Highlights of the Uniform Probate Code, Article Ii

JurisdictionColorado,United States
CitationVol. 23 No. 10 Pg. 2279
Pages2279
Publication year1994
23 Colo.Law. 2279
Colorado Lawyer
1994.

1994, October, Pg. 2279. Highlights of the Uniform Probate Code, Article II




2279


Vol. 23, No. 10, Pg. 2279

Highlights of the Uniform Probate Code, Article II

Edited by Bob Steenrod

This article is an introduction and overview of the major changes to Colorado's version of the Uniform Probate Code, which are due to take effect July 1, 1995. The sections which follow were prepared by members of the Statutory Revisions Committee of the Probate and Trust Law Section of the Colorado Bar Association ("Statutory Revisions Committee").

The article begins with a brief discussion of the history and philosophy of the Uniform Probate Code, Article II ("UPC II), followed by nine parts explaining the changes in the nine subdivisions of the new Article II. As with any major revision, a discussion of all of the changes is not possible in an article of this length. Therefore, only the highlights or those areas believed to contain the most important changes have been selected by the authors for identification and focus. The vast majority of UPC II is simply a refinement and restatement of existing law.

The development of uniform law is an evolutionary process, and UPC II is a major step along the way. It reflects wide-spread changes in society as reflected in the thinking of the Conference of Commissioners on Uniform State Laws. Those of us who have reviewed the new Code believe it to be a substantial improvement over existing law, although we do have reservations about some of its provisions. For example, one provision that causes some concern is the expansion of the anti-lapse rules. Another controversial provision provides the opportunity to probate a will which might in the past have failed for some technical reason. Only time will tell whether such changes are actual improvements.

The Statutory Revisions Committee encourages readers to review this article and the Probate Code itself, and to join the debate. Each fall, the Statutory Revisions Committee reviews the existing Code and, where appropriate, proposes additional refinements and changes for consideration by the Colorado General Assembly. Attorneys who wish to participate in this process should consider joining the CBA Probate and Trust Law Section.

The Statutory Revisions Committee encourages all interested attorneys to send their ideas, suggestions or criticisms to the Statutory Revisions Committee of the Probate and Trust Law Section, in care of the Colorado Bar Association, 1900 Grant St., Suite 950, Denver, CO 80203.


HISTORY AND PHILOSOPHY OF UPC II

by James R. Wade

When the Governor signed Senate Bill 94-043 into law on April 28, 1994, Colorado joined Arizona, Minnesota, Montana, New Mexico and North Dakota in adopting revised Uniform Probate Code, Article II as a replacement for Colorado Probate Code, Article 11. There also have been partial enactments of UPC II in Kansas and West Virginia. The subject matter of UPC II is of significant importance to Colorado lawyers and their clients: It covers the substantive law of intestate succession, wills and family protection, including the elective share of the surviving spouse, together with basic rules of construction.

The revised UPC II was the result of a multi-year drafting project of the Joint Editorial Board for the Uniform Probate Code. The Board consists of representatives from its constituent organizations: the Real Property, Probate and Trust Section of the American Bar Association; the American College of Trust and Estate Counsel; and the Conference of Commissioners on Uniform State Laws. The reporter for the project was Lawrence W. Waggoner, Professor of Law at the University of Michigan Law School, who is also reporter for the Restatement of Property---Donative Transfers revision project.

There are several main themes in UPC II. One is the notion that in a society with an increasing number of prior marriages, multiple marriages and blended families, the traditional intestacy laws were not reflective of modern family dynamics. The result is a modification of the intestacy law. It maintains the surviving spouse as the principal intestate taker, but provides refinements as to the balance of the intestate estate, taking into account not only the existence of children of the decedent by a prior marriage, but also children of a surviving spouse by a prior marriage.

