May a Maryland judge act as personal representative of an estate administered outside Maryland?

Plain-English summary

Before taking the bench, a judge drafted a will naming the judge as executor. The heirs later asked the judge to qualify as personal representative of an estate administered outside Maryland.

The Committee found little likelihood of Maryland court involvement or interference with judicial work under Canon XXVI. It read Maryland’s statutory bar on granting letters to certain full-time judges as applying to Maryland probate authorities, not probate in another jurisdiction. It said the judge must determine whether the other jurisdiction imposed its own bar.

The opinion is dated March 23, 1979; 1978-05 is the request number.

Currency note

This opinion discusses the Maryland judicial ethics provisions in force at the time it was written. Its analysis is historical; verify the current Maryland Code of Judicial Conduct and the linked opinion before relying on a cited provision.

Common questions

Q: Did Maryland Canon XXVI absolutely forbid the executor role?

A: No. The Committee found no absolute bar on the described out-of-state estate.

Q: Did Maryland’s probate statute control the other state’s court?

A: The Committee said the cited Maryland provision applied to letters granted in Maryland, not an estate administered elsewhere.

Q: Did the Committee clear the other state’s law?

A: No. It told the judge to determine whether that jurisdiction had a statutory bar.

Background and rules framework

The opinion applies Maryland’s then-cited Canon XXVI and Estates and Trusts Article § 5-105(5) to a judge’s proposed out-of-state fiduciary service.

Citations and references

• Maryland Canons of Judicial Ethics, Canon XXVI.
• Md. Estates and Trusts Article § 5-105(5), as then cited.
• Maryland JEC Opinion Requests 1975-04 and 1977-10.

See also

• MD Judicial Ethics Op. 1980-04
• MD Judicial Ethics Op. 1979-12

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 1978-05

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Maryland Judicial Ethics Committee

Opinion Request Number: 1978-05

Date of Issue: March 23, 1979

O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice

Judge May Serve as Personal Representative in Non-Maryland Estate

The Judicial Ethics Committee has previously rendered an informal opinion in answer to your inquiry regarding your serving as executor in an estate to be administered [outside the State of Maryland].
You state that while in private law practice you prepared a will in which you were named as executor. The surviving heirs of the deceased testator have requested you to qualify as personal representative.
Since the estate is to be administered [outside the State of Maryland], we understand that there is little likelihood that any of the courts in the State of Maryland will be involved in any way. Further, you have assured the Committee that your acting in this capacity will not interfere with the proper performance of your judicial duties.
[Opinion Request No. 1977-10] of this Committee deals with the question of a Judge serving as personal representative, trustee or guardian.
As stated therein, Maryland Canon XXVI provides:
“While a judge is not absolutely disqualified from holding a fiduciary position, he should not accept or continue to hold any such position if the holding of it would interfere or seem to interfere with the proper performance of his judicial duties, or if the business interests of those represented require investments in enterprises that are apt to come before him judicially or to be involved in questions of law to be determined by him.”
Under your representation to this Committee we foresee little likelihood that your qualification as executor [outside the State of Maryland] would interfere with the proper performance of your judicial duties, or that any litigation regarding the administration of the estate would be before you. Thus, under Canon XXVI, there is no absolute prohibition against your qualifying.
See: [Opinion Request No. 1975-04].
Both [Opinion Request Nos. 1977-10 and 1975-04] point out that Maryland Code (1974) Estates & Trusts Article, Section 5-105(5) prohibits the granting of letters testamentary to a full time judge of a court established under the laws of Maryland or the United States, unless he is the surviving spouse or is related to the decedent within the third degree.
[Opinion Request No. 1975-04] states:
“It may well be that the thrust of § 5-105(5) is unclear, but we have always taken the position that the interpretation of statutes is not our function and it may be necessary for you to resolve the question whether the prohibition relates only to the qualification

• As of the editing date [July 10, 2006], Maryland Code, Estates and Trusts Article, § 5-105(b)(5).
  Maryland Judicial Ethics Committee
  Opinion Request Number: 1978-05
  Date of Issue: March 23, 1979
  O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice Page 2 of 2
  of a judge as personal representative in Maryland or extends to his qualification in another state.”
  The Committee has now concluded that this statute bars the probate courts and the Registers of Wills in the State of Maryland from granting letters to a full time judge. It has no application to estates to be administered in other jurisdictions. You must satisfy yourself that no statutory bar exists in the jurisdiction where letters are to be granted.
  We find that no restriction exists under Canon XXVI or under the Maryland Code which would disqualify you from acting as personal representative in an estate to be administered outside of the State of Maryland.