Legislative Enactment of Standard Forms

• Publication year: 2021

91 Nebraska L. Rev. 273. Legislative Enactment of Standard Forms

Legislative Enactment of Standard Forms

John M. Gradwohl(fn*)

TABLE OF CONTENTS

I. Introduction..........................................274

II. Framework of the Current Issues in Nebraska.........276

III. The Uniform Real Property Transfer on Death Act.....283

A. Substantive Purposes and Effects..................283

B. Statutory Form Deed for a Transfer of Real Property on Death.................................284

IV. Statutory Transfer of Real Property on Death Deed Form in the Nebraska Legislature.....................290

A. Overview..........................................290

B. Details ............................................293

V. Defining "Unauthorized Practice of Law"..............298

A. National Standard ................................298

B. Nebraska Definition of What Constitutes an Authorized Practice of Law ........................299

1. Separation of Powers..........................299

2. General Definitions ............................302

3. Exceptions and Exclusions.....................304

4. Enforcement...................................306

C. NCCUSL's Situation as to Statutory Forms in Uniform Laws .....................................307

VI. Aspects of Consumerism ..............................310

A. Statutory Transfer on Death Deeds ................310

1. In General ....................................310

2. Potential Glitches in Nebraska's "Two or More Disinterested Witnesses" Requirement.........316

B. Comparative Consumerism of Statutory Transfer on Death Deeds and Statutory Powers of Attorney ....321

VII. Conclusion ............................................323

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I. INTRODUCTION

Consideration of legislative enactment of statutory forms requires a comparative analysis of current policies of consumerism with current policies underlying prohibitions on the unauthorized practice of law. In reality, that comparison is disproportionately in the hands of lawyers rather than neutrals or public consumers. Consumerism of individual lawyers and bar associations may be offset by the business side of lawyering, specious personal opinions about the unauthorized practice of law without reference to the actual rules regulating it, fears of uncontrollable practice of law by nonlawyers-especially nonlawyers armed with electronic legal information, influence of private clients of lawyers and lobbyists with competing interests, and lawyers serving as part-time legislators who instinctively prioritize the historical-traditional roles of lawyers.

Statutory forms are important in implementing the provisions and policies of the basic statute. No other form, however professionally prepared, can bestow the same validation as a legislative statement that "a [document] in substantially the following form shall be sufficient [to invoke the provisions of this Act]." That form will produce the most extensive standardization of practice relating to the subject. A statutory form can serve as a guide to understanding the substantive provisions of the statutes as well as a means of insuring that the provisions are properly given effect. Statutory forms provide an opportunity for legislatures to enact reliable, "understandable and consumer friendly"(fn1) forms. Otherwise, a variety of forms, some more complex, confusing, and costly, dealing with the same statutes, are likely to be used. The added costs will be borne by both consumers and by the legal system called upon to resolve unclear situations. Subsequent legislation affecting a statutory form can contemporaneously be amended into the statutory form and maintain the greatest currency for the form. The same professional focused attention of proponents and legislatures should be given to statutory form provisions in proposed enactments as to all major provisions at issue.

A study of the travails of statutory form provisions of the Uniform Real Property Transfer on Death Act in the Nebraska (non-partisan Unicameral) Legislature illustrates how these competing policies can favor lawyers at the expense of public consumers. The Uniform Act is intended to be an "asset specific will substitute" for non-probate transfers of real property effective at death. It contains an "understandable

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and consumer friendly" optional statutory form quit claim deed which, unfortunately, is supported by relatively weak commentary in the official explanatory text. After consideration by groups within the Nebraska State Bar Association, the legislation, including the statutory form, was approved by the Bar Association, with a number of modifications of the official text of the Uniform Act. It was introduced in that form in the Nebraska Legislature by a lawyer-legislator at the request of the Bar Association. The statutory form provision was quietly stricken by the principal introducer on the morning of the public hearing before the Judiciary Committee at the request of a private client of the Bar Association's lobbyists. It was stated that the Bar Association would provide a transfer of real property on death deed form, apparently without disclosure that Bar Association real estate conveyance forms are available to its members for a fee and are not directly available to the general public. It amounted to a stealth attack by lawyers during the legislative process. The Bar Association had previously studied and supported the statutory form provisions. There was no public discussion of the reasons for striking the statutory form. Subsequently, the official position of the Bar Association was changed from support to opposition of the statutory form. The interests of nonlawyer public consumers were not separately represented. The term "unauthorized practice of law" was not expressly relied upon or discussed openly but was always present in the background.

Although the statutory form had been stripped from the bill by the time it reached the legislative floor, the legislation suffered further pro-lawyer, potentially anti-consumer amendments prior to enactment. Nebraska now has real property transfer on death legislation which was designed initially to be more simple and consumer-friendly than prior law. The statutes enacted turned out to be more complicated and unfriendly than the rules for other deeds of real property, self-proved wills, and even for executing an "ordinary" will. Nevertheless, despite substantial deviations from the official text of the Uniform Act, the policies and interests of consumerism would have been best served by a statutory form incorporating the legislation as enacted.

This analysis examines why the objectives of the statutory transfer of real property on death deed form fared so poorly in the legislative arena. Each of the relevant groups involved bears some of the responsibility, from the initial preparation and presentation of the statutory form and commentary in the Uniform Act, to proponents of the legislation in Nebraska, to loosely drawn, ambiguous rules on the unauthorized practice of law, to the Judiciary Committee's legislative study committee examining and reporting on each provision of the Act, to

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the lobbyists for the Bar Association and other private clients, and to individual members of the Legislature.

II. FRAMEWORK OF THE CURRENT ISSUES IN NEBRASKA

Prior to 2012, Nebraska statutes contained a variety of statutory forms.(fn2) Many of the forms designed for use among individuals and non-governmental entities were enacted or reflected similar provisions in uniform acts adopted by the National Conference of Commissioners on Uniform State Laws (NCCUSL).(fn3) There were statutory forms for health care power of attorney;(fn4) a statutory short form

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("check-the-box") power of attorney;(fn5) a statutory uniform single or multiple party ("check-the-box") account form with "pay on death" designations;(fn6) statutory short forms of acknowledgment;(fn7) self-proved wills under the Nebraska Probate Code;(fn8) notices for substitution of trustee,(fn9) a trustee's sale,(fn10) request for a copy of notice of default and notice of sale,(fn11) and cancellation of notice of default(fn12) under the Ne-

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braska Trust Deeds Act; transfer to(fn13) or declaration of(fn14) a Nebraska Uniform Custodial Trust and the custodial trustee's receipt and ac-ceptance;(fn15) affidavit of biological mother of child born out of wedlock in cases of adoption;(fn16) right to reclaim abandoned property by former tenant(fn17) or another person(fn18) under the Disposition of Personal Property Landlord and Tenant Act; delinquent real property tax purchase certificate(fn19) and deed;(fn20) notice by governmental entities to the general public(fn21) or to specified individuals;(fn22) notice of trespassing animals and distraint;(fn23) writ of habeas corpus by person not in government custody;(fn24) writ of execution on judgment of restitution;(fn25) search warrant for violation of Nebraska Liquor Control Act;(fn26) notice of exemptions to the debtor in writ of execution;(fn27) notice of pendency of litigation;(fn28) a number of forms relating to elections, petitions, and ballots;(fn29) certificate of satisfaction(fn30) and lender/payoff/satisfaction notifi-

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cation(fn31) under the Nebraska Security Instrument Satisfaction Act; and forms for notification...