A related theme is that of defining the appropriate protection of the surviving spouse against disinheritance. The original Uniform Probate Code model of the spouse's augmented estate share was adopted successfully in Colorado in 1974. The updated UPC, while continuing the concept of an elective share which may




2280


include non-probate assets, contains some substantial variations from the previously existing Colorado pattern. Although UPC II increases the maximum share from one-third to one-half (consistent with the Colorado model), a kind of vesting schedule is adopted so that, for example, a surviving spouse of a short, late in life marriage will not be entitled to the same statutory protection as a spouse of a longer, more established marriage. In addition, recognizing something of an entity theory of marriage, all of the surviving spouse's assets are now included in the computation of the augmented estate (and not just those assets derived from the decedent).

Another main theme in UPC II is that of the need for better correlation between probate and non-probate transfers. It is no secret that the bulk of family wealth, at least in the larger estates, does not pass under the intestacy laws or under wills, but rather passes under such non-probate arrangements as joint tenancy, life insurance and annuities and various retirement benefits. Colorado, following the Uniform Probate Code model, has provided for recognition of a range of non-probate transfers, including multi-party bank accounts and transfer-on-death security registration arrangements.

UPC II attempts to provide common rules of construction and effect for both probate and non-probate transfers. These include the rules regarding disclaimer and felonious slaying (both in the existing Code) and by extending the rules regarding the impact of dissolution of marriage to non-probate transfers, such as life insurance and revocable trusts. In addition, there is a limited extension of the 120-day survivorship requirement and the anti-lapse provisions to non-probate transfers. This is a positive step toward a more thorough integration of the rules of succession.

The final theme is the providing of more flexibility to the courts in determining and carrying out the testator's intention. For example, wills which might otherwise be invalid for failure to meet technical execution requirements nevertheless may be probated under a clear and convincing evidence standard. Antilapse rules (based on probable intention) are strengthened, and the risk of ademption by "extinction" of the subject matter of a devise is diminished.

Finally, there are some welcome additions to Colorado probate law. The new Code contains a series of rather complex, but workable, rules of construction for future interests. It also provides formal recognition and enforceability to so-called "honorary trusts," and contains a provision allowing the creation of a trust to care for the pet(s) of a decedent following his or her death.

The sections which follow provide commentary on the various areas of revision. Particular attention should be paid to the effective date provisions (see CRS §§ 15-11-603 and 701).


GENERAL PROVISIONS

by Bob Steenrod

CRS § 15-10-107: Evidence of Death or Status

Current Law

Presently, if an individual is missing for a period of seven years, and if his or her absence cannot be satisfactorily explained after diligent inquiry, that individual is presumed to be deceased.


UPC II

UPC II refers to CRS § 12-36-136 for a definition of death and clarifies that the standard for determining the fact of death is to be by "clear and convincing evidence." The new statute then shortens the period of time a person must be absent to be presumed dead to five years.


CRS § 15-10-201: General Definitions

Current Law

This section sets forth the general definitions that are currently in use throughout the Colorado Probate Code.


UPC II

The principal change is the elimination of the word "issue" and, in its place, the term "descendant" or "descendants."


PART 1: INTESTATE SUCCESSION

by Bob Steenrod

Introduction

The current law provides that any portion of a decedent's estate that is not effectively disposed of by his or her will or by other means passes to the decedent's heirs, as discussed in this section. UPC II provides a significant increase of the portion of the intestates estate that will pass to the decedent's surviving spouse and tries to take into account a society that has multiple marriages and children from prior marriages.

There are major changes in Colorado's intestacy laws of decedent and distribution in the new UPC II. Heirship is cut off at the descendants of grandparents; intestate estates are no longer split at the grandparent level. Intestate distributions are now made following a "per capita of each generation" distributional scheme in place of the existing "by representation" approach.


CRS § 15-11-102: Share of Spouse

Current Law

The intestate share of the surviving spouse is:

1) If there is no surviving issue of the decedent, the entire estate;

2) If there are surviving issue and all such children are also the issue of the surviving spouse, the spouse receives the first $25,000, plus one-half the balance of the intestate estate;

3) If there are surviving issue, and one or more of these issue are not the issue of the surviving spouse, then the surviving spouse is entitled...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT