UPC Provisions

7/27/2019 UPC Provisions

1/8

UPC and UTC Provisions

1. Intestacya. UPC 2-101. Intestate Estate

i. (a) Any part of a decedents estate not effectively disposed of by will passes byintestate succession to the decedents heirs as prescribed in this Code, except as

modified by the decedents will.

ii. (b) A decedent by will may expressly exclude or limit the right of an individual orclass to succeed to property of the decedent passing by intestate succession. If

that individual or a member of that class survives the decedent, the share of the

decedents intestate estate to which that individual or class would have

succeeded passes as if that individual or each member of that class had

disclaimed his intestate share.

b. UPC 2-102. Share of Spousei. The Intestate share of a decedents surviving spouse is:

1. (1) the entire intestate estate if:a. No descendant or parent of the decedent survives the

decedent; orb. All of the decedents surviving descendants are also

descendants of the surviving spouse and there is no other

descendant of the surviving spouse who survives the decedent.;

c. The first $300,000, plus three-fourths of any balance of theintestate estate, if not descendant of the decedent survives the

decedent, but a parent of the decedent survives the decedent;

d. The first $225,000, plus of any balance of the intestate estate,if all of the decedents surviving descendants are also

descendants of the surviving spouse and the surviving spouse

has one or more surviving descendants who are not

descendants of the decedent;e. The first $150,000, plus of any balance of the intestate estate,

if one or more of the decedents surviving descendants are not

descendants of the surviving spouse.

c. UPC 2-105. No Takeri. If there is no taker under the provisions of this article, the intestate estate

passes to the state.

d. Advancementsi. Section 2-109. Advancements.

1. (a) If an individual dies intestate as to all or a portion of his [or her]estate, property the decedent gave during the decedent's lifetime to an

individual who, at the decedent's death, is an heir is treated as an

advancement against the heir's intestate share only if (i) the decedent

declared in a contemporaneous writing or the heir acknowledged in

writing that the gift is an advancement or (ii) the decedent's

contemporaneous writing or the heir's written acknowledgment

otherwise indicates that the gift is to be taken into account in

computing the division and distribution of the decedent's intestate

estate.


2/8

2. (b) For purposes of subsection (a), property advanced is valued as ofthe time the heir came into possession or enjoyment of the property or

as of the time of the decedent's death, whichever first occurs.

3. (c) If the recipient of the property fails to survive the decedent, theproperty is not taken into account in computing the division and

distribution of the decedent's intestate estate, unless the decedent's

contemporaneous writing provides otherwise.

e. Disclaimersi. UPC 2-1106(b)(3)(C)- if by law or under the instrument, the descendants of the

disclaimant would share in the disclaimed interest by any method of

representation had the disclaimant died before the time of distribution, the

disclaimed interestpasses only to the descendants of the disclaimant who

survive the time of distribution.

2. Execution of WillsComparison of Statutory Fomalities for Formal Wills

Statute of

Frauds (Land)

(1967

Wills Act

(1836)

Uniform

Probate Code

(1990)

Uniform

Probate Code

(Rev. 2008)

Writing Writing Writing Writing

Signature Subscription Signature Signature

Attestation &

Subscription

by 3

witnesses

Attestation &

subscription

by 2

witnesses

Attestation &

signature by 2

witnesses

Attestation &

signature by 2

witnesses or

notarization

a. Uniform Probate Code 2-502: Execution; Witnessed or Notarized Wills;Holographic Wills

i. (a) [Witnessed or Notarized Wills.] Except as otherwise provided insubsection

ii. (b) and in Sections 2-503, 2-506, and 2-513, a will must be:1. in writing;2. signed by the testator or in the testator's name by some other

individual in the testator's conscious presence and by the testator's

direction; and

3. either:a. signed by at least two individuals, each of whom signed

within a reasonable time after the individual witnessed

either the signing of the will as described in paragraph (2) or

the testator's acknowledgment of that signature or

acknowledgment of the will; or acknowledged by the

testator before a notary public or other individual

authorized by law to take acknowledgments.

b. [Holographic Wills.] A will that does not comply withsubsection (a) is valid as a holographic will, whether or not

witnessed, if the signature and material portions of the

document are in the testator's handwriting.

c. [Extrinsic Evidence.] Intent that a document constitute thetestator's will can be established by extrinsic evidence,


