Uniform Probate Code and Uniform Trust Code in a Nutshell
Authors:
Averill Jr, Lawrence H. / Radford, Mary F.
Edition:
6th
Copyright Date:
2010
29 chapters
have results for Uniform Probate 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 Superceded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 53 results (showing 5 best matches)
- (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.
- In 1946, a suggestion by Professor Atkinson to the American Bar Association Section of Real Property, Probate and Trust Law [hereinafter referred to as the Probate Section] that this organization prepare a Model Probate Code, [Atkinson, Model Probate Code, at 189] resulted in the publication of a Model Probate Code and accompanying studies. [Model Probate Code]. Although the Model Probate Code had a direct influence and effect on revisions in several states, it had neither the comprehensiveness nor the impetus to influence a majority of states to adopt it.
- When the initial enthusiasm and national effort to enact the Uniform Probate UPC as a comprehensive code lost much of its original momentum, the ULC altered its promotional approach regarding several new and old matters. In relevant, and appropriately separable, areas of probate law, the ULC developed freestanding acts from similar provisions integrated into the UPC as it existed at the relevant time. The reverse chronology also occurred. Some separate Uniform Acts have been subsequently integrated into the UPC in order to broaden its coverage. These techniques permitted the provisions to become law either as part of the whole Uniform Probate Code or as a separable and possibly more palatable distinct uniform act.
- Naturally, through the last forty years the UPC has been the subject of a great deal of legal commentary. A significant portion of it is cited throughout this Nutshell. One of the most important publications was the
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Chapter 15. Guardianship and Conservatorship 112 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.
- 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...
- The discussion of Article V of the UPC in this Nutshell will not include an analysis of every section
- A guardianship of a minor continues until the minor dies, is adopted, marries or attains majority and it terminates upon the guardian’s death, removal or approved resignation. [5–210]. A testamentary appointment is also terminated if the will which makes the appointment is denied probate in formal testacy proceedings. Although a guardian may resign fiduciary office, the resignation does not
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Chapter 19. Trust Administration 111 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.
- UTC Section 702 covers the unusual situation of a trustee bond. Typically, because the settlor has chosen as trustee someone in whom the settlor has confidence, a protective bond is not required to be posted by the trustee. However, a settlor may provide in the trust instrument that a bond should be posted. In this case, the bond will be required under the terms set forth in the trust instrument unless the court overrides the settlor’s wishes and dispenses with the bond. [UTC 702(a)]. Perhaps recognizing that the settlor would not have required a bond without good reason, the Comment advises that a court should “rarely dispense” with a bond that has been prescribed by a settlor. A court may independently order a bond if the court deems it necessary to protect the interests of the beneficiaries. [UTC 702(a)]. This too would be a rare occurrence as the removal of the trustee would usually be the better approach if the trustee is jeopardizing the trust property. If the court does order
- 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...
- 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.
- 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].
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Outline 87 results (showing 5 best matches)
- 1.03 Development of the Uniform Probate Code and Uniform Trust Code
- PART SIX. TRUSTS: THE UNIFORM TRUST CODE AND TRUST PROVISIONS OF THE UNIFORM PROBATE CODE
- A. Uniform Probate Code
- B. Uniform Trust Code
- A. Devolution of Decedents’ Estates and the Necessity of Probate and Administration
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Chapter 10. Administration and Administration Avoidance Procedures 121 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.
- [3–314(b) & (c)]. The Registrar does not have the same discretionary authority to reject universal succession as it has with regard to informal probate under Section 3–305. [3–314, Comment]. On the other hand, if the universal succession application includes an informal probate application as required in a testate situation, the Registrar’s denial of informal probate under Section 3–305 would constitute a reason to deny universal succession.
- 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.
- 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...
- 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
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Chapter 9. General Miscellaneous Provisions and Topics 114 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].
- With an Act of this complexity, a Nutshell discussion can only offer a cursory review of its provisions. The reader is urged to peruse the provisions and their comments. Generally, disclaimer statutes typically cover common ground. They deal with what interests can be disclaimed, the formality for executing a disclaimer, the necessary procedure(s) to follow, the destination for the disclaimed interest, when a disclaimer is barred, and usually set a time limit or time frame within which a disclaimer must be made. The UDPIA conforms to this litany of issues.
- 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.
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Chapter 18. Creation and Modification of Trusts 111 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].
- 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, ...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 transfer. The trust usually contains...
- 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)(3) addresses the ability of the creditors of the settlor to reach the assets in a trust that was revocable during the settlor’s death after the settlor has died. To a limited extent, this section treats the trust property as if it had been owned outright by the settlor during life, thus making it available to the creditors as if it were part of the settlor’s probate estate. [See § 13.04]. The Comment indicates that this subsection reflects the fact that many settlors use revocable trusts as will substitutes. [See § 18.03 on revocable trusts]. Specifically, this subsection makes the trust property subject to “claims of the settlor’s creditors, costs of administration of the settlor’s estate, the expenses of the settlor’s funeral and disposal of remains, and statutory allowances to a surviving spouse and children.” The subsection does not attempt to prioritize these claims or address any procedure for the collection of them, leaving such matters to the enacting...
- 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...
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Chapter 6. Will and Donative Transfers 119 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 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. [...
- 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...
- 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 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...
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Chapter 12. The Personal Representative 91 results (showing 5 best matches)
- 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 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.
- 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].
- 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]....
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Chapter 2. General Provisions, Definitions and Probate Jurisdiction of the Court 31 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 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...
- 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].
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Chapter 4. Elective Share of Surviving Spouse, the Augmented Estate, and Election Procedure 75 results (showing 5 best matches)
- 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].
- 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. ...abused by spouses and might propel a court to ignore the literal application...Uniform
- Under the UPC, dower and curtesy are abolished. [2–112]. In addition, the UPC’s election applies only if the decedent was domiciled at death in the UPC state; otherwise the spousal protection laws of the decedent’s domicile control those rights. [2–202(d)]. If the domicile requirement is met, then the surviving spouse may elect to take a sliding scaled percentage of the “augmented estate.” [2–202(a)]. Significantly, the surviving spouse is entitled to the family protections in addition to the elective share protection. [See § 5.02]. This means that a surviving spouse will be able to take the entire probate estate or $64,500 of it, whichever is less, as satisfaction of the family protection. [2–202(c)]. But as will be seen, the election extends beyond the probate estate.
- The forced share is another common protection device enacted in many states. With wide variations, a typical forced share statute provides that if a decedent spouse does not pass a minimum arbitrary percentage, usually running from one-third to one-half, of that person’s probate estate to the surviving spouse, the surviving spouse may elect to take that share under a spousal protection right. [Atkinson, Wills § 33]. The electing spouse takes the share in fee.
- what normally is thought of as the decedent’s gross probate estate less enforceable claims, funeral and administration expenses, and the family protections. [2–204]. The probate estate is composed of all the property that passes by intestacy if a person had died intestate. [2–201(7)]. Claims include all of decedent’s liabilities at death but do not include estate and inheritance taxes or title disputes over probate estate property. [2–204, Comment; see 1–201(6) (Claims)]. The valuation of Segment 1 property is determined at the date of death [2–204; see also 3–706].
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Chapter 11. Appointment and Testacy Proceedings 125 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...
- [3–303(b)]. This last restriction does not apply to a will previously probated in another jurisdiction for which probate is being requested in the UPC jurisdiction as an ancillary probate. [3–303(d)].
- 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].
- It is important to note that unless a petition for formal testacy requests the probate or the determination of probate for several instruments, a request for the probate of each instrument must be made in a separate petition which includes the necessary requests, information and statements. The notice requirements for formal testacies must also be satisfied for each petition.
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Chapter 17. General Provisions Relating to Trusts 80 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.
- Like the UPC [see § 2.02], the UTC contains a number of definitions that are applicable throughout the Code. In addition to the general discussion of certain key terms that is contained in this subsection, the meaning of each word will be provided in this Part Six of the Nutshell only when the definition is relevant to the discussion of other sections of the UTC. The terms that are defined in UTC Section 103 are listed alphabetically in Chart 17–1.
- 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...
- (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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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Chapter 16. Nonprobate Transfers 60 results (showing 5 best matches)
- 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 accounts; (6) all other brokerage accounts; and, (7) all earnings or proceeds from trading transactions due the...
- 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.
- as testamentary and unless the instruments were executed with the same formalities as a will including testamentary intent, they are ineffective to pass the interest conveyed upon death. [Atkinson, Wills § 44]. In modern transactions, similar type provisions are often found in life insurance and retirement benefit instruments. They constitute a very convenient way to pass the interest in property outside the probate process and because they are ordinarily represented by a written instrument they carry with them many of the same protections that the statute of wills demands by its execution formalities for wills. It is desirable, therefore, to validate these instruments.
- 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].
- Uniform TOD Security Registration Act
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Chapter 7. Rules of Construction Applicable to Wills Only 115 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.
- 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.
- 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....
- Because many of the rules of construction in this chapter and in other parts of the UPC are applicable only to particular types of testamentary gifts, definitions of the various classes of testamentary gifts are important. Due to the absence of definitions of these terms in the UPC, the common law definitions are relevant. Generally, testamentary gifts are classified into four different categories, i.e., specific, general, demonstrative and residuary devises. A specific devise is a gift of a specific item or portion of the estate. A general devise is a gift of a set value or generally described property which is to be charged against the whole estate and not a specific portion. A demonstrative devise is a gift payable out of the whole estate but which is in the first instance charged against certain parts of the estate. A residuary devise is a gift of the remainder of the estate. [See 6 Page, Wills §§ 48.1–.10].
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Chapter 14. Distribution and Closing Provisions 54 results (showing 5 best matches)
- 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...
- 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...
