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What is the Uniform Probate Code?

Last update on: Dec 31 2020
By Katie Kao
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Probate is the legal process that ensures your debts are paid and legal title of your assets is transferred to the appropriate heirs and beneficiaries. If you have a will, the probate process will determine whether the will is authentic and valid. During the process, an executor will be appointed to administer the estate.

 

Each state has the authority to create and implement its specific probate laws with court proceedings, bonds and fees. Some states give cities and counties the authority to modify the details within their jurisdictions. It is important to have a basic understanding of the state’s probate laws before going through the process.

 

Probate is a long-time feature of Anglo-American law. Over time, many people complained that the process was unnecessarily lengthy, complex, and expensive and should be modernized. A group of lawyers and legal scholars, known as the Uniform Law Commission, drafted a more condensed and streamlined process for probate throughout the United States called the Uniform Probate Code (UPC). The primary purposes of the UPC were to simplify the probate process and standardize aspects of state probate laws.

 

The original version of UPC was drafted in 1969, and it was most recently updated in 2019. The Uniform Law Commission has no authority. It drafts and issues laws and recommends that each of the states adopt them. The state legislatures decide whether or not to adopt a proposed uniform law and can adopt one in whole or in part. Those that do adopt the uniform laws often do so with modifications. 

 

So far, 18 states have adopted at least in part the provisions of the UPC. 

 

The Probate Process Under the Uniform Probate Code

The Uniform Probate Code has seven sections which spell out three different kinds of probate: informal, unsupervised formal, and supervised formal. Most of the probate processes under the UPC follow the informal process, simplifying and shortening the time it takes to probate an estate. But the informality of the process depends on the details of the estate and the modifications of the UPC that each state implemented.

 

The informal probate process under the UPC, whether or not the deceased had a last will and testament, follows these steps:

  1. The proposed executor files a petition in the local probate court and presents the death certificate. Then, the judge of the probate court officially appoints and gives authority to an executor. 
  2. The executor presents the testator’s last will and testament to be validated by the probate court. This process proves that the last will and testament was written and signed by the testator with the intent of it being the will.
  3. The executor then locates the assets owned by the decedent and prepares an inventory of the estate.
  4. The executor formally notifies the beneficiaries and creditors of the probate process. 
  5. If the executor intends to sell property, in general the executor lists the property, reviews offers, accepts an offer, and closes the sale. The details of this process can vary depending on whether the executor was granted independent or dependent authority by the probate court. The executor might have to present the offers to the probate court and receive authority to accept an offer. 
  6. The executor pays all debts and liabilities before distributing property to beneficiaries. As part of paying debts and liabilities, the executor must file all required tax returns and pay the taxes. 
  7. The executor then distributes the estate according to the last will and testament, or if there was no will according to the intestate laws of the state. Specifically bequeathed items go to the named beneficiaries. 
  8. The probate process is then closed by making final filings with the court, including a final accounting document and a closing statement.

 

There is an unsupervised formal probate process under the UPC that is similar to the regular probate process in some states that have not adopted the UPC. This process is for when disagreements arise during probate. The executor schedules a court hearing at which the disagreements are heard. This process usually is longer and more expensive than the informal process.

 

In rare cases, a supervised formal probate is used. The probate court might find this necessary, for example when an estate or the beneficiary needs the court’s protection. The probate court is heavily involved in the supervised formal probate process. 

 

What is the Uniform Probate Code: Key Takeaways

  • The Uniform Probate Code (UPC) was created to simplify the probate process and standardize  aspects of state probate laws. So far, 18 states have adopted it.
  • There are three types of probate under the UPC: informal, unsupervised formal, and supervised formal.
  • The court is the least involved in the informal probate process, which is the fastest and least expensive process.
  • It takes longer to settle an estate under either the unsupervised formal and supervised formal probate processes. These processes are not needed when there are no disagreements or other reasons for the court to be involved.

 

 

Valuable contributions to this summary of “What is the Uniform Probate Code?” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.

Katie Kao is an editorial intern with Eagle Financial Publications.

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