Uniform Probate Code and Uniform Trust Code in a Nutshell
Authors:
Averill Jr, Lawrence H. / Radford, Mary F.
Edition:
6th
Copyright Date:
2010
31 chapters
have results for Uniform Probate Code and Uniform Trust Code in a Nutshell
Preface 5 results
- The two most dominant uniform laws in the area of trusts and estates are the Uniform Probate Code and the Uniform Trust Code. Both have had significant acceptance throughout the country either in complete enactments or piecemeal adoptions. The two Codes are inherently related and interconnected and thus it was a logical step to produce a single Nutshell that includes both of them.
- This edition includes discussion of other uniform acts that have had an impact on and in some cases been integrated into the UPC or the UTC. These include: the Uniform Disclaimer of Property Interests Act, the Uniform Durable Power of Attorney Act, the Uniform Multiple–Person Accounts Act, the Uniform Nonprobate Transfers at Death Act, the Uniform Prudent Investor Act, the Uniform Simplification of Fiduciary Security Transfers Act, the Uniform Simultaneous Death Act, the Uniform Statutory Rule against Perpetuities, the Uniform Testamentary Additions to Trusts Act, the Uniform TOD Security Registration Act, and the Uniform Transfers to Minors Act.
- Professor Averill has been primarily responsible for the UPC and its revision. Professor Radford has concentrated on the UTC. Both have tried to integrate the two Codes. Overlapping subject matter has been combined into single discussions. Superceded
- To accomplish this in a reasonably compact text, it was necessary to compact and refine the UPC coverage in order to have space for the UTC coverage. This was accomplished without harming the basic comprehensiveness of the UPC portion. It required greater care to organization. The number of chapters has been reduced and the text in these chapters has been consolidated into a more efficient and reader friendly design. A few charts have been eliminated and most references to case law removed. Careful edition has reduced length to the benefit of the text.
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Chapter 1. General Introduction and History 57 results (showing 5 best matches)
- As noted above, at the time the UTC was enacted, a variety of existing Uniform Acts covered various aspects of the law of trusts. The drafters of the UTC noted that the following Uniform Acts were not affected by the UTC and thus should continue to be available for enactment in free-standing form: Uniform Common Trust Fund Act (1938), Uniform Custodial Trust Act (1987), Uniform Management of Institutional Funds Act (1972) (which in 2006 was updated and renamed the Uniform Prudent Management of Institutional Funds Act), Uniform Principal and Income Act (1997) (which some states have incorporated into their trust codes), Uniform Probate Code (1969) (with the exception of Article VII, as discussed below), Uniform Statutory Rule Against Perpetuities (1986), Uniform Supervision of Trustees for Charitable Purposes Act (1954), and Uniform Testamentary Additions to Trusts Act (1960, 1991).
- Development of the Uniform Probate Code and Uniform Trust Code
- (2) Piece-meal enactment of segments or sections of the UPC for inclusion into another probate code or law. Nearly all the other states have enacted some part or section of the UPC. Sections of article II have been particularly popular. For example, California incorporated many provisions, in whole or in part, of the UPC into its recent revision of its probate code. In order to assure proper judicial construction of these UPC provisions, the new law requires that any portion of the California code which is derived “in substance” from the Uniform Probate Code, must be “construed as to effectuate the general purpose to make uniform the laws of those states which enact” provisions of the Uniform Probate Code. [West’s Ann.Cal.Prob.Code § 2(b)]. The Georgia Supreme Court held that because a local statute was identical to a provision in the UPC, the interpretation, cases, and comments on that section of the UPC should be adopted and applied to it. [Caldwell v. Walraven, 490 S.E.2d 384 (Ga...
- In 1962, the Probate Section and the Uniform Law Commission (formerly the National Conference of Commissioners on Uniform State Laws) [hereinafter referred to as the ULC] accepted a suggestion made by J. Pennington Straus of the Philadelphia Bar to revise and consolidate the Model Probate Code and other related and relevant uniform laws into a uniform probate law. In response, each organization formed a separate committee and Professor William F. Fratcher of the University of Missouri School of Law was appointed Research Director to conduct preliminary studies during 1963–64. Thereafter a Reporting Staff was recruited to draft the Uniform Probate Code under the supervision of the two committees. The late Professor Richard V. Wellman then of the University of Michigan and subsequently of the University of Georgia became the Reporting Staff’s Chief Reporter.
- Major comprehensive reform did not really come to the states until the late 1960’s when the UPC was promulgated. Many of the modern and improved rules and procedures presently existing under English law greatly influenced the draftsmen of the Uniform Probate Code. [Fratcher, Probate Can Be Quick and Cheap]. But the UPC is an amalgamation of many sources including state statutes, uniform acts and academic analyses. [See Averill, Eclectic History and Analysis, at 893–901]. Likewise, the UTC integrated a variety of trust-related uniform acts, state statutes, and analyses of trust law that appear in the Restatements of the law of trusts.
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Outline 204 results (showing 5 best matches)
Chapter 19. Trust Administration 124 results (showing 5 best matches)
- The UTC was designed to incorporate or supersede certain other uniform laws that dealt with various aspects of trust law. UTC Section 1105 provides that the following uniform acts will be repealed when the UTC is enacted: (1) Uniform Trustee Powers Act; (2) Uniform Probate Code, Article VII; (3) Uniform Trusts Act (1937); and (4) Uniform Prudent Investor Act. States that have adopted the UTC have been somewhat sporadic in their enactment of UTC Section 1105 and thus in their repeal of these related uniform acts.
- Article 8 spells out the duties and powers of trustees. Prior to the enactment of the Uniform Trust Code, many of these same duties were set forth in the Uniform Prudent Investor Act and the Uniform Trustees Powers Act.
- At the time of the promulgation of the UTC, the drafters took note of the fact that almost all states had adopted the Uniform Prudent Investor Act. This Act deals comprehensively with the duties of a trustee in the investment and management of trust funds. The UTC drafters suggest that any state that enacts the UTC and has already enacted the Uniform Prudent Investor Act should simply re-codify the Uniform Prudent Investor Act as Article 9 of their Trust Code. The drafters noted, however, that some of the provisions in the Uniform Prudent Investor Act would overlap provisions in Article 8 of UTC, which deals with trustees’ general duties. To avoid duplication, the drafters’ recommendation is that states that have enacted the Uniform Prudent Investor Act should delete from Article 9 those provisions of the Uniform Prudent Investor Act that overlap provisions in Article 8 of the UTC. Chart 19–1 shows the suggested integration of the Uniform Prudent Investor Act into the UTC. The...
- The duties that were set forth in the Uniform Prudent Investor Act were described specifically as they related to the trustee’s investment function. The Uniform Prudent Investor Act was promulgated in 1994 and had been adopted by about two-thirds of the states by the time of the promulgation of the UTC. As explained in § 19.03, the drafters of the UTC suggest that states that have adopted the Uniform Prudent Investor Act should incorporate it as Article 9 of their new trust code. [Art. 8, Gen. Comment].
- UTC Section 806 requires a trustee who has special skills or expertise to use those skills and that expertise in administering the trust. The same rule applies if the trustee has represented that the trustee has special skills or expertise and has been named trustee as a result of the representation. This Code section mirrors the Uniform Prudent Investor Act § 2(f), the Restatement (Second) of Trusts, § 174 and UPC Section 7–302.
