UNIFORM PROBATE CODE (1969)

(Last Amended or Revised in 2019)

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

WITH COMMENTS

COPYRIGHT © 2010
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS

Uniform Law Commission

National Conference of Commissioners on Uniform State Laws
111 N. Wabash Ave., Suite 1010 • Chicago, IL 60602
(312) 450-6600, Fax (312) 450-6601
www.uniformlaws.org

February 27, 2023

UNIFORM PROBATE CODE

Table of Contents
____________________

ARTICLE I

GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION OF

COURT

PART 1. SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS

Section
1-101. Short Title.
1-102. Purposes; Rule of Construction.
1-103. Supplementary General Principles of Law Applicable.
1-104. Severability.
1-105. Construction Against Implied Repeal.
1-106. Effect of Fraud and Evasion.
1-107. Evidence of Death or Status.
1-108. Acts by Holder of General Power.
1-109. Cost of Living Adjustment of Certain Dollar Amounts.

PART 2. DEFINITIONS
Section
1-201. General Definitions.

PART 3. SCOPE, JURISDICTION AND COURTS

Section
1-301. Territorial Application.
1-302. Subject Matter Jurisdiction.
1-303. Venue; Multiple Proceedings; Transfer.
1-304. Practice in Court.
1-305. Records and Certified Copies.
1-306. Jury Trial.
1-307. Registrar; Powers.
1-308. Appeals.
1-309. Qualifications of Judge.
1-310. Oath or Affirmation on Filed Documents.

PART 4. NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION

AND OTHER MATTERS
Section
1-401. Notice; Method and Time of Giving.
1-402. Notice; Waiver.
1-403. Pleadings; When Parties Bound by Others; Notice.

i
ARTICLE II

INTESTACY, WILLS, AND DONATIVE TRANSFERS

PART 1. INTESTATE SUCCESSION

Subpart 1. General Rules

Section
2-101. Intestate Estate.
2-102. Share of Spouse.
2-102A. [Share of Spouse.]
2-103. Share of Heirs Other Than Surviving Spouse.
2-104. Requirement of Survival by 120 Hours; Gestational Period; Pregnancy after
Decedent’s Death.
2-105. No Taker.
2-106. Representation.
2-107. Inheritance without Regard to Number of Common Ancestors in Same
Generation.
2-108. [Reserved.]
2-109. Advancements.
2-110. Debts to Decedent.
2-111. Alienage.
2-112. Dower and Curtesy Abolished.
2-113. Individuals Related to Decedent through More Than One Line.
2-114. Parent Barred from Inheriting in Certain Circumstances.

Subpart 2. Parent-Child Relationship

2-115. Definitions.
2-116. Scope.
2-117. No Distinction Based on Marital Status of Parent.
2-118. Parent-Child Relationship Established through Adoption or De Facto Parentage.
2-119. Effect of Adoption; Effect of De Facto Parentage.
2-120. Individual Conceived by Assisted Reproduction but Not Born to Gestational or
Genetic Surrogate.
2-121. Individual Born to Gestational or Genetic Surrogate.
2-122. Equitable Adoption.

PART 2. ELECTIVE SHARE OF SURVIVING SPOUSE

Section
2-201. Definitions.
2-202. Elective Share.
2-203. Composition of the Augmented Estate; Marital-Property Portion.
2-204. Decedent’s Net Probate Estate.
2-205. Decedent’s Nonprobate Transfers to Others.
2-206. Decedent’s Nonprobate Transfers to the Surviving Spouse.
2-207. Surviving Spouse’s Property and Nonprobate Transfers to Others.

ii
2-208. Exclusions, Valuation, and Overlapping Application.
2-209. Sources from Which Elective Share Payable.
2-210. Personal Liability of Recipients.
2-211. Proceeding for Elective Share; Time Limit.
2-212. Right of Election Personal to Surviving Spouse; Incapacitated Surviving Spouse.
2-213. Effect of Premarital or Marital Agreement on Right to Elect and Other Rights.
2-214. Protection of Payors and Other Third Parties.

PART 3. SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS

Section
2-301. Entitlement of Spouse; Premarital Will.
2-302. Omitted Children.

PART 4. EXEMPT PROPERTY AND ALLOWANCES

Section
2-401. Applicable Law.
2-402. Homestead Allowance.
2-402A. [Constitutional Homestead.]
2-403. Exempt Property.
2-404. Family Allowance.
2-405. Source, Determination, and Documentation.

PART 5. WILLS, WILL CONTRACTS, AND CUSTODY AND DEPOSIT OF WILLS

Section
2-501. Who May Make Will.
2-502. Execution; Witnessed or Notarized Wills; Holographic Wills.
2-503. Harmless Error.
2-504. Self-proved Will.
2-505. Who May Witness.
2-506. Choice of Law as to Execution.
2-507. Revocation by Writing or by Act.
2-508. Revocation by Change of Circumstances.
2-509. Revival of Revoked Will.
2-510. Incorporation by Reference.
2-511. Uniform Testamentary Additions to Trusts Act (1991).
2-512. Events of Independent Significance.
2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal
Property.
2-514. Contracts Concerning Succession.
2-515. Deposit of Will With Court in Testator’s Lifetime.
2-516. Duty of Custodian of Will; Liability.
2-517. Penalty Clause for Contest.

PART 6. RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS

Section
2-601. Scope.

iii
2-602. Will May Pass All Property and After-Acquired Property.
2-603. Antilapse; Deceased Devisee; Class Gifts.
2-604. Failure of Testamentary Provision.
2-605. Increase in Securities; Accessions.
2-606. Nonademption of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or
Insurance; Sale by Conservator or Agent.
2-607. Nonexoneration.
2-608. Exercise of Power of Appointment.
2-609. Ademption by Satisfaction.

PART 7. RULES OF CONSTRUCTION APPLICABLE TO WILLS AND OTHER

GOVERNING INSTRUMENTS
Section
2-701. Scope.
2-702. Requirement of Survival by 120 Hours.
2-703. Choice of Law as to Meaning and Effect of Governing Instrument.
2-704. Power of Appointment; Compliance with Specific Reference Requirement.
2-705. Class Gifts Construed to Accord with Intestate Succession; Exceptions.
2-706. Life Insurance; Retirement Plan; Account With POD Designation;
Transfer-on-Death Registration; Deceased Beneficiary.
2-707. Survivorship With Respect to Future Interests Under Terms of Trust; Substitute
Takers.
2-708. Class Gifts to “Descendants,” “Issue,” or “Heirs of the Body”; Form of
Distribution If None Specified.
2-709. Representation; Per Capita at Each Generation; Per Stirpes.
2-710. Worthier-Title Doctrine Abolished.
2-711. Future Interests in “Heirs” and Like.

PART 8. GENERAL PROVISIONS CONCERNING PROBATE AND NONPROBATE

TRANSFERS
Section
2-801. [Reserved.]
2-802. Effect of Divorce, Annulment, and Decree of Separation.
2-803. Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life
Insurance, and Beneficiary Designations.
2-804. Revocation of Probate and Nonprobate Transfers by Divorce; No Revocation by
Other Changes of Circumstances.
2-805. Reformation to Correct Mistakes.
2-806. Modification to Achieve Transferor’s Tax Objectives.

PART 9. STATUTORY RULE AGAINST PERPETUITIES; HONORARY TRUSTS

Subpart 1. Uniform Statutory Rule Against Perpetuities (1986/1990)

Section
2-901. Statutory Rule Against Perpetuities.
2-902. When Nonvested Property Interest or Power of Appointment Created.

iv
2-903. Reformation.
2-904. Exclusions From Statutory Rule Against Perpetuities.
2-905. Prospective Application.
2-906. [Supersession] [Repeal].

Subpart 2. [Honorary Trusts]

Section
2-907. [Honorary Trusts; Trusts for Pets.]

PART 10. UNIFORM INTERNATIONAL WILLS ACT (1977)

Section
2-1001. Definitions.
2-1002. International Will; Validity.
2-1003. International Will; Requirements.
2-1004. International Will; Other Points of Form.
2-1005. International Will; Certificate.
2-1006. International Will; Effect of Certificate.
2-1007. International Will; Revocation.
2-1008. Source and Construction.
2-1009. Persons Authorized to Act in Relation to International Will; Eligibility;
Recognition by Authorizing Agency.
2-1010. International Will Information Registration.

PART 11. UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT (1999/2006)

Section
2-1101. [Reserved.]
2-1102. Definitions.
2-1103. Scope.
2-1104. Part Supplemented By Other Law.
2-1105. Power To Disclaim; General Requirements; When Irrevocable.
2-1106. Disclaimer Of Interest In Property.
2-1107. Disclaimer Of Rights Of Survivorship In Jointly Held Property.
2-1108. Disclaimer Of Interest By Trustee.
2-1109. Disclaimer Of Power Of Appointment Or Other Power Not Held In Fiduciary
Capacity.
2-1110. Disclaimer By Appointee, Object, Or Taker In Default Of Exercise Of Power Of
Appointment.
2-1111. Disclaimer Of Power Held In Fiduciary Capacity.
2-1112. Delivery Or Filing.
2-1113. When Disclaimer Barred Or Limited.
2-1114. Tax Qualified Disclaimer.
2-1115. Recording Of Disclaimer.
2-1116. Application To Existing Relationships.
2-1117. Relation To Electronic Signatures in Global and National Commerce Act.

ARTICLE III

v
PROBATE OF WILLS AND ADMINISTRATION

PART 1. GENERAL PROVISIONS

Section
3-101. Devolution of Estate at Death; Restrictions.
3-101A. [Devolution of Estate at Death; Restrictions.]
3-102. Necessity of Order of Probate For Will.
3-103. Necessity of Appointment For Administration.
3-104. Claims Against Decedent; Necessity of Administration.
3-105. Proceedings Affecting Devolution and Administration; Jurisdiction of Subject
Matter.
3-106. Proceedings Within the Exclusive Jurisdiction of Court; Service; Jurisdiction
Over Persons.
3-107. Scope of Proceedings; Proceedings Independent; Exception.
3-108. Probate, Testacy and Appointment Proceedings; Ultimate Time Limit.
3-109. Statutes of Limitation on Decedent’s Cause of Action.

PART 2. VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO

ADMINISTER; DEMAND FOR NOTICE
Section
3-201. Venue for First and Subsequent Estate Proceedings; Location of Property.
3-202. Appointment or Testacy Proceedings; Conflicting Claim of Domicile in Another
State.
3-203. Priority Among Persons Seeking Appointment as Personal Representative.
3-204. Demand for Notice of Order or Filing Concerning Decedent’s Estate.

PART 3. INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS;

SUCCESSION WITHOUT ADMINISTRATION

Subpart 1. Informal Probate and Appointment Proceedings

Section
3-301. Informal Probate or Appointment Proceedings; Application; Contents.
3-302. Informal Probate; Duty of Registrar; Effect of Informal Probate.
3-303. Informal Probate; Proof and Findings Required.
3-304. Informal Probate; Unavailable in Certain Cases.
3-305. Informal Probate; Registrar Not Satisfied.
3-306. Informal Probate; Notice Requirements.
3-307. Informal Appointment Proceedings; Delay in Order; Duty of Registrar; Effect of
Appointment.
3-308. Informal Appointment Proceedings; Proof and Findings Required.
3-309. Informal Appointment Proceedings; Registrar Not Satisfied.
3-310. Informal Appointment Proceedings; Notice Requirements.
3-311. Informal Appointment Unavailable in Certain Cases.

Subpart 2. Succession Without Administration

vi
3-312. Universal Succession; In General.
3-313. Universal Succession; Application; Contents.
3-314. Universal Succession; Proof and Findings Required.
3-315. Universal Succession; Duty of Registrar; Effect of Statement of Universal
Succession.
3-316. Universal Succession; Universal Successors’ Powers.
3-317. Universal Succession; Universal Successors’ Liability to Creditors, Other Heirs,
Devisees and Persons Entitled to Decedent’s Property; Liability of Other Persons
Entitled to Property.
3-318. Universal Succession; Universal Successors’ Submission to Jurisdiction; When
Heirs or Devisees May Not Seek Administration.
3-319. Universal Succession; Duty of Universal Successors; Information to Heirs and
Devisees.
3-320. Universal Succession; Universal Successors’ Liability For Restitution to Estate.
3-321. Universal Succession; Liability of Universal Successors for Claims, Expenses,
Intestate Shares and Devises.
3-322. Universal Succession; Remedies of Creditors, Other Heirs, Devisees or Persons
Entitled to Decedent’s Property.

PART 4. FORMAL TESTACY AND APPOINTMENT PROCEEDINGS

Section
3-401. Formal Testacy Proceedings; Nature; When Commenced.
3-402. Formal Testacy or Appointment Proceedings; Petition; Contents.
3-403. Formal Testacy Proceedings; Notice of Hearing on Petition.
3-404. Formal Testacy Proceedings; Written Objections to Probate.
3-405. Formal Testacy Proceedings; Uncontested Cases; Hearings and Proof.
3-406. Formal Testacy Proceedings; Contested Cases.
3-407. Formal Testacy Proceedings; Burdens in Contested Cases.
3-408. Formal Testacy Proceedings; Will Construction; Effect of Final Order in Another
Jurisdiction.
3-409. Formal Testacy Proceedings; Order; Foreign Will.
3-410. Formal Testacy Proceedings; Probate of More Than One Instrument.
3-411. Formal Testacy Proceedings; Partial Intestacy.
3-412. Formal Testacy Proceedings; Effect of Order; Vacation.
3-413. Formal Testacy Proceedings; Vacation of Order For Other Cause.
3-414. Formal Proceedings Concerning Appointment of Personal Representative.

PART 5. SUPERVISED ADMINISTRATION

Section
3-501. Supervised Administration; Nature of Proceeding.
3-502. Supervised Administration; Petition; Order.
3-503. Supervised Administration; Effect on Other Proceedings.
3-504. Supervised Administration; Powers of Personal Representative.
3-505. Supervised Administration; Interim Orders; Distribution and Closing Orders.

vii
PART 6. PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL AND
TERMINATION OF AUTHORITY
Section
3-601. Qualification.
3-602. Acceptance of Appointment; Consent to Jurisdiction.
3-603. Bond Not Required Without Court Order, Exceptions.
3-604. Bond Amount; Security; Procedure; Reduction.
3-605. Demand For Bond by Interested Person.
3-606. Terms and Conditions of Bonds.
3-607. Order Restraining Personal Representative.
3-608. Termination of Appointment; General.
3-609. Termination of Appointment; Death or Disability.
3-610. Termination of Appointment; Voluntary.
3-611. Termination of Appointment by Removal; Cause; Procedure.
3-612. Termination of Appointment; Change of Testacy Status.
3-613. Successor Personal Representative.
3-614. Special Administrator; Appointment.
3-615. Special Administrator; Who May Be Appointed.
3-616. Special Administrator; Appointed Informally; Powers and Duties.
3-617. Special Administrator; Formal Proceedings; Power and Duties.
3-618. Termination of Appointment; Special Administrator.

PART 7. DUTIES AND POWERS OF PERSONAL REPRESENTATIVES

Section
3-701. Time of Accrual of Duties and Powers.
3-702. Priority Among Different Letters.
3-703. General Duties; Relation and Liability to Persons Interested in Estate; Standing to
Sue.
3-704. Personal Representative to Proceed Without Court Order; Exception.
3-705. Duty of Personal Representative; Information to Heirs and Devisees.
3-706. Duty of Personal Representative; Inventory and Appraisement.
3-707. Employment of Appraisers.
3-708. Duty of Personal Representative; Supplementary Inventory.
3-709. Duty of Personal Representative; Possession of Estate.
3-710. Power to Avoid Transfers.
3-711. Powers of Personal Representatives; In General.
3-712. Improper Exercise of Power; Breach of Fiduciary Duty.
3-713. Sale, Encumbrance or Transaction Involving Conflict of Interest; Voidable;
Exceptions.
3-714. Persons Dealing with Personal Representative; Protection.
3-715. Transactions Authorized for Personal Representatives; Exceptions.
3-716. Powers and Duties of Successor Personal Representative.
3-717. Co-representatives; When Joint Action Required.
3-718. Powers of Surviving Personal Representative.
3-719. Compensation of Personal Representative.
3-720. Expenses in Estate Litigation.

viii
3-721. Proceedings for Review of Employment of Agents and Compensation of Personal
Representatives and Employees of Estate.

PART 8. CREDITORS’ CLAIMS

Section
3-801. Notice to Creditors.
3-802. Statutes of Limitations.
3-803. Limitations on Presentation of Claims.
3-804. Manner of Presentation of Claims.
3-805. Classification of Claims.
3-806. Allowance of Claims.
3-807. Payment of Claims.
3-808. Individual Liability of Personal Representative.
3-809. Secured Claims.
3-810. Claims Not Due and Contingent or Unliquidated Claims.
3-811. Counterclaims.
3-812. Execution and Levies Prohibited.
3-813. Compromise of Claims.
3-814. Encumbered Assets.
3-815. Administration in More Than One State; Duty of Personal Representative.
3-816. Final Distribution to Domiciliary Representative.

PART 9. SPECIAL PROVISIONS RELATING TO DISTRIBUTION

Section
3-901. Successors’ Rights if No Administration.
3-902. Distribution; Order in Which Assets Appropriated; Abatement.
3-903. Right of Retainer.
3-904. Interest on General Pecuniary Devise.
3-905. Penalty Clause for Contest.
3-906. Distribution in Kind; Valuation; Method.
3-907. Distribution in Kind; Evidence.
3-908. Distribution; Right or Title of Distributee.
3-909. Improper Distribution; Liability of Distributee.
3-910. Purchasers from Distributees Protected.
3-911. Partition for Purpose of Distribution.
3-912. Private Agreements Among Successors to Decedent Binding on Personal
Representative.
3-913. Distributions to Trustee.
3-914. Disposition of Unclaimed Assets.
3-915. Distribution to Person Under Disability.
3-916. [Reserved.]

PART 9A. UNIFORM ESTATE TAX APPORTIONMENT ACT (2003)

Section
3-9A-101. Short Title.
3-9A-102. Definitions.

ix
3-9A-103. Apportionment By Will Or Other Dispositive Instrument.
3-9A-104. Statutory Apportionment Of Estate Taxes.
3-9A-105. Credits And Deferrals.
3-9A-106. Insulated Property: Advancement Of Tax.
3-9A-107. Apportionment And Recapture Of Special Elective Benefits.
3-9A-108. Securing Payment Of Estate Tax From Property In Possession Of Fiduciary.
3-9A-109. Collection Of Estate Tax By Fiduciary.
3-9A-110. Right Of Reimbursement.
3-9A-111. Action To Determine Or Enforce Part.
3-9A-112. [Reserved.]
3-9A-113. [Reserved.]
3-9A-114. Delayed Application.
3-9A-115. Effective Date.

PART 10. CLOSING ESTATES

Section
3-1001. Formal Proceedings Terminating Administration; Testate or Intestate; Order of
General Protection.
3-1002. Formal Proceedings Terminating Testate Administration; Order Construing Will
Without Adjudicating Testacy.
3-1003. Closing Estates; By Sworn Statement of Personal Representative.
3-1004. Liability of Distributees to Claimants.
3-1005. Limitations on Proceedings Against Personal Representative.
3-1006. Limitations on Actions and Proceedings Against Distributees.
3-1007. Certificate Discharging Liens Securing Fiduciary Performance.
3-1008. Subsequent Administration.

PART 11. COMPROMISE OF CONTROVERSIES

Section
3-1101. Effect of Approval of Agreements Involving Trusts, Inalienable Interests, or
Interests of Third Persons.
3-1102. Procedure for Securing Court Approval of Compromise.

PART 12. COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND

SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
Section
3-1201. Collection of Personal Property by Affidavit.
3-1202. Effect of Affidavit.
3-1203. Small Estates; Summary Administration Procedure.
3-1204. Small Estates; Closing by Sworn Statement of Personal Representative.

ARTICLE IV

FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION

PART 1. DEFINITIONS

x
Section
4-101. Definitions.

PART 2. POWERS OF FOREIGN PERSONAL REPRESENTATIVES

Section
4-201. Payment of Debt and Delivery of Property to Domiciliary Foreign Personal
Representative Without Local Administration.
4-202. Payment or Delivery Discharges.
4-203. Resident Creditor Notice.
4-204. Proof of Authority-Bond.
4-205. Powers.
4-206. Power of Representatives in Transition.
4-207. Ancillary and Other Local Administrations; Provisions Governing.

PART 3. JURISDICTION OVER FOREIGN REPRESENTATIVES

Section
4-301. Jurisdiction by Act of Foreign Personal Representative.
4-302. Jurisdiction by Act of Decedent.
4-303. Service on Foreign Personal Representative.

PART 4. JUDGMENTS AND PERSONAL REPRESENTATIVES

Section
4-401. Effect of Adjudication For or Against Personal Representative.

ARTICLE V

UNIFORM GUARDIANSHIP AND PROTECTIVE PROCEEDINGS ACT (1997/1998)

PART 1. GENERAL PROVISIONS

Section
5-101. Short Title.
5-102. Definitions.
5-103. [Reserved.]
5-104. Facility of Transfer.
5-105. Delegation of Power by Parent or Guardian.
5-106. Subject-Matter Jurisdiction.
5-107. Transfer of Jurisdiction.
5-108. Venue.
5-109. [Reserved.]
5-110. Letters of Office.
5-111. Effect of Acceptance of Appointment.
5-112. Termination of or Change in Guardian’s or Conservator’s Appointment.
5-113. Notice.
5-114. Waiver of Notice.
5-115. Guardian Ad Litem.
5-116. Request For Notice; Interested Persons.

xi
5-117. Multiple Appointments or Nominations.

