September 01, 2019 Feature

Uniform Laws Update: The Uniform Probate Code at 50

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

Fifty years ago, the Uniform Law Commission (ULC) approved the first version of the Uniform Probate Code (UPC). Seven years in the making, the UPC was an attempt to codify and improve the common law governing the transfer of property at death and the handling of others’ property by fiduciary representation. The UPC built upon several earlier uniform acts, including the Uniform Ancillary Administration of Estates Act (1949) and the Uniform Fiduciaries Act (1922). Another source was the Model Probate Code, a compilation of best practices published in 1949 by RPTE and the University of Michigan Law School.

At the time of the UPC’s approval, probate reform was badly needed. In many states, probate was costly and slow because of arcane laws and highly localized court procedures. The UPC attempted to simplify the process by introducing informal probate proceedings for small, uncontested estates and clear, consistent rules for the administration of other estates.

Even in its first edition, the UPC covered much more than probate law. Structurally, the UPC was divided into articles:

  • Article I included general provisions, such as definitions and jurisdictional rules for the probate court.
  • Article II governed intestate succession and the execution and construction of wills.
  • Article III covered probate procedures and the administration of estates.
  • Article IV addressed multi-jurisdictional probate matters.
  • Article V covered fiduciary relations and included rules for the guardianship of both minors and adults and protection of their property.
  • Article VI governed transfers of property outside of probate, including joint tenancy ownership and contractual designation of a beneficiary.
  • Article VII governed trust administration.

These articles remained largely intact through multiple revisions over the past half-century, except for Article VII, which the Uniform Trust Code superseded in 2000.

In the 50 years since promulgating the UPC in 1969, the ULC has approved more than 20 sets of UPC amendments—primarily to Articles II, V, and VI—to address topics including: the rise of divorce, multiple marriages, and blended families; the increased use of revocable trusts and other will-substitutes to transfer property outside of probate; and the trend toward greater protection of the legal rights of persons subject to guardianship, as well as toward alternatives to guardianship, such as durable powers of attorney. Interestingly, the procedural rules in Articles III and IV have remained largely unchanged.

To a greater extent than with other uniform acts, the ULC has difficulty counting which states have adopted the UPC. Some states adopted an early version but have not enacted subsequent amendments. Some states adopted only parts of the UPC. And some states amended their preexisting statutes to achieve the same legal effect that would be gained by adopting the UPC but used non-uniform statutory language. The ULC’s best estimate is that 18 jurisdictions have adopted a majority of the UPC, and every US jurisdiction has adopted some of the UPC. Perhaps more important, the UPC’s innovations have influenced virtually every state’s probate statutes.

The ULC recently approved another set of amendments to the UPC at its July 2019 annual meeting in Anchorage. The amendments respond to the 2017 revisions of the Uniform Parentage Act, which was first promulgated in 1973 and revised previously in 2000. The most recent version is abbreviated UPA 2017. The 2019 UPC amendments are necessary and desirable in light of the UPA 2017’s provisions on the creation of parent-child relationships, including by assisted reproduction. A set of 2008 amendments to UPC Article II addressed assisted reproduction solely for the purposes of succession. Now that the subject is addressed more comprehensively in the UPA 2017, the UPC can be simplified by incorporating many of the UPA 2017 provisions by reference.

Additionally, the UPA 2017 embraces a functional approach to parentage—the doctrine of de facto parentage. The UPA 2017 also opens the door to the possibility that a child may have more than two parents and hence more than two sets of grandparents.

All of these developments were taken into consideration in drafting the 2019 UPC amendments, which focus on the rules for intestate succession and the construction of class gifts.

The 2019 UPC amendments will achieve five principal objectives:

  1. Blended families are taken into account not only to determine the intestate share of a decedent’s surviving spouse but also to determine the shares of other heirs.
  2. The per-capita-at-each-generation system of representation is incorporated consistently throughout the rules for intestate succession. Under this system, heirs in a generation closer to the decedent are favored compared to heirs in a more remote generation; heirs in a given generation are treated equally.
  3. Outdated terms have been removed. Examples include the references to a decedent’s “maternal” and “paternal” grandparents, to relatives of the “half blood” or “whole blood,” and to “genetic” parents.
  4. The rules in the UPA 2017 governing parent-child relationships created by assisted reproduction generally are incorporated by reference, greatly simplifying certain sections of the UPC.
  5. The intestacy and class-gift provisions are restructured to incorporate the innovations in the UPA 2017, such as the codification of the doctrine of de facto parentage and the recognition that a child may have more than two parents and, therefore, more than two sets of grandparents.

The ULC also is expected to consider in August 2019 a set of technical amendments to replace gendered language in Articles III and IV of the UPC with gender-neutral language.

These amendments will be incorporated into the UPC, and an updated version of the UPC will be published in the fall at States are encouraged to review their probate statutes and consider adopting the UPC revisions as appropriate.