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Chapter 15. Guardianship and Conservatorship 133 results (showing 5 best matches)
- In 1982, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Guardianship and Protective Proceedings Act as a freestanding act. The provisions in this Act were simultaneously integrated into the Uniform Probate Code as a revision to Article V, Parts 1, 2, 3, and 4. Although many of the UPC’s provisions in the 1969 version of Article V were merely renumbered or altered in minor ways, a significant number were substantively changed and new concepts were incorporated into the Article. This Nutshell will be concerned with the 1982 Act as it was integrated into the UPC.
- Although in the 1946 Model Probate Code attempted to improve and modernize guardianship laws, it did not stir reform in the states. [Model Probate Code, at 189–234]. In order to remedy this unfortunate state of affairs, the UPC includes a comprehensive and modernized article on the law dealing with the protection of persons under a disability and their property.
- In 1997, the National Conference of Commissioners on Uniform State Laws adopted a new Uniform Guardianship and Protective Proceedings Act. The Act initially is a freestanding Act and now integrated into the UPC. Although the new Act follows the basic outline of the prior version, major changes were made. The emphasis of the 1997 provisions is to encourage limited guardianships and conservatorships. The court should create a guardianship or conservatorship only when no alternative to one is available. Courts must tailor the guardianship or conservatorship to fit the needs of the incapacitated person and may remove only those rights that the incapacitated person can no longer exercise or manage.
- The UPC incorporates the Uniform Durable Power of Attorney Act, as amended, into Part 5 of Article V. [5–501 to 5–505; see Uniform Durable Power of Attorney Act]. Two principles are adopted that make powers of attorney more durable than under the common law. First, the civil law rule with regard to the effect of the principal’s death, disability or incompetence applies to all written powers of attorney. [5–504]. It provides that actions by the attorney in fact in good faith and according to the written power of attorney are valid even though such actions take place after the principal’s death, disability or incompetence so long as the attorney in fact did not have actual knowledge of the happening of such an event. Any such valid action taken binds the principal and the principal’s heirs, devisees and personal representative. For the protection of third parties dealing with the attorney in fact and in the absence of fraud, an affidavit executed by the attorney in fact stating that...in
- Similar to the parental appointment procedure for the appointment of a guardian for a minor, the UPC includes an appointment procedure for parents or spouses of other incapacitated persons. [5–301; see § 15.07]. Under this procedure the spouse or parent of an incapacitated person may appoint a guardian for the person by will or by any other writing which is signed by the spouse or parent and attested by at least two witnesses. [5–301(a), and (b)]. A spouse’s appointment takes priority over a parent’s appointment if they conflict. [5–301(b)]. In addition, the appointment in the will of the last parent to die has priority over the first to die unless the surviving parent has been adjudged incapacitated or the will of the last parent to die is denied probate in formal testacy proceedings. [5–301(a)]. Apparently any person can be appointed. [See 5–301(d); 5–301, Comment]. A testamentary guardian who has accepted appointment under a will probated in another state which is the testator’s...
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Chapter 17. General Provisions Relating to Trusts 86 results (showing 5 best matches)
- Article 1 of the UTC contains definitions that apply throughout the UTC and a number of general provisions that do not fit into any of the other articles of the Code. UTC Section 101 states that the Code may be cited as the “Uniform Trust Code.” [UTC 101]. Many states entitle their enactments as the {State} Trust Code.
- The UTC drafters devote an entire Code section, UTC Section 104, to defining when a person is deemed to have knowledge of a fact. A number of provisions in the UTC are dependent upon whether and when persons (beneficiaries, trustees, third parties) “know” a fact. [See, e.g., UTC 109, 305, 604(b), 812, 1009, 1012]. A person has knowledge of a fact if the person has actual knowledge; has received notice of the fact; or has reason to know the fact due to all the other facts and circumstances known to the person. Because, as noted above, “person” is defined broadly in UTC Section 103(10) to be an individual or an organization, subsection (b) of UTC Section 104 explains how an organization or entity has notice or knowledge of a fact. As noted in the Comment, notice to an organization does not occur when a notice is delivered to the organization’s mail room. Notice or knowledge of a fact is achieved by an organization only when an employee who has responsibility for acting for the trust...
- As noted above [see § 1.03], the UPC is now complimented by the UTC which was promulgated in 2000, over 30 years after the UPC. Conscious of the growing use of trusts in both personal and business transactions, and of the fact that few states had codified their trust law, the National Conference drafted the first national comprehensive trust code. The UTC was intended, among other things, to supersede the provisions in Article VII of the UPC that relate to trust administration. However, while some states that adopted the UTC expressly repealed the trust provisions of the UPC, others did not. Some states make the UTC applicable only to trusts created after the date of enactment, so the UPC provisions may still be relevant for older trusts. Also, there are some states that have adopted the UPC but not the UTC, so the trust provisions of the UPC remain viable in those states. Part Six of this Nutshell is devoted primarily to an explanation of the provisions of the UTC and the structure...
- The UTC introduces the term “qualified beneficiary” [UTC 103(13)] which has not appeared in previous uniform acts. An understanding of this term is crucial because these are at times the only beneficiaries to whom notice must be given or from whom consents must be received. [See, e.g., UTC 107, 417, 704, 705, 813]. A “beneficiary” is a person who “(A) has a present or future beneficial interest in a trust, vested or contingent; or (B) in a capacity other than that of trustee, holds a power of appointment over trust property.” [UTC 103(3)]. A “qualified beneficiary” is a beneficiary who “(A) is a distributee or permissible distributee of trust income or principal; (B) would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) terminated on that date without causing the trust to terminate; or (C) would be a distributee or permissible distributee of trust income or principal if the trust terminated...
- (a) The term “beneficiary” is defined extensively in UPC Section 1–201(3) as it relates to trusts, charitable trusts, and non-probate designations (such as life insurance policies and payable on death accounts) because the UPC covers all of these forms of transfer. The UTC restricts the definition to persons who have a vested or contingent present or future interest in a trust or who hold a power of appointment over trust property. [UTC 103(3)]. As discussed immediately below, the UTC also introduces the term “qualified beneficiary.”
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Chapter 9. General Miscellaneous Provisions and Topics 123 results (showing 5 best matches)
- The purposes of the USRAP are broad. Obviously, as part of the Uniform Probate Code and as a separate uniform act, it is designed to bring uniformity of the law to the various states in this country. In addition, promulgation of the provisions reaffirms that there is a need for a Rule Against Perpetuities. Abolition of the Rule was rejected. Another important factor and feature of the provisions is that transfer language in instruments effective prior to enactment of the USRAP continues to be valid after enactment. The USRAP does not enlarge the range of invalidity. It is designed to recognize devices currently valid and to expand the scope of validity to other drafting techniques. Consequently, those who are well versed in the old law will not have to learn new law in order to qualify their transfer techniques.
- In 1990, the USRAP was made a part of the Uniform Probate Code and is found in Part 9 of Article II. Although the comments concerning the provisions are extensive in the UPC, the comments and prefatory note materials incorporated into the separate Uniform Act are even more extensive and constitute one of the best sources of information concerning how the act works. For anyone who wishes to peruse the details of USRAP provisions, reference to these materials is essential. The following is but a brief outline of the relevant concepts promoted by the USRAP as well as a brief description of its provisions.
