Uniform Probate Code ideally standardizes the various state laws relating to wills and trusts. It also ideally simplifies the probate process. However, only a handful of states have used it. Probate can be a time-consuming process, and Uniform Probate Code, might shorten probate time. Here’s how it works. Probate is the process by which a court confirms and finalizes the contents of a will. It deals with the legal validity of wills, the probate process, creation of trust, and other related concept. Each state writes its own probate law, so it varies by state. The probate laws in each state often contain titles with wording like “Trust and Fiduciaries,” “Decedent’s Code,” Estate Administration,” and the “Uniform Probate Code.” In general, the probate process in each state is fairly similar.
First, you open an estate, submit a will, and determine heirs. You also appoint a personal representative or executor. Secondly, the executor then takes possession and control of the decedent assets during the probate process. The executor can sell assets, if necessary, to satisfy claims. Then, if necessary, the estate can protect surviving family members. Maybe a family receives an allowance, fixes homestead rights or has personal property exempted. The executor must pay taxes and creditors. However, they also can deny creditors’ claims. Meanwhile, the executor must file any applicable tax returns, namely decedent’s final income tax return, estate and fiduciary tax returns. Estate assets typically pay off all taxes. Finally, the executor distributes assets among all beneficiaries. However, they must first pay the administration expenses, creditors’ claims, and taxes. Probate begins when the testator or decedent (person who died and is presumably leaving their assets to someone else) dies. Some states have a deadline of a few years for probating a decedent’s will.
Meanwhile, other states have no deadline. The impact of this is that if a will is not found until after the deadline has passed, the will is invalid and cannot undo the probate process. For example, if a parent of three living children dies and no one can find a will, the probate process occurs with the assumption that there is no will. The probate process occurs and is completed, and the parent’s money is then split equally among the children. If a will is found after the deadline passes, willing all the money to just one of the three children, the will is invalid because the deadline has passed. In states with the statute of limitations, it runs up to three years after the decedent’s death.
States that Have Adopted Uniform Probate Code
Uniform Probate Code was first created in 1969 by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and was amended in 1990 as a model code that states could adopt to standardize probate laws. The entire Uniform Probate Code has been adopted by eighteen states. Other states have adopted parts of the Uniform Probate Code, but it has not become a standardized law across all fifty states. They are:
• Alaska
• Arizona
• Colorado
• Florida
• Hawaii
• Idaho
• Maine
• Massachusetts
• Michigan
• Minnesota
• Montana
• Nebraska
• New Jersey
• New Mexico
• North Dakota
• South Carolina
• South Dakota
• Utah
Uniform Probate Code
The Uniform Probate Code (UPC) is a set of model laws drafted and regularly reviewed by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The NCCUSL was created in 1892 to promote uniformity in state law on all subjects where uniformity is desirable and practical. The UPC was first drafted in 1969 to provide a common set of rules state legislatures may adopt to govern how probate courts decide issues involving inheritances, guardianship of minors or incompetent persons, durable powers of attorney, and trust administration. Revisions to the UPC were adopted by the NCCUSL in 1989–1990; some states have not adopted the revisions at all and some have adopted it only in part. Therefore, although the UPC has been adopted, at least in part, by 18 states, there still may be a great deal of variation between the statutes of those states. One section of the UPC contains a set of rules for determining who is entitled to receive a deceased individual’s “probate” property.
The Uniform Probate Code (UPC) is a comprehensive statute that unifies, clarifies, and modernizes the laws governing the affairs of decedents and their estates, certain transfers accomplished other than by a will, and trusts and their administration. The UPC was originally approved by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the AMERICAN BAR ASSOCIATION in 1969. The purpose of the UPC is to modernize probate law and probate administration and to encourage uniformity through the adoption of the code by all fifty states. The UPC, which has been amended numerous times, has been adopted in its entirety by sixteen states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other thirty-four states have adopted parts of the UPC, but in general the UPC has not succeeded in providing a uniform body of substantive and procedural probate law.