3/8

including, for holographic wills, portions of the document

that are not in the testator's handwriting

2. Revocationa. UPC 2-507. Revocation by Writing or by Act

i. A will or any part thereof is revoked:1. (1) by executing a subsequent will that revokes the previous will or part

expressly or by inconsistency; or

2. (2) by performing a revocatory act on the will, if the testator performedthe act with the intent and for the purpose of revoking the will or part

or if another individual performed the act in the testator's conscious

presence and by the testator's direction. For purposes of this paragraph,

"revocatory act on the will" includes burning, tearing, canceling,

obliterating, or destroying the will or any part of it. A burning, tearing,

or canceling is a "revocatory act on the will," whether or not the burn,

tear, or cancellation touched any of the words on the will.

b. Revivali. UPC 2-509: Revival of Revoked Will

1. If a subsequent will that wholly revoked a previous will is thereafterrevoked by a revocatory act under Section 2-507(a)(2), the previous will

remains revoked unless it is revived. The previous will is revived if it is

evident from the circumstances of the revocation of the subsequent will

or from the testator's contemporary or subsequent declarations that

the testator intended the previous will to take effect as executed.

2. If a subsequent will that partly revoked a previous will is thereafterrevoked by a revocatory act under Section 2-507(a)(2), a revoked part of

the previous will is revived unless it is evident from the circumstances of

the revocation of the subsequent will or from the testator's

contemporary or subsequent declarations that the testator did not

intend the revoked part to take effect as executed.3. If a subsequent will that revoked a previous will in whole or in part is

thereafter revoked by another, later, will, the previous will remains

revoked in whole or in part, unless it or its revoked part is revived. The

previous will or its revoked part is revived to the extent it appears from

the terms of the later will that the testator intended the previous will to

take effect.

3. Ademptiona. UPC (1990) 2-606- Nonademption of Specific Devises; Unpaid Proceeds of Sale,

Condemnation, or Insurance; Sale by Conservator or Agent

i. (a) A specific devisee has a right to specifically devised property in thetestator's estate at the testator's death and to:

1. (1) any balance of the purchase price, together with any securityagreement, owed by a purchaser at the testator's death by reason of

sale of the property;

2. (2) any amount of a condemnation award for the taking of the propertyunpaid at death;

3. (3) any proceeds unpaid at death on fire or casualty insurance on orother recovery for injury to the property;


4/8

4. (4) any property owned by the testator at death and acquired as a resultof foreclosure, or obtained in lieu of foreclosure, of the security interest

for a specifically devised obligation;

5. (5) any real property or tangible personal property owned by thetestator at death which the testator acquired as a replacement for

specifically devised real property or tangible personal property; and

6. (6) if not covered by paragraphs (1) through (5), a pecuniary deviseequal to the value as of its date of disposition of other specifically

devised property disposed of during the testator's lifetime but only to

the extent it is established that ademption would be inconsistent with

the testator's manifested plan of distribution or that at the time the will

was made, the date of disposition or otherwise, the testator did not

intend ademption of the devise. (later amended to put the burden on

the party opposing ademption, that is, the party seeking the pecuniary

value of specifically devised property not in the estate).

ii. (b) If specifically devised property is sold or mortgaged by a conservator or byan agent acting within the authority of a durable power of attorney for an

incapacitated principal or a condemnation award, insurance proceeds, orrecovery for injury to the property is paid to a conservator or to an agent acting

within the authority of a durable power of attorney for an incapacitated

principal the specific devisee has the right to a general pecuniary devise equal to

the net sale price, the amount of the unpaid loan, the condemnation award, the

insurance proceeds, or the recovery.

iii. (c) The right of a specific devisee under subsection (b) is reduced by any rightthe devisee has under subsection (a).

4. Revocable Trustsa. Uniform Trust Code 603- Settlors Powers; Powers of Withdrawal

i. (a) While a trust is revocable [and the settlor has capacity to revoke the trust],rights of the beneficiaries are subject to the control of, and the duties of thetrustee are owed exclusively to, the settlor.

ii. (b) During the period the power may be exercised, the holder of a power ofwithdrawal has the rights of a settlor of a revocable trust under this section to

the extent of the property subject to the power.

b. Uniform Trust Code 604- a person may bring suit to challenge a revocable trust, butonly after the trust becomes irrevocable by reason of the settlors death.

c. UTC 603- provides that while the settlor is alive the trustee of a revocable trust owesduties only to the settlor.

5. Multiple Party Accountsa. The UPC authorizes a joint tenancy account with the right of survivorship, an agenct

account, and a POD account.

b. Under UPC, joint accounts belong to the parties during their joint lifetimes, inproportion to the net contribution of each to the sums on deposit, unless there is clear

and convincing evidence of a different intent. UPC 6-211(b).

c. Extrinsic evidence is admissible to show that a joint account was opened solely for theconvenience of the depositor. UPC 6-203, 204, 212.

d. UPC imposes a requirement of survivorship on beneficiaries of a POD bank account (6-212) as well as on beneficiaries of securities in TOD registration (6-307), bur nor on

beneficiaries of POD contracts generally.


5/8

e. UPC includes an Antilapse provision for POD designations, which substitutes thedescendants of the named beneficiary who does not survive the benefactor. UPC 2-706,

which parallels the UPC Antilapse provision for wills in 2603.

f. Under the UPC, the Totten Trust is abolished as a formal category and is instead treatedas a POD account.

6. Pour-Over Willsa. UPC (1990) 2-511- Testamentary Additions to Trusts

i. (a) A will may validly devise property to the trustee of a trust established or tobe established (i) during the testator's lifetime by the testator, by the testator

and some other person, or by some other person, including a funded or

unfunded life insurance trust, although the settlor has reserved any or all rights

of ownership of the insurance contracts, or (ii) at the testator's death by the

testator's devise to the trustee, if the trust is identified in the testator's will and

its terms are set forth in a written instrument, other than a will, executed

before, concurrently with, or after the execution of the testator's will or in

another individual's will if that other individual has predeceased the testator,

regardless of the existence, size, or character of the corpus of the trust. The

devise is not invalid because the trust is amendable or revocable, or because thetrust was amended after the execution of the will or the testator's death.

ii. (b) Unless the testator's will provides otherwise, property devised to a trustdescribed in subsection (a) is not held under a testamentary trust of the

testator, but it becomes a part of the trust to which it is devised, and must be

administered and disposed of in accordance with the provisions of the

governing instrument setting forth the terms of the trust, including any

amendments thereto made before or after the testator's death.

iii. (c) Unless the testator's will provides otherwise, a revocation or termination ofthe trust before the testator's death causes the devise to lapse.

7. Trustsa.

UPC 2-703- provides that the testator may select the state law to govern the meaningand legal effect of his will, including trusts created by the will, unless that law is contrary

to the domiciliary states law protecting the surviving spouse or any other public policy

of the domiciliary state. This provision aligns with testamentary choice of law rules with

those generally used for inter vivos trusts, and, where adopted, it lessens the need to

create an inter vivos trust to achieve a benefit in another state.

b. A trust must have one or more ascertainable beneficiaries. UTC 402(a)(3); RST of Trusts44. Exception for charitable trust. Beneficiaries of a private trust may be unborn or

unascertained when the trust is created.

c. Note- Extended Discretioni. When the instrument purports to free the trustee from some or all of these

limitations by use of adjectives such as sole, absolute, or uncontrolled, problems

arise.

ii. But a discretionary power to be exercised in the trustees sole or absolute oruncontrolled discretion is not in fact absolute or uncontrolled.--> must not

disregard the interests of the beneficiary, then the court will intervene.

iii. RST (2d) of Trusts, 187- subjective standard of whether the trustee has actedion a state of mind which it was contemplated by the settlor that he would act.

. . . The trustee will not be permitted to act dishonestly, or from some motive


6/8

other than the accomplishment of the purposes of the trust, or ordinarily to act

arbitrarily without an exercise of his judgment.

iv. UTC 814- trustee shall exercise a discretionary power in good faith and inaccordance with the terms and purposes of the trust and the interests of the

beneficiaries.

v. RST (3d) Trusts 50, cmt. c- words such as absolute or unlimited or sole anduncontrolled are not interpreted literally. Trsutee must act honestly and in a

state of mind contemplated by the settlor. No bad faith.

d. Note: Exculpatory Clausesi. Exculpatory (exoneration) clause- excuses the trustees from liability except for

willful neglect or default.

ii. UTC 1008(b)- an exculpatory term drafted or caused to be drafted by thetrustee is invalid as an abuse of a fiduciary or confidential relationship unless

the trustee provides that the exculpatory term is fair under the circumstances

and that its existence and contents were adequate communicated to the settlor.