- In 2002, the UPC added the first sixteen sections of the Uniform Disclaimer of Property Interests Act of 1999 [Hereinafter the UDPIA] to the UPC. [UPC, Pt. 11]. It replaced the Uniform Disclaimer of Property Interests Act of 1978. The UDPIA is more than a mere revision: it is a new act. It is comprehensive, complex and supported with extensive comments. It is not without controversy. [Hirsch, Revisions in Need of Revising].
- In 1976, Congress passed of the Tax Reform Act of 1976 which included IRC section 2518. Section 2518 revolutionized disclaimer law by recognizing disclaimers as a valid method to avoid transfer taxes. Section 2518 provided a uniform federal rule of timeliness for disclaimers that would be effective for tax purposes, and, would not result in a taxable transfer by the disclaimants. It led the states to enact disclaimer laws in order to provide their residents with a means to make tax qualified disclaimers. State law governs to whom disclaimed interests pass, and provides the mechanisms for recognizing the disclaimer.
- Part 8 of Article II of the UPC contains four sections that not only are applicable to intestate and testate succession but also have application to other parts of the UPC, or to other transfer devices not covered by its content. Briefly, these sections deal with the following matters: (1) the disclaimer of property interests devolving by all means; (2) the effect of various divorces, annulments, and separation decrees upon the issue whether a person is a surviving spouse; (3) the disqualification effect of homicide on intestate succession, wills, trusts, joint survivorship ownership, multiple-party accounts, TOD security registrations, life insurance and other beneficiary designations, and fiduciary nominations; and, (4) the revocation of probate and nonprobate transfers due to divorce of the transferor and the beneficiary.
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Chapter 18. Creation and Modification of Trusts 132 results (showing 5 best matches)
- The efficiency of this transfer is deemed by many to be an attractive feature of the use of revocable trusts as will substitutes. Other attractive features are: privacy (a will is a matter of public record while a trust is not); efficiency of administration (because there is no probate and no on-going involvement by the probate court); and lower cost (in those states that charge a probate fee that is based on the size of the probate estate). As noted above, under UTC Section 505, a revocable trust is not a device for the avoidance of claims by the settlor’s creditors. Nor in most cases will the use of a revocable trust avoid federal estate tax as the Internal Revenue Code causes trust property to be included in the settlor’s taxable gross estate if the settlor retained the power to control, amend or terminate the trust. [I.R.C. §§ 2036, 2038].
- Often trusts will contain withdrawal powers that lapse or otherwise become unexercisable after a certain period of time. The most common of these is the power, named for the case in which this power was recognized. [Crummey (1968)]. powers are important for donors who wish to exclude as a countable gift for gift tax purposes property that is transferred to a trust. Under Internal Revenue Code § 2503(b), a gift of a present interest that equals or exceeds a certain amount (currently $13,000) is not deemed to be a taxable gift. This exclusion is available on an annual basis and applies separately to each donee. Consequently, a donor can give $13,000 to a number of donees in one year and repeat that process for years to come and never have these amounts treated as potentially taxable gifts. As noted, however, a key ingredient to this exclusion is that the gift be one of a “present interest.” If a gift is given to a beneficiary through a trust, arguably, because the beneficiary does...
- The drafters refer to Article 6 of the UTC as “one of the most important of the Code.” [Art. 6, General Comment]. The provisions in this section are grounded in the theory that a revocable trust is the functional equivalent of a will. The drafters cite the “widespread use in recent years of the revocable trust as an alternative to a will.” Because this is a relatively new phenomenon, traditional trust law has left unanswered many questions relating to the use of a revocable trust as a will substitute. [English, UTC Significant Provisions, pp. 186–87.] This estate planning mechanism involves the settlor establishing a trust during life to which the settlor transfers most if not all of the settlor’s property. The settlor is most often the trustee of the trust during life. The trust may be revoked at any time without the consent of the trustee. [See UTC 103(14), definition of “revocable”]. Thus, the settlor retains virtually the same control that she had over the property before the...
- The final issue addressed in UTC Article 6 is that of causes of action brought in an attempt to invalidate a revocable trust. As the Comment to UTC Section 604 points out, such actions may be brought on a number of different grounds similar to those on which a will may be challenged. These include lack of capacity on the settlor’s part [see 402, § 18.01(A)(1)] and fraud, duress, or undue influence [see 406, § 18.01(A)(1)]. The probate codes of most states contain statutes of limitations beyond which such actions may not be brought to contest the validity of a will. [See, e.g., UPC 3–108, § 10.01(B)(5)]. These statutes provide finality in the distributions from a decedent’s estate after a specified period of time. Consistent with the theme that a revocable trust is the functional equivalent of a will, UTC Section 604 provides a statute of limitations that reflects many of the state statutes pertaining to wills. Subsection (a) of UTC Section 604 provides that an action to contest the...a
- UTC Section 505(a)(2) provides that the creditor or assignee of a settlor of an irrevocable trust in which the settlor has retained a beneficial interest may reach the maximum amount that could be distributed to the settlor or for the settlor’s benefit. If there are two or more settlors, the creditor or assignee can only reach that amount attributable to the contribution made by the particular settlor against whom the settlor is pursuing a claim. This provision, which the drafters felt reflected the “traditional doctrine” and was “sound policy” prevents “a settlor who is also a beneficiary [from using] the trust as a shield against the settlor’s creditors.” [UTC 505, Comment]. In choosing to retain the traditional doctrine, the drafters chose not to follow the trend in some states to allow self-settled asset protection trusts. [See, e.g., Utah Code Ann. § 25–6–14(a)(ii) (2004)]. Utah has adopted the UTC. [See Utah Code Ann. § 75–7–505(1)(b), which contains an exception for asset...
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Chapter 4. Elective Share of Surviving Spouse, the Augmented Estate, and Election Procedure 83 results (showing 5 best matches)
- For income and other partial interests includable under Segment 3 and Segment 4, value equals the commuted value of any amounts payable to the surviving spouse either currently or after decedent’s death under trusts, life insurance settlement options, annuity contracts, public or private pensions, and disability compensation arrangements. [2–208(b)(2)]. This means that the date of death value must be determined for serial payments of income to the surviving spouse in the future. The method of determining such value is not specified and will be part of the advocative process when an elective share is sought and will have to be determined by the court under the particular circumstances of the case. [See Langbein & Waggoner, The New Uniform Probate Code, at 883].
- If the surviving spouse is incapacitated and the election is exercised by a proper person representing the spouse, amounts received by the fiduciary in satisfaction of the elective share amount from Segment 1 and Segment 2 must be placed in a custodial trust under the Uniform Custodial Trust Act or, if the enacting state does not have that Act, under the terms of a custodial trust established in the UPC. [2–212(b)]. Under the statutory custodial trust, the fiduciary electing for the surviving spouse is the trustee, the surviving spouse is the beneficiary, the decedent spouse is the settlor, and the date of the trust is the date of the decedent’s death.
- In addition, certain gratuitous transfers by the spouses are excluded. First, transfers made prior to the marriage with the other spouse are excluded even if interests are retained so long as the retained interests are not characterizable as certain types of Segment 2 powers. [2–205; see § 4.03]. Examples of common interests that might be retained in pre-marriage transfers and not cause inclusion include life interests and nongeneral powers of appointment. An example of a retained interest that would cause inclusion in the augmented estates is an unrestricted, unshared power to revoke held at death. [2–205(1)(i)]. Second, irrevocable and outright gifts to third persons up to $10,000 per donee per year are excluded whenever they are made. [2–205(3)(iii)]. The first exclusion assists in clearing titles and reduces disruption to finalized gratuitous transfers that an elected share petition can cause. ...elective share attack. Both exclusions may be occasionally abused by spouses and...