- This formal closing proceeding may also be used as a curative device in situations where notice was not given to one or more heirs or devisees in previous formal proceedings. [3–1001(b)]. Under this device, it is necessary to give notice to the omitted or unnotified persons and to other interested parties. The list of interested parties should be shorter than it was in the prior formal proceeding because it is to be presumed that the prior proceeding was conclusive as to all persons given notice of the earlier proceeding. The Court may determine, confirm or alter its previous order of testacy as it affects all interested persons in light of the new situation. If the omitted or unnotified persons do not object, the evidence received in the original formal testacy proceeding constitutes prima facie proof of its findings as to the due execution of a will admitted to probate or as to the fact that decedent died leaving no valid will. The existence of this curative device will be... ...in...
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Chapter 3. Intestate Succession and Related Concepts 118 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)].
- 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].
- 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)].
- 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 ...that if there is adequate proof of the actual sequence of death in measurable time, the presumption does not apply and the “surviving” heir,...a
- The concept of representation is recognized in some form or another in all common law jurisdictions. As indicated, it permits persons who are of more remote degree of kinship to an intestate to take some share from the estate even though there are relatives of closer degree of kinship to the intestate. Unfortunately, understanding the basic concept does not adequately explain what share each relative will take. Neither the commonly used terms of “per capita” and “per stirpes,” nor the many statutory variations have adequately or consistently explained the meaning of the concept. The most common problem has been the determination of the generation which is to be considered the root generation for purposes of setting the stock shares of the more remote relatives who are able to represent their ancestors. For example, under a common but not uniform interpretation of the words “per stirpes,” this root generation was always the generation closest in degree of relationship to the decedent...
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Chapter 8. Rules of Construction Applicable to Wills and to Other Governing Instruments 42 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...
- In understanding these exceptions it is helpful to distinguish between class gift language used in three situations. The first concerns class gift language used in the instrument of a person who is directly involved in the relationship in question, e.g., a devise to one’s “children” in the will of a person who adopted or who is the genetic parent of a person. The second concerns a transfer instrument of a person who is not directly involved with the particular relationship situation, but who is an ancestor, collateral, or descendant of a person who is directly involved, e.g., a devise to one’s “grandchildren” in the will of the parent of the adopting parent of an adopted child or of the parent of a nonmarital child. The third circumstance concerns the transfer instrument of a person who is neither directly involved nor related to the person directly involved in the relationship situation, e.g., a devise to a nonrelation “A or if A does not survive to A’s descendants” in the will of...
- 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 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.
- Significantly, these rules only establish a rule of construction regarding class gifts, not a mandatory rule. A rule of construction is a default rule that applies in the absence of a contrary intention. The document drafter can alter a rule of construction in order to give effect to the transferor’s individual preferences.
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Chapter 13. Creditors’ Claims 27 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].
- The personal representative may mail notice to the claimant of either allowance or disallowance. [3–806(a)]. Failure to mail such notice constitutes an allowance sixty days after the expiration of time for original presentation of the claim. Ordinarily, a personal representative can change, in whole or in part, an allowance to a disallowance, or vice verse. [3–806(b); Swett v. Estate of Wakem, 490 A.2d 679 (Me.1985)]. An allowance cannot be changed to a disallowance, however, after court action directs that it be paid. Also, a disallowance of a claim cannot be changed to an allowance if any limitation period has run against it. A judgment against the personal representative on a claim against the estate, however, constitutes an automatic allowance of it. [3–806(d)].
- 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.
- When it appears to be in the best interests of the estate, the personal representative may compromise any presented claim including claims due or not due, absolute or contingent, liquidated or unliquidated. [3–813]. In addition, the personal representative may deduct from a presented claim any counterclaim that the estate has against the claimant regardless whether the counterclaim is liquidated or unliquidated, arises from a transaction other than one upon which the claim is based or exceeds, or is different from the kind sought in the claim. [3–811]. The Court is given the power to determine the amount of the deduction due to the counterclaim and even to issue a judgment against the claimant in any amount by which the counterclaim exceeds the claim.
- The UPC makes a proactive response to the challenge in adopting three interrelated limitation periods to deal with creditors’ claims. First, the UPC adopts a one year period in gross after which all claims arising before decedent’s death are barred regardless whether any notice was given. [3–803(a)(1)]. This one year period is shorter than the UPC’s original three year from death period. [3–108; § 10.02(B)]. Mere nonaction by successors for a year after death cuts off creditors if none of the latter seek to force administration.
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Index 30 results (showing 5 best matches)
Chapter 5. Family Omissions and Protections 29 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.
- 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.
- Although the UPC’s provisions on homestead [2–402], exemptions [2–403] and allowance [2–404] differ in many respects, there is a significant degree of similarity and a definite interrelationship between all of them. Significantly, all three limit their benefits only for relatives of a decedent who died domiciled in the UPC state. [2–401]. To qualify under any of the categories the protected beneficiaries must survive the decedent by 120 hours. [Art. II, Pt. 4, General Comment; see 2–104]. Although all benefits received under all three provisions are ordinarily in addition to any share passing to the beneficiaries by intestacy, by elective share of the surviving spouse and by will, a testator may specifically in his will make devises to these beneficiaries in lieu of any or all family protection benefits. For example, the will might state “This devise to my [surviving spouse or children] is expressly in lieu of [his, her or their] right to the homestead allowance, exempt property and...
- 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.
- 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
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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.
