Uniform Probate Code

Uniform Probate Code in the United States

Introduction to the Uniform Probate Code

The Uniform Probate Code is a standardized legal guideline that aims to make probate faster, easier and cheaper for everyone involved.

In 1969,  the Code was adopted by the National Conference of Commissioners on Uniform
State Laws and by the House of Delegates of the American Bar Association. In 1972, the Code was adopted in two states:

  • Alaska (Alaska Statute §§ 13.06.005 to 13.36.10D, 1972);
  • Idaho (Idaho Code §§ 15-1-101 to 15-7-307, Cum. Supp., 1972).

Analysis of the Uniform Probate Code

The following are the views of Julian R. Kossow in his article “Probate Law and the Uniform Code: “One for the Money . . .”(61, Georgetown Law Journal 1357, 1973):

EXECUTION OF FORMAL AND HOLOGRAPHIC WILLS (Section 2-502 of the Uniform Probate Code)

“Pursuant to its policy of validating wills whenever possible, the Uniform Probate Code has reduced the formalities of execution to a minimum.

A testator’s signature, plus the signatures of two witnesses usually will satisfy the requirements of execution. There are, however, some problems in the concept of witnessing. The Code Comments to section 2-502 state that, “[e] ach of the persons signing as witnesses must
‘witness’ any of the following: the signing of the will by the testator, an acknowledgment by the testator that the signature is his, or an acknowledgment by the testator that the document is his will.” But there is no definition of the term witness in the Code. In fact, the Comment
to section 2-502 declares that, “[t]here is no requirement … that the witnesses sign in the presence of the testator or of each other.” Conceivably a testator could sign his will and acknowledge this fact by telephoneto two friends and then mail them the will for their signatures as witnesses, and still comply with the terms of the Code. If this is correct,
the possibility of fraud or substitution of the wrong document would render unreliable the document being offered for probate. In this same context, the Code would negate the basic policy of the Statute of Frauds.

The only Code language that may prevent such interpretation is the word “witnessed.” In the absence of further definition, a court confronted with this problem probably would look to state law to interpret what constitutes the act of witnessing, as that term is used in section 2-502. However, some form of presence is expressly required by every state statute,  and therefore the Code’s elimination of the presence requirement will limit the applicability of state law. It would be preferable to require that the witnessing of the testator’s signature, or the testator’s
acknowledgment of the signature or of the will itself be done in the testator’s conscious presence.

The Code retains the universal requirement that the will be in writing and sigied by the testator. The Code specifically states that signing by mark, or by another on behalf of the testator, provided that person is acting at the direction of the testator and in his presence, constitutes a
valid signature. The necessity of publication, a formality which only minimally has served to buttress the reliability of intended testamentary transfers, has been deleted. Nor is there a requirement in the Code of a request to witnesses. If the testator signs outside the presence of the witnesses, later he merely must acknowledge that the signature is his or that the document is his will, and have them sign as witnesses. Finally, the testator need not sign the will at the end.

A signature in the body of the will, which is intended to constitute execution, would satisfy the Code.

If the Code has reduced the formalities of execution of an ordinary will to a minimum, the safeguards required of a holographic will have been virtually obliterated. Section 2-503 declares that “[a] will which does not comply with Section 2-502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” The usual requirements that the holographic will be entirely handwritten and dated are eliminated, as of course, is the need for attestation. All that is necessary now is that the testator sign and that the material provisions be in his handwriting.
In evaluating the section governing holographic wills two basic policies-maximum
opportunity to execute a will and testamentary safeguards-collide.
The Code’s rationale is that “[f]or persons unable to obtain legal assistance, the holographic will may be adequate.”

The importance of this policy hardly could be overstated. However, safeguards have been reduced to the point where testamentary intent may itself be in question and where opportunities for fraud abound. Nevertheless, the Code policy favoring maximum testamentary freedom is more significant and should be effectuated.

Although the Code may be criticized because of problems raised by the failure to explain what constitutes witnessing and because of the drastic reduction of holographic will safeguards, these criticisms are relatively minor and are far outweighed by the benefits to be gained
from universal adoption of the Code. Many of the common law requirements of testamentary transfer are outmoded or no’ longer serve a valid function and should be eliminated. Other formalities make the execution of a will unduly complicated, and the strict enforcement of some requirements results in the denial of probate to many wills. Finally, in view of the tremendous mobility of modern society, uniformity and consistency in the formalities of testamentary transfer certainly are desirable.
PROTECTION OF THE SURVIVING SPOUSE

Part 2 or article 2 of the Uniform Probate Code, entitled “Elective Share of Surviving Spouse” is a massive legislative undertaking designed to solve the problem of securing to the surviving spouse a proper share of the decedent’s estate. The response to two policy questions underlies
the Code’s solution. The first is whether a need actually exists for uniform legislation to protect against the decedent’s disinheritance of his surviving spouse. The Code recognizes that commentators have questioned such a need and responds by pointing out that nearly every state offers some form of protection to the surviving spouse.