- Finally, the UPC permits third persons, e.g., parents, grandparents and other relatives, to transfer property in trust for the benefit of a person who is married or may get married and still protect the property from the elective share of the person’s surviving spouse. Unless the trust beneficiary holds an unshared presently exercisable power to appointment, a fractional share held in joint tenancy with right of survivorship, or the remainder of the trust estate passes as part of the beneficiary’s probate estate at death, the trust assets will not be part of the augmented estate if the beneficiary’s surviving spouse seeks an elective share against the beneficiary’s estate. This trust is exempt even if the beneficiary holds any one or more of the following interests: a life interest, an inter vivos or testamentary nongeneral power of appointment, and a presently exercisable general power of appointment if the latter power is limited by an ascertainable standard or is exercisable only...
- A fourth device is a judicial share determined after death by some tribunal on the basis of set criteria. The financial needs of the surviving spouse and children are the primary considerations. The process empowers the appropriate judicial tribunal, usually a probate court, with the authority to entrust assets of the decedent’s estate into a type of statutory trust for the benefit of the surviving spouse and other dependent persons. It springs from an assumed legal obligation on the part of the decedent to provide support for certain designated relatives. It suffers from indefiniteness as to application and result. A system of this nature prevails in England and other commonwealth countries. [See, e.g., Inheritance (Provision for Family and Dependents) Act 1975, c. 63].
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Chapter 6. Will and Donative Transfers 136 results (showing 5 best matches)
- When a testator physically revokes a will or a part thereof with the immediate present intent of making a new will or of substituting a new partial alteration and when the will or alteration is not made or is ineffective for any reason, many courts under the “dependent relative revocation” doctrine have presumed that the testator would prefer to die testate than intestate. Consequently, the revoked will or its provisions, if the contents can be ascertained, have been admitted to probate in the absence of evidence overcoming this presumption. [Atkinson, Wills § 58]. The UPC takes no official position on the scope and extent of this doctrine. It merely makes an affirmative reference to the doctrine in the Comment to Section 2–507 and leaves the doctrine’s recognition and development to the courts. There may be occasional situations where this doctrine would produce the better result than revocation or revival would. [See Langbein & Waggoner, New Uniform Probate Code, at 887].
- The revival of revoked wills provision originally promulgated in the UPC was significantly reworked in the 1990 version. Similar to the approach taken in the revocation by subsequent instrument provision, the UPC adopts separate rules depending upon whether the subsequent will wholly revokes the previous will or merely partly revokes the previous will. [2–509]. In regard to revival of the previous will if the subsequent will is physically revoked, the UPC creates different evidentiary requirements to prove revival. If a physically revoked subsequent will wholly revokes the previous will, revival occurs only when those who seek revival present evidence that the testator intended the previous will to be revived. [2–509(a)]. This puts the burden on those seeking revival of the previous will. The UPC permits extrinsic evidence including statements by the testator to be admissible to prove intent. Accordingly, if no evidence is introduced or if the evidence is inconclusive, the prior...
- The UPC contains no special limitation on the probate of a lost or destroyed will other than to require that such will be probated in a “Formal Testacy” proceeding. [3–402(a); see § 11.02]. The apparent rationale is that specific guidelines either create a rigidity which prevents appropriate adaptation in all cases or cause interpretations of the statutes which are direct affronts to the literal meaning of the language. [See Model Probate Code, at 20]. The UPC avoids these problems by leaving this matter to the rules of procedure and evidence of the probate proceeding itself. Legal presumptions concerning lost wills may also be relevant. For example, some jurisdictions have a presumption that if a will is traced to the testator decedent and cannot be found, there is a presumption of revocation. This rule may be applicable under the UPC as well. [In re Estate of Hartman, 563 P.2d 569 (Mont.1977)]. Of course, the rules concerning overcoming the presumption would also be applicable. [...
- Another problem related to revocation concerns the effect of a lost or unintentionally destroyed will. The general rule has been that in the absence of statutory provisions to the contrary, the lost or destroyed will may be admitted to probate upon adequate proof of its content and due execution. [Atkinson, Wills § 97]. If such proof cannot be maintained or if a statute restricts the proof of such wills, the lost or destroyed will has been in a sense revoked. Many non-UPC states have statutes that specifically apply to the probate of such wills. A typical provision which is found in some of these statutes is that the lost or destroyed will cannot be probated unless it is “proved to be in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator.” [E.g., Ark.Code Ann. § 28–40–302]. The quoted phrase has caused litigation where the will was lost or destroyed during the testator’s lifetime but not by testator’s...
- The distinction between the International Wills Act and the choice of law provision is significant. Whereas the choice of law rule attempts to validate wills executed under the laws of other jurisdictions, the Act anticipates an execution intended to be valid in jurisdictions that recognize it. By following the Act, the testator selected a procedure that anticipates probate in different jurisdictions. The expectation that this execution process will be valid for probate of the will wherever necessary is greater than the expectation of the testator who, at death, happens to have an estate requiring probate in several jurisdictions. Enactment of the International Wills Act is crucial to the protection of these expectations. Unless the federal government adopts the Act in the form of an international will convention, it will be up to each state individually to approve this legislation. [Art. II, Pt. 10. International Wills Act, Prefatory Note, 88–89]. At least fourteen states have...
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Chapter 16. Nonprobate Transfers 64 results (showing 5 best matches)
- First, it is necessary to understand what the Act means when it uses the terms “security” and “security account.” The Act adopts the definition of security provided in Section 8–102 of the Uniform Commercial Code. [6–301, Comment]. This definition means any share, participation, or other interest in property, business or in an obligation of an enterprise or other issuer and includes certificated and uncertificated securities and security accounts as well as mutual funds and other investment companies. [6–301(4)]. Because individuals commonly own securities and related interests in security accounts set up by brokers, the Act permits beneficiary form ownership for these accounts. “Security account” is broadly defined to include (1) security operated reinvestment accounts; (2) accounts of securities with a broker; (3) cash balances in brokerage accounts; (4) cash, interest, earnings and dividends earned or declared on a security in security accounts; (5) brokerage reinvestment...
- Protection is also given to financial institutions for payment to an agent upon request of an agent under an agency designation account [6–224], and to a minor designated as a beneficiary pursuant to the Uniform Transfers to Minors Act. [6–225].
- The UPC incorporates the Uniform TOD Security Registration Act into Part 3 of Article VI. Concurrent ownership principles are different for securities held in joint names than they are for other financial multiple-party accounts. [Art. 6, Pt. 3, Prefatory Note]. While multiple-party accounts permit a cotenant to control the asset, cotenants of securities must act together, thus sharing control of the asset. Many people use the joint titled security, however, as a means to avoid the probate process, despite the troublesome issues attendant with jointly titled securities. The TOD Security Registration Act, now incorporated into the UPC, allows owners of securities to make a nontestamentary transfer of securities directly to a designated transferee on the owner’s death. [6–309]. Significantly, creditors of security owners do not lose any rights against beneficiaries and other transferees.
- Although the definition of the word “party” is the same for multiple-party accounts, POD accounts and trust accounts, its application to each of them is different. In a multiple-party account, all of the persons named on the account are parties. [6–201, Comment]. For a POD account and a trust account it means the original payee and the trustee, respectively, who make deposits during their lifetimes. Upon the death of the original payee and trustee, the surviving POD payee and the beneficiary of a trust account, respectively, become parties to the accounts.
- (2) Trust accounts, e.g., an account held as “A in trust for B”; and,
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Chapter 10. Administration and Administration Avoidance Procedures 140 results (showing 5 best matches)
- The subject matter jurisdiction of probate courts throughout this country is varied, complicated, and often perplexing. Generally, states confer probate jurisdiction on one of four types of courts: (1) on their chancery court; (2) on a separate probate court that has an equal status with courts of general jurisdiction; (3) on a probate court that definitely is inferior to the court of general jurisdiction; and, (4) on the court of general jurisdiction. [Model Probate Code, 420]. Inevitably, there are variations between those even in the same general category.
- The primary differences between non-UPC law and the UPC appear in the mechanics of the procedure itself. First, formal testacy proceedings may be initiated by heirs as well as by executors and devisees under a will. [3–401]. In other words, even though no will has been probated or offered for probate, this proceeding may determine that the decedent died intestate. Second, subject to appeal [1–304, 3–414] and to limited reasons for vacation and modification [3–412(1)–(2)], the final order in a formal testacy proceeding is immediately conclusive as to all persons and all issues concerning decedent’s testacy and heirs that were or might have been considered. [3–412]. Third, although a subsequently discovered will may give cause for vacating a formal testacy order [3–412(1)], no such will may affect the order after twelve months from its entry. [3–412(3)(iii)]. It may be a much shorter time. [3–412(3)(i)–(ii)]. Significantly, this provision is in direct conflict with the judicial...probate
- The above rules need further clarification in one particular regard. Although each proceeding is independent, there necessarily is an interrelationship between informal proceedings and their corresponding formal proceeding. Consequently, informal probate either cannot be instituted or is superseded by formal testacy proceedings in the same state. [3–401]. The same interrelationship exists between informal appointment of a personal representative and its counterpart a formal appointment proceeding [3–414], and between a proceeding in the nature of informal proceedings for closing an estate and its counterpart a formal closing proceeding. [3–1001, 3–1002]. Although universal succession may be combined with informal probate if there is a will, it is foreclosed or terminated if either informal or formal appointment proceedings are filed. [3–314(b)]. Finally, ...any of the above informal proceedings because it generally requires formal appointment, formal probate, formal proceedings for...
- The most obvious additional procedure that must be used if decedent dies testate is that the will must be probated. With only two exceptions, which are not applicable at this point to this situation, the UPC provides that title to property passing by will cannot be proved unless the will is declared valid by informal or formal probate. [3–102]. If universal succession is sought, the application must include the information necessary and a request for informal probate of the will. [3–313]. This would be the only additional requirement under this procedure. Similarly, if administration is desired, the named executor or other person with priority should file an application simultaneously for both informal probate and informal appointment. [3–301(a), 3–307]. Three beneficial consequences derive from approval of such an application. Although subject to formal proceedings within the later of three years from death or one year from the date of informal probate, informal probate provides...
- One of the key provisions of the UPC concerns its time limitations on probate, testacy, and appointment of personal representatives. [3–108]. With five exceptions, this provision provides that no informal or formal proceeding may be commenced beyond three years after the decedent’s death. The first exception concerns the request for the probate of a will in the UPC state where the will has previously been probated in the decedent’s domicile. Under such circumstances the foreign will may be probated.
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Chapter 12. The Personal Representative 110 results (showing 5 best matches)
- The reason why the exercised power is improper makes no difference in the application of these protective rules. The impropriety of the action may be because of procedural irregularities, jurisdictional defects occurring in proceedings leading to the issuance of the letters, and even due to the fact decedent is found to be alive. Although this very comprehensive protection for third persons dealing with fiduciaries is much broader than that which generally exists under the law of most non-UPC states, it is not intended to replace comparable statutes relating to commercial transactions and security transfers by fiduciaries such as the Uniform Commercial Code and the Uniform Act for the Simplification of Fiduciary Security Transfers.
- In an estate where the will has been probated in the testator’s domicile, the domiciliary foreign personal representative may also exercise the authority to file for informal probate. [3–303(b)]. Because the UPC requires devisees to probate a will in order to prove title, informal probate in the UPC ancillary state would at least be necessary if the devolution of real estate is involved. [3–102; see § 10.02(A)]. There is no three year after death limitation on such informal probates. [3–108].
- The UPC contains numerous provisions that attempt to coordinate laws, actions and decisions between the various states which assume jurisdiction over a decedent’s estate. Under the UPC, adjudications and actions taken in the domiciliary and other relevant jurisdictions are to be given recognition in local administration and probate proceedings initiated in the ancillary jurisdiction. After proper notice and an opportunity for contest by all interested persons, domiciliary adjudications concerned with testacy, will validity and its construction must also be considered res judicata in a UPC, nondomiciliary jurisdiction. [3–408; see § 11.03(B)(5)]. Although a finding of a domicile is required, it may be satisfied through a formal closing proceeding. [3–1001, 3–1002]. Furthermore, adjudications for or against a personal representative either in a domiciliary or ancillary jurisdiction are binding on the local personal representative as if she were a party to the adjudication. [4–401]....
- The priority schedule raises no problems when only one person can be classified within the rank having priority. In other words a person named as sole executor in a probated will who is not otherwise disqualified clearly has priority and should be appointed in either informal or formal proceedings. The same can be said for the decedent’s surviving spouse who is not otherwise disqualified when decedent has died intestate. When two or more persons share priority, however, an informal appointment can only be made if all with priority who are not otherwise disqualified apply for appointment, or all, except the applicant or applicants, renounce their priority, or all concur in a nominee. [3–203(c)]. Priority can clearly be established by renunciation of all who have priority except those who are applying and by nomination of a selectee by all of those who have priority. [3–203(e)].
- In the vast number of cases, the UPC has eliminated the need for special administrators. The ease and speed by which persons can obtain informal appointment, for example, eliminates the typical reason for having a special administrator appointed. Under the law of many non-UPC states, it is often necessary to have a special administrator appointed between the time of filing the petition for probate of a will and the time of decision due to the notice requirements. [Atkinson, Wills § 104]. Another example of a substitute for the special administrator in the UPC is the power of a general personal representative to delegate responsibility in order to take care of the situation where the personal representative is temporarily absent or incapacitated. [3–715(21), 3–614, Comment].
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Chapter 2. General Provisions, Definitions and Probate Jurisdiction of the Court 37 results (showing 5 best matches)
- Significantly, verifications are apparently deemed to be a part of every filing even though the verification itself is absent from the document. This might mean, therefore, that the verification need not even be on the document thereby eliminating the need for notarization of documents filed with the Court. [See 18 Uniform Probate UPC Notes (Joint Editorial Board for the Uniform Probate UPC) 15 (Hereinafter cited as UPC Notes)].
- Article I of the UPC includes introductory provisions that generally define its purposes and rules of construction in conformance with the rules of good statutory draftsmanship. As is customary with uniform laws, it requests that courts liberally construe and apply the UPC in a manner which will best carry out and promote its underlying purposes and policies. [1–102(a)]. In their broadest sense, the most obvious purposes of the UPC are to make uniform and to improve the areas of law and procedure with which it is concerned among the several jurisdictions in the United States. [1–102(b)]. Hallmark principles for accomplishing this meritorious reform include simplification, clarification, efficacy, efficiency and serviceability. [See 1–102(b)(1)–(5)]. Only time and experience with the UPC’s provisions will prove whether it can achieve its goals.
- In addition to the above general provisions on jurisdiction and venue, the UPC includes special subject matter jurisdiction, personal jurisdiction and venue rules for the probate of wills and administration of decedents’ estates under Article III [see § 10.02(C)], for the protection of persons under disability and their property under Article V [see § 15.04] and for the administration of trusts under Article VII. [See § 17.03].
- The UPC also includes the other housekeeping provisions typically found in modern statutes. These provide that general principles of law and equity are to supplement the UPC’s own provisions [1–103; see UTC 106, § 17.01(C) for discussion of a similar provision in the UTC], that provisions held to be invalid are to be severed from those which are valid and effective [1–104], and that if reasonably avoidable, subsequent legislation shall not impliedly repeal Code provisions in whole or in part. [1–105].
- The UPC establishes rules relating to the fact of death or of other status, such as one being missing or detained, because their determination can be a very important question arising during the course of proceedings under the UPC. [1–107]. Generally, the rules of evidence used in the court of general jurisdiction are applicable to determine death in a judicial proceeding. [1–107]. In addition the UPC contains the following specific provisions concerning evidence of death. First, the UPC defines the meaning of death as that determined either (1) by the Uniform Determination of Death Act, or (2) if the enacting state does not have that Act, by a determination in accordance with accepted medical standards that there is an irreversible cessation of all functions of either (a) circulatory and respiratory function, or (b) the entire brain, including the brain stem. [1–107(1)]. Second, a certified or authenticated copy of a death certificate establishes prima facie proof of death, the...
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Chapter 3. Intestate Succession and Related Concepts 148 results (showing 5 best matches)
- The parent-child relationship or parentage may be defined or established under the relevant state law, such as the Uniform Parentage Act [UPA], approved by the Uniform Law Commission in 1973, substantially revised in 2000 and amended in 2002. [UPA (2002); Susan N. Gary, We Are Family at 171]. The UPA defines “parent-child relationship” to mean the legal relationship between a parent and child and sets forth comprehensive rules for determining who should be treated as the legal parents of a child. [See UPA § 102(14)].
- The UPC adopts as a default rule of construction the same durational survivorship technique for all types of gratuitous transfers including wills and all other governing instruments. [See 2–702; § 8.02]. The 120 hour survivorship requirement is now part of the 1991 version of the Uniform Simultaneous Death Act. [Uniform Simultaneous Death Act (1991)].
- is substantially more complicated than in the past. The Uniform Parentage Act (2000 as amended in 2002) has provisions dealing with the matter. The UPA provides rules to determine legal parents in order to facilitate child support and to provide clear rules for determining who will make decisions about a child’s welfare. The UPA, if adopted in a state, will define the parent-child relationship for all purposes in the state, unless the law of the state provides otherwise. [UPA § 203]. If adopted by a state, the 2008 UPC Amendments provide otherwise and will govern for intestacy purposes. There are some differences between the two uniform acts. [See Gary, We Are Family].
- In order to inherit, an heir must survive the intestate. The general common law rule holds, however, that survival need not be for any specific length of time: any measurable length of time such as one minute or theoretically one second is sufficient. When the question of one’s survival materially affects the distribution of the intestate’s estate, the timing of death becomes an extremely disrupting and litigable issue. Many states attempted to alleviate the problem by enacting the original Uniform Simultaneous Death Act. [Uniform Simultaneous Death Act (1940)]. Section 1 of this Act provides that in an intestacy situation when “there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived. * * *” Unfortunately, this solution is only a partial one. It clearly implies that if there is adequate proof of the actual sequence of death in measurable time, the presumption does not apply and...
- The parent-child relationships related to these agreements can be a problem. If everything is normal, the intended parent(s) are the parents of the child and the gestational carrier is not. The gestational carrier will be found to be the parent only if a court under § 807 of the Uniform Parentage Act declares that existence or, if she is the child’s genetic mother [2–115(6)] and a parent-child relationship does not exist under section 2–121 with an individual other than the gestational carrier. [2–121(c)]. A court order prevails over all the other rules of this section. The UPC takes no position on the legality of gestation agreements.
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Chapter 7. Rules of Construction Applicable to Wills Only 123 results (showing 5 best matches)
- A. D’s properly executed and probated Will devised, in relevant part, the residue to T in trust for E’s life, remainder to any person or persons E shall appoint by will but in default of such appointment the remainder goes to Charity C.
- B. E’s properly executed and probated Will, in relevant part, exercises the above power and appoints the trust estate to A.
- As with any area of law, there are frequently used words of art or common recurring situations. Because of the frequency of the use of these words or of the occurrence of the situation, the law must develop uniform and set definitions and interpretations. These definitions and interpretations serve two purposes: (1) they provide a rule of construction for wills where the testator’s expressed intent is inadequate or lacking; and, (2) they provide a set of uniform rules that drafters of wills may incorporate by reference either explicitly or implicitly. The UPC not only includes a long list of general definitions that are useful for these purposes, [see § 2.01(B)(4)] but also incorporates rules of construction for many of the most common problems concerning will interpretation and construction. [Art. II, Pt. 6]. Presumably, these rules of construction are based upon what the drafters determined the typical testator would desire if the testator had expressly indicated that intent....
- A will take $30,000 or the $50,000 devise less the $20,000 satisfaction. A question may arise whether the $30,000 constituted full satisfaction of the devise. If the satisfaction formality expresses the intent in that the gift is full satisfaction, then A would take zero. Because the gift was less than the devise and without outward expression that full satisfaction was intended, a presumption of partial satisfaction would be compatible with the purposes of the Code’s provision.
- Because C did not survive T, C does not take from T’s estate, but C’s satisfaction is not ignored. It affects G’s substitute devise because G takes C’s devise under the Code’s antilapse provision, 2–603. Consequently, because C’s devise is apparently fully satisfied by the gift which equals the amount of the devise, G will take zero from the estate.
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Chapter 14. Distribution and Closing Provisions 55 results (showing 5 best matches)
- The UPC has a special section dealing with abatement caused by the payment of estate taxes, both federal and state. [3–916]. The UPC basically copies the Uniform Estate Tax Apportionment Act except that it tailors the Act to UPC terminology and philosophy and packages the Act in one multi-subparagraphed section. [3–916, Comment; see Uniform Estate Tax Apportionment Act]. As with other abatement provisions, the UPC’s apportionment rule does not apply if decedent’s will directs that a different method be applied. [3–916(b)]. Under such a circumstance, the decedent’s will controls. Directions in the will, however, must be specific, clear and not susceptible to reasonable contrary interpretation if they are to override this section’s tax apportionment scheme. [Estate of Huffaker, 641 P.2d 120 (Utah 1982)]. If the UPC’s apportionment rule is determined to be inequitable, the Court is given discretion to direct apportionment in any equitable manner it determines appropriate. [3–916(c)(2)]...
- The UPC also contains a formal procedure for compromising and settling controversies between persons holding the beneficial interests in a decedent’s estate. [3–1101, 3–1102]. The types of controversies that may be compromised under this procedure are very broad in scope. They include controversies as to the admissibility of a will to formal probate, to disputes concerning other governing instruments covering gratuitous transfers, to construction, validity or effect of wills or other instruments, to the rights or interests of any successor in the estate and to issues arising during the administration of the estate. A compromise under this procedure is binding on all persons made parties to the procedure so long as it is approved in a formal proceeding before the Court. [3–1101]. Unborn, unascertained, or otherwise unlocatable persons may be bound by the court order if they are ...other parties with substantially identical interests in the proceeding. [1–403(2)(iii); § 2.03(B)]. This...
