The Uniform Probate Code (sometimes referred to as the UPC) is a set of model laws drafted and reviewed by a group of national experts. It specifically address issues related to wills, trusts, and estates. The UPC was created with a goal of streamlining the probate process, making estate and probate administration simpler and less expensive to across the board.
Several states have adopted the UPC in an attempt to standardize estate administration across state lines, and to keep the procedure as simple as possible for those involved.
Why is the UPC Important?
The UPC gives specific details and instructions regarding the types of probate and the rights of a surviving spouse. Under the UPC, there are three types of probate:
Most of the time, probate in states that have adopted the UPC falls into this first category of informal probate. This type of probate is especially common in cases where the deceased leaves behind a will and all the heirs are in agreement and getting along. This whole process is essentially paperwork, with no court hearings.
While there are certain requirements for informal probate (including providing written notice of the probate to heirs, beneficiaries, and creditors), this is the simplest and easiest type of probate available. However, if anyone wants to contest the proceeding, then informal probate cannot be used.
Unsupervised Formal Probate
Unsupervised Formal Probate in UPC states is a traditional court proceeding, and in many ways mirrors probate in other states. It is a lengthy process, and more expensive than informal probate. This is largely because there is a high likelihood of disagreements among family members or creditors.
Like in probate matters in states that don’t recognize the UPC, someone must be appointed as the personal representative (or executor) of the estate. Notice must also be sent to the interested persons (including beneficiaries under the will and any creditors that may be owed money). Often there are hearings to determine who the interested persons are. The representative of the estate must get the court’s permission before selling or distributing the property of the estate if the distribution is not dictated by the will.
Supervised Formal Probate
Supervised formal probate is only used if the court finds it absolutely necessary. Usually this process is deemed necessary because a beneficiary may not be able to look after their own interests (for example, the beneficiary may be a minor or mentally incapacitated).
The process for supervised formal probate is similar to the process in unsupervised formal probate. However, the court can require the personal representative of the estate to take all necessary action to safeguard the assets of the estate and make sure the property gets into the right hands.
In some cases, the court may require a physical inspection of the assets of the estate, or require the representative to make periodic accountings of how the assets have been used or distributed. Just as with unsupervised formal probate, the court can require that the representative of the estate get court approval before distributing any property.
What are the Rights of Surviving Spouses Under the UPC?
The UPC also specifies the rights that a surviving spouse has when their spouse dies intestate (which means they died without having a will in place).
If a spouse dies intestate, the property is distributed as such:
- If the deceased spouse is not survived by any parents, children or grandchildren, then the surviving spouse inherits the entire estate;
- If a parent of the deceased spouse survives, the surviving spouse inherits the first $50,000 of the estate, and then splits the remainder of the estate with the deceased spouse’s parent(s); and
- If a child or grandchild of the deceased spouse survives, then the surviving spouse inherits the first $50,000 of the estate and splits the remainder of the estate with the surviving children or grandchildren.
What States Follow the Uniform Probate Code?
Although the UPC was originally intended for adoption in all 50 states, only a few states have adopted the UPC in its entirety. Other states have adopted various portions of the UPC into their existing law.
At this time, eighteen states have adopted the full version of the UPC: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, and Utah.
In these states, the UPC covers the ins and outs of probate and estates, including topics like:
- The determination of a will;
- Functions of an estate executor; and
- The process of administering an estate.
Do I Need a Lawyer to Draft My Will if I Live in a UPC State?
Even if you live in a state that has adopted the UPC, you will want to make sure that your loved ones are provided for after you’re gone. By not having a will in place, you leave your family at the whim of the probate procedures. Having a carefully drafted and properly executed will is the best way to make sure that your estate is properly taken care of, and that your final wishes are followed.
It is in your best interests (and in the best interests of your heirs and beneficiaries) that you contact an experienced probate lawyer in your area. Your attorney can help in putting together a solid will that protects your estate.