The existing forms of protection-dower, statutory share, community property and the miscellaneous individual state legislative solutions-all have their shortcomings. Yet, to merely cite the prevalence of such protective devices really does not answer the question of the need for them. A higher degree of justification should be required for an infringement of freedom
of testation. Furthermore, disinheritance of surviving spouses is an infrequent occurrence. However, the need for effective protection of the surviving spouse, as a societal matter, outweighs infringement upon the individual decedent’s power to transfer his -property as he pleases.
Disinheritance of the surviving spoulse is like leprosy; it may not occur often, but when it does its treatment is crucial.

The second policy issue is to determine the quantity of the surviving spouse’s share. The choices are either to give to the surviving spouse an amount sufficient to meet that person’s personal needs or to make the elective share a percentage of the decedent’s assets. The Code utilizes the percentage method both because it is the traditional answer and because
determining the needs of the surviving spouse would be difficult to forecast and to administer. Close judicial supervision of every case would be required. Moreover, questions of subjective versus objective needs arise, the answers to which inevitably would lead to political and
social matters far more significant than the original questions themselves.

The concern with the size of the elective share also relates back to the marital situation itself. The concept of married persons owning, enjoying and using their property in concert should be encouraged. Concerted ownership necessarily raises factors of reliance and expectation
during the marriage, which should be buttressed by statute. The Code’s traditional view in meeting this concern is well founded. The answer to the problem of the amount of the spouse’s share is and should be a reasonable proportion of the decedent’s assets.

The Code proposes a significantly new approach to the problem of the surviving spouse’s share. Section 2-201204 establishes the right to an elective share for any married person whose predeceased spouse was domiciliary of the state. The elective share of the surviving spouse is set at one-third of the decedent’s augmented estate, offset by property derived from the decedent.

Section 2-202, the key section dealing with the spouse’s share, defines the augmented estate. The foundation of the augmented estate is the net probate estate to which is added the value of property transferred for less than full consideration by the decedent while married, where such transfers did not benefit the surviving spouse. All of this applies only to transfers to which at least one of the following classifications is applicable:

(1) the decedent retained possession, enjoyment or right to
income from the transferred property; (2) the decedent, alone or in
conjunction with another person, retained the power to revoke or to
use or allocate principal; (3) retention by the decedent and another
person at the time of decedent’s death of a survivorship right in transferred
property; or (4) any transfer made by decedent within two years
of his death to any one donee in excess of $3,000 in either of said two
years.

By adding back into the augmented estate property transferred inter vivos by the decedent where he retained benefit from or control over the assets, the Code’s purpose is to thwart the decedent’s deliberate attempt to use will substitutes in order to defeat the elective share of
his surviving spouse. The testator still can use outright transfers, such as gifts or irrevocable trusts with no retained benefits to deplete the estate and thus to reduce the elective share, but this is less likely to occur where the transferor keeps neither benefit nor control of the
transferred assets.

Another large category of property included in the augmented estate is property derived from the decedent in any way other than by inheritance, owned by the surviving spouse at the time of the decedent’s death, and for which the survivor gave less than full consideration.

This property, even if no longer owned by the surviving spouse at the time of the decedent’s death, is includable in the decedent’s augmented estate if the property has been transferred by the surviving spouse in such a way as to be a part of the survivor’s augmented estate had the survivor died first In effect, the Code includes in the decedent’s augmented estate the value of any property given by the decedent to his surviving spouse.

A Property thus acquired then becomes a credit against the elective share.209 The Code’s purpose here is to prevent the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during
the lifetime of the decedent or at death by life insurance, joint tenancy assets and other nonprobate arrangements.

In evaluating the Uniform Probate Code’s new approach to the problem of the elective share of the surviving spouse, it is interesting to note that the Code’s introductory Comment admits that, “almost every feature of the system described herein is or may be controversial.”

Professor Clark writes that, “it appears that the authors did not approach their work with full confidence in the enterprise.” In the course of arguing that the elective share statute should not be adopted, Clark goes on to say that “…. in the end the Code provisions are fatally deficient,
as are those of New York and Pennsylvania, because every family presents a different set of problems and no single prescription can cure them all.” The new system will indeed be controversial and will engender a great deal of discussion, as well it should. But in the final analysis, the Uniform Probate Code should be adopted unusual cases.”

In closing, it should be reiterated that the entire subject of the surviving spouse’s elective share is difficult, subtle and permits of no easy solution. The matter needs careful study by the several state legislatures now considering the Uniform Probate Code.

Basic Meaning of Uniform Probate Code

Uniform Probate Code means: a model law to achieve uniformity in probate proceedings throughout the U.S.


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