- Several prerequisites must be satisfied before the Court can approve a compromise. First, notice must be given to all interested persons or their representatives, including any appointed personal representative of the estate and all trustees of trusts affected by the compromise. Actual notice of the settlement proceedings to all interested parties is essential. [In re Estate of Girod, 645 P.2d 871 (Hawai‘i 1982)]. If all are not notified, problems of the finality of the settlement may arise. For example, an heir, who did not receive notice of the settlement, was not barred, in the absence of a showing of prejudice to the other parties by reason of the heir’s delay after gaining actual knowledge of the settlement, from challenging the settlement anytime prior to the close of the probate estate. [Id.]. Only those affected by the settlement agreement, however, are interested persons within the notice requirement. [Columbia Union Nat’l Bank & Trust Co. v. Bundschu, 641 S.W.2d 864 (Mo....
- The UPC also codifies the rule in many states that an anti-contest or anti-claim clause in a will is unenforceable against an interested person if that person had probable cause to institute the proceeding. [3–905; replicated in 2–517]. Under its probable cause test, this clause protects the devisee and other direct or indirect beneficiaries under the will who would receive more if the will were denied probate or, who is also a creditor of the estate and wishes to collect on his claim.
- If at any time a part of the estate appears to be intestate, the proceeding must be dismissed or amended to conform with the provisions of Section 3–1001. The lack of an adjudication of testacy and the limitation on the scope of the proceeding means that this particular procedure will not be used by interested persons very often. Its principal use arises where it is desired to totally distribute, terminate and discharge the personal representative before the ordinary statute of limitations on initiating proceedings has run, i.e., the later of three years from death or one year after informal probate, and where the petitioners do not want to rouse the interest and curiosity of heirs by providing them notice of a formal closing proceeding. [1 UPC Practice Manual, 392]. Since the passage of time will finalize testacy questions under informal probate, it would appear that letting the time run would be the most practical solution to this problem rather than ...would be no danger in...
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Chapter 11. Appointment and Testacy Proceedings 145 results (showing 5 best matches)
- The UPC requires the Registrar to make certain findings upon receipt of an application for informal probate, and if they are in the affirmative, to issue a written statement of informal probate. [3–302; see § 2.02(B)]. Such a statement, however, may not be made until 120 hours have elapsed since the decedent’s death. Issuance of the written statement of informal probate is in essence the approval of informal probate and is conclusive as to all persons until an order in a formal testacy proceeding supersedes it. In addition, an informal probate is not void merely because there is a defect in the application or in the procedure that led to its recognition.
- When a decedent dies with a will, the UPC ordinarily requires that that will must be probated in order to effectively pass title to the devisees. One method by which this will may become effective is by informal probate. As with informal appointment, informal probate is initiated merely by an applicant filing an application directed to the Registrar. This proceeding is also truly nonadversary. The Registrar is only required to see that the application (1) satisfies the statutory requirements, (2) is not statutorily precluded from informal probate, and (3) is of the opinion it is otherwise satisfactory. The informal probate proceeding does not provide a procedure for persons, who are adversely affected by the probate of the will, to object. Concomitantly, applicants cannot appeal a denial of informal probate by the Registrar. All disappointed applicants and objectors must rely on the procedures and protections of formal testacy. [3–305]. If denial of informal probate was due to an...
- [3–403(a)]. In addition, notice by publication must be given to persons who have an interest in the matters being litigated and who are either unknown or whose addresses are unknown. At the discretion of the petitioner, notice may also be given to other persons such as devisees and executors under known wills that have not been probated or offered for probate. [3–403, Comment].
- Under the UPC, supervised administration is characterized both as an in rem proceeding and as a single proceeding which extends throughout the entire course of administration. [3–501]. The in rem characterization means that it is not necessary to personally serve interested persons in order for the Court to obtain jurisdiction. [Model Probate Code, 91–92]. In addition, the single proceeding concept means that subsequent notices are not necessary throughout the administration. The elimination of personal service and subsequent notices does not apply when the adverse interests of third persons concerning the estate are being litigated. In addition, distribution and closing orders must include the notices required under Section 3–1001. [3–505]. The notice requirements for interim orders including those directing partial distributions or granting other relief are left up to the Court to determine and set. [See, 1 UPC Practice Manual, at 265].
- Informal probate may, and usually will be, instituted in combination with informal appointment proceedings. [§ 11.02(A)]. Occasionally, it may even be combined with formal appointment proceedings. [3–107]. Informal probate may also be instituted separately, or even as the sole act taken in a particular estate. This latter type of action would be particularly applicable where devisees are not immediately aware of any property of the decedent but wish to establish their title thereto if any is subsequently discovered. In this situation, informal probate offers such devisees a convenient, efficient and inexpensive method for protecting their interests. Although nonadjudicative, the granting of informal probate becomes conclusive the later of either three years after death or one year after informal probate [3–108], unless it is superseded by formal proceedings. [3–302].
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- Nutshell Series, In a Nutshell
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Chapter 8. Rules of Construction Applicable to Wills and to Other Governing Instruments 44 results (showing 5 best matches)
- The 120 hours rule for all gratuitous transfer documents including wills, deeds, trusts, appointments and other beneficiary designations tracks the same rule that is applicable in the intestacy situation. [See 2–104; § 3.02(D)]. The difference between these concepts is that in regard to intestacy, the requirement is a rule of law and is not rebuttable whereas the rule applicable to voluntary transfers is alterable by the terms of the document. The UPC is very specific, however, in regards to what is necessary to rebut the statutory rule of construction. [2–702(d)]. The UPC itemizes four general situations where the statutory rule of construction will not apply. First, it will not apply if the governing instrument contains language that deals explicitly with simultaneous death or with deaths in a common disaster and that language is operable under the facts of the case. Second, the rule of construction is rebutted if the governing instrument expressly indicates that the beneficiary...
- The UPC adopts a new rule of construction concerning the survivorship requirement for future interests in trust. [2–707]. It reverses the presumption and provides that there is an implied requirement of survivorship to the date of distribution for future interests held in trust. [2–707(b)]. In addition, the survivorship requirement is extended to 120 hours after the time of distribution. [2–702]. For example, under the UPC’s provision a simple trust that provides “to T in trust for A for life, remainder to B,” B must survive A’s death, the date of distribution, by 120 hours in order for B to take the remainder interest.
- If beneficiaries fail to survive the date of distribution and the antilapse presumption is unavailable, the UPC specifies how the lapse will be treated. [2–707(d)]. If there is a residue devise in transferor’s will, the trust corpus passes to those beneficiaries. If no residue exists or the residue is in trust and its remainder beneficiaries fail to survive the date of distribution, the trust corpus passes in intestacy. The 1993 Technical Amendments added that for future interests created by the exercise of a power of appointment, the lapsed property interest passes to the donor’s takers in default clause, if any, which is treated as creating a future interest in trust. [2–707(e)(1)]. If still no takers then, the lapsed interest passes as an ordinary future interest except the transferor means the donor of a nongeneral power and the donee of a general power. [2–707(e)(2)].
