 1, 2020,

create a Court Dog and Child Witness Program

in the circuit court of each participating

county. Pursuant to the statute, the

program aims to provide a facility or

therapy dog to child witnesses in any

circuit court proceeding or other court

process, including meetings and interviews.

A cross reference is proposed to highlight

the program in relation to the court’s

control of the mode and interrogation of

witnesses.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 600 – WITNESSES

AMEND Rule 5-615 (c) to include a

cross-reference to the Court Dog and Child

Witness Program, as follows:

Rule 5-615.

EXCLUSION OF WITNESSES

. . .

(c)

Permissive Non-Exclusion

The court may permit a child

witness’s parents or another person having a

supportive relationship with the child to

remain in court during the child’s

testimony.

Cross reference: For the Court Dog and

Child Witness Program, see Code, Courts

Article, § 9-501.

Rule 6-515 was accompanied by the following Reporter’s

note.

REPORTER’S NOTE

Chapters 161/162, 2020 Laws of Maryland

(HB 311/SB 101), effective October 1, 2020,

create a Court Dog and Child Witness Program

in the circuit court of each participating

county. Pursuant to the statute, the

program aims to provide a facility or

therapy dog to child witnesses in any

circuit court proceeding or other court

process, including meetings and interviews.

A cross reference is proposed to highlight

the program in relation to permissive nonexclusion of witnesses during a child’s

testimony.

Mr. Armstrong told the Committee that the proposed

amendments add a cross-reference to the Court Dog and Child

Witness Program to increase awareness of the program’s

availability.

There being no motion to amend or reject the

proposed Rules, they were approved as presented.

There being no further business before the Committee, the

Chair adjourned the meeting.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.