Probate

On this page: Legal Rightscare giving

Background

Probate laws, which govern the transfer of property at death, vary significantly from state to state. The variations and complexities of such laws contribute to the misunderstanding of this process. Delays and costs in state probate processes have generated such dissatisfaction among heirs, beneficiaries, and estate administrators that the Uniform Law CommissionThe ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. developed the Uniform Probate Code (UPC) to simplify and clarify the probate system for the average consumer.

The UPC addresses both transfers of individually owned property at death and nonprobate transfers. Nonprobate transfers—such as payment-on-death accounts, accounts passing by beneficiary designation, and joint accounts passing by right of survivorship—do not involve the court system. These transfers thus give people a way to transfer control of personal assets without the costs and other unwanted side effects of probate litigation (see Chapter 8, Long-Term Services and Supports—Medicaid for information on estate planning and recovery for Medicaid).

As of 2016, the UPC has been adopted in whole or part by about 17 states and the U.S. Virgin Islands. Many additional states recognize the need to simplify their probate systems to facilitate the orderly transfer of property at death, while also addressing equitable assignment of costs, the need for qualified staff, and access to the courts for resolution of disputes involving inheritance or debts of decedents. Some states have enacted legislation authorizing nonprobate transfers of real property using transfer-on-death (or beneficiary) deeds. The real property owner may deed the property to a named beneficiary; the transfer becomes operative on the owner’s death (avoiding probate) and is revocable until then.

In some cases courts have not treated digital assets, such as e-mail, social media accounts, or photographs, the same as tangible assets when a person dies or has granted a power of attorney or other right to a fiduciary. Instead courts sometimes have allowed the terms of service or Internet service agreements to restrict the fiduciary’s right to carry out the person’s wishes or otherwise handle these valuable assets. In response to this problem the Uniform Law Commission has approved the Uniform Fiduciary Access to Digital Assets ActThis act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic… to give executors and fiduciaries the authority to treat these digital assets in the same manner as tangible assets. As of 2016, 19 states have adopted the Uniform Fiduciary Access to Digital Assets Act, and it has been introduced in a dozen additional states.

Probate: Policy

Simplifying probate

In this policy: StateLegal Rightsprobateestate

States should, at minimum, adopt the 1990 Uniform Probate Code (UPC), similar legislation, or court rules establishing probate procedures that simplify, expedite, and reduce the costs of settling estates in probate. Changes should allow informal or administrative procedures for probating wills and appointing personal representatives, and provide oversight for the unsupervised or independent handling of estates.

States should enact legislation to simplify, modify, and clarify estate planning. These laws should be modeled after the UPC revised Article II (Uniform Act on Intestacy, Wills and Donative Transfers) and Article VI (Uniform Non-probate Transfers on Death Act). The statutes on nonprobate property transfers include the Uniform TOD (Transfer on Death) Security Registration Act, the Uniform Multiple-Person Accounts Act, and the Uniform Custodial Trust Act.

States should also enact legislation that authorizes transfer-on-death (or beneficiary) deeds to enable revocable nonprobate real property transfers.

States should enact legislation, such as the Uniform Fiduciary Access to Digital Assets ActThis act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic… , that authorizes fiduciaries (e.g., executors, agents, and guardians) to treat digital assets in the same manner as tangible assets.