- The 120 hour survivorship requirement is now part of the new version of the Uniform Simultaneous Death Act of 1991. This Act incorporates the relevant portions of the UPC and covers all types of gratuitous transfers. [§ 3.02(D)].
- The UPC provides that if a remainder beneficiary fails to survive the date of distribution, a substitute gift arises for the beneficiary’s descendants, if any survive. [2–707]. This is an “antilapse” rule for future interests in trust. It protects descendants of all remainder beneficiaries regardless of their relationship to the transferor. [See 2–603; § 7.02(B)]. One does not have to be a grandparent or descendant of a grandparent to be entitled to the presumption of the substitute gift. It applies to remainders to specific individuals and to remainders left to classes of persons who are all in a single generation. Examples of single generation class gifts include gifts to “children,” “grandchildren,” “siblings,” and “nephews and nieces.” It does not apply to multiple-generation class gifts that inherently possess a nonlapsing affect because representation is allowed for descendants of predeceased ancestors in the class. Examples of such class gifts include gifts to “descendants,”...
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Chapter 5. Family Omissions and Protections 31 results (showing 5 best matches)
- Under the Code’s pretermitted children section, the pretermitted child C would not be entitled to take anything from the estate because pre-existing children of the testator were not devised property under the will. Thus, all children are treated equally even if decedent’s children are born both before and after the will is executed. Some pretermitted heir statutes give C a share although A and B would take nothing.
- C takes a pro rata share of the total of the gifts to A and B. As one of the three children, C takes one-third of $18,000 which equals the total gifts to A and B. In other words, C takes 6,000. Since B received two-thirds of the total of those gifts, two-thirds of the $6,000 will come from B’s share. Concomitantly, one-third of the forced share of C will come from A’s devise. This means that A’s interest will be abated by $2,000 and B’s interest will be abated by $4,000. The final distribution of these gifts will be A will take $4,000, B will take $8,000 and C will take $6,000. Although this solution does not result in perfect equality, it addresses the pretermitted heir problem, it attempts to address the presumed intent of the testator due to the pretermission, and it attempts to provide basic equality among those who do take. Although A now takes less than C, the loss was a pro rata portion of the abatement. In addition, the satisfaction of the pretermitted child’s forced share...in
- It is not clear whether transfers outside the will act as advancements and therefore as deductions from the intestacy share or whether they must be only in total substitution for the share. For example, consider the situation where the calculated intestacy share equals $100,000. How would a life insurance policy in favor of the surviving spouse for $50,000 be treated? Does the testator’s intent to make the transfer in lieu of a testamentary provision relate only to a full satisfaction, i.e., the $50,000 is in place of the $100,000, or might the surviving spouse have to treat the $50,000 as an advancement and bring it into the hotchpot for subsequent recalculation? The latter approach would seem to be a more equitable approach both in terms of a share of the surviving spouse and in terms of the consequences of this intestate’s share coming out of gifts to other persons.
- C takes a portion of the devises to A and B. C does not take from other assets in the estate. In this example, C takes $6,000. A and B each take $6,000. Their $9,000 devises are abated $3,000 apiece.
- The UPC also incorporates a specific exception to the general exclusionary evidence rule concerned with mistake in the inducement. This provision treats a child living when the will was executed who is omitted because the testator believed the child to be dead as an omitted after-born or after-adopted child. [2–302(c)]. The admissibility and sufficiency of evidence concerning such a belief are controlled by the general rules of evidence and burden of proof of the UPC state. [See 2–601, Comment]. The provision does not protect the omitted child if the child would have been omitted had the child been alive, or if the child had been provided for by transfers outside the will intended to be in lieu of testamentary provision. [2–302(b), and Comment]. The share from the estate is limited in the same manner as the share of an omitted child. [See 2–302(a) and (b)].
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Index 84 results (showing 5 best matches)
- Uniform TOD Security Registration Act, 566–73
- UNIFORM LAWS
- See Table of Collateral Authorities—Uniform Laws
- See also Jurisdiction Over Persons; Jurisdiction Over Subject Matter; Qualified Beneficiary; Trust Certification; Trust Registration; Venue Charitable trusts, 617–18
- See Claims Against Decedents’ Estates; Claims Against Protected Persons and Their Estates; Claims Against Trustees and Trust Estates; Multiple–Person Accounts
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Chapter 13. Creditors’ Claims 36 results (showing 5 best matches)
- The UPC’s provision for notice to creditors is one of the special notice procedures in which it departs from using Section 1–401. [3–801, 1–401; see § 2.03(A)]. The Supreme Court decision in Tulsa Professional Collection Services v. Pope, 485 U.S. 478 (1988) held that a nonclaim statute, which barred creditors’ claims not filed within two months after notice by publication only, is unconstitutional as applied to known or reasonably ascertainable creditors. In 1989, the UPC was amended to respond to this decision despite a belief that the decision did not affect the UPC’s notice procedure. [Code, App. IV, Background Comment].
- Allowed or established claims that were not due or were contingent or unliquidated when presented must be paid by the personal representative in the same manner as any other presently due or absolute claim would be paid if they become due or certain before distribution of the estate. [3–810(a)]. When certainty or dueness will not occur before distribution, the personal representative or the claimant may petition the Court to determine the claim in a special proceeding for that purpose. [3–810(b)]. The Court may determine the value of the claim in one of two methods: (1) with the claimant’s consent, the claim’s present or agreed value may be set taking into account all uncertainties; or (2) an arrangement for future or contingent payment may be made, which for this purpose creates a trust fund, gives the claimant a mortgage, bond or security from the distributee, or sets payment in any other agreed manner.
- See § 18.02 for a discussion of the claims of creditors against property that is held in trust.
- If notice by publication is used, notice must be published once a week for three successive weeks in a newspaper with general circulation and located in the proper governmental subdivision in which appointment has been made. [3–801]. The notice must announce the personal representative’s appointment and address and indicate to the estate’s creditors that their claims must be presented within four months after the date of first publication or they will be forever barred.
- Presentation of a claim by a creditor is made by a written statement of the claim delivered or mailed to the personal representative or filed with the clerk of court. [3–804(1)]. This statement must include the amount claimed and the name and address of the claimant. When presented to the personal representative, an itemized bill containing this information should be sufficient. [Art. III, Pt. 8, General Comment]. The form necessary for a written statement should be liberally construed in favor of the creditor. [See Strong Brothers Enterprises, Inc. v. Estate of Strong, 666 P.2d 1109 (Colo.App.1983)]. A claim not due must also state when it is due and a contingent or unliquidated claim must also state the nature of the uncertainty. [3–804(1)]. Although these two rules are stated as a prerequisite, a failure to contain the required information in the claim does not invalidate an otherwise proper presentation. Claims are deemed effectively presented upon written receipt received from...a
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- Publication Date: August 30th, 2010
- ISBN: 9780314926920
- Subject: Trusts and Estates
- Series: Nutshells
- Type: Overviews
- Description: Authoritative coverage provides detailed explanations of the provisions, definitions, and concepts of the Uniform Probate Code (UPC) and the Uniform Trust Code (UTC). UPC topics covered include probate jurisdiction of the courts; intestate succession involving wills and donative transfers; and probate of wills and administration. UTC topics include creation, validity, modification, and termination of trust; discretionary and revocable trusts; creditor's claims and spendthrift trusts; duties, powers, and liability of trustees; and rights of persons dealing with trustees.