iii. RST (3d) of Trusts 96, cmt. d- supports the UTC positioniv. A settlor who names a third party as trustee is perhaps less vulnerable to abuse

if represented by a lawyer who doesnt have a personal stake in the exculpatoryprovision.

v. UTC 1008 cmt- if the settlor was represented by independent counsel, thesettlors attorney is considered the drafter of the instrument even if the

attorney used the trustees form. Because the settlors attorney is an agent of

the settlor, disclosure of an exculpatory term to the settlors attorney is

disclosure to the settlor.

vi. A trust in which there is no legally binding obligation on a trustee is a trust inname only and more in the nature of an absolute estate or fee simple grant in

property.

e. Note: Mandatory Arbitration Clausesi.

Some trust instruments provide that all disputes between the trustee and thebeneficiary must be resolved by arbitration.

ii. Schoneberger v. Oelze (2004)- court allowed the beneficiary to litigate in courtin spite of the trusts mandatory arbitration provision (settlor may not

unilaterally strip trust beneficiaries of their right to access the courts absent

their agreement).

iii. Florida statute takes the opposite view, mandating the enforcement of aprovision requiring arbitration of disputes.

f. Discretionary Trustsi. UTC 504- provides that, subject to an exception for claims by children and

spouses for child support and alimony, a creditor of a beneficiary cannot compel

a discretionary distribution even if the beneficiary could compel such a

distribution.

ii. UTC 504- Discretionary Trusts; Effect of Standard1. (a) In this section, "child" includes any person for whom an order or

judgment for child support has been entered in this or another State.

2. b) Except as otherwise provided in subsection (c), whether or not a trustcontains a spendthrift provision, a creditor of a beneficiary may not

compel a distribution that is subject to the trustee's discretion, even if:


7/8

a. 1) the discretion is expressed in the form of a standard ofdistribution; or

b. (2) the trustee has abused the discretion.3. (c) To the extent a trustee has not complied with a standard of

distribution or has abused a discretion:

a. (1) a distribution may be ordered by the court to satisfy ajudgment or court order against the beneficiary for support or

maintenance of the beneficiary's child, spouse, or former

spouse; and

b. (2) the court shall direct the trustee to pay to the child, spouse,or former spouse such amount as is equitable under the

circumstances but not more than the amount the trustee would

have been required to distribute to or for the benefit of the

beneficiary had the trustee complied with the standard or not

abused the discretion.

4. (d) This section does not limit the right of a beneficiary to maintain ajudicial proceeding against a trustee for an abuse of discretion or failure

to comply with a standard for distribution.5. (e) If the trustee's or cotrustee's discretion to make distributions for the

trustee's or cotrustee's own benefit is limited by an ascertainable

standard, a creditor may not reach or compel distribution of the

beneficial interest except to the extent the interest would be subject to

the creditor's claim were the beneficiary not acting as trustee or

cotrustee.

g. Spendthrift Trustsi. UTC 502- Spendthrift Provision

1. (a) A spendthrift provision is valid only if it restrains both voluntary andinvoluntary transfer of a beneficiary's interest.

2.

(b) A term of a trust providing that the interest of a beneficiary is heldsubject to a "spendthrift trust," or words of similar import, is sufficient

to restrain both voluntary and involuntary transfer of the beneficiary's

interest.

3. (c) A beneficiary may not transfer an interest in a trust in violation of avalid spendthrift provision and, except as otherwise provided in this

[article], a creditor or assignee of the beneficiary may not reach the

interest or a distribution by the trustee before its receipt by the

beneficiary.

ii. UTC 503- Exceptions to Spendthrift Provision1. (a) In this section, "child" includes any person for whom an order or

judgment for child support has been entered in this or another State.

2. (b) A spendthrift provision is unenforceable against:a. (1) a beneficiary's child, spouse, or former spouse who has a

judgment or court order against the beneficiary for support or

maintenance;

b. (2) a judgment creditor who has provided services for theprotection of a beneficiary's interest in the trust; and

c. (3) a claim of this State or the United States to the extent astatute of this State or federal law so provides.


8/8

3. (c) A claimant against which a spendthrift provision cannot be enforcedmay obtain from a court an order attaching present or future

distributions to or for the benefit of the beneficiary. The court may limit

the award to such relief as is appropriate under the circumstances.

h.

Documents

UPC Provisions