The UPC contains seven substantive articles. Article I contains general provisions, definitions, and jurisdictional topics. Article II governs wills and intestate succession, which occurs when a person dies without leaving a will. Article III deals with the probate of wills and the administration of estates, article IV concerns the probating of estates in states other than the domicile of the decedent, article V extends protection to persons under disability and their property, and article VI governs non probate transfers of property. Article VII contains comprehensive provisions on trust administration. The prime objective of the UPC is to simplify the probate process. For example, article III provides for supervised and unsupervised administration of probate. For estates with few assets and no disputes among the beneficiaries, the UPC allows unsupervised administration. In this case the executor of the will, who is called a PERSONAL REPRESENTATIVE in the UPC, handles the probating of the estate without direct supervision by the probate court. The personal representative handles every step of the probate process by filing a series of simple forms with the probate court. Unsupervised administration reduces the cost of probate and speeds up the process. Probate courts are freed from dealing with routine matters and may concentrate their efforts on estates with substantial assets or contested matters, where supervised administration is necessary. The adoption of the UPC by state legislatures has been fought both by attorneys, who are opposed to unsupervised administration and to the overturning of current state laws governing probate, and by bonding companies, which stand to lose business because unsupervised probate does not require the posting of a bond. In light of this opposition, the Commissioners on Uniform State Laws have developed freestanding acts from similar provisions integrated into the UPC. This technique permits provisions, such as those involving powers of attorney and guardianship, to become law without disturbing other parts of a state’s probate code.
Probate Process in Uniform Probate Code (UPC) States
UPC states offer three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each, keeping in mind that each UPC state is a little different because each one has modified the UPC. Most probates in UPC states are informal, with no court hearings. You can use informal probate whether or not the deceased person left a will and whether the estate is big or small. But if anyone wants to contest the proceeding, you cannot use informal probate. Your first step is to get permission from the probate court to serve as the personal representative (the term that UPC states use instead of executor or administrator). You can probably get a fill-in-the-blanks application from the court. You must apply within three years after the deceased person’s death. A court employee usually called a “probate registrar” or “register,” will approve or deny your application. It should be approved unless someone objects, you missed the three-year deadline, or the will (if there is one) does not appear to be valid. Your authority to act on behalf of the estate will be granted in a document that’s usually titled Letters Testamentary or Letters of Administration. People commonly refer to it, though, just as “letters.” You will need to send formal written notices of the probate to heirs, will beneficiaries, and creditors that you know about. You may also need to publish a notice in the local newspaper (in some states, before the court actually appoints you as personal representative). One of your first tasks is to prepare an inventory and appraisal of the deceased person’s assets. For some assets, you may be able to estimate of the market value; for others, you’ll need an appraisal from an expert. In some states, you file this inventory with the probate registrar; in others, you can show it to the registrar and mail it to interested parties, but it doesn’t have to become part of the public records.
When it’s clear that the estate has enough assets to pay debts, taxes, and expenses of administration (court and lawyer fees, for example), you can start distributing property to the inheritors. As a practical matter, this means that you should wait until the deadline for creditors to file claims has passed—usually three or four months from the time you publish the notice to creditors. First, you’ll prepare a document called a final accounting, to show how you handled the estate assets. Your state may provide a fill-in-the-blanks form. The accounting lists any income the estate assets received during probate and any losses to the estate—for example, if an asset declined in value. It also shows the amounts you paid to creditors and how much you distributed to beneficiaries. You’ll file the accounting with the court and will probably be required to send copies to interested parties, including beneficiaries and creditors. Then, you need to file a form called a “Closing Statement” (or a similar name) stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting. You may also need to send a copy to each person who received property from the estate and to any creditor who hasn’t been paid. Unless someone comes forward to argue about something, your job is done. If you wish, you can choose to have a formal closing to your informal probate. The court will review your accounting and then, if everything is satisfactory, issue an order officially approving how you handled the estate. Some personal representatives want a formal closing because they have an accounting question for the court to resolve, or because they want court approval to help protect themselves from possible claims that they mishandled something. For example, if you paid yourself a good-sized but fair fee for serving as executor, you might want the court to approve it so that beneficiaries will know you handled the matter properly.
Unsupervised formal probate in UPC states is a traditional court proceeding, much like regular probate in other states. Because it is lengthier and more expensive than informal probate, generally unsupervised formal probate is used only if there’s a good reason, such as disagreements among family members or creditors, possible complaints from beneficiaries about your handling of the estate, or not enough money to pay all the creditors. Before the court appoints you as personal representative, you will have to schedule a hearing and send written notice to all interested persons ahead of time. Interested persons include beneficiaries named in the will, the deceased person’s heirs (relatives who would inherit under state law if there were no valid will), and anyone who has formally asked the court to receive notices connected with the case. You’ll also need to publish a notice of the proceeding in a local newspaper. Anyone who objects to your appointment can speak at the hearing. You may need to get the court’s permission before you sell the deceased person’s real estate (unless the will authorizes it), distribute property to beneficiaries, or pay a lawyer—or yourself—for work done on behalf of the estate.
Probate Lawyer Free Consultationr
When you need legal help with a Utah probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you with the Utah Uniform Probate Code.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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