Probate

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Background

Probate laws govern the transfer of property at death. These laws vary significantly by state. They have many variations and complexities, which contributes to the misunderstanding of the probate process. It can also make it challenging for the surviving spouse to navigate the legal landscape at a difficult time.Delays and costs in state probate processes have led to dissatisfaction among heirs, beneficiaries, and estate administrators. A simpler probate system would facilitate the orderly transfer of property at death while also addressing other key issues. These include equitable assignment of costs, the need for qualified staff, and access to the courts for resolution of disputes involving inheritance or debts of decedents. The Uniform Law Commission developed the Uniform Probate Code, which simplifies and clarifies the probate system for the average consumer. Proper estate planning could also ease this process.

Some states have enacted legislation authorizing non-probate 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.

Although tangible assets are often the focus in probate, digital assets are increasingly important. These include e-mail, social media accounts, and photographs. In some cases courts have not treated digital the same as tangible assets. In response to this problem the Uniform Law Commission has approved the Uniform Fiduciary Access to Digital Assets Act. This would give executors and fiduciaries the authority to treat these digital assets in the same manner as tangible assets.

PROBATE: Policy

Simplifying probate

In this policy: State

Policymakers should simplify the settling of estates in probate. The process should be expedited. Cost should also be reduced. They should adopt the 1990 Uniform Probate Code. Changes should allow informal or administrative probate procedures for wills and for appointing personal representatives. They should also provide oversight for the unsupervised or independent handling of estates.

States should enact legislation to simplify, modify, and clarify estate planning.

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

States should enact legislation, such as the Uniform Fiduciary Access to Digital Assets Act, that authorizes fiduciaries to treat digital assets in the same manner as tangible assets.