PART 2. GUARDIANSHIP OF MINOR

Section
5-201. Appointment and Status of Guardian.
5-202. Parental Appointment of Guardian.
5-203. Objection by Minor or Others to Parental Appointment.
5-204. Judicial Appointment of Guardian: Conditions for Appointment.
5-205. Judicial Appointment of Guardian: Procedure.
5-206. Judicial Appointment of Guardian: Priority of Minor’s Nominee; Limited
Guardianship.
5-207. Duties of Guardian.
5-208. Powers of Guardian.
5-209. Rights and Immunities of Guardian.
5-210. Termination of Guardianship; Other Proceedings After Appointment.

PART 3. GUARDIANSHIP OF INCAPACITATED PERSON

Section
5-301. Appointment and Status of Guardian.
5-302. Appointment of Guardian By Will or Other Writing.
5-303. Appointment of Guardian By Will or Other Writing: Effectiveness; Acceptance;
Confirmation.
5-304. Judicial Appointment of Guardian: Petition.
5-305. Judicial Appointment of Guardian: Preliminaries to Hearing.
5-306. Judicial Appointment of Guardian: Professional Evaluation.
5-307. Confidentiality of Records.
5-308. Judicial Appointment of Guardian: Presence and Rights at Hearing.
5-309. Notice.
5-310. Who May Be Guardian: Priorities.
5-311. Findings; Order of Appointment.
5-312. Emergency Guardian.
5-313. Temporary Substitute Guardian.
5-314. Duties of Guardian.
5-315. Powers of Guardian.
5-316. Rights and Immunities of Guardian; Limitations.
5-317. Reports; Monitoring of Guardianship.
5-318. Termination or Modification of Guardianship.

PART 4. PROTECTION OF PROPERTY OF PROTECTED PERSON

Section
5-401. Protective Proceeding.
5-402. Jurisdiction Over Business Affairs of Protected Person.
5-403. Original Petition for Appointment or Protective Order.
5-404. Notice.
5-405. Original Petition: Minors; Preliminaries to Hearing.
5-406. Original Petition: Preliminaries to Hearing.

xii
5-407. Confidentiality of Records.
5-408. Original Petition: Procedure at Hearing.
5-409. Original Petition: Orders.
5-410. Powers of Court.
5-411. Required Court Approval.
5-412. Protective Arrangements and Single Transactions.
5-413. Who May be Conservator: Priorities.
5-414. Petition for Order Subsequent to Appointment.
5-415. Bond.
5-416. Terms and Requirements of Bond.
5-417. Compensation and Expenses.
5-418. General Duties of Conservator; Plan.
5-419. Inventory; Records.
5-420. Reports; Appointment of [Visitor]; Monitoring.
5-421. Title by Appointment.
5-422. Protected Person’s Interest Inalienable.
5-423. Sale, Encumbrance, or Other Transaction Involving Conflict of Interest.
5-424. Protection of Person Dealing With Conservator.
5-425. Powers of Conservator In Administration.
5-426. Delegation.
5-427. Principles of Distribution by Conservator.
5-428. Death of Protected Person.
5-429. Presentation and Allowance of Claims.
5-430. Personal Liability of Conservator.
5-431. Termination of Proceedings.
5-432. Registration of Guardianship Orders.
5-433. Registration of Protective Orders.
5-434. Effect of Registration.

ARTICLE 5A

UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS

JURISDICTION ACT (2007)

PART 1. GENERAL PROVISIONS

Section
5A-101. Short Title.
5A-102. Definitions.
5A-103. International Application of [Article].
5A-104. Communication Between Courts.
5A-105. Cooperation Between Courts.
5A-106. Taking Testimony in Another State.

PART 2. JURISDICTION
Section
5A-201. Definitions; Significant Connection Factors.

xiii
5A-202. Exclusive Basis.
5A-203. Jurisdiction.
5A-204. Special Jurisdiction.
5A-205. Exclusive and Continuing Jurisdiction.
5A-206. Appropriate Forum.
5A-207. Jurisdiction Declined by Reason of Conduct.
5A-208. Notice of Proceeding.
5A-209. Proceedings in More Than One State.

PART 3. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

Section
5A-301. Transfer of Guardianship or Conservatorship to Another State.
5A-302. Accepting Guardianship or Conservatorship Transferred From Another State.

PART 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER

STATES
Section
5A-401. Registration of Guardianship Orders.
5A-402. Registration of Protective Orders.
5A-403. Effect of Registration.

ARTICLE 5B

UNIFORM POWER OF ATTORNEY ACT (2006)

PART 1. GENERAL PROVISIONS

Section
5B-101. Short Title.
5B-102. Definitions.
5B-103. Applicability.
5B-104. Power of Attorney is Durable.
5B-105. Execution of Power of Attorney.
5B-106. Validity of Power of Attorney.
5B-107. Meaning and Effect of Power of Attorney.
5B-108. Nomination of [Conservator of Guardian]; Relation of Agent to Court-Appointed
Fiduciary.
5B-109. When Power of Attorney Effective.
5B-110. Termination of Power of Attorney or Agent’s Authority.
5B-111. Coagents and Successor Agents.
5B-112. Reimbursement and Compensation of Agent.
5B-113. Agent’s Acceptance.
5B-114. Agent’s Duties.
5B-115. Exoneration of Agent.
5B-116. Judicial Relief.
5B-117. Agent’s Liability.
5B-118. Agent’s Resignation; Notice.

xiv
5B-119. Acceptance of and Reliance Upon Acknowledged Power of Attorney .
5B-120. Liability for Refusal to Accept Acknowledged Power of Attorney [Alternative A].
5B-120. Liability for Refusal to Accept Acknowledged Statutory Form Power of Attorney
[Alternative B].
5B-121. Principles of Law and Equity.
5B-122. Laws Applicable to Financial Institutions and Entities.
5B-123. Remedies Under Other Law.

PART 2. AUTHORITY
Section
5B-201. Authority That Requires Specific Grant; Grant of General Authority.
5B-202. Incorporation of Authority.
5B-203. Construction of Authority Generally.
5B-204. Real Property.
5B-205. Tangible Personal Property.
5B-206. Stocks and Bonds.
5B-207. Commodities and Options.
5B-208. Banks and Other Financial Institutions.
5B-209. Operation of Entity or Business.
5B-210. Insurance and Annuities.
5B-211. Estates, Trusts, and Other Beneficial Interests.
5B-212. Claims and Litigation.
5B-213. Personal and Family Maintenance.
5B-214. Benefits From Governmental Programs or Civil or Military Service.
5B-215. Retirement Plans.
5B-216. Taxes.
5B-217. Gifts.

PART 3. STATUTORY FORMS

Section
5B-301. Statutory Form Power of Attorney.
5B-302. Agent’s Certification.

ARTICLE VI

NONPROBATE TRANSFERS ON DEATH

PART 1. PROVISIONS RELATING TO EFFECT OF DEATH

Section
6-101. Nonprobate Transfers on Death.

6-102. Liability of Nonprobate Transferees For Creditor Claims and Statutory

Allowances.

PART 2. UNIFORM MULTIPLE-PERSON ACCOUNTS ACT (1989/1998)

xv
Subpart 1. Definitions And General Provisions
Section
6-201. Definitions.
6-202. Limitation on Scope of Part.
6-203. Types of Account; Existing Accounts.
6-204. Forms.
6-205. Designation of Agent.
6-206. Applicability of Part.

Subpart 2. Ownership As Between Parties And Others

Section
6-211. Ownership During Lifetime.
6-212. Rights at Death.
6-213. Alteration of Rights.
6-214. Accounts and Transfers Nontestamentary.
6-215. [Reserved.]
6-216. Community Property and Tenancy by the Entireties.

Subpart 3. Protection Of Financial Institutions

Section
6-221. Authority of Financial Institution.
6-222. Payment on Multiple-Party Account.
6-223. Payment on POD Designation.
6-224. Payment to Designated Agent.
6-225. Payment to Minor.
6-226. Discharge.
6-227. Set-off.

PART 3. UNIFORM TOD SECURITY REGISTRATION ACT (1989/1998)

Section
6-301. Definitions.
6-302. Registration in Beneficiary Form; Sole or Joint Tenancy Ownership.
6-303. Registration in Beneficiary Form; Applicable Law.
6-304. Origination of Registration in Beneficiary Form.
6-305. Form of Registration in Beneficiary Form.
6-306. Effect of Registration in Beneficiary Form.
6-307. Ownership on Death of Owner.
6-308. Protection of Registering Entity.
6-309. Nontestamentary Transfer on Death.
6-310. Terms, Conditions, and Forms for Registration.
6-311. Application of Part.
PART 4. UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT (2009)
Section
6-401. Short Title.
6-402. Definitions.
6-403. Applicability.

xvi
6-404. Nonexclusivity.
6-405. Transfer on Death Deed Authorized.
6-406. Transfer on Death Deed Revocable.
6-407. Transfer on Death Deed Nontestamentary.
6-408. Capacity of Transferor.
6-409. Requirements.
6-410. Notice, Delivery. Acceptance, Consideration Not Required.
6-411. Revocation by Instrument Authorized; Revocation by Act Not Permitted.
6-412. Effect of Transfer on Death Deed During Transferor’s Life.
6-413. Effect of Transfer on Death Deed at Transferor’s Death.
6-414. Disclaimer.
6-415. Liability for Creditor Claims and Statutory Allowances.
[6-416. Optional Form of Transfer on Death Deed].
[6-417. Optional Form of Revocation].

ARTICLE VII

TRUST ADMINISTRATION

ARTICLE VIII

EFFECTIVE DATE AND REPEALER

Section
8-101. Time of Taking Effect; Provisions for Transition.
8-102. Specific Repealer and Amendments.

____________________

xvii
UNIFORM PROBATE CODE
__________

Official Text and Comments Approved by the National Conference of Commissioners on

Uniform State Laws.

AN ACT Relating to affairs of decedents, missing persons, protected persons, minors,

incapacitated persons and certain others and constituting the Uniform Probate Code;

consolidating and revising aspects of the law relating to wills and intestacy and the

administration and distribution of estates of decedents, missing persons, protected persons,

minors, incapacitated persons and certain others; ordering the powers and procedures of the court

concerned with the affairs of decedents and certain others; providing for the validity and effect of

certain non-testamentary transfers, contracts and deposits which relate to death and appear to

have testamentary effect; providing certain procedures to facilitate enforcement of testamentary

and other trusts; making uniform the law with respect to decedents and certain others; and

repealing inconsistent legislation.

Comment

The long title of the Code should be adapted to the constitutional, statutory requirements
and practices of the enacting jurisdiction. The concept of the Code is that the “affairs of
decedents, missing persons, disabled persons, minors, and certain others” is a single subject of
the law notwithstanding its many facets.

ARTICLE I

GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION OF

COURT

PART 1. SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS

SECTION 1-101. SHORT TITLE. This [act] shall be known and may be cited as the

Uniform Probate Code.

1
SECTION 1-102. PURPOSES; RULE OF CONSTRUCTION.

(a) This [code] shall be liberally construed and applied to promote its underlying purposes

and policies.

(b) The underlying purposes and policies of this Code are:

(1) to simplify and clarify the law concerning the affairs of decedents, missing

persons, protected persons, minors and incapacitated persons;

(2) to discover and make effective the intent of a decedent in distribution of the

decedent’s property;

(3) to promote a speedy and efficient system for liquidating the estate of the

decedent and making distribution to the decedent’s successors;

(4) to facilitate use and enforcement of certain trusts;

(5) to make uniform the law among the various jurisdictions.

SECTION 1-103. SUPPLEMENTARY GENERAL PRINCIPLES OF LAW

APPLICABLE. Unless displaced by the particular provisions of this [code], the principles of

law and equity supplement its provisions.

SECTION 1-104. SEVERABILITY. If any provision of this [code] or the application

thereof to any person or circumstances is held invalid, the invalidity shall not affect other

provisions or applications of the [code] which can be given effect without the invalid provision

or application, and to this end the provisions of this [code] are declared to be severable.

SECTION 1-105. CONSTRUCTION AGAINST IMPLIED REPEAL. This [code]

is a general act intended as a unified coverage of its subject matter and no part of it shall be

deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.

SECTION 1-106. EFFECT OF FRAUD AND EVASION. Whenever fraud has been

2
perpetrated in connection with any proceeding or in any statement filed under this Code or if

fraud is used to avoid or circumvent the provisions or purposes of this Code, any person injured

thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any

person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not.

Anyproceeding must be commenced within two years after the discovery of the fraud, but no

proceeding maybe brought against one not a perpetrator of the fraud later than five years after the

time of commission of the fraud. This section has no bearing on remedies relating to fraud

practiced on a decedent during the decedent’s lifetime which affects the succession of the

decedent’s estate.

Comment

This is an overriding provision that provides an exception to the procedures and

limitations provided in the Code. The remedy of a party wronged by fraud is intended to be
supplementary to other protections provided in the Code and can be maintained outside the
process of settlement of the estate. Thus, if a will which is known to be a forgery is probated
informally, and the forgery is not discovered until after the period for contest has run, the
defrauded heirs still could bring a fraud action under this section. Or if a will is fraudulently
concealed after the testator’s death and its existence not discovered until after the basic three
year period (Section 3-108) has elapsed, there still may be an action under this section.
Similarly, a closing statement normally provides binding protection for the personal
representative after six months from filing (Section 3-1005). However, if there is fraudulent
misrepresentation or concealment in the preparation of the claim, a later suit may be brought
under this section against the personal representative for damages; or restitution may be obtained
from those distributees who benefit by the fraud. In any case innocent purchasers for value are
protected.

Any action under this section is subject to usual rules of res judicata; thus, if a forged will
has been informally probated, an heir discovers the forgery, and then there is a formal
proceeding under Section 3-1001 of which the heir is given notice, followed by an order of
complete settlement of the estate, the heir could not bring a subsequent action under Section 1-
106 but would be bound by the litigation in which the issue could have been raised. The usual
rules for securing relief for fraud on a court would govern, however.

The final limitation in this section is designed to protect innocent distributees after a
reasonable period of time. There is no limit (other than the two years from discovery of the
fraud) against the wrongdoer. But there ought to be some limit after which innocent persons
who have built up expectations in good faith cannot be deprived of the property by a restitution

3
action.

The time of “discovery” of a fraud is a fact question to be determined in the individual

case. In some situations persons may not actually know that a fraud has been perpetrated but
have such strong suspicion and evidence that a court may conclude there has been a discovery of
the fraud at that stage. On the other hand there is no duty to exercise reasonable care to discover
fraud; the burden should not be on the heirs and devisees to check on the honesty of the other
interested persons or the fiduciary.

SECTION 1-107. EVIDENCE OF DEATH OR STATUS. In addition to the rules of

evidence in courts of general jurisdiction, the following rules relating to a determination of death

and status apply:

(1) Death occurs when an individual [is determined to be dead under the Uniform

Determination of Death Act (1978/1980)] [has sustained either (i) irreversible cessation of

circulatory and respiratory functions or (ii) irreversible cessation of all functions of the entire

brain, including the brain stem. A determination of death must be made in accordance with

accepted medical standards].

(2) A certified or authenticated copy of a death certificate purporting to be issued by an

official or agency of the place where the death purportedly occurred is prima facie evidence of

the fact, place, date, and time of death and the identity of the decedent.

(3) A certified or authenticated copy of any record or report of a governmental agency,

domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence

of the status and of the dates, circumstances, and places disclosed by the record or report.

(4) In the absence of prima facie evidence of death under paragraph (2) or (3), the fact of

death may be established by clear and convincing evidence, including circumstantial evidence.

(5) An individual whose death is not established under the preceding paragraphs who is

absent for a continuous period of five years, during which the individual has not been heard

from, and whose absence is not satisfactorily explained after diligent search or inquiry, is

4
presumed to be dead. The individual’s death is presumed to have occurred at the end of the

period unless there is sufficient evidence for determining that death occurred earlier.

(6) In the absence of evidence disputing the time of death stated on a document described

in paragraph (2) or (3), a document described in paragraph (2) or (3) that states a time of death

120 hours or more after the time of death of another individual, however the time of death of the

other individual is determined, establishes by clear and convincing evidence that the individual

survived the other individual by 120 hours.

Comment

Paragraph (1) defines death by reference to the Uniform Determination of Death Act
(UDDA). States that have adopted the UDDA should use the first set of bracketed language.
States that have not adopted the UDDA should use the second set of bracketed language.

Note that paragraph (6) is made desirable by the fact that Sections 2-104 and 2-702
require that survival by 120 hours must be established by clear and convincing evidence.

Paragraph (4) is inconsistent with Section 1 of Uniform Absence as Evidence of Death

and Absentees’ Property Act (1938).

Proceedings to secure protection of property interests of an absent person may be

commenced as provided in Section 5-401.

SECTION 1-108. ACTS BY HOLDER OF GENERAL POWER. For the purpose of

granting consent or approval with regard to the acts or accounts of a personal representative or

trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to

perform other duties, and for purposes of consenting to modification or termination of a trust or

to deviation from its terms, the sole holder or all co-holders of a presently exercisable general

power of appointment, including one in the form of a power of amendment or revocation, are

deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or

otherwise) are subject to the power.

Comment

5
The status of a holder of a general power in estate litigation is dealt with by Section 1-
403.

This section permits the settlor of a revocable trust to excuse the trustee from registering
the trust so long as the power of revocation continues.

“General power,” as used in this section, is intended to refer to the common law concept,
rather than to tax or other statutory meanings. A general power, as used herein, is one which
enables the power holder to draw absolute ownership to himself.

SECTION 1-109. COST OF LIVING ADJUSTMENT OF CERTAIN DOLLAR

AMOUNTS.

(a) In this section:

(1) “CPI” means the Consumer Price Index (Annual Average) for All Urban

Consumers (CPI-U): U.S. City Average — All items, reported by the Bureau of Labor

Statistics, United States Department of Labor or its successor or, if the index is discontinued, an

equivalent index reported by a federal authority. If no such index is reported, the term means the

substitute index chosen by [insert appropriate state agency]; and

(2) “Reference base index” means the CPI for calendar year [insert year

immediately preceding the year in which this section takes effect].

(b) The dollar amounts stated in Sections 2-102, [2-102A,] 2-202(b), 2-402, 2-403, 2-405,

and 3-1201 apply to the estate of a decedent who died in or after [insert year in which this

section takes effect], but for the estate of a decedent who died after [insert year after the year in

which this section takes effect], these dollar amounts must be increased or decreased if the CPI

for the calendar year immediately preceding the year of death exceeds or is less than the

reference base index. The amount of any increase or decrease is computed by multiplying each

dollar amount by the percentage by which the CPI for the calendar year immediately preceding

the year of death exceeds or is less than the reference base index. If any increase or decrease

6
produced by the computation is not a multiple of $100, the increase or decrease is rounded down,

if an increase, or up, if a decrease, to the next multiple of $100, but for the purpose of Section 2-

405, the periodic installment amount is the lump-sum amount divided by 12. If the CPI for

[insert year immediately before the effective date of this section] is changed by the Bureau of

Labor Statistics, the reference base index must be revised using the rebasing factor reported by

the Bureau of Labor Statistics, or other comparable data if a rebasing factor is not reported.

[(c) Before February 1, [insert year after the year in which this section takes effect], and

before February 1 of each succeeding year, the [insert appropriate state agency] shall publish a

cumulative list, beginning with the dollar amounts effective for the estate of a decedent who died

in [insert year after the year in which this section takes effect], of each dollar amount as

increased or decreased under this section.]

Legislative Note: To establish and maintain uniformity among the states, an enacting
state that enacted the sections listed in subsection (b) before 2008 should bring those dollar
amounts up to date. To adjust for inflation, these amounts were revised in 2008. Between 1990
(when these amounts were previously adjusted for inflation) and 2008, the consumer price index
(CPI) increased about 50 percent. As a result, the following increases in the UPC’s specific
dollar amounts were adopted in 2008 and should be adopted by a state that enacted these
sections before 2008:

Section 2-102(2) should be amended to change $200,000 to $300,000; Section 2-102(3)

should be amended to change $150,000 to $225,000; and Section 2-102(4) should be amended to
change $100,000 to $150,000. Section 2-102A, if enacted instead of Section 2-102, should be
amended accordingly.

Section 2-201(b) should be amended to change $50,000 to $75,000.

Section 2-402 should be amended to change $15,000 to $22,500; Section 2-403 should be
amended to change $10,000 to $15,000; and Section 2-405 should be amended to change
$18,000 to $27,000 and to change $1,500 to $2,250.

A state enacting these sections after 2008 should adjust the dollar figures for changes in
the cost of living that have occurred between 2008 and the effective date of the new enactment.

Comment

7
Automatic Adjustments for Inflation. Added in 2008, Section 1-109 operates in
conjunction with the inflation adjustments of the dollar amounts listed in subsection (b) also
adopted in 2008. Section 1-109 was added to make it unnecessary in the future for the ULC or
individual enacting states to continue to amend the UPC periodically to adjust the dollar amounts
for inflation. This section provides for an automatic adjustment of each of the above dollar
amounts annually.

In each January, the Bureau of Labor Statistics of the U.S. Department of Labor reports
the CPI (annual average) for the preceding calendar year. The information can be obtained by
telephone (202/691-5200) or on the Bureau’s website <http://www.bls.gov/cpi>.

Subsection (c) tasks an appropriate state agency, such as the Department of Revenue, to
issue an official cumulative list of the adjusted amounts beginning in January of the year after the
effective date of the act. This subsection is bracketed because some enacting states might not
have a state agency that could appropriately be assigned the task of issuing updated amounts.
Such an enacting state might consider tasking the state supreme court to issue a court rule each
year making the appropriate adjustment.

PART 2. DEFINITIONS

SECTION 1-201. GENERAL DEFINITIONS. Subject to additional definitions

contained in the subsequent [articles] that are applicable to specific [articles,] [parts,] or sections

and unless the context otherwise requires, in this [code]:

(1) “Agent” includes an attorney-in-fact under a durable or nondurable power of attorney,

an individual authorized to make decisions concerning another’s health care, and an individual

authorized to make decisions for another under a natural death act.

(2) “Application” means a written request to the Registrar for an order of informal

probate or appointment under [Part] 3 of [Article] III.

(3) “Beneficiary,” as it relates to a trust beneficiary, includes a person who has any

present or future interest, vested or contingent, and also includes the owner of an interest by

assignment or other transfer; as it relates to a charitable trust, includes any person entitled to

enforce the trust; as it relates to a “beneficiary of a beneficiary designation,” refers to a

beneficiary of an insurance or annuity policy, of an account with POD designation, of a security

8
registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar

benefit plan, or other nonprobate transfer at death; and, as it relates to a “beneficiary designated

in a governing instrument,” includes a grantee of a deed, a devisee, a trust beneficiary, a

beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of

appointment, and a person in whose favor a power of attorney or a power held in any individual,

fiduciary, or representative capacity is exercised.

(4) “Beneficiary designation” refers to a governing instrument naming a beneficiary of an

insurance or annuity policy, of an account with POD designation, of a security registered in

beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or

other nonprobate transfer at death.

(5) “Child” means an individual of any age whose parentage is established under [cite to

Uniform Parentage Act (2017)][cite to state’s parentage act][applicable state law].

(6) “Claims,” in respect to estates of decedents and protected persons, includes liabilities

of the decedent or protected person, whether arising in contract, in tort, or otherwise, and

liabilities of the estate which arise at or after the death of the decedent or after the appointment of

a conservator, including funeral expenses and expenses of administration. The term does not

include estate or inheritance taxes, or demands or disputes regarding title of a decedent or

protected person to specific assets alleged to be included in the estate.

(7) “Conservator” is as defined in Section 5-102.

(8) “Court” means the [………. Court] or branch in this state having jurisdiction in

matters relating to the affairs of decedents.

(9) “Descendant” of an individual means all of the individual’s descendants of all

generations, with the relationship of parent and child at each generation being determined by the

9
definition of child and parent contained in this [code].

(10) “Devise,” when used as a noun means a testamentary disposition of real or personal

property and, when used as a verb, means to dispose of real or personal property by will.

(11) “Devisee” means a person designated in a will to receive a devise. For the purposes

of [Article] III, in the case of a devise to an existing trust or trustee, or to a trustee or trust

described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

(12) “Distributee” means any person who has received property of a decedent from the

decedent’s personal representative other than as creditor or purchaser. A testamentary trustee is

a distributee only to the extent of distributed assets or increment thereto remaining in the

trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed

property received from a personal representative is a distributee of the personal representative.

For the purposes of this provision, “testamentary trustee” includes a trustee to whom assets are

transferred by will, to the extent of the devised assets.

(13) “Estate” includes the property of the decedent, trust, or other person whose affairs

are subject to this [code] as originally constituted and as it exists from time to time during

administration.

(14) “Exempt property” means that property of a decedent’s estate which is described in

Section 2-403.

(15) “Fiduciary” includes a personal representative, guardian, conservator, and trustee.

(16) “Foreign personal representative” means a personal representative appointed by

another jurisdiction.

(17) “Formal proceedings” means proceedings conducted before a judge with notice to

interested persons.

10
(18) “Governing instrument” means a deed, will, trust, insurance or annuity policy,

account with POD designation, security registered in beneficiary form (TOD), transfer on death

(TOD) deed, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or

exercising a power of appointment or a power of attorney, or a dispositive, appointive, or

nominative instrument of any similar type.

(19) “Guardian” is as defined in Section 5-102.

(20) “Heirs,” except as controlled by Section 2-711 means persons, including the

surviving spouse and the state, who are entitled under the statutes of intestate succession to the

property of a decedent.

(21) “Incapacitated person” means an individual described in Section 5-102.

(22) “Informal proceedings” means those conducted without notice to interested persons

by an officer of the court acting as a registrar for probate of a will or appointment of a personal

representative.

(23) “Interested person” includes heirs, devisees, children, spouses, creditors,

beneficiaries, and any others having a property right in or claim against a trust estate or the estate

of a decedent, ward, or protected person. It also includes persons having priority for

appointment as personal representative, and other fiduciaries representing interested persons.

The meaning as it relates to particular persons may vary from time to time and must be

determined according to the particular purposes of, and matter involved in, any proceeding.

(24) “Issue” of an individual means descendant.

(25) “Joint tenants with the right of survivorship” and “community property with the

right of survivorship” includes co-owners of property held under circumstances that entitle one

or more to the whole of the property on the death of the other or others, but excludes forms of

11
co-ownership registration in which the underlying ownership of each party is in proportion to

that party’s contribution.

(26) “Lease” includes an oil, gas, or other mineral lease.

(27) “Letters” includes letters testamentary, letters of guardianship, letters of

administration, and letters of conservatorship.

(28) “Minor” has the meaning described in Section 5-102.

(29) “Mortgage” means any conveyance, agreement, or arrangement in which property is

encumbered or used as security.

(30) “Nonresident decedent” means a decedent who was domiciled in another jurisdiction

at the time of the decedent’s death.

(31) “Organization” means a corporation, business trust, estate, trust, partnership, joint

venture, association, government or governmental subdivision or agency, or any other legal or

commercial entity.

(32) “Parent” means an individual who has established a parent-child relationship under

[cite to Uniform Parentage Act (2017)][cite to state’s parentage act][applicable state law].

(33) “Payor” means a trustee, insurer, business entity, employer, government,

governmental agency or subdivision, or any other person authorized or obligated by law or a

governing instrument to make payments.

(34) “Person” means an individual or an organization.

(35) “Personal representative” includes executor, administrator, successor personal

representative, special administrator, and persons who perform substantially the same function

under the law governing their status. “General personal representative” excludes special

administrator.

12
(36) “Petition” means a written request to the court for an order after notice.

(37) “Proceeding” includes action at law and suit in equity.

(38) “Property” includes both real and personal property or any interest therein and

means anything that may be the subject of ownership.

(39) “Protected person” is as defined in Section 5-102.

(40) “Protective proceeding” means a proceeding under [Part] 4 of [Article] V.

(41) “Record” means information that is inscribed on a tangible medium or that is stored

in an electronic or other medium and is retrievable in perceivable form.

(42) “Registrar” refers to the official of the court designated to perform the functions of

Registrar as provided in Section 1-307.

(43) “Security” includes any note, stock, treasury stock, bond, debenture, evidence of

indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in

payments out of production under such a title or lease, collateral trust certificate, transferable

share, voting trust certificate or, in general, any interest or instrument commonly known as a

security, or any certificate of interest or participation, any temporary or interim certificate,

receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the

foregoing.

(44) “Settlement,” in reference to a decedent’s estate, includes the full process of

administration, distribution and closing.

(45) “Sign” means, with present intent to authenticate or adopt a record other than a will:

(A) to execute or adopt a tangible symbol; or

(B) to attach to or logically associate with the record an electronic symbol, sound,

or process.

13
(46) “Special administrator” means a personal representative as described by Sections 3-

614 through 3-618.

(47) “State” means a state of the United States, the District of Columbia, the

Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction

of the United States.

(48) “Successor personal representative” means a personal representative, other than a

special administrator, who is appointed to succeed a previously appointed personal

representative.

(49) “Successors” means persons, other than creditors, who are entitled to property of a

decedent under the decedent’s will or this [code].

(50) “Supervised administration” refers to the proceedings described in [Article] III,

[Part] 5.

(51) “Survive” means that an individual has neither predeceased an event, including the

death of another individual, nor is deemed to have predeceased an event under this [code]. The

term includes its derivatives, such as “survives”, “survived”, “survivor”, or “surviving”.

(52) “Testacy proceeding” means a proceeding to establish a will or determine intestacy.

(53) “Testator” includes an individual of either sex.

(54) “Trust” includes an express trust, private or charitable, with additions thereto,

wherever and however created. The term also includes a trust created or determined by

judgment or decree under which the trust is to be administered in the manner of an express trust.

The term excludes other constructive trusts and excludes resulting trusts, conservatorships,

personal representatives, trust accounts as defined in [Article] VI, custodial arrangements

pursuant to [each state should list its legislation, including that relating to [gifts] [transfers] to

14
minors, dealing with special custodial situations], business trusts providing for certificates to be

issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation

trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages,

profits, pensions, or employee benefits of any kind, and any arrangement under which a person is

nominee or escrowee for another.

(55) “Trustee” includes an original, additional, or successor trustee, whether or not

appointed or confirmed by court.

(56) “Ward” means an individual described in Section 5-102.

(57) “Will” includes codicil and any testamentary instrument that merely appoints an

executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits

the right of an individual or class to succeed to property of the decedent passing by intestate

succession.

[FOR ADOPTION IN COMMUNITY PROPERTY STATES]

[(58) “Separate property” (if necessary, to be defined locally in accordance with existing

concept in adopting state).

(59) “Community property” (if necessary, to be defined locally in accordance with

existing concept in adopting state).]

Legislative Note to Paragraphs (5) and (32): The first bracketed option is for states that
have enacted the Uniform Parentage Act (2017). The second bracketed option is for states that
have enacted a parentage act other than the Uniform Parentage Act (2017). The third bracketed
option is for states that do not have a statute governing the establishment of parent-child
relationships. The reference to “applicable state law” includes statutory, regulatory, and case
law.

Comment

Section 1-201 contains general definitions applicable to the entire Uniform Probate Code.
Other articles or sections may contain special definitions applicable only to that article or
section. In case of a conflict between a general definition and a special definition, the special

15
definition controls.

The following is a list of UPC sections containing definitions, with the corresponding
sections to which the definitions apply in parentheses:

1-201 (All of UPC, unless otherwise excepted)

2-106 (Section 2-106)
2-115 (Article II, Part 1, Subpart 2)
2-120 (Section 2-120)
2-121 (Section 2-121)
2-603 (Section 2-603)
2-705 (Section 2-705)
2-706 (Section 2-706)
2-707 (Section 2-707)
2-709 (Section 2-709)
2-803 (Section 2-803)
2-804 (Section 2-804)
2-1001 (Article II, Part 10)
2-1102 (Article II, Part 11)
3-9A-102 (Article III, Part 9A)
3-9A-106 (Section 3-9A-106)
3-9A-107 (Section 3-9A-107)
4-101 (Article IV)
5-102 (Article V)
5A-102 (Article 5A)
5A-201 (Article 5A, Part 2)
5B-102 (Article 5B)
6-102 (Section 6-102)
6-201 (Article VI, Part 2)
6-301 (Article VI, Part 3)
6-402 (Article VI, Part 4)

Historical Note. The definition of “child” in paragraph (5) and the definition of “parent”
in paragraph (32) were revised in 2019 to correspond to the definitions of these terms in the
Uniform Parentage Act (2017).

PART 3. SCOPE, JURISDICTION AND COURTS

SECTION 1-301. TERRITORIAL APPLICATION. Except as otherwise provided in

this [code], this [code] applies to:

(1) the affairs and estates of decedents, missing persons, and persons to be protected,

domiciled in this state,

16
(2) the property of nonresidents located in this state or property coming into the control

of a fiduciary who is subject to the laws of this state,

(3) incapacitated persons and minors in this state,

(4) survivorship and related accounts in this state, and

(5) trusts subject to administration in this state.

SECTION 1-302. SUBJECT MATTER JURISDICTION.

(a) To the full extent permitted by the constitution, the court has jurisdiction over all

subject matter relating to

(1) estates of decedents, including construction of wills and determination of heirs

and successors of decedents, and estates of protected persons;

(2) protection of minors and incapacitated persons; and

(3) trusts.

(b) The court has full power to make orders, judgments and decrees and take all other

action necessary and proper to administer justice in the matters which come before it.

(c) The court has jurisdiction over protective proceedings and guardianship proceedings.

(d) If both guardianship and protective proceedings as to the same person are commenced

or pending in the same court, the proceedings may be consolidated.

SECTION 1-303. VENUE; MULTIPLE PROCEEDINGS; TRANSFER.

(a) Where a proceeding under this [code] could be maintained in more than one place in

this state, the court in which the proceeding is first commenced has the exclusive right to

proceed.

(b) If proceedings concerning the same estate, protected person, ward, or trust are

commenced in more than one court of this state, the court in which the proceeding was first

17
commenced shall continue to hear the matter, and the other courts shall hold the matter in

abeyance until the question of venue is decided, and if the ruling court determines that venue is

properly in another court, it shall transfer the proceeding to the other court.

(c) If a court finds that in the interest of justice a proceeding or a file should be located in

another court of this state, the court making the finding may transfer the proceeding or file to the

other court.

SECTION 1-304. PRACTICE IN COURT. Unless specifically provided to the

contrary in this [code] or unless inconsistent with its provisions, the rules of civil procedure

including the rules concerning vacation of orders and appellate review govern formal

proceedings under this [code].

SECTION 1-305. RECORDS AND CERTIFIED COPIES. The [Clerk of Court]

shall keep a record for each decedent, ward, protected person or trust involved in any document

which may be filed with the court under this [code], including petitions and applications,

demands for notices or bonds, trust registrations, and of any orders or responses relating thereto

by the Registrar or court, and establish and maintain a system for indexing, filing or recording

which is sufficient to enable users of the records to obtain adequate information. Upon payment

of the fees required by law the clerk must issue certified copies of any probated wills, letters

issued to personal representatives, or any other record or paper filed or recorded. Certificates

relating to probated wills must indicate whether the decedent was domiciled in this state and

whether the probate was formal or informal. Certificates relating to letters must show the date of

appointment.

SECTION 1-306. JURY TRIAL.

(a) If duly demanded, a party is entitled to trial by jury in [a formal testacy proceeding

18
and] any proceeding in which any controverted question of fact arises as to which any party has a

constitutional right to trial by jury.

(b) If there is no right to trial by jury under subsection (a) or the right is waived, the court

in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory

only.

SECTION 1-307. REGISTRAR; POWERS. The acts and orders which this [code]

specifies as performable by the Registrar may be performed either by a judge of the court or by a

person, including the clerk, designated by the court by a written order filed and recorded in the

office of the court.

SECTION 1-308. APPEALS. Appellate review, including the right to appellate review,

interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review,

record on appeal, briefs, arguments and power of the appellate court, is governed by the rules

applicable to the appeals to the [Supreme Court] in equity cases from the [court of general

jurisdiction], except that in proceedings where jury trial has been had as a matter of right, the

rules applicable to the scope of review in jury cases apply.

SECTION 1-309. QUALIFICATIONS OF JUDGE. A judge of the court must have

the same qualifications as a judge of the [court of general jurisdiction].

Comment

In Article VIII, Section 8-101 on transition from old law to new law provision is made
for the continuation in service of a sitting judge not qualified for initial selection.

SECTION 1-310. OATH OR AFFIRMATION ON FILED DOCUMENTS. Except

as otherwise specifically provided in this [code] or by rule, every document filed with the court

under this [code] including applications, petitions, and demands for notice, shall be deemed to

include an oath, affirmation, or statement to the effect that its representations are true as far as

19
the person executing or filing it knows or is informed, and penalties for perjury may follow

deliberate falsification therein.

PART 4. NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION

AND OTHER MATTERS

SECTION 1-401. NOTICE; METHOD AND TIME OF GIVING.

(a) If notice of a hearing on any petition is required and except for specific notice

requirements as otherwise provided, the petitioner shall cause notice of the time and place of

hearing of any petition to be given to any interested person or the person’s attorney if the person

has appeared by attorney or requested that notice be sent to the attorney. Notice shall be given:

(1) by mailing a copy thereof at least 14 days before the time set for the hearing by

certified, registered or ordinary first class mail addressed to the person being notified at the post

office address given in the person’s demand for notice, if any, or at the person’s office or place

of residence, if known;

(2) by delivering a copy thereof to the person being notified personally at least14

days before the time set for the hearing; or

(3) if the address, or identity of any person is not known and cannot be

ascertained with reasonable diligence, by publishing at least once a week for 3 consecutive

weeks, a copy thereof in a newspaper having general circulation in the county where the hearing

is to be held, the last publication of which is to be at least 10 days before the time set for the

hearing.

(b) The court for good cause shown may provide for a different method or time of

giving notice for any hearing.

(c) Proof of the giving of notice shall be made on or before the hearing and filed in the

proceeding.

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SECTION 1-402. NOTICE; WAIVER. A person, including a guardian ad litem,

conservator, or other fiduciary, may waive notice by a writing signed by the person or the

person’s attorney and filed in the proceeding. A person for whom a guardianship or other

protective order is sought, a ward, or a protected person may not waive notice.

Comment

The subject of appearance is covered by Section 1-304.

SECTION 1-403. PLEADINGS; WHEN PARTIES BOUND BY OTHERS;

NOTICE. In formal proceedings involving trusts or estates of decedents, minors, protected

persons, or incapacitated persons, and in judicially supervised settlements, the following rules

apply:

(1) Interests to be affected must be described in pleadings that give reasonable

information to owners by name or class, by reference to the instrument creating the interests or in

another appropriate manner.

(2) A person is bound by an order binding another in the following cases:

(A) An order binding the sole holder or all co-holders of a power of revocation or

a presently exercisable general power of appointment, including one in the form of a power of

amendment, binds other persons to the extent their interests as objects, takers in default, or

otherwise are subject to the power.

(B) To the extent there is no conflict of interest between them or among persons

represented:

(i) an order binding a conservator binds the person whose estate the

conservator controls;

(ii) an order binding a guardian binds the ward if no conservator of the

21
ward’s estate has been appointed;

(iii) an order binding a trustee binds beneficiaries of the trust in

proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a

former fiduciary, and in proceedings involving creditors or other third parties;

(iv) an order binding a personal representative binds persons interested in

the undistributed assets of a decedent’s estate in actions or proceedings by or against the estate;

and

(v) an order binding a sole holder or all co-holders of a general

testamentary power of appointment binds other persons to the extent their interests as objects,

takers in default, or otherwise are subject to the power.

(C) Unless otherwise represented, a minor or an incapacitated, unborn, or

unascertained person is bound by an order to the extent the person’s interest is adequately

represented by another party having a substantially identical interest in the proceeding.

(3) If no conservator or guardian has been appointed, a parent may represent a minor

child.

(4) Notice is required as follows:

(A) The notice prescribed by Section 1-401 must be given to every interested

person or to one who can bind an interested person as described in paragraph (2)(A) or (B).

Notice may be given both to a person and to another who may bind the person.

(B) Notice is given to unborn or unascertained persons who are not represented

under paragraph (2)(A) or (B) by giving notice to all known persons whose interests in the

proceedings are substantially identical to those of the unborn or unascertained persons.

(5) At any point in a proceeding, a court may appoint a guardian ad litem to represent the

22
interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity

or address is unknown, if the court determines that representation of the interest otherwise would

be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to

represent several persons or interests. The court shall state its reasons for appointing a guardian

ad litem as a part of the record of the proceeding.

Comment

A general power, as used here and in Section 1-108, is one which enables the power
holder to draw absolute ownership to himself. The section assumes a valid general power. If the
validity of the power itself were in issue, the power holder could not represent others, as for
example, the takers in default.

The general rules of civil procedure are applicable where not replaced by a specific
provision, see Section 1-304. Those rules would determine the mode of giving notice or serving
process on a minor or the mode of notice in class suits involving large groups of persons made
party to a suit.

1997 Technical Amendment. By technical amendment effective July 31, 1997,

paragraph (2)(B)(v) was added to clarify that orders binding the holder of a general testamentary
power may bind others to the extent their interests are subject to the power. The addition, like
the other segments of paragraph (2)(B), is qualified by the stem language: “To the extent there is
no conflict between them or among persons represented...” Also, paragraph (2)(C) was
broadened to include minors and incapacitated persons with the others listed as persons who may
be bound by judicial orders under principles of virtual representation.

ARTICLE II

INTESTACY, WILLS, AND DONATIVE TRANSFERS

The following free-standing Acts are associated with Article II:

Uniform Disclaimer of Property Interests Act (1999/2006)

Article II, Part 11 has also been adopted as the free-standing Uniform Disclaimer of
Property Interests Act (1999/2006).

Uniform International Wills Act (1977)

Article II, Part 10 has also been adopted as the free-standing Uniform International Wills
Act (1977).

23
Uniform Simultaneous Death Act (1991/1993)

Article II, Sections 1-107, 2-104 and 2-702 have also been adopted as the free-standing
Uniform Simultaneous Death Act (1991/1993).

Uniform Statutory Rule Against Perpetuities (1986/1990)

Article II, Part 9, Subpart 1 has also been adopted as the free-standing Uniform Statutory
Rule Against Perpetuities (1986/1990).

Uniform Testamentary Additions to Trusts Act (1991)

Article II, Section 2-511 has also been adopted as the free-standing Uniform
Testamentary Additions to Trusts Act (1991).

PREFATORY NOTE

The Uniform Probate Code was originally promulgated in 1969.

1990 Revisions. In 1990, Article II underwent significant revision. The 1990 revisions
were the culmination of a systematic study of the Code conducted by the Joint Editorial Board
for the Uniform Probate Code (now named the Joint Editorial Board for Uniform Trust and
Estate Acts) and a special Drafting Committee to Revise Article II. The 1990 revisions
concentrated on Article II, which is the article that covers the substantive law of intestate
succession; spouse’s elective share; omitted spouse and children; probate exemptions and
allowances; execution and revocation of wills; will contracts; rules of construction; disclaimers;
and the effect of homicide and divorce on succession rights; and the rule against perpetuities and
honorary trusts.

Themes of the 1990 Revisions. In the twenty or so years between the original
promulgation of the Code and 1990, several developments occurred that prompted the systematic
round of review. Four themes were sounded: (1) the decline of formalism in favor of intent-
serving policies; (2) the recognition that will substitutes and other inter-vivos transfers have so
proliferated that they now constitute a major, if not the major, form of wealth transmission; (3)
the advent of the multiple-marriage society, resulting in a significant fraction of the population
being married more than once and having stepchildren and children by previous marriages and
(4) the acceptance of a partnership or marital-sharing theory of marriage.

The 1990 revisions responded to these themes. The multiple-marriage society and the
partnership/marital-sharing theory were reflected in the revised elective-share provisions of Part
2. As the General Comment to Part 2 explained, the revised elective share granted the surviving
spouse a right of election that implemented the partnership/marital-sharing theory of marriage.

The children-of-previous-marriages and stepchildren phenomena were reflected most

prominently in the revised rules on the spouse’s share in intestacy.

24
The proliferation of will substitutes and other inter-vivos transfers was recognized,
mainly, in measures tending to bring the law of probate and nonprobate transfers into greater
unison. One aspect of this tendency was reflected in the restructuring of the rules of construction.
Rules of construction are rules that supply presumptive meaning to dispositive and similar
provisions of governing instruments. See Restatement (Third) of Property: Wills and Other
Donative Transfers § 11.3 (2003). Part 6 of the pre-1990 Code contained several rules of
construction that applied only to wills. Some of those rules of construction appropriately applied
only to wills; provisions relating to lapse, testamentary exercise of a power of appointment, and
ademption of a devise by satisfaction exemplify such rules of construction. Other rules of
construction, however, properly apply to all governing instruments, not just wills; the provision
relating to inclusion of adopted persons in class gift language exemplifies this type of rule of
construction. The 1990 revisions divided pre-1990 Part 6 into two parts — Part 6, containing
rules of construction for wills only; and Part 7, containing rules of construction for wills and
other governing instruments. A few new rules of construction were also added.

In addition to separating the rules of construction into two parts, and adding new rules of
construction, the revocation-upon-divorce provision (Section 2-804) was substantially revised so
that divorce not only revokes testamentary devises, but also nonprobate beneficiary designations,
in favor of the former spouse. Another feature of the 1990 revisions was a new section (Section
2-503) that brought the execution formalities for wills more into line with those for nonprobate
transfers.

2008 Revisions. In 2008, another round of revisions was adopted. The principal features
of the 2008 revisions are summarized as follows:

Inflation Adjustments. Between 1990 and 2008, the Consumer Price Index rose by
somewhat more than 50 percent. The 2008 revisions raised the dollar amounts by 50 percent in
Article II Sections 2-102, 2-102A, 2-201, 2-402, 2-403, and 2-405, and added a new cost of
living adjustment section — Section 1-109.

Intestacy. Part 1 on intestacy was divided into two subparts: Subpart 1 on general rules of
intestacy and subpart 2 on parent-child relationships. For details, see the General Comment to
Part 1.

Execution of Wills. Section 2-502 was amended to allow notarized wills as an alternative
to wills that are attested by two witnesses. That amendment necessitated minor revisions to
Section 2-504 on self-proved wills and to Section 3-406 on the effect of notarized wills in
contested cases.

Class Gifts. Section 2-705 on class gifts was revised in a variety of ways, as explained in
the revised Comment to that section.
Reformation and Modification. New Sections 2-805 and 2-806 brought the reformation
and modification sections now contained in the Uniform Trust Code into the Uniform Probate
Code.

2019 Revisions. The promulgation of the Uniform Parentage Act (2017) [UPA (2017)]

25
necessitated a further round of revisions to the Uniform Probate Code’s intestacy and class-gift
provisions. In part, the UPA (2017) enables the simplification of the Code. This is because the
UPA (2017) contains detailed provisions on the creation of parent-child relationships, including
by assisted reproduction. Many of these provisions are now incorporated by reference into the
UPC, thereby simplifying the Code, especially Sections 2-120 and 2-121. The UPA (2017) also
embraces a functional approach to parentage—the doctrine of de facto parentage—which is now
incorporated into the Code’s intestacy and class-gift provisions. The UPA (2017) also opens the
door to the possibility that a child may have more than two parents, hence more than two sets of
grandparents.

The 2019 revisions achieve five principal objectives:

(1) Blended families are taken into account not only in Section 2-102, as in the 1990
revisions, but also in Section 2-103.

(2) The per-capita-at-each-generation system of representation is incorporated throughout

Section 2-103. Heirs in a generation closer to the decedent are favored compared to heirs in a
more remote generation; heirs in a given generation are treated equally.

(3) Outdated terms are removed. Examples include the references to a decedent’s
“maternal” and “paternal” grandparents in the pre-2019 version of Section 2-103, references to
relatives of the “half blood” or “whole blood” in the pre-2019 version of Section 2-107, and
references to “genetic” parents in the pre-2019 versions of Sections 2-117 through 2-119.

(4) The rules in the UPA (2017) governing parent-child relationships created by assisted
reproduction are incorporated by reference.

(5) The intestacy and class-gift provisions are restructured to incorporate the innovations
in the UPA (2017), such as the codification of the doctrine of de facto parentage and the
recognition that a child may have more than two parents, hence more than two sets of
grandparents.

Historical Note. This Prefatory Note was revised in 2008 and 2019.

Legislative Note: References to spouse or marriage appear throughout Article II. States
that recognize civil unions, domestic partnerships, or similar relationships between unmarried
individuals should add appropriate language wherever such references or similar references
appear.

States that do not recognize such relationships between unmarried individuals are urged
to consider whether to recognize the spousal-type rights that partners acquired under the law of
another jurisdiction in which the relationship was formed but who die domiciled in this state.
Doing so would not be the equivalent of recognizing such relationships in this state but simply
allowing those who move to and die in this state to retain the rights they previously acquired
elsewhere. See Christine A. Hammerle, Note, Free Will to Will? A Case for the Recognition of
Intestacy Rights for Survivors to a Same-Sex Marriage or Civil Union, 104 Mich. L. Rev. 1763

26
(2006).

A state’s recognition of spousal-type rights has relevance not only for the individuals but
also for their children. See Section 2-119(b).

Throughout this article, the bracketed phrase “applicable state law” includes a state’s
statutory, regulatory, and case law.

PART 1. INTESTATE SUCCESSION

GENERAL COMMENT

The pre-1990 Code’s basic pattern of intestate succession, contained in Part 1, was
designed to provide suitable rules for the person of modest means who relies on the estate plan
provided by law. The 1990 and 2008 revisions were intended to further that purpose, by fine
tuning the various sections and bringing them into line with developing public policy and family
relationships.

1990 Revisions. The principal features of the 1990 revisions were:

1. So-called negative wills were authorized, under which the decedent who dies intestate,
in whole or in part, can by will disinherit a particular heir.

2. A surviving spouse was granted the whole of the intestate estate, if the decedent left
no surviving descendants and no parents or if the decedent’s surviving descendants are also
descendants of the surviving spouse and the surviving spouse has no descendants who are not
descendants of the decedent. The surviving spouse receives the first $200,000 plus three-fourths
of the balance if the decedent left no surviving descendants but a surviving parent. The
surviving spouse receives the first $150,000 plus one-half of the balance of the intestate estate, if
the decedent’s surviving descendants are also descendants of the surviving spouse but the
surviving spouse has one or more other descendants. The surviving spouse receives the first
$100,000 plus one-half of the balance of the intestate estate, if the decedent has one or more
surviving descendants who are not descendants of the surviving spouse. (To adjust for inflation,
these dollar figures and other dollar figures in Article II were increased by fifty percent in 2008.)

3. A system of representation called per capita at each generation was adopted as a

means of more faithfully carrying out the underlying premise of the pre-1990 UPC system of
representation. Under the per-capita-at-each-generation system, all grandchildren (whose parent
has predeceased the intestate) receive equal shares.

4. Although only a modest revision of the section dealing with the status of adopted
children and children born of unmarried parents was then made, the question was under
continuing review and it was anticipated that further revisions would be forthcoming in the
future.

5. The section on advancements was revised so that it applies to partially intestate estates

27
as well as to wholly intestate estates.

2008 Revisions. As noted in Item 4 above, it was recognized in 1990 that further
revisions on matters of status were needed. The 2008 revisions fulfilled that need. Specifically,
the 2008 revisions contained the following principal features:

Part 1 Divided into Two Subparts. Part 1 was divided into two subparts: Subpart 1 on
general rules of intestacy and Subpart 2 on parent-child relationships.

Subpart 1: General Rules of Intestacy. Subpart 1 contains Sections 2-101 (unchanged),

2-102 (dollar figures adjusted for inflation), 2-103 (restyled and amended to grant intestacy
rights to certain stepchildren as a last resort before the intestate estate escheats to the state), 2-
104 (amended to clarify the requirement of survival by 120 hours as it applies to heirs who are
born before the intestate’s death and those who are in gestation at the intestate’s death), 2-105
(unchanged), 2-106 (unchanged), 2-107 (unchanged), 2-108 (deleted and matter dealing with
heirs in gestation at the intestate’s death relocated to 2-104), 2-109 (unchanged), 2-110
(unchanged), 2-111 (unchanged), 2-112 (unchanged), 2-113 (unchanged), and 2-114 (deleted and
replaced with a new section addressing situations in which a parent is barred from inheriting).

Subpart 2: Parent-Child Relationships. New Subpart 2 contains several new or

substantially revised sections. New Section 2-115 contains definitions of terms that are used in
Subpart 2. New Section 2-116 is an umbrella section declaring that, except as otherwise
provided in Section 2-119(b) through (e), if a parent-child relationship exists or is established
under this subpart 2, the parent is a parent of the child and the child is a child of the parent for
purposes of intestate succession. Section 2-117 continues the rule that, except as otherwise
provided in Sections 2-120 and 2-121, a parent-child relationship exists between a child and the
child’s genetic parents, regardless of their marital status. Regarding adopted children, Section 2-
118 continues the rule that adoption establishes a parent-child relationship between the adoptive
parents and the adoptee for purposes of intestacy. Section 2-119 addresses the extent to which
an adoption severs the parent-child relationship with the adoptee’s genetic parents. New
Sections 2-120 and 2-121 turn to various parent-child relationships resulting from assisted
reproductive technologies in forming families. As one researcher reported: “Roughly 10 to 15
percent of all adults experience some form of infertility.” Debora L. Spar, The Baby Business 31
(2006). Infertility, coupled with the desire of unmarried individuals to have children, have led to
increased questions concerning children of assisted reproduction. Sections 2-120 and 2-121
address inheritance rights in cases of children of assisted reproduction, whether the birth mother
is the one who parents the child or is a gestational carrier who bears the child for an intended
parent or intended parents. As two authors have noted: “Parents, whether they are in a married
or unmarried union with another, whether they are a single parent, whether they procreate by
sexual intercourse or by assisted reproductive technology, are entitled to the respect the law
gives to family choice.” Charles P. Kindregan, Jr. & Maureen McBrien, Assisted Reproductive
Technology: A Lawyer’s Guide to Emerging Law and Science 6-7 (2006). The final section,
new Section 2-122, provides that nothing contained in Subpart 2 should be construed as affecting
application of the judicial doctrine of equitable adoption.

Historical Note. This General Comment was revised in 2008.

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Subpart 1. General Rules

SECTION 2-101. INTESTATE ESTATE.

(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate

succession to the decedent’s heirs as prescribed in this [code], except as modified by the

decedent’s will.

(b) A decedent by will may expressly exclude or limit the right of an individual or class

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 decedent’s intestate estate to which

that individual or class would have succeeded passes as if that individual or each member of that

class had disclaimed the intestate share.

Comment

Purpose of Revision. The amendments to subsection (a) are stylistic, not substantive.

New subsection (b) authorizes the decedent, by will, to exclude or limit the right of an
individual or class to share in the decedent’s intestate estate, in effect disinheriting that
individual or class. By specifically authorizing so-called negative wills, subsection (b) reverses
the usually accepted common-law rule, which defeats a testator’s intent for no sufficient reason.
See Note, “The Intestate Claims of Heirs Excluded by Will: Should ‘Negative Wills’ Be
Enforced?,” 52 U. Chi. L. Rev. 177 (1985).

Whether or not in an individual case the decedent’s will has excluded or limited the right
of an individual or class to take a share of the decedent’s intestate estate is a question of
construction. A clear case would be one in which the decedent’s will expressly states that an
individual is to receive none of the decedent’s estate. Examples would be testamentary language
such as “my brother, Hector, is not to receive any of my property” or “Brother Hector is
disinherited.”

Another rather clear case would be one in which the will states that an individual is to
receive only a nominal devise, such as “I devise $50.00 to my brother, Hector, and no more.”

An individual need not be identified by name to be excluded. Thus, if brother Hector is

the decedent’s only brother, Hector could be identified by a term such as “my brother.” A group
or class of relatives (such as “my brothers and sisters”) can also be excluded under this
provision.

29
Subsection (b) establishes the consequence of a disinheritance—the share of the
decedent’s intestate estate to which the disinherited individual or class would have succeeded
passes as if that individual or class had disclaimed the intestate share. Thus, if the decedent’s will
provides that brother Hector is to receive $50.00 and no more, Hector is entitled to the $50.00
devise (because Hector is not treated as having predeceased the decedent for purposes of testate
succession), but the portion of the decedent’s intestate estate to which Hector would have
succeeded passes as if Hector had disclaimed his intestate share. The consequence of a
disclaimer by Hector of his intestate share is governed by Section 2-1106(b)(3), which provides
that Hector’s intestate share passes to Hector’s descendants by representation.

Example: G died partially intestate. G is survived by brother Hector, Hector’s 3 children

(X, Y, and Z), and the child (V) of a deceased sister. G’s will excluded Hector from sharing in
G’s intestate estate.

Solution: V takes half of G’s intestate estate. X, Y, and Z split the other half, i.e., they
take 1/6 each. Sections 2-103(3); 2-106; 2-1106(b)(3). Had Hector not been excluded by G’s
will, the share to which Hector would have succeeded would have been 1/2. Under Section 2-
1106(b)(3), that half, not the whole of G’s intestate estate, is what passes to Hector’s descendants
by representation as if Hector had disclaimed his intestate share.

Note that if brother Hector had actually predeceased G, or was treated as if he

predeceased G by reason of not surviving G by 120 hours (see Section 2-104), then no
consequence flows from Hector’s disinheritance: V, X, Y, and Z would each take 1/4 of G’s
intestate estate under sections 2-103(3) and 2-106.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article II (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

2021 Technical Amendment. This Comment was amended in 2021 to correct the
references to Section 2-1106(b)(3).

SECTION 2-102. SHARE OF SPOUSE. The intestate share of a decedent’s surviving

spouse is:

(1) the entire intestate estate if:

(A) no descendant or parent of the decedent survives the decedent; or

(B) all of the decedent’s surviving descendants are also descendants of the

surviving spouse and there is no other descendant of the surviving spouse who survives the

30
decedent;

(2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if no

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

decedent;

(3) the first [$225,000], plus one-half of any balance of the intestate estate, if all of the

decedent’s 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;

(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more

of the decedent’s surviving descendants are not descendants of the surviving spouse.

Comment

Purpose and Scope of 1990 Revisions. This section was revised in 1990 to give the
surviving spouse a larger share than the pre-1990 UPC. If the decedent leaves no surviving
descendants and no surviving parent or if the decedent does leave surviving descendants but
neither the decedent nor the surviving spouse has other descendants, the surviving spouse is
entitled to all of the decedent’s intestate estate.

If the decedent leaves no surviving descendants but does leave a surviving parent, the
decedent’s surviving spouse receives the first $300,000 plus three-fourths of the balance of the
intestate estate.

If the decedent leaves surviving descendants and if the surviving spouse (but not the
decedent) has other descendants, and thus the decedent’s descendants are unlikely to be the
exclusive beneficiaries of the surviving spouse’s estate, the surviving spouse receives the first
$225,000 plus one-half of the balance of the intestate estate. The purpose is to assure the
decedent’s own descendants of a share in the decedent’s intestate estate when the estate exceeds
$225,000.

If the decedent has other descendants, the surviving spouse receives $150,000 plus one-
half of the balance. In this type of case, the decedent’s descendants who are not descendants of
the surviving spouse are not natural objects of the bounty of the surviving spouse.
Note that in all the cases where the surviving spouse receives a lump sum plus a fraction
of the balance, the lump sums must be understood to be in addition to the probate exemptions
and allowances to which the surviving spouse is entitled under Part 4. These can add up to a
minimum of $64,500.

Under the pre-1990 Code, the decedent’s surviving spouse received the entire intestate

31
estate only if there were neither surviving descendants nor parents. If there were surviving
descendants, the descendants took one-half of the balance of the estate in excess of $50,000 (for
example, $25,000 in a $100,000 estate). If there were no surviving descendants, but there was a
surviving parent or parents, the parent or parents took that one-half of the balance in excess of
$50,000.

2008 Cost-of-Living Adjustments. As revised in 1990, the dollar amount in paragraph

(2) was $200,000, in paragraph (3) was $150,000, and in paragraph (4) was $100,000. To adjust
for inflation, these amounts were increased in 2008 to $300,000, $225,000, and $150,000
respectively. The dollar amounts in these paragraphs are subject to annual cost-of-living
adjustments under Section 1-109.

References. The theory of this section is discussed in Waggoner, “The Multiple-

Marriage Society and Spousal Rights Under the Revised Uniform Probate Code,” 76 Iowa L.
Rev. 223, 229-35 (1991).

Empirical studies support the increase in the surviving spouse’s intestate share, reflected
in the revisions of this section. The studies have shown that testators in smaller estates (which
intestate estates overwhelmingly tend to be) tend to devise their entire estates to their surviving
spouses, even when the couple has children. See C. Shammas, M. Salmon & M. Bahlin,
Inheritance in America from Colonial Times to the Present 184-85 (1987); M. Sussman, J. Cates
& D. Smith, The Family and Inheritance (1970); Browder, “Recent Patterns of Testate
Succession in the United States and England,” 67 Mich. L. Rev. 1303, 1307-08 (1969); Dunham,
“The Method, Process and Frequency of Wealth Transmission at Death,” 30 U. Chi. L. Rev. 241,
252 (1963); Gibson, “Inheritance of Community Property in Texas – A Need for Reform,” 47
Texas L. Rev. 359, 364-66 (1969); Price, “The Transmission of Wealth at Death in a Community
Property Jurisdiction,” 50 Wash. L. Rev. 277, 283, 311-17 (1975). See also Fellows, Simon &
Rau, “Public Attitudes About Property Distribution at Death and Intestate Succession Laws in
the United States,” 1978 Am. B. F. Research J. 319, 355-68; Note, “A Comparison of Iowans’
Dispositive Preferences with Selected Provisions of the Iowa and Uniform Probate Codes,” 63
Iowa L. Rev. 1041, 1091-92 (1978).

Cross Reference. See Section 2-802 for the definition of spouse, which controls for
purposes of intestate succession.

Historical Note. This Comment was revised in 2008.

[ALTERNATIVE PROVISION FOR COMMUNITY PROPERTY STATES]

[SECTION 2-102A. SHARE OF SPOUSE.

(a) The intestate share of a decedent’s surviving spouse in separate property is:

(1) the entire intestate estate if:

(A) no descendant or parent of the decedent survives the decedent; or

32
(B) all of the decedent’s surviving descendants are also descendants of the

surviving spouse and there is no other descendant of the surviving spouse who survives the

decedent;

(2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if

no descendant of the decedent survives the decedent, but a parent of the decedent survives the

decedent;

(3) the first [$225,000], plus one-half of any balance of the intestate estate, if all

of the decedent’s 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;

(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one

or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

(b) the one-half of community property belonging to the decedent passes to the [surviving

spouse] as the intestate share.]

Comment

The brackets around the term “surviving spouse” in subsection (b) indicate that states are
free to adopt a different scheme for the distribution of the decedent’s half of the community
property, as some community property states have done.

2008 Cost-of-Living Adjustments. As revised in 1990, the dollar amount in subsection

(a)(2) was $200,000, in (a)(3) was $150,000, and in (a)(4) was $100,000. To adjust for inflation,
these amounts were increased in 2008 to $300,000, $225,000, and $150,000 respectively. The
dollar amounts in these paragraphs are subject to annual cost-of-living adjustments under Section
1-109.

Historical Note. This Comment was revised in 2008.

SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE.

(a) [Definitions.] In this section:

33
(1) “Deceased parent”, “deceased grandparent”, or “deceased spouse” means a

parent, grandparent, or spouse who either predeceased the decedent or is deemed under this

[article] to have predeceased the decedent.

(2) “Surviving spouse”, “surviving descendant”, “surviving parent”, or “surviving

grandparent” means a spouse, descendant, parent, or grandparent who neither predeceased the

decedent nor is deemed under this [article] to have predeceased the decedent.

(b) [Heirs Other Than Surviving Spouse.] Any part of the intestate estate not passing

under Section 2-102 to the decedent’s surviving spouse passes to the decedent’s descendants or

parents as provided in subsections (c) and (d). If there is no surviving spouse, the entire intestate

estate passes to the decedent’s descendants, parents, or other heirs as provided in subsections (c)

through (j).

(c) [Surviving Descendant.] If a decedent is survived by one or more descendants, any

part of the intestate estate not passing to the surviving spouse passes by representation to the

decedent’s surviving descendants.

(d) [Surviving Parent.] If a decedent is not survived by a descendant but is survived by

one or more parents, any part of the intestate estate not passing to the surviving spouse is

distributed as follows:

(1) The intestate estate or part is divided into as many equal shares as there are:

(A) surviving parents; and

(B) deceased parents with one or more surviving descendants, if any, as

determined under subsection (e).

(2) One share passes to each surviving parent.

(3) The balance of the intestate estate or part, if any, passes by representation to

34
the surviving descendants of the decedent’s deceased parents, as determined under subsection

(e).

(e) [When Parent Survives: Computation of Shares of Surviving Descendants of

Deceased Parent.] The following rules apply under subsection (d) to determine whether a

deceased parent of the decedent is treated as having a surviving descendant:

(1) If all the surviving descendants of one or more deceased parents also are

descendants of one or more surviving parents, those descendants are deemed to have

predeceased the decedent.

(2) If two or more deceased parents have the same surviving descendants and

none of those deceased parents has any other surviving descendant, those deceased parents are

deemed to be one deceased parent with surviving descendants.

(f) [Surviving Descendant of Deceased Parent.] If a decedent is not survived by a

descendant or parent but is survived by one or more descendants of a parent, the intestate estate

passes by representation to the surviving descendants of the decedent’s deceased parents.

(g) [Surviving Grandparent.] If a decedent is not survived by a descendant, parent, or

descendant of a parent but is survived by one or more grandparents, the intestate estate is

distributed as follows:

(1) The intestate estate is divided into as many equal shares as there are:

(A) surviving grandparents; and

(B) deceased grandparents with one or more surviving descendants, if any,

as determined under subsection (h).

(2) One share passes to each surviving grandparent.

(3) The balance of the intestate estate, if any, passes by representation to the

35
surviving descendants of the decedent’s deceased grandparents, as determined under subsection

(h).

(h) [When Grandparent Survives: Computation of Shares of Surviving Descendants

of Deceased Grandparent.] The following rules apply under subsection (g) to determine

whether a deceased grandparent of the decedent is treated as having a surviving descendant:

(1) If all the surviving descendants of one or more deceased grandparents also are

descendants of one or more surviving grandparents, those descendants are deemed to have

predeceased the decedent.

(2) If two or more deceased grandparents have the same surviving descendants

and none of those deceased grandparents has any other surviving descendant, those deceased

grandparents are deemed to be one deceased grandparent with surviving descendants.

(i) [Surviving Descendant of Deceased Grandparent.] If a decedent is not survived by

a descendant, parent, descendant of a parent, or grandparent but is survived by one or more

descendants of a grandparent, the intestate estate passes by representation to the surviving

descendants of the decedent’s deceased grandparents.

(j) [Surviving Descendant of Deceased Spouse.] If a decedent is not survived by a

descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent but is

survived by one or more descendants of one or more deceased spouses, the intestate estate passes

by representation to the surviving descendants of the deceased spouse or spouses.

Comment

This section provides for inheritance by descendants of the decedent, parents and their
descendants, grandparents and collateral relatives descended from grandparents, and descendants
of a deceased spouse or deceased spouses who are not also descendants of the decedent; in line
with modern policy, it eliminates more remote relatives tracing through great-grandparents.

2008 Revisions. In addition to making a few stylistic changes, which were not intended

36
to change meaning, the 2008 revisions divided this section into two subsections for the purpose
of granting inheritance rights to descendants of the decedent’s deceased spouse or spouses who
are not also descendants of the decedent.

2019 Revisions. This section was revised significantly in 2019. The revisions achieve
four principal objectives:

(1) Blended families are taken into account not only in Section 2-102, as in the 1990
revisions, but also in this section.

(2) The per-capita-at-each-generation system of representation is incorporated throughout

this section. This departs from the pre-2019 version of this section. Prior subsection (a)(4)
divided the intestate estate into halves when one or more grandparents on each side survived the
decedent. In contrast, current subsection (g) divides the intestate estate among the surviving
grandparents and the surviving descendants of deceased grandparents on a per-capita-at-each-
generation basis. Similarly, if no grandparent survives, current subsection (i) divides the intestate
estate among descendants of grandparents on a per-capita-at-each-generation basis. Subsection
(d) follows this approach and divides the intestate estate among the surviving parents and the
surviving descendants of deceased parents on a per-capita-at-each-generation basis and does the
same in subsection (f) when no parent survives. Subsection (j) does the same by dividing the
intestate estate among descendants of deceased spouses on a per-capita-at-each-generation basis.

(3) Outdated terms are removed, such as the references to a decedent’s “maternal” and
“paternal” grandparents.

(4) This section is reformulated to handle the possibility—recognized by the Uniform

Parentage Act (2017)—that a child may have more than two parents, hence more than two sets of
grandparents.

Subsection (b). Subsection (b) states the well-established rule that this section governs
the part of the decedent’s intestate estate not passing to the decedent’s surviving spouse under
Section 2-102—or the entire intestate estate if the decedent has no surviving spouse.

Subsection (c). Subsection (c) states the well-established rule that if the decedent is
survived by one or more descendants, the intestate estate or part thereof not passing to the
surviving spouse passes by representation to the decedent’s surviving descendants.

Example 1. G, the intestate, has a surviving spouse, S, and three surviving children, A, B,
and C, who are also children of S. S has no other children. Section 2-102 provides that the entire
intestate estate passes to S. Nothing passes under this section.

Example 2. Same facts as Example 1, except that S predeceased G. The intestate estate
passes by representation to G’s surviving children—A, B, and C—under subsection (c). “By
representation” in subsection (c) is defined in Section 2-106(b). The result is that A, B, and C
each inherit 1/3 of G’s intestate estate.

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Subsection (d). If the decedent is not survived by any descendants but is survived by one
or more parents, subsection (d) provides that any part of the intestate estate not passing to the
surviving spouse is distributed according to a three-step procedure:

(1) The intestate estate or part is divided into as many equal shares as there are (A)
surviving parents and (B) deceased parents with one or more surviving descendants, if any.

(2) One share passes to each surviving parent.

(3) The balance of the intestate estate or part, if any, passes by representation to the
surviving descendants of the decedent’s deceased parents.

Example 3. G, the intestate, had two parents, P1 and P2. P1 also had one other child, A.
P2 also had two other children, B and C. G was predeceased by P2 and was survived by P1, A,
B, and C. The intestate estate is divided into two equal shares, because there is one surviving
parent (P1) and one deceased parent with surviving descendants (P2). One share passes to P1,
who inherits 1/2 of G’s intestate estate. The balance passes by representation to the surviving
descendants of P2: B and C. “By representation” in subsection (d) is defined in Section 2-106(c).
The result is that B and C each inherit 1/4 of G’s intestate estate.

The result in Example 3 contrasts with the result that would have been reached under the
pre-2019 version of this section, which would have given the entire intestate estate to P1. The
2019 revisions respond to blended families not only in Section 2-102 but also in this section.
Note that B and C inherit in Example 3 as G’s siblings without regard to the fact that they are
half-siblings. See Section 2-107.

Subsection (d) is subject to a special exception in subsection (e), which applies only
when (1) the surviving descendants of a deceased parent also are descendants of a surviving
parent or (2) two or more deceased parents have exactly the same surviving descendants. This
special rule is explained and illustrated later in this Comment.

If no descendant or parent survives the decedent, the entire intestate estate passes to the
surviving spouse under Section 2-102 or, if there is no surviving spouse, under subsections (f)
through (j) of this section,

Subsection (f). If the decedent is not survived by a descendant or parent but is survived
by one or more descendants of a parent, subsection (f) provides that the intestate estate passes by
representation to the surviving descendants of the decedent’s deceased parents.

Example 4. Same facts as Example 3, except that P1 and P2 predeceased G and that A, B,
and C survived G. The intestate estate passes by representation to the surviving descendants (A,
B, and C) of G’s deceased parents (P1 and P2). “By representation” in subsection (f) is defined
in Section 2-106(d). The result is that A, B, and C each inherit 1/3 of G’s intestate estate.

Subsection (g). If the decedent is not survived by a descendant, parent, or descendant of

a parent but is survived by one or more grandparents, subsection (g) provides that the intestate

38
estate is distributed according to a three-step procedure:

(1) The intestate estate is divided into as many equal shares as there are (A) surviving
grandparents and (B) deceased grandparents with one or more surviving descendants, if any.

(2) One share passes to each surviving grandparent.

(3) The balance of the intestate estate, if any, passes by representation to the surviving
descendants of the decedent’s deceased grandparents.

Example 5. G, the intestate, was survived by one grandparent, GP1, who had a daughter
(G’s aunt), A. G was predeceased by a second grandparent, GP2, who had two sons (G’s uncles),
B and C. G was survived by GP1, A, B, and C. The intestate estate is divided into two equal
shares, because there is one surviving grandparent (GP1) and one deceased grandparent with
surviving descendants (GP2). One share passes to GP1, who inherits 1/2 of G’s intestate estate.
The balance passes by representation to the surviving descendants of GP2: B and C. “By
representation” in subsection (g) is defined in Section 2-106(e). The result is that B and C each
inherit 1/4 of G’s intestate estate.

Subsection (g) is subject to a special exception in subsection (h), which applies only
when (1) the surviving descendants of a deceased grandparent also are descendants of a
surviving grandparent or (2) two or more deceased grandparents have exactly the same surviving
descendants. This special rule is explained and illustrated later in this Comment.

Subsection (i). If the decedent is not survived by a descendant, parent, descendant of a

parent, or grandparent, subsection (i) provides that the intestate estate passes by representation to
the surviving descendants of the decedent’s deceased grandparents.

Example 6. Same facts as Example 5, except that G was survived only by A, B, and C.
The intestate estate passes by representation to the surviving descendants (A, B, and C) of G’s
deceased grandparents (GP1 and GP2). “By representation” in subsection (i) is defined in
Section 2-106(f). The result is that A, B, and C each inherit 1/3 of G’s intestate estate.

Subsection (j). This subsection is based on former Section 2-103(b), which was added to
the Code in 2008. The subsection grants inheritance rights to descendants of the intestate’s
deceased spouse(s) who are not also descendants of the intestate. The term deceased spouse
refers to an individual to whom the intestate was married at the individual’s death.

Example 7. G, the intestate, was survived only by A and B (the children of G’s
predeceased spouse S1) and by C (the child of G’s predeceased spouse S2). A, B, and C are not
descendants of G. The intestate estate passes by representation to the surviving descendants (A,
B, and C) of G’s deceased spouses (S1 and S2). “By representation” in subsection (j) is defined
in Section 2-106(g). The result is that A, B, and C each inherit 1/3 of G’s intestate estate.

Subsections (e) and (h). Subsections (e) and (h) deal with two special cases. The first
arises when the surviving descendants of a deceased parent (or grandparent) also are

39
descendants of a surviving parent (or grandparent). To achieve the correct results when
calculating the intestate shares, these subsections provide that those descendants of the deceased
parent (or grandparent) are deemed to have predeceased the decedent.

Example 8. G, the intestate, had two parents, P1 and P2. P1 survived G; P2 predeceased
G. P1 and P2 had two other children, A and B, both of whom survived G. Under subsection (d),
G’s intestate estate is divided into only one share, for P1. The reason is subsection (e)(1):
because the surviving descendants of P2 (A and B) are descendants of P1, those descendants are
ignored (“deemed to have predeceased”).

Example 9. Same facts as Example 8, except that P1 also had two additional children, X
and Y, who were not children of P2. G was survived by P1, A, B, X, and Y. Under subsection
(d), G’s estate is divided into only one share, for P1. The reason is subsection (e)(1): because the
surviving descendants of P2 (A and B) also are descendants of P1, those descendants are ignored
(“deemed to have predeceased”).

Example 10. Same facts as Example 8, except that P2 also had two additional children, X
and Y, who were not children of P1. G was survived by P1, A, B, X, and Y. Under subsection
(d), G’s estate is divided into two shares. One share passes to P1. The other share passes by
representation to the surviving descendants of P2 (A, B, X, and Y), who divide the share equally.
Subsection (e)(1) does not apply because P2 has surviving descendants who are not descendants
of P1.

These examples illustrate the operation of subsection (e)(1) with respect to descendants
of parents. The same rule applies under subsection (h)(1) with respect to descendants of
grandparents.

The second special case addressed by subsections (e) and (h) arises when two or more
deceased parents (or two or more deceased grandparents) have exactly the same descendants
who survive the decedent. To achieve the correct results when calculating the intestate shares,
these subsections provide that those deceased parents are deemed to be one deceased parent (or
those deceased grandparents are deemed to be one deceased grandparent).

Example 11. G, the intestate, had three parents, P1, P2, and P3. P1 survived G; P2 and P3
predeceased G. P2 and P3 had two children, A and B, who survived G. Under subsection (d), the
intestate estate is divided into two shares: one for P1 and one for the descendants (A and B) of
P2 and P3, who are deemed to be one deceased parent rather than two, under subsection (e)(2).
The share passing to A and B passes to them by representation. “By representation” in subsection
(d) is defined in Section 2-106(c). The result is that A and B each inherit 1/4 of G’s intestate
estate.

This example illustrates the operation of subsection (e)(2) with respect to descendants of
parents. The same rule applies under subsection (h)(2) with respect to descendants of
grandparents.

More Than Two Parents; More Than Two Sets of Grandparents. The Uniform

40
Parentage Act (2017) recognizes the possibility that a child may have more than two parents,
hence more than two sets of grandparents. As revised in 2019, the rules of this section apply
equally well irrespective of the number of parents or grandparents.

2021 Technical Amendment. Subsections (e)(1) and (h)(1) were amended in 2021 to
apply when the surviving descendants of a deceased parent (or grandparent) also are descendants
of a surviving parent (or grandparent). The prior version of subsections (e)(1) and (h)(1)
incorrectly also required the surviving parent (or grandparent) to have no other surviving
descendants.

Historical Note. This Comment was revised in 2008, 2019, and 2021.

SECTION 2-104. REQUIREMENT OF SURVIVAL BY 120 HOURS;

GESTATIONAL PERIOD; PREGNANCY AFTER DECEDENT’S DEATH.

(a) [Definitions.] In this section:

(1) “Assisted reproduction” means a method of causing pregnancy other than

sexual intercourse.

(2) “Gestational period” means the time between the start of a pregnancy and

birth.

(b) [Requirement of Survival by 120 Hours; Gestational Period; Pregnancy After

Decedent’s Death.] For purposes of intestate succession, homestead allowance, and exempt

property, and except as otherwise provided in subsection (c), the following rules apply:

(1) An individual born before a decedent’s death who fails to survive the decedent

by 120 hours is deemed to have predeceased the decedent. If it is not established by clear and

convincing evidence that an individual born before the decedent’s death survived the decedent

by 120 hours, it is deemed that the individual failed to survive for the required period.

(2) If the decedent dies during a gestational period that results in the birth of an

individual who lives at least [120 hours] after birth, that individual is deemed to be living at the

decedent’s death.

41
(3) If the decedent dies before the start of a pregnancy by assisted reproduction

resulting in the birth of an individual who lives at least [120 hours] after birth, that individual is

deemed to be living at the decedent’s death if [the decedent’s personal representative, not later

than [6] months after the decedent’s death, received notice or had actual knowledge of an intent

to use genetic material in the assisted reproduction and]:

(A) the embryo was in utero not later than [36] months after the

decedent’s death; or

(B) the individual was born not later than [45] months after the decedent’s

death.

(c) [Section Inapplicable if Estate Would Pass to State.] This section does not apply if

its application would cause the estate to pass to the state under Section 2-105.

Legislative Note: A state enacting this section should consider enacting a provision akin
to Section 3-703(d). Such a provision might be expanded to require a personal representative,
when notifying potential devisees or heirs of the personal representative’s appointment, to
inquire whether a devisee or heir has knowledge of an intent to use genetic material in assisted
reproduction. A state also should consider requiring the personal representative to indicate that
a devisee or heir who has such information must give written notice to the personal
representative within a designated time.

The 120-hour periods in subsection (b)(2) and (3) are bracketed. Data on infant mortality
raise doubts whether 120 hours—a period imported from the survivorship rule for simultaneous
or near-simultaneous death in subsection (b)(1)—is the appropriate period to provide
reasonable assurance of infant survivorship. The brackets signal that a legislature may want to
require a period longer than 120 hours based on infant mortality data at the time of enactment.

Comment

Subsection (b)(1) avoids multiple administrations and in some instances prevents the
property from passing to persons not desired by the decedent. See Halbach &Waggoner, The
UPC’s New Survivorship and Antilapse Provisions, 55 Alb. L. Rev. 1091, 1094-1099 (1992).
The 120-hour period will not delay the administration of a decedent’s estate because Sections 3-
302 and 3-307 prevent informal issuance of letters for a period of five days from death.
Subsection (c) provides that the common-law rules of survivorship apply if the last eligible
relative of the intestate fails to survive the intestate by 120 hours.

42
In the case of a surviving spouse who survives the 120-hour period, the 120-hour
requirement of survivorship does not disqualify the spouse’s intestate share for the federal estate-
tax marital deduction. See Int.Rev.Code § 2056(b)(3).

2008 Revisions. In 2008, this section was reorganized, revised, and combined with
former Section 2-108 on afterborn heirs.

2019 Revisions. In 2019, this section was revised and combined with an updated and
expanded version of former Sections 2-120(k) and 2-121(h), having to do with children
conceived by assisted reproduction after the death of an intended parent.

2021 Revisions. In 2021, technical amendments removed the clear-and-convincing

evidence requirement from subsection (b)(2) and bracketed the 120-hour period in subsections
(b)(2) and (b)(3). These amendments are explained below.

Subsection (b)(1) addresses instances of simultaneous or near-simultaneous death. The

subsection requires clear and convincing evidence that an individual born before the decedent’s
death survived the decedent by 120 hours. The 120-hour period provides a reasonable level of
assurance that, in the event of a common disaster, the decedent’s property passes to individuals
who survive the disaster. See, e.g., Janus v. Tarasewicz, 482 N.E.2d 418 (Ill. App. Ct. 1985)
(spouses ingesting what turned out to be cyanide-laced Tylenol died within fewer than 120 hours
of each other). The clear-and-convincing-evidence requirement, which is a rare departure from
the Code’s normal preponderance-of-the-evidence standard of proof, is designed to reduce error
and litigation in these simultaneous or near-simultaneous death cases.

Subsection (b)(2) addresses infant survivorship. The subsection provides that if the
decedent dies during a gestational period (defined in subsection (a)(2) as the time between the
start of a pregnancy and birth) that results in the birth of an individual who lives at least 120
hours after birth, that individual is deemed to be living at the decedent’s death. The 120-hour
requirement did not appear in the 1969 version of this subsection but was added in 1990,
followed by the addition in 2008 of a clear-and-convincing-evidence requirement. In 2021, the
clear-and-convincing-evidence requirement was removed. Infant survivorship does not require
an exceptional departure from the Code’s normal preponderance-of-the-evidence standard of
proof, because the cause of the infant’s death is unlikely to be related to the cause of the
decedent’s death. Also in 2021, the 120-hour period was placed in brackets. Data raise doubts
whether 120 hours—imported from the survivorship rule for simultaneous or near-simultaneous
death—is the appropriate period to provide reasonable assurance of infant survivorship. See, e.g.,
https://www.healthsystemtracker.org/chart-collection/infant-mortality-u-s-compare-
countries/#item-start (reporting that, of the infants dying in 2017 within the first year after birth,
40 percent died within 23 hours after birth, 13 percent died between one to six days after birth,
13 percent died between seven to 27 days after birth, and 34 percent died between 28 and 364
days after birth).

Subsection (b)(3) addresses survivorship when a pregnancy, resulting in the birth of an

individual, starts after the death of a decedent. Given that under the law of intestacy a surviving
member of a closer generation takes ahead of a surviving member of a more remote generation,

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this subsection applies only when an intended parent predeceases or is deemed to predecease the
decedent. If the decedent died before the start of a pregnancy by assisted reproduction (defined in
subsection (a)(1) as a method of causing pregnancy other than sexual intercourse) resulting in the
birth of an individual who lives at least 120 hours after birth (brackets around 120 hours having
been added in 2021 for the same reason as in subsection (b)(2)), subsection (b)(3) provides that
the individual is deemed to be living at the decedent’s death if the embryo was in utero not later
than [36] months after the decedent’s death or the individual was born not later than [45]
months after the decedent’s death. The 36-month period is designed to allow for a period of
grieving, time to decide whether to go forward with assisted reproduction, and the possibility of
initial unsuccessful attempts to achieve a pregnancy. The 36-month period also coincides with
Section 3-1006, under which an heir is allowed to recover property improperly distributed or its
value from any distributee during the later of three years after the decedent’s death or one year
after distribution. If the assisted-reproduction procedure is performed in a medical facility, the
date when the embryo is in utero will ordinarily be made evident by medical records. In some
cases, however, the procedure is not performed in a medical facility, so such evidence may be
lacking. Providing an alternative of birth within 45 months is designed to provide certainty in
such cases. The 45-month period is based on the 36-month period with an additional nine months
tacked on to allow for a typical period of pregnancy. The time limits are bracketed to indicate
that states may want to consider other time limits that may be more consistent with their rules of
probate administration. Bracketed language in this Section imposes a requirement of notice to the
personal representative. (Note that Section 3-703 gives the decedent’s personal representative
authority to take account of the possibility of a pregnancy that starts after the decedent’s death
with respect to the distribution of all or part of the estate.)

Subsection (b)(3) is an updated and expanded version of former Sections 2-120(k) and 2-
121(h). Former Sections 2-120(k) and 2-121(h) applied only when the intestate decedent was the
intended parent of a child who was born as a result of a pregnancy that began after the intended
parent’s death. Subsection (b)(3) applies to all intestate decedents.

Subsection (b) operates in conjunction with Sections 2-120, having to do with parentage
by assisted reproduction without the assistance of a surrogacy arrangement, and 2-121, having to
do with parentage by assisted reproduction with the assistance of a surrogacy arrangement. The
examples below illustrate how subsection (b) furthers the likely donative intention of an intestate
decedent by allowing an individual born as a result of assisted reproduction to qualify as an heir
as long as the individual is born (1) before the decedent’s death, (2) as a result of a pregnancy
starting before the decedent’s death, or (3) if certain time limits are met, as a result of a
pregnancy starting after the decedent’s death. In each of these examples, the presumption is
made that the intended parent of a child conceived by assisted reproduction satisfied all the
requirements to establish a parent-child relationship under either Section 2-120 or Section 2-121.

Examples 1 through 3 illustrate the operation of subsection (b) when the decedent is the
intended parent of an individual conceived by assisted reproduction.

Example 1. G and G’s spouse, S, had a child, X, by assisted reproduction. G was

alive when X was born. Later, G died intestate, survived only by S, X, and a stepchild
(S’s child but not G’s child). S, X, and the stepchild survived G by at least 120 hours. X

44
is G’s heir in accordance with Section 2-103(b) and (c) and subsection (b)(1).

Example 2. Same facts as Example 1 except that G died after the start of the
pregnancy and before the birth of X. After birth, X lived at least [120 hours]. Under
subsection (b)(2), X is deemed to be living at G’s death. X is G’s heir in accordance with
Section 2-103(b) and (c) and subsection (b)(2). If, instead, X had failed to survive for
[120 hours] after birth, X would have been deemed to have predeceased G.

Example 3. Same facts as Example 1 except that G died intestate before the start
of the pregnancy. S notified G’s personal representative 3 months after G’s death that S
intended to use G’s genetic material to have a child. One year later, S used the genetic
material to start a pregnancy with the assistance of a surrogacy arrangement. The
pregnancy resulted in the birth of G’s child, X, about nine months later. X lived at least
[120 hours] after birth. X’s birth falls within the bracketed time limits of subsection
(b)(3). Under subsection (b)(3), X is deemed to be living at G’s death. In accordance with
Section 2-103(b) and (c) and subsection (b)(3), X is an heir of G. If, instead, X had failed
to survive for [120 hours] after birth, X would have been deemed to have predeceased G.

Examples 4 through 6 illustrate the operation of subsection (b) when the decedent is not
an intended parent of an individual conceived by assisted reproduction.

Example 4. Before A died, A deposited genetic material in a medical facility. Five

years after A’s death, A’s surviving spouse used A’s genetic material to give birth to C.
After C’s birth, A’s parent P died intestate, survived only by P’s two grandchildren, X
and C, both of whom survived P by at least 120 hours.

[P]
┌───┴───┐
[A’s sibling] [A] m. A’s spouse
│ │
X C

Under subsection (b)(1), C is an heir of P because C was born before P’s death and
survived P by at least 120 hours. The result is that P’s intestate estate is divided equally
between X and C in accordance with Sections 2-103(c) and 2-106(b).

Example 5. Same facts as Example 4 except that A’s spouse again used G’s
genetic material and, two months after P’s death, gave birth to E, who lived at least [120
hours] after birth.

[P]
┌───┴───┐
[A’s sibling] [A] m. A’s spouse
┌──┴──┐
X C E

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Under subsection (b)(2), E is an heir of P because P died during the gestational period
that resulted in the birth of E, who lived at least [120 hours] after birth. The result is that
P’s intestate estate is divided equally among X, C, and E in accordance with Sections 2-
103(c) and 2-106(b).

Example 6. Before A died, A deposited genetic material in a medical facility. Five

years after A’s death, A’s parent P died intestate survived only by P’s grandchild X. Two
months after P’s death, A’s surviving spouse notified P’s personal representative of an
intention to use A’s genetic material to have a child. Fifteen months after P’s death, A’s
surviving spouse used the genetic material to start a pregnancy with the assistance of a
surrogacy arrangement, which resulted in the birth of C 24 months after P’s death. C
lived at least [120 hours] after birth.

[P]
┌───┴───┐
[A’s sibling] [A] m. A’s spouse
│ │
X C

Under subsection (b)(3), C satisfied the conditions to be deemed to be living at P’s death:
P died before the start of the pregnancy resulting in C’s birth, A’s surviving spouse gave
timely notice to P’s personal representative of an intent to use genetic material in assisted
reproduction, the time limits in subsection (b)(3) measured from P’s death were satisfied,
and C lived at least [120 hours] after birth. The result is that P’s intestate estate is divided
equally between X and C in accordance with Sections 2-103(c) and 2-106(b).

Cross Reference. For a discussion of why, in the context of intestate succession, the time
limits in this section should apply rather than the time limits on parentage contained in the
Uniform Parentage Act (2017), see the Comments to Sections 2-120 and 2-121.

Historical Note. This Comment was revised in 2008, 2019, and 2021.

SECTION 2-105. NO TAKER. If there is no taker under the provisions of this

[article], the intestate estate passes to the state.

SECTION 2-106. REPRESENTATION.

(a) [Definitions.] In this section:

(1) “Deceased descendant”, “deceased parent”, “deceased grandparent”, or

“deceased spouse” means a descendant, parent, grandparent, or spouse who either predeceased

the decedent or is deemed under this [article] to have predeceased the decedent.

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(2) “Surviving descendant” means a descendant who neither predeceased the

decedent nor is deemed under this [article] to have predeceased the decedent.

(b) [Decedent’s Descendants.] If, under Section 2-103(c), all or part of a decedent’s

intestate estate passes by representation to the decedent’s surviving descendants, the estate or

part is divided into as many equal shares as there are (i) surviving descendants in the generation

nearest to the decedent which contains one or more surviving descendants and (ii) deceased

descendants in the same generation who left surviving descendants, if any. Each surviving

descendant in the nearest generation is allocated one share. The remaining shares, if any, are

combined and then divided in the same manner among the surviving descendants of the deceased

descendants as if the surviving descendants who were allocated a share and their surviving

descendants had predeceased the decedent.

(c) [Descendants of Parent When Parent Survives.] If a decedent is survived by one or

more parents and, under Section 2-103(d) and (e), the balance of the decedent’s intestate estate

or part passes by representation to the surviving descendants of one or more of the decedent’s

deceased parents, the balance passes to those descendants as if they were the decedent’s

surviving descendants under subsection (b).

(d) [Descendants of Parent When No Parent Survives.] If a decedent is not survived

by a parent and, under Section 2-103(f), the decedent’s intestate estate passes by representation

to the surviving descendants of one or more of the decedent’s deceased parents, the intestate

estate passes to those descendants as if they were the decedent’s surviving descendants under

subsection (b).

(e) [Descendants of Grandparent When Grandparent Survives.] If a decedent is

survived by one or more grandparents and, under Section 2-103(g) and (h), the balance of the

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decedent’s intestate estate passes by representation to the surviving descendants of one or more

of the decedent’s deceased grandparents, the balance passes to those descendants as if they were

the decedent’s surviving descendants under subsection (b).

(f) [Descendants of Grandparent When No Grandparent Survives.] If a decedent is

not survived by a grandparent and, under Section 2-103(i), the decedent’s intestate estate passes

by representation to the surviving descendants of one or more of the decedent’s deceased

grandparents, the intestate estate passes to those descendants as if they were the decedent’s

surviving descendants under subsection (b).

(g) [Descendants of Deceased Spouse.] If a decedent is survived by descendants of one

or more deceased spouses and, under Section 2-103(j), the decedent’s intestate estate passes by

representation to the surviving descendants of one or more of the decedent’s deceased spouses,

the intestate estate passes to those descendants as if they were the decedent’s surviving

descendants under subsection (b).

Comment

This section adopts the system of representation called per capita at each generation. The
per-capita-at-each-generation system provides equal shares to those equally related. A survey of
client preferences, conducted by Fellows of the American College of Trust and Estate Counsel,
suggests that the per-capita-at-each-generation system of representation is preferred by most
clients. See Young, Meaning of “Issue” and “Descendants”, 13 ACTEC Probate Notes 225
(1988). The survey results were striking: Of 761 responses, 541 (71.1%) chose the per-capita-at-
each-generation system; 145 (19.1%) chose the per-stirpes system, and 70 (9.2%) chose the pre-
1990 UPC system.

To illustrate the differences among the three systems, consider a family, in which G is the
intestate. G has 3 children, A, B, and C. Child A has 3 children, U, V, and W. Child B has 1
child, X. Child C has 2 children, Y and Z. Consider four variations.

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Variation 1: All three children survive G.

A B C

U V W X Y Z

Solution: All three systems reach the same result: A, B, and C take 1/3 each.

Variation 2: One child, A, predeceases G; the other two survive G.

[A] B C

U V W X Y Z

Solution: Again, all three systems reach the same result: B and C take 1/3 each; U, V,
and W take 1/9 each.

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Variation 3: All three children predecease G.

[A] [B] [C]

U V W X Y Z

Solution: The pre-1990 UPC and the current UPC systems reach the same result: U, V,

W, X, Y, and Z take 1/6 each.

The per-stirpes system gives a different result: U, V, and W take 1/9 each; X takes 1/3;
and Y and Z take 1/6 each.

Variation 4: Two of the three children, A and B, predecease G; C survives G.

[A] [B] C

U V W X Y Z

Solution: In this instance, the current UPC system (per capita at each generation) departs

50
from the pre-1990 UPC system. Under the current UPC system, C takes 1/3 and the other two
1/3 shares are combined into a single share (amounting to 2/3 of the estate) and distributed as if
C, Y, and Z had predeceased G; the result is that U, V, W, and X take 1/6 each.

Although the pre-1990 UPC rejected the per-stirpes system, the result reached under the
pre-1990 UPC was aligned with the per-stirpes system in this instance: C would have taken 1/3,
X would have taken 1/3, and U, V, and W would have taken 1/9 each.

Reference. Waggoner, A Proposed Alternative to the Uniform Probate Code’s System

for Intestate Distribution among Descendants, 66 Nw.U.L. Rev. 626 (1971).

Effect of Disclaimer. By virtue of Section 2-1106(b)(3)(C), an heir cannot use a

disclaimer to effect a change in the division of an intestate’s estate. To illustrate this point,
consider the following example:

A [B]

X Y Z

As it stands, G’s intestate estate is divided into two equal parts: A takes half and B’s
child, Z, takes the other half. Suppose, however, that A files a disclaimer under Section 2-1105.
A cannot affect the basic division of G’s intestate estate by this maneuver. Section 2-
1106(b)(3)(B) and (C) provide that “the disclaimed interest passes as if the disclaimant had died
immediately before the time of distribution” except that if, “by law ..., 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 interest passes only to the
descendants of the disclaimant who survive the time of distribution.” In this example, the
“disclaimed interest” is A’s share (1/2) of G’s estate; thus the 1/2 interest renounced by A
devolves to A’s children, X and Y, who take 1/4 each.

If Section 2-1106(b)(3)(B) had provided that G’s “estate” is to be divided as if A

predeceased G, A could have used his disclaimer to increase the share going to his children from
1/2 to 2/3 (1/3 for each child) and to decrease Z’s share to 1/3. The careful wording of Section 2-

51
1106(b)(3)(C), however, prevents A from manipulating the result by this method.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

2019 Amendments. This section was rewritten and reorganized in 2019 as part of a
package of amendments to the Code in light of the Uniform Parentage Act (2017). The 2019
amendments did not change the substance of the per-capita-at-each-generation system of
representation, though the amendments added subsection (g) to clarify that the system applies
also to descendants of deceased spouses. For additional examples illustrating the per-capita-at-
each-generation system, see the Comment to Section 2-103.

2021 Technical Amendment. This Comment was amended in 2021 to correct the
references to subparagraphs within Section 2-1106(b)(3).

Historical Note. This Comment was revised in 1990, 2002, 2019, and 2021.

SECTION 2-107. INHERITANCE WITHOUT REGARD TO NUMBER OF

COMMON ANCESTORS IN SAME GENERATION. An heir inherits without regard to how

many common ancestors in the same generation the heir shares with the decedent.

Comment

The pre-2019 version of this section provided: “Relatives of the half blood inherit the
same share they would inherit if they were of the whole blood.” This section was revised in 2019
to remove the references to blood, which are outdated given that parent-child relationships are
formed in many ways including by adoption, assisted reproduction, and de facto parentage.

SECTION 2-108. [RESERVED.]

Legislative Note: Section 2-108 is reserved for possible future use. The 2008
amendments moved the content of this section to Section 2-104(a)(2).

SECTION 2-109. ADVANCEMENTS.

(a) If an individual dies intestate as to all or a portion of the 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

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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.

(b) For purposes of subsection (a), property advanced is valued as of the time the heir

came into possession or enjoyment of the property or as of the time of the decedent’s death,

whichever first occurs.

(c) If the recipient of the property fails to survive the decedent, the property 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.

Comment

Purpose of the 1990 Revisions. This section was revised so that an advancement can be
taken into account with respect to the intestate portion of a partially intestate estate.

Other than these revisions, and a few stylistic and clarifying amendments, the original
content of the section is maintained, under which the common law relating to advancements is
altered by requiring written evidence of the intent that an inter-vivos gift be an advancement.

The statute is phrased in terms of the donee being an heir “at the decedent’s death”. The
donee need not be a prospective heir at the time of the gift. For example, if the intestate, G,
made an inter-vivos gift intended to be an advancement to a grandchild at a time when the
intestate’s child who is the grandchild’s parent is alive, the grandchild would not then be a
prospective heir. Nevertheless, if G’s intent that the gift be an advancement is contained in a
written declaration or acknowledgment as provided in subsection (a), the gift is regarded as an
advancement if G’s child (who is the grandchild’s parent) predeceases G, making the grandchild
an heir.

To be an advancement, the gift need not be an outright gift; it can be in the form of a will
substitute, such as designating the donee as the beneficiary of the intestate’s life-insurance policy
or the beneficiary of the remainder interest in a revocable inter-vivos trust.

Most inter vivos transfers today are intended to be absolute gifts or are carefully
integrated into a total estate plan. If the donor intends that any transfer during the donor’s
lifetime be deducted from the donee’s share of the donor’s estate, the donor may either execute a
will so providing or, if he or she intends to die intestate, charge the gift as an advance by a

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writing within the present section.

This section applies to advances to the decedent’s spouse and collaterals (such as
nephews and nieces) as well as to descendants.

Computation of Shares – Hotchpot Method. This section does not specify the method
of taking an advancement into account in distributing the decedent’s intestate estate. That
process, called the hotchpot method, is provided by the common law. The hotchpot method is
illustrated by the following example.

Example: G died intestate, survived by his wife (W) and his three children (A, B, and C)
by a prior marriage. G’s probate estate is valued at $190,000. During his lifetime, G had
advanced A $50,000 and B $10,000. G memorialized both gifts in a writing declaring his intent
that they be advancements.

Solution. The first step in the hotchpot method is to add the value of the advancements to
the value of G’s probate estate. This combined figure is called the hotchpot estate.

In this case, G’s hotchpot estate preliminarily comes to $250,000 ($190,000 + $50,000 +
$10,000). W’s intestate share of a $250,000 estate under Section 2-102(4) is $200,000
($150,000 plus 1/2 of $100,000). The remaining $50,000 is divided equally among A, B, and C,
or $16,667 each. This calculation reveals that A has received an advancement greater than the
share to which he is entitled; A can retain the $50,000 advancement, but is not entitled to any
additional amount. A and A’s $50,000 advancement are therefore disregarded and the process is
begun over.

Once A and A’s $50,000 advancement are disregarded, G’s revised hotchpot estate is
$200,000 ($190,000 + $10,000). W’s intestate share is $175,000 ($150,000 plus 1/2 of $50,000).
The remaining $25,000 is divided equally between B and C, or $12,500 each. From G’s intestate
estate, B receives $2,500 (B already having received $10,000 of his ultimate $12,500 share as an
advancement); and C receives $12,500. The final division of G’s probate estate is $175,000 to
W, zero to A, $2,500 to B, and $12,500 to C.

Effect if Advancee Predeceases the Decedent; Disclaimer. If a decedent had made an

advancement to a person who predeceased the decedent, the last sentence of Section 2-109
provides that the advancement is not taken into account in computing the intestate share of the
recipient’s descendants (unless the decedent’s declaration provides otherwise). The rationale is
that there is no guarantee that the recipient’s descendants received the advanced property or its
value from the recipient’s estate.

To illustrate the application of the last sentence of Section 2-109, consider this case:
During her lifetime, G had advanced $10,000 to her son, A. G died intestate, leaving a probate
estate of $50,000. G was survived by her daughter, B, and by A’s child, X. A predeceased G.

G’s advancement to A is disregarded. G’s $50,000 intestate estate is divided into two
equal shares, half ($25,000) going to B and the other half ($25,000) going to A’s child, X.

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Now, suppose that A survived G. In this situation, of course, the advancement to A is
taken into account in the division of G’s intestate estate. Under the hotchpot method, illustrated
above, G’s hotchpot estate is $60,000 (probate estate of $50,000 plus advancement to A of
$10,000). A takes half of this $60,000 amount, or $30,000, but is charged with already having
received $10,000 of it. Consequently, A takes only a 2/5 share ($20,000) of G’s intestate estate,
and B takes the remaining 3/5 share ($30,000).

Note that A cannot use a disclaimer under Section 2-1105 in effect to give his child, X, a
larger share than A was entitled to. Under Section 2-1106(b)(3), the effect of a disclaimer by A is
that the disclaimant’s “interest” devolves to A’s descendants as if the disclaimant had
predeceased the decedent. The “interest” that A renounced was a right to a 2/5 share of G’s
estate, not a 1/2 share. Consequently, A’s 2/5 share ($20,000) passes to A’s child, X.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

2008 Cost-of-Living Adjustment. As revised in 1990, the dollar amount in Section 2-

102(4) was $100,000. To adjust for inflation, that amount was increased in 2008 to $150,000.
The Example in this Comment was revised in 2008 to reflect that increase.

2019 Technical Amendment. A technical amendment was made to this section in 2019
to remove gendered language (“his [or her]”).

2021 Technical Amendment. This Comment was amended in 2021 to correct the
reference to Section 2-1106(b)(3).

Historical Note. This Comment was revised in 2002, 2008, 2019, and 2021.

SECTION 2-110. DEBTS TO DECEDENT. A debt owed to a decedent is not charged

against the intestate share of any individual except the debtor. If the debtor fails to survive the

decedent, the debt is not taken into account in computing the intestate share of the debtor’s

descendants.

Comment

Section 2-110 supplements Section 3-903, Right of Retainer.

Effect of Disclaimer. Section 2-1106(b)(3)(B) prevents a living debtor from using the
combined effects of the last sentence of Section 2-110 and a disclaimer to avoid a setoff.

55
Although Section 2-110 provides that, if the debtor actually fails to survive the decedent, the
debt is not taken into account in computing the intestate share of the debtor’s descendants, the
same result is not produced when a living debtor disclaims. Section 2-1106(b)(3)(B) provides
that the “interest” disclaimed, not the decedent’s estate as a whole, devolves as though the
disclaimant predeceased the decedent. The “interest” disclaimed by a living debtor is the share
the debtor would have taken had he or she not disclaimed his or her intestate share minus the
debt.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

2021 Technical Amendment. This Comment was amended in 2021 to correct the
references to subparagraphs within Section 2-1106(b)(3).

SECTION 2-111. ALIENAGE. No individual is disqualified to take as an heir because

the individual or an individual through whom the individual claims is or has been an alien.

Comment

This section eliminates the ancient rule that an alien cannot acquire or transmit land by
descent, a rule based on the feudal notions of the obligations of the tenant to the king. Although
there never was a corresponding rule as to personalty, the present section is phrased in light of
the basic premise of the Code that distinctions between real and personal property should be
abolished.

[SECTION 2-112. DOWER AND CURTESY ABOLISHED. The estates of dower

and curtesy are abolished.]

Comment

The provisions of this Code replace the common law concepts of dower and curtesy and
their statutory counterparts. Those estates provided both a share in intestacy and a protection
against disinheritance.

In states that have previously abolished dower and curtesy, or where those estates have
never existed, the above section should be omitted.

SECTION 2-113. INDIVIDUAL RELATED TO DECEDENT THROUGH MORE

THAN ONE LINE. An individual who is related to a decedent through more than one line of

56
relationship is entitled to only a single share based on one line of relationship. If the shares from

the lines of relationship are unequal, the individual is entitled to the largest share. The individual

and the individual’s descendants are deemed to have predeceased the decedent with respect to

the other line or lines of relationship.

Comment

The pre-2019 version of this section provided: “An individual who is related to the
decedent through two lines of relationship is entitled only to a single share based on the
relationship that would entitle the individual to a larger share.” This section was revised in 2019
to apply to an individual related to the decedent through more than one line. The revision
recognizes that the number of lines of relationship may be more than two. As revised, the section
provides that an individual related to the decedent through multiple lines is entitled only to a
single share. The revision also is explicit that the individual and the individual’s descendants are
deemed to have predeceased the decedent with respect to the lines of relationship resulting in the
other share or shares.

Example 1. G’s parent P died survived by four children, G, A, B, and C. After P’s
death, A was adopted by B. B and C predeceased G, who died intestate survived only by
A and by C’s children, M and N.

[P]
┌─────┬──┴──┬─────┐
[G] A [B] [C]
Adoption │ ┌──┴──┐
A M N

In accordance with Sections 2-118(a) and 2-119(b)(2)(B), A is the child of B and the
child of P. If this section did not exist, then under Sections 2-103(f) and 2-106(d), A
would take a share as P’s child (one-third) and a share as B’s child (two-ninths). The
result under this section is that A takes only as P’s child because that is the line of
relationship resulting in the larger share. A is deemed to have predeceased as B’s child. A
receives one-half of G’s intestate estate, and M and N receive one-quarter each.

Example 2. Same facts as Example 1 except that A predeceased G, and B was

adjudicated a parent of N on the basis of de facto parentage before B predeceased G.

[P]
┌───────┬────┴────┬───────┐
[G] [A] [B] [C]
de facto │ ┌──┴──┐
parentage N N M

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In accordance with Sections 2-118(b) and 2-119(c), N is the child of B and the child of C.
If this section did not exist, then under Sections 2-103(f) and 2-106(d), N would take a
share as B’s child (one-third) and a share as C’s child (one-third). The result under this
section is that N takes only under one line of relationship. N is deemed to have
predeceased under the other line of relationship. N and M each receive one-half of G’s
intestate estate.

Historical Note. This Comment was revised in 2019 and 2021. A technical amendment
in 2021 clarified the Section’s application when the shares are equal.

SECTION 2-114. PARENT BARRED FROM INHERITING IN CERTAIN

CIRCUMSTANCES.

(a) A parent is barred from inheriting from or through a child of the parent if:

(1) the parent’s parental rights were terminated and not judicially reestablished; or

(2) the child died before reaching [18] years of age and there is clear and

convincing evidence that immediately before the child’s death the parental rights of the parent

could have been terminated under law of this state other than this [code] on the basis of

nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the

child.

(b) For the purpose of intestate succession from or through the deceased child, a parent

who is barred from inheriting under this section is deemed to have predeceased the child.

(c) Except as otherwise provided in Section 2-119(b), the termination of a parent’s

parental rights to a child has no effect on the right of the child or a descendant of the child to

inherit from or through the parent.

Comment

2008 Revisions. In 2008, this section replaced former Section 2-114(c), which provided:
“(c) Inheritance from or through a child by either natural parent or his [or her] kindred is
precluded unless that natural parent has openly treated the child as his [or hers], and has not
refused to support the child.”

Subsection (a)(1) bars a parent whose parental rights have been terminated from

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inheriting from or through a child.

Subsection (a)(2) addresses a situation in which a parent’s parental rights were not
actually terminated. Nevertheless, a parent can still be barred from inheriting from or through a
child if the child died before reaching [18] years of age and there is clear and convincing
evidence that immediately before the child’s death the parental rights of the parent could have
been terminated under law of this state other than this [code], but only if those parental rights
could have been terminated on the basis of nonsupport, abandonment, abuse, neglect, or other
actions or inactions of the parent toward the child.

Statutes providing the grounds for termination of parental rights include: Ariz. Rev. Stat.
Ann. § 8-533; Conn. Gen. Stat. § 45a-717; Del. Code Ann. tit. 13 § 1103; Fla. Stat. Ann. §
39.806; Iowa Code § 600A.8; Kan. Stat. Ann. § 38-2269; Mich. Comp. L. Ann. § 712A.19b;
Minn. Stat. Ann. § 260C.301; Miss. Code Ann. § 93-15-103; Mo. Rev. Stat. § 211.447; Tex.
Fam. Code §§ 161.001 to .007.

A parent who is barred from inheriting from or through a child under subsection (a) is
recognized as a parent of the child for all other purposes of intestate succession.

Subsection (b) provides that, for purposes of intestate succession, a parent barred from
inheriting from or through a deceased child is deemed to have predeceased the child. The effect
of subsection (b) is that the parent’s relatives are allowed to inherit from or through the child.

2019 Revisions. Subsection (c) was added in 2019 to reject the holding of Hall v. Hall,
818 S.E.2d 838 (W.Va. 2018). That case held that the termination of a parent’s rights due to
abuse and neglect also terminated the child’s right to inherit from the parent’s estate.

Historical Note. This Comment was revised in 2019. A technical amendment in 2021
deleted the words “the parent-child relationship was” from subsection (a).

Subpart 2. Parent-Child Relationship

SECTION 2-115. DEFINITIONS. In this [subpart]:

(1) “Adoptee” means an individual who is adopted.

(2) “Assisted reproduction” means a method of causing pregnancy other than sexual

intercourse.

(3) “De facto parent” means an individual who is adjudicated on the basis of de facto

parentage under [cite to Uniform Parentage Act (2017)][cite to state’s parentage act][applicable

state law] to be a parent of a child.

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(4) “Relative” means a grandparent or a descendant of a grandparent.

Legislative Note to Paragraph (3): The first bracketed option is for states that have
enacted the Uniform Parentage Act (2017). The second bracketed option is for states that have
enacted a parentage act, other than the Uniform Parentage Act (2017), governing de facto
parentage. The third bracketed option is for states that do not have a statute governing de facto
parentage.

Legislative Note: States that have enacted the Uniform Parentage Act (2000, as
amended) should replace “applicable state law” in paragraph (5) with “Section 201(b)(1), (2),
or (3) of the Uniform Parentage Act (2000), as amended”. Two of the principal features of
Articles 1 through 6 of the Uniform Parentage Act (2000, as amended) are (i) the presumption of
paternity and the procedure under which that presumption can be disproved by adjudication and
(ii) the acknowledgment of paternity and the procedure under which that acknowledgment can
be rescinded or challenged. States that have not enacted similar provisions should consider
whether such provisions should be added as part of Section 2-115(5). States that have not
enacted the Uniform Parentage Act (2000, as amended) should also make sure that applicable
state law authorizes parentage to be established after the death of the alleged parent, as
provided in the Uniform Parentage Act § 509 (2000, as amended), which provides: “For good
cause shown, the court may order genetic testing of a deceased individual.”

Comment

Scope. This section sets forth definitions that apply for purposes of the intestacy rules
contained in Subpart 2 (Parent-Child Relationship).

Definition of “Adoptee”. The term “adoptee” is not limited to an individual who is

adopted as a minor but includes an individual who is adopted as an adult.

Definition of “Assisted Reproduction”. The definition of “assisted reproduction” is

copied from the Uniform Parentage Act (2017) § 102. Current methods of assisted reproduction
include intrauterine or intracervical insemination (previously and sometimes currently called
artificial insemination), donation of gametes, donation of embryos, in-vitro fertilization and
transfer of embryos, and intracytoplasmic sperm injection.

Definition of “De Facto Parent”. The term “de facto parent” is defined by reference to
the Uniform Parentage Act (2017), a state statute other than the UPA (2017), or applicable state
law.

Definition of “Relative”. The term “relative” does not include any relative no matter
how remote but is limited to a grandparent or a descendant of a grandparent, as determined under
this Subpart 2. This definition corresponds to the individuals eligible to share in an intestate
estate under Section 2-103 except for the descendants of predeceases spouses provided for in
Section 2-103(j).

Historical Note. This Comment was revised in 2019.

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SECTION 2-116. SCOPE. The rules in this [subpart] concerning a parent-child

relationship apply for the purpose of intestate succession.

Comment

Scope. This section provides that the rules in this subpart concerning a parent-child
relationship apply for the purpose of intestate succession.

Historical Note. This Comment was revised in 2019.

SECTION 2-117. NO DISTINCTION BASED ON MARITAL STATUS OF

PARENT. A parent-child relationship extends equally to every child and parent, regardless of

the marital status of the parent.

Comment

The pre-2019 version of this section provided: “Except as otherwise provided in Sections
2-114, 2-119, 2-120, or 2-121, a parent-child relationship exists between a child and the child’s
genetic parents, regardless of the parents’ marital status.” The section was revised in 2019 to
eliminate the exceptions, which are no longer needed, and the reference to “genetic” parents.

Historical Note. This section was revised in 2019 to track Section 202 of the Uniform
Parentage Act (2017). The Comment was revised accordingly.

SECTION 2-118. PARENT-CHILD RELATIONSHIP ESTABLISHED

THROUGH ADOPTION OR DE FACTO PARENTAGE.

(a) [Parent-Child Relationship Established Through Adoption.] A parent-child

relationship exists between an adoptee and the adoptee’s adoptive parent.

(b) [Parent-Child Relationship Established Through De Facto Parentage.] A parent-

child relationship exists between an individual and the individual’s de facto parent.

Comment

2019 Revisions. In 2019, this section was revised in light of the Uniform Parentage Act
(2017). See the Prefatory Note to Article II. The section also was simplified by eliminating the
provisions (former subsections (b) and (c)) relating to individuals in the process of being
adopted.

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Defined Terms. Adoptee is defined in Section 2-115 as an individual who is adopted.
The term is not limited to an individual who is adopted as a minor but includes an individual who
is adopted as an adult. De facto parent is defined in Section 2-115 by reference to the Uniform
Parentage Act (2017), a state statute other than the UPA (2017), or applicable state law.

Subsection (a): Parent-Child Relationship Established Through Adoption.

Subsection (a) states the general rule that adoption creates a parent-child relationship between
the adoptee and the adoptee’s adoptive parent or parents.

Subsection (b): Parent-Child Relationship Established Through an Adjudication of

De Facto Parentage. Subsection (b) states the rule that a parent-child relationship exists
between an individual and that individual’s de facto parent or parents.

Historical Note. This Comment was revised in 2019.

SECTION 2-119. EFFECT OF ADOPTION; EFFECT OF DE FACTO

PARENTAGE.

(a) [Definitions.] In this section:

(1) “Parent before the adjudication” means an individual who, for purposes of

intestate succession, is a parent of a child:

(A) immediately before another individual is adjudicated a de facto parent

of the child; or

(B) immediately before dying and before another individual is adjudicated

a de facto parent of the child.

(2) “Parent before the adoption” means an individual who, for purposes of

intestate succession, is a parent of a child:

(A) immediately before another individual adopts the child; or

(B) immediately before dying and before another individual adopts the

child.

(b) [Effect of Adoption on Parent Before the Adoption.] A parent-child relationship

does not exist between an adoptee and an individual who was the adoptee’s parent before the

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adoption unless:

(1) otherwise provided by [court order or] law other than this [code]; or

(2) the adoption:

(A) was by the spouse of a parent before the adoption;

(B) was by a relative or the spouse or surviving spouse of a relative of a

parent before the adoption; or

(C) occurred after the death of a parent before the adoption.

(c) [Effect of De Facto Parentage on Parent Before the Adjudication.] An

adjudication that an individual is a child of a de facto parent does not affect a parent-child

relationship between the child and an individual who was the child’s parent before the

adjudication.

Legislative Note: The bracketed language in subsection (c) is for states that have enacted
the Uniform Parentage Act (2017).

Comment

2019 Revisions. In 2019, this section was revised in light of the Uniform Parentage Act.
See the Prefatory Note to Article II.

Defined Terms. Section 2-119 uses terms that are defined in this section or in Section 2-
115.
Adoptee is defined in Section 2-115 as an individual who is adopted. The term is not
limited to an individual who is adopted as a minor, but includes an individual who is adopted as
an adult.

De facto parent is defined in Section 2-115 by reference to the Uniform Parentage Act
(2017), a state’s parentage act, or applicable state law.

Parent before the adjudication is defined in this section as an individual who, for
purposes of intestate succession, is a parent of a child (A) immediately before another individual
is adjudicated a de facto parent of that child or (B) immediately before dying and before another
individual is adjudicated a de facto parent of the child.

Parent before the adoption is defined in this section as an individual who, for purposes
of intestate succession, is a parent of a child (A) immediately before another individual adopts

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that child or (B) immediately before dying and before another individual adopts that child.

Relative is defined in Section 2-115 as a grandparent or a descendant of a grandparent.

Effect of Termination of Parental Rights. If parental rights are terminated for a parent
before the adoption, that parent is barred from inheriting from the child under Section 2-
114(a)(1). The parent is recognized as the parent of the child for all other purposes of intestate
succession. Under Section 2-114(b), that parent is treated as having predeceased the child for
purposes of intestate succession from or through the child. Notwithstanding that an individual’s
parental rights have been terminated before or at the time of an adjudication based on de facto
parentage, that individual qualifies as a “parent before the adjudication” under this section.
Similarly, notwithstanding that an individual’s parental rights have been terminated before or at
the time of an adoption, that individual qualifies as a “parent before the adoption” under this
section. In accordance with Section 2-114(c) and subsections (b) and (c) of this section, the child
of a parent whose parental rights have been terminated, or a descendant of the child, continues
to have the right to inherit from or through that parent unless the parent-child relationship no
longer exists as a result of the application of the opening clause of subsection (b). See the
following examples.

Subsection (b): Adoption and Parents Before the Adoption. The opening clause of
subsection (b) states the general rule that a parent-child relationship does not exist between an
adopted child and the child’s parents before the adoption. This rule recognizes that an adoption
severs the parent-child relationship between the adopted child and the child’s parents before the
adoption. The adoption gives the adopted child a replacement family, sometimes referred to in
the case law as “a fresh start”. For further elaboration of this theory, see Restatement (Third) of
Property: Wills and Other Donative Transfers § 2.5(2)(A) & cmts. d & e (1999). Subsection (b)
also states, however, that there are exceptions, as described in subsections (b)(1) and (b)(2), to
this general rule.

Subsection (b)(1): Otherwise Provided by Court Order or Law. The parent-child

relationship between an adoptee and the parents before the adoption remains intact if a court
order or law other than this Code so provides.

Subsection (b)(2)(A): Stepchild Adopted by Stepparent. When a stepparent adopts a

stepchild, subsection (b)(2)(A) provides that a parent-child relationship continues to exist
between the child and the child’s parent or parents before the adoption. In accordance with
Section 2-114(a) and (b), a parent’s right to inherit from or through a child, however, may be
barred if the parental rights were terminated. See Section 2-114 and the following examples.

Example 1. A and B were married and had two children, X and Y. A and B got
divorced, and B married C. C adopted X and Y. The court did not terminate the parental
rights of A or B. Under subsection (b)(2)(A), X and Y remain A’s and B’s children and
under Section 2-118(a) are C’s children for all purposes of intestate succession.

Example 2. Same facts as Example 1 except that A’s parental rights were
terminated before or when C adopted X and Y. Under Section 2-114(a)(1) and (b), for the

64
purpose of intestate succession from or through X, A is deemed to have predeceased X,
and for the purpose of intestate succession from or through Y, A is deemed to have
predeceased Y. Under Sections 2-114(c) and subsection (b)(2)(A) of this section, X and
Y remain the children of A and have the right to inherit from and through A.

Subsection (b)(2)(B): Individual Adopted by Relative of Parent Before the Adoption.

Under subsection (b)(2)(B), a child who is adopted by a relative of a parent, or by the spouse or
surviving spouse of such a relative, remains a child of the parent or parents before the adoption.
In accordance with Section 2-114(a) and (b), a parent’s right to inherit from or through a child,
however, may be barred if the parental rights were terminated. See Section 2-114 and the
following examples.

Example 3. A and B, a married couple with a four-year old child, X, were badly
injured in an automobile accident and were no longer able to care for X. Thereafter, B’s
sister, S, adopted X. The court did not terminate the parental rights of A or B. A and A’s
parent, P, then died intestate in that order. Under subsection (b)(2)(B), X remains A’s
child and P’s grandchild for all purposes of intestate succession.

Example 4. Same facts as Example 3 except that X died intestate survived only by
A, B, and S. Under Section 2-118(a) and subsection (b)(2)(B), A, B, and S have the right
to inherit from X because X was a child of A, B, and S.

Example 5. Same facts as Example 3 except that the parental rights of A and B
were terminated when S adopted X. Under Section 2-114(c) and subsection (b)(2)(B), X
remains A’s child and P’s grandchild and has the right to inherit from and through A and
P.

Example 6. Same facts as Example 5 except that X died intestate, survived only
by A, B, and P. Under Section 2-114(a)(1) and (b), for the purpose of intestate
succession from or through X, A and B are deemed to have predeceased X. Under
Section 2-114(c) and subsection (b)(2)(B), P remains X’s grandfather and has the right to
inherit from X.

Subsection (b)(2)(C): Individual Adopted After Death of Parent Before the

Adoption. Usually, a post-death adoption does not remove a child from contact with the parent
or parents before the adoption. Once a child has taken root in a family, an adoption after the
death of a parent before the adoption is likely to be by someone chosen or approved of by the
family. In such a case, the child does not become estranged from the family. Such an adoption
does not “remove” the child from the families of the parent or parents before the adoption. Such
a child continues to be a child of parents before the adoption, as well as a child of the adoptive
parents.

Example 7. A and B, a married couple with a four-year old child, X, were badly
injured in an automobile accident. A subsequently died. B, who remained seriously
injured, was no longer able to care for X. Thereafter, B’s close friend, F, adopted X. A’s
parent, P, then died intestate. Under subsection (b)(2)(C), X remains P’s grandchild (A’s

65
child) for all purposes of intestate succession.

Example 8. Same facts as Example 7 except that after F adopted X and before P
died, B, F, and X died intestate in that order. Under Section 2-118(a) and subsection
(b)(2)(C), X had the right to inherit from B and F because X was a child of B and a child
of F. Under subsection (b)(2)(C), at X’s death, P remains X’s grandparent and has the
right to inherit from X.

Subsection (c): Child of De Facto Parent. An adjudication that an individual is a child

of a de facto parent does not affect a parent-child relationship between the individual and the
individual’s parent or parents before the adjudication. In accordance with Section 2-114(a) and
(b), a parent’s right to inherit from or through a child, however, may be barred if the parental
rights were terminated. See Section 2-114 and the following examples.

Example 9. A and B were married. At the time of their marriage, A had a child,
X, and B had a child, Y. With A’s consent, B commenced a proceeding on the basis of de
facto parentage to be adjudicated a parent of X. The court adjudicated B to be a parent
of X and did not terminate A’s parental rights. A, B, and A’s last surviving parent, P,
subsequently died intestate in that order, survived only by X and Y. X remains A’s child
under subsection (c) and has the right to inherit from A. X is B’s child under Section 2-
118(b) and has the right to inherit from B. Because X remains A’s child (P’s grandchild)
under subsection(c), X has the right to inherit from P.

Example 10. Same facts as Example 9 except that, after B was adjudicated X’s
parent, A, B, Y, and X died intestate in that order, and P survived X. Under Section 2-
118(b) and subsection (c), X had the right to inherit from A and B because X was a child
of A and a child of B. Under Section 2-118(b), X had the right to inherit from Y because,
as B’s child, X is Y’s sibling. Under subsection (c), at X’s death, P remains X’s
grandparent and has the right to inherit from X.

Example 11. A and B were married and had a child, X. When X was four years
old, A and B divorced, and B married C. When X was twelve years old, C commenced,
with the consent of A and B, a proceeding on the basis of de facto parentage to be
adjudicated a parent of X. The court did not terminate the parental rights of A or B when
it adjudicated C to be a parent of X. Later, X died intestate, survived only by A, B, and C.
Under Section 2-118(b) and subsection (c), A, B, and C are parents of X and have the
right to inherit from X.

Example 12. Same facts as Example 11 except that A’s parental rights were
terminated before or when C was adjudicated to be a parent of X, and that X is survived
only by A and by A’s parent, P. Under Section 2-114(a)(1) and (b), for the purpose of
intestate succession from or through X, A is deemed to have predeceased X. Under
Section 2-103(g) and subsection (c), only P has the right to inherit from X.

Adoption Before Adjudication of Parent-Child Relationship Based on De Facto

Parentage or Subsequent Adoption. A parent whose parent-child relationship no longer exists

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because of the opening clause of subsection (b) is not, for purposes of intestate succession,
considered a parent before the adjudication under subsection (a)(1). Also, a parent whose parent-
child relationship no longer exists because of the opening clause of subsection (b) is not, for
purposes of intestate succession, considered a parent before the adoption under subsection (a)(2).

Example 13. P3, who has no familial relation to A’s birth parents, P1 and P2,
adopts A. Subsequently, P3’s spouse, S, is adjudicated a parent of A based on S’s claim
of de facto parentage. Neither P1 nor P2 qualifies as a parent of A for purposes of
intestate succession. Under Section 2-118(b) and subsections (a)(1), (b), and (c), only P3
and S are parents of A.

Example 14. Same facts as Example 13 except that S adopts A. Neither P1 nor P2
qualifies as a parent of A for purposes of intestate succession. Under Section 2-118(a)
and subsections (a)(2), (b), and (c), only P3 and S are parents of A.

2021 Technical Amendments. Technical amendments in 2021 clarified that the

definitions in subsections (a)(1) and (a)(2) apply to individuals who are parents under the law of
intestate succession (see Examples 13 and 14), removed the references to “deemed” death in
subsections (a)(1)(B) and (a)(2)(B), and eliminated the exception in the 2019 version of
subsection (c). This Comment was amended accordingly.

SECTION 2-120. INDIVIDUAL CONCEIVED BY ASSISTED REPRODUCTION

BUT NOT BORN TO GESTATIONAL OR GENETIC SURROGATE. Except as otherwise

provided under Section 2-121, parentage of an individual conceived by assisted reproduction is

determined under [cite to Uniform Parentage Act (2017) Article 7 other than Section

708(b)(2)][cite to equivalent provisions of state’s parentage act][applicable state law].

Legislative Note: The first bracketed option is for states that have enacted the Uniform
Parentage Act (2017). The reason for excluding Section 708(b)(2) is given in the Comment,
especially Examples 1 and 2. The second bracketed option is for states that have enacted a
parentage act, other than the Uniform Parentage Act (2017), governing parent-child
relationships created by assisted reproduction. The third bracketed option is for states that do
not have a statute governing parent-child relationships created by assisted reproduction. The
reference to “applicable state law” includes statutory, regulatory, and case law.

Comment

The promulgation of the Uniform Parentage Act (2017) [UPA (2017)] enables this
section to incorporate by reference almost all of the provisions of Article 7 of the UPA (2017).
The one provision inappropriate to incorporate here is Section 708(b)(2), which denies the
existence of a parent-child relationship if an individual born as a result of a posthumous
pregnancy fails to satisfy certain time limits. For illustrations of why these time limits on the

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existence of a parent-child relationship are inappropriate in the context of intestate succession,
consider the following examples.

Example 1. S, facing impending death, deposited genetic material in a medical facility.

Five years later, S’s surviving spouse used the genetic material to give birth to a child, C.
Assume that all of the requirements in the UPA (2017) for S’s parentage of C are satisfied except
the time limits in Section 708(b)(2). After C’s birth, S’s parent P died intestate, survived only by
P’s grandchild X and by C. Under this Code, C, who is in being at P’s death, is, considered a
grandchild of P (i.e., a child of S) for the purpose of determining P’s heirs. P’s intestate estate is
divided equally between X and C.

Example 2. S, facing impending death, deposited genetic material in a medical facility.

Five years later, S’s parent P died intestate, survived only by P’s grandchild, X. Two months
after P’s death, S’s surviving spouse notified P’s personal representative of an intent to use S’s
genetic material to have a child. Fifteen months after P’s death, the embryo was in utero, and
twenty-four months after P’s death, S’s surviving spouse gave birth to a child, C, who then
satisfied the 120-hour requirement of survival in Section 2-104(b)(3). Assume that all of the
requirements in the UPA (2017) for S’s parentage of C are satisfied except the time limits in
Section 708(b)(2). Under this Code, C is considered a grandchild of P (i.e., a child of S) for the
purpose of determining P’s heirs. P’s intestate estate is divided equally between X and C.

Historical Note. This Comment was revised in 2019.

SECTION 2-121. INDIVIDUAL BORN TO GESTATIONAL OR GENETIC

SURROGATE. Parentage of an individual conceived by assisted reproduction and born to a

gestational or genetic surrogate is determined under [cite to Uniform Parentage Act (2017)

Article 8 other than Sections 810(b)(2) and 817(b)(2)][cite to equivalent provisions of state’s

parentage act][applicable state law].

Legislative Note: The first bracketed option is for states that have enacted the Uniform
Parentage Act (2017). The reason for excluding Sections 810(b)(2) and 817(b)(2) is given in the
Comment, especially in Examples 1 and 2. The second bracketed option is for states that have
enacted a parentage act, other than the Uniform Parentage Act (2017), governing parent-child
relationships created by assisted reproduction. The third bracketed option is for states that do
not have a statute governing parent-child relationships created by assisted reproduction. The
reference to “applicable state law” includes statutory, regulatory, and case law.

Comment

The promulgation of the Uniform Parentage Act (2017) [UPA (2017)] enables this
section to incorporate by reference almost all of the provisions of Article 8 of the UPA (2017).
The two provisions inappropriate to incorporate here are Sections 810(b)(2) and 817(b)(2),

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which deny the existence of a parent-child relationship if an individual born as a result of a
posthumous pregnancy fails to satisfy certain time limits. For illustrations of why these time
limits on the existence of a parent-child relationship are inappropriate in the context of intestate
succession, consider the following examples.

Example 1. S, facing impending death, deposited genetic material in a medical facility. S

and S’s spouse entered into an agreement with a surrogate. Five years later, S’s surviving spouse
arranged for the transfer of the genetic material to the surrogate. The surrogate gave birth to C.
Assume that all of the requirements in the UPA (2017) for S’s parentage of C are satisfied except
the time limits in Sections 810(b)(2) and 817(b)(2). After C’s birth, S’s parent P died intestate,
survived only by P’s grandchild X and by C. Under this Code, C, who is in being at P’s death, is
considered a grandchild of P (i.e., a child of S) for the purpose of determining P’s heirs. P’s
intestate estate is divided equally between X and C.

Example 2. S, facing impending death, deposited genetic material in a medical facility. S

and S’s spouse entered into an agreement with a surrogate. Five years later, S’s parent P died
intestate, survived only by P’s grandchild, X. Two months after P’s death, S’s surviving spouse
notified P’s personal representative of an intent to use S’s genetic material to have a child by
surrogacy. Fifteen months after P’s death, the embryo was in utero, and twenty-four months after
P’s death, the surrogate gave birth to C, who then satisfied the 120-hour requirement of survival
in Section 2-104(b)(3). Assume that all of the requirements in the UPA (2017) for S’s parentage
of C are satisfied except the time limits in Sections 810(b)(2) and 817(b)(2). Under this Code, C
is considered a grandchild of P (i.e., a child of S) for the purpose of determining P’s heirs. P’s
intestate estate is divided equally between X and C.

Historical Note. This Comment was revised in 2019.

SECTION 2-122. EQUITABLE ADOPTION. This [subpart] does not affect the

doctrine of equitable adoption.

Comment

On the doctrine of equitable adoption, see Restatement (Third) of Property: Wills and
Other Donative Transfers § 2.5, cmt. k & Reporter’s Note No. 7 (1999).

PART 2. ELECTIVE SHARE OF SURVIVING SPOUSE

GENERAL COMMENT

The elective share of the surviving spouse was fundamentally revised in 1990 and was
reorganized and clarified in 1993 and 2008. The main purpose of the revisions is to bring
elective-share law into line with the contemporary view of marriage as an economic partnership.
The economic partnership theory of marriage is already implemented under the equitable-
distribution system applied in both the common-law and community-property states when a
marriage ends in divorce. When a marriage ends in death, that theory is also already

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implemented under the community-property system and under the system promulgated in the
Model Marital Property Act. In the common-law states, however, elective-share law has not
caught up to the partnership theory of marriage.

The general effect of implementing the partnership theory in elective-share law is to

increase the entitlement of a surviving spouse in a long-term marriage in cases in which the
marital assets were disproportionately titled in the decedent’s name; and to decrease or even
eliminate the entitlement of a surviving spouse in a long-term marriage in cases in which the
marital assets were more or less equally titled or disproportionately titled in the surviving
spouse’s name. A further general effect is to decrease or even eliminate the entitlement of a
surviving spouse in a short-term, later-in-life marriage (typically a post-widowhood remarriage)
in which neither spouse contributed much, if anything, to the acquisition of the other’s wealth,
except that a special supplemental elective-share amount is provided in cases in which the
surviving spouse would otherwise be left without sufficient funds for support.

The Partnership Theory of Marriage

The partnership theory of marriage, sometimes also called the marital-sharing theory, is
stated in various ways. Sometimes it is thought of “as an expression of the presumed intent of
husbands and wives to pool their fortunes on an equal basis, share and share alike.” M. Glendon,
The Transformation of Family Law 131 (1989). Under this approach, the economic rights of
each spouse are seen as deriving from an unspoken marital bargain under which the partners
agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property
nominally acquired by and titled in the sole name of either partner during the marriage (other
than in property acquired by gift or inheritance). A decedent who disinherits his or her surviving
spouse is seen as having reneged on the bargain. Sometimes the theory is expressed in
restitutionary terms, a return-of-contribution notion. Under this approach, the law grants each
spouse an entitlement to compensation for non-monetary contributions to the marital enterprise,
as “a recognition of the activity of one spouse in the home and to compensate not only for this
activity but for opportunities lost.” Id. See also American Law Institute, Principles of Family
Dissolution § 4.09 Comment c (2002).

No matter how the rationale is expressed, the community-property system, including that
version of community law promulgated in the Model Marital Property Act, recognizes the
partnership theory, but it is sometimes thought that the common-law system denies it. In the
ongoing marriage, it is true that the basic principle in the common-law (title-based) states is that
marital status does not affect the ownership of property. The regime is one of separate property.
Each spouse owns all that he or she earns. By contrast, in the community-property states, each
spouse acquires an ownership interest in half the property the other earns during the marriage.
By granting each spouse upon acquisition an immediate half interest in the earnings of the other,
the community-property regimes directly recognize that the couple’s enterprise is in essence
collaborative.

The common-law states, however, also give effect or purport to give effect to the
partnership theory when a marriage is dissolved by divorce. If the marriage ends in divorce, a
spouse who sacrificed his or her financial-earning opportunities to contribute so-called domestic

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services to the marital enterprise (such as child-rearing and homemaking) stands to be
recompensed. All states now follow the equitable-distribution system upon divorce, under which
“broad discretion [is given to] trial courts to assign to either spouse property acquired during the
marriage, irrespective of title, taking into account the circumstances of the particular case and
recognizing the value of the contributions of a nonworking spouse or homemaker to the
acquisition of that property. Simply stated, the system of equitable distribution views marriage
as essentially a shared enterprise or joint undertaking in the nature of a partnership to which both
spouses contribute – directly and indirectly, financially and nonfinancially – the fruits of which
are distributable at divorce.” J. Gregory, The Law of Equitable Distribution ¶ 1.03, at p. 1-6
(1989).

The other situation in which spousal property rights figure prominently is disinheritance
at death. The original (pre-1990) Uniform Probate Code, along with almost all other non-UPC
common-law states, treats this as one of the few instances in American law where the decedent’s
testamentary freedom with respect to his or her title-based ownership interests must be curtailed.
No matter what the decedent’s intent, the original Uniform Probate Code and almost all of the
non-UPC common-law states recognize that the surviving spouse does have some claim to a
portion of the decedent’s estate. These statutes provide the spouse a so-called forced share. The
forced share is expressed as an option that the survivor can elect or let lapse during the
administration of the decedent’s estate, hence in the UPC the forced share is termed the
“elective” share.

Elective-share law in the common-law states, however, has not caught up to the
partnership theory of marriage. Under typical American elective-share law, including the
elective share provided by the original Uniform Probate Code, a surviving spouse may claim a
one-third share of the decedent’s estate – not the 50 percent share of the couple’s combined
assets that the partnership theory would imply.

Long-term Marriages. To illustrate the discrepancy between the partnership theory and
conventional elective-share law, consider first a long-term marriage, in which the couple’s
combined assets were accumulated mostly during the course of the marriage. The original
elective-share fraction of one-third of the decedent’s estate plainly does not implement a
partnership principle. The actual result depends on which spouse happens to die first and on how
the property accumulated during the marriage was nominally titled.

Example 1 – Long-term Marriage under Conventional Forced-share Law. Consider A

and B, who were married in their twenties or early thirties; they never divorced, and A died at
age, say, 70, survived by B. For whatever reason, A left a will entirely disinheriting B.

Throughout their long life together, the couple managed to accumulate assets worth
$600,000, marking them as a somewhat affluent but hardly wealthy couple.

Under conventional elective-share law, B’s ultimate entitlement depends on the manner
in which these $600,000 in assets were nominally titled as between them. B could end up much
poorer or much richer than a 50/50 partnership principle would suggest. The reason is that under
conventional elective-share law, B has a claim to one-third of A’s “estate.”

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Marital Assets Disproportionately Titled in Decedent’s Name; Conventional Elective-
share Law Frequently Entitles Survivor to Less Than Equal Share of Marital Assets. If all the
marital assets were titled in A’s name, B’s claim against A’s estate would only be for $200,000 –
well below B’s $300,000 entitlement produced by the partnership/marital-sharing principle.

If $500,000 of the marital assets were titled in A’s name, B’s claim against A’s estate
would still only be for $166,667 (1/3 of $500,000), which when combined with B’s “own”
$100,000 yields a $266,667 cut for B – still below the $300,000 figure produced by the
partnership/ marital-sharing principle.

Marital Assets Equally Titled; Conventional Elective-share Law Entitles Survivor to

Disproportionately Large Share. If $300,000 of the marital assets were titled in A’s name, B
would still have a claim against A’s estate for $100,000, which when combined with B’s “own”
$300,000 yields a $400,000 cut for B – well above the $300,000 amount to which the
partnership/marital-sharing principle would lead.

Marital Assets Disproportionately Titled in Survivor’s Name; Conventional Elective-

share Law Entitles Survivor to Magnify the Disproportion. If only $200,000 were titled in A’s
name, B would still have a claim against A’s estate for $66,667 (1/3 of $200,000), even though B
was already overcompensated as judged by the partnership/marital-sharing theory.

Short-term, Later-in-Life Marriages. Short-term marriages, particularly the post-

widowhood remarriage occurring later in life, present different considerations. Because each
spouse in this type of marriage typically comes into the marriage owning assets derived from a
former marriage, the one-third fraction of the decedent’s estate far exceeds a 50/50 division of
assets acquired during the marriage.

Example 2 – Short-term, Later-in-Life Marriage under Conventional Elective-share Law.

Consider B and C. A year or so after A’s death, B married C. Both B and C are in their
seventies, and after five years of marriage, B dies survived by C. Both B and C have adult
children and a few grandchildren by their prior marriages, and each naturally would prefer to
leave most or all of his or her property to those children.

The value of the couple’s combined assets is $600,000, $300,000 of which is titled in B’s
name (the decedent) and $300,000 of which is titled in C’s name (the survivor).

For reasons that are not immediately apparent, conventional elective-share law gives the
survivor, C, a right to claim one-third of B’s estate, thereby shrinking B’s estate (and hence the
share of B’s children by B’s prior marriage to A) by $100,000 (reducing it to $200,000) while
supplementing C’s assets (which will likely go to C’s children by C’s prior marriage) by
$100,000 (increasing their value to $400,000).

Conventional elective-share law, in other words, basically rewards the children of the
remarried spouse who manages to outlive the other, arranging for those children a windfall share
of one-third of the “loser’s” estate. The “winning” spouse who chanced to survive gains a
windfall, for this “winner” is unlikely to have made a contribution, monetary or otherwise, to the

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“loser’s” wealth remotely worth one-third.

The Redesigned Elective Share

The redesigned elective share is intended to bring elective-share law into line with the
partnership theory of marriage.

In the long-term marriage illustrated in Example 1, the effect of implementing a

partnership theory is to increase the entitlement of the surviving spouse when the marital assets
were disproportionately titled in the decedent’s name; and to decrease or even eliminate the
entitlement of the surviving spouse when the marital assets were more or less equally titled or
disproportionately titled in the surviving spouse’s name. Put differently, the effect is both to
reward the surviving spouse who sacrificed his or her financial-earning opportunities in order to
contribute so-called domestic services to the marital enterprise and to deny an additional windfall
to the surviving spouse in whose name the fruits of a long-term marriage were mostly titled.

In the short-term, later-in-life marriage illustrated in Example 2, the effect of

implementing a partnership theory is to decrease or even eliminate the entitlement of the
surviving spouse because in such a marriage neither spouse is likely to have contributed much, if
anything, to the acquisition of the other’s wealth. Put differently, the effect is to deny a windfall
to the survivor who contributed little to the decedent’s wealth, and ultimately to deny a windfall
to the survivor’s children by a prior marriage at the expense of the decedent’s children by a prior
marriage. Bear in mind that in such a marriage, which produces no children, a decedent who
disinherits or largely disinherits the surviving spouse may not be acting so much from malice or
spite toward the surviving spouse, but from a natural instinct to want to leave most or all of his or
her property to the children of his or her former, long-term marriage. In hardship cases,
however, as explained later, a special supplemental elective-share amount is provided when the
surviving spouse would otherwise be left without sufficient funds for support.

2008 Revisions. When first promulgated in the early 1990s, the statute provided that the
“elective-share percentage” increased annually according to a graduated schedule. The
“elective-share percentage” ranged from a low of 0 percent for a marriage of less than one year
to a high of 50 percent for a marriage of 15 years or more. The “elective-share percentage” did
double duty. The system equated the “elective-share percentage” of the couple’s combined
assets with 50 percent of the marital-property portion of the couple’s assets – the assets that are
subject to equalization under the partnership theory of marriage. Consequently, the elective
share effected the partnership theory rather indirectly. Although the schedule was designed to
represent by approximation a constant fifty percent of the marital-property portion of the
couple’s assets (the augmented estate), it did not say so explicitly.

The 2008 revisions are designed to present the system in a more direct form, one that
makes the system more transparent and therefore more understandable. The 2008 revisions
disentangle the elective-share percentage from the system that approximates the marital-property
portion of the augmented estate. As revised, the statute provides that the “elective-share
percentage” is always 50 percent, but it is not 50 percent of the augmented estate but 50 percent
of the “marital-property portion” of the augmented estate. The marital-property portion of the

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augmented estate is computed by approximation – by applying the percentages set forth in a
graduated schedule that increases annually with the length of the marriage (each “marital-portion
percentage” being double the percentage previously set forth in the “elective-share percentage”
schedule). Thus, for example, under the former system, the elective-share amount in a marriage
of 10 years was 30 percent of the augmented estate. Under the revised system, the elective-share
amount is 50 percent of the marital-property portion of the augmented estate, the marital-
property portion of the augmented estate being 60 percent of the augmented estate.

The primary benefit of these changes is that the statute, as revised, presents the elective-
share’s implementation of the partnership theory of marriage in a direct rather than indirect form,
adding clarity and transparency to the system. An important byproduct of the revision is that it
facilitates the inclusion of an alternative provision for enacting states that want to implement the
partnership theory of marriage but prefer not to define the marital-property portion by
approximation but by classification. Under the deferred marital-property approach, the marital-
property portion consists of the value of the couple’s property that was acquired during the
marriage other than by gift or inheritance. (See below.)

The 2008 revisions are based on a proposal presented in Waggoner, “The Uniform
Probate Code’s Elective Share: Time for a Reassessment,” 37 U. Mich. J. L. Reform 1 (2003),
an article that gives a more extensive explanation of the rationale of the 2008 revisions.

Specific Features of the Redesigned Elective Share

Because ease of administration and predictability of result are prized features of the
probate system, the redesigned elective share implements the marital-partnership theory by
means of a mechanically determined approximation system. Under the redesigned elective
share, there is no need to identify which of the couple’s property was earned during the marriage
and which was acquired prior to the marriage or acquired during the marriage by gift or
inheritance. For further discussion of the reasons for choosing this method, see Waggoner,
“Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26
Real Prop. Prob. & Tr. J. 683 (1992).

Section 2-202(a) – The “Elective-share Amount.” Under Section 2-202(a), the elective-
share amount is equal to 50 percent of the value of the “marital-property portion of the
augmented estate.” The marital-property portion of the augmented estate, which is determined
under Section 2-203(b), increases with the length of the marriage. The longer the marriage, the
larger the “marital-property portion of the augmented estate.” The sliding scale adjusts for the
correspondingly greater contribution to the acquisition of the couple’s marital property in a
marriage of 15 years than in a marriage of 15 days. Specifically, the “marital-property portion of
the augmented estate” starts low and increases annually according to a graduated schedule until it
reaches 100 percent. After one year of marriage, the marital-property portion of the augmented
estate is six percent of the augmented estate and it increases with each additional year of
marriage until it reaches the maximum 100 percent level after 15 years of marriage.

Section 2-203(a) – the “Augmented Estate.” The elective-share percentage of 50 percent

is applied to the value of the “marital-property portion of the augmented estate.” As defined in

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Section 2-203, the “augmented estate” equals the value of the couple’s combined assets, not
merely the value of the assets nominally titled in the decedent’s name.
More specifically, the “augmented estate” is composed of the sum of four elements:

Section 2-204 – the value of the decedent’s net probate estate;

Section 2-205 – the value of the decedent’s nonprobate transfers to others, consisting of
will-substitute-type inter-vivos transfers made by the decedent to others than the surviving
spouse;

Section 2-206 – the value of the decedent’s nonprobate transfers to the surviving spouse,
consisting of will-substitute-type inter-vivos transfers made by the decedent to the surviving
spouse; and

Section 2-207 – the value of the surviving spouse’s net assets at the decedent’s death,
plus any property that would have been in the surviving spouse’s nonprobate transfers to others
under Section 2-205 had the surviving spouse been the decedent.

Section 2-203(b) — the “Marital-property portion” of the Augmented Estate. Section 2-

203(b) defines the marital-property portion of the augmented estate.

Section 2-202(a) – the “Elective-share Amount.” Section 2-202(a) requires the elective-
share percentage of 50 percent to be applied to the value of the marital-property portion of the
augmented estate. This calculation yields the “elective-share amount” – the amount to which the
surviving spouse is entitled. If the elective-share percentage were to be applied only to the
marital-property portion of the decedent’s assets, a surviving spouse who has already been
overcompensated in terms of the way the marital-property portion of the couple’s assets have
been nominally titled would receive a further windfall under the elective-share system. The
marital-property portion of the couple’s assets, in other words, would not be equalized. By
applying the elective-share percentage of 50 percent to the marital-property portion of the
augmented estate (the couple’s combined assets), the redesigned system denies any significance
to how the spouses took title to particular assets.

Section 2-209 – Satisfying the Elective-share Amount. Section 2-209 determines how the
elective-share amount is to be satisfied. Under Section 2-209, the decedent’s net probate estate
and nonprobate transfers to others are liable to contribute to the satisfaction of the elective-share
amount only to the extent the elective-share amount is not fully satisfied by the sum of the
following amounts:

Subsection (a)(1) – amounts that pass or have passed from the decedent to the surviving
spouse by testate or intestate succession and amounts included in the augmented estate under
Section 2-206, i.e. the value of the decedent’s nonprobate transfers to the surviving spouse; and

Subsection (a)(2) – the marital-property portion of amounts included in the augmented

estate under Section 2-207.

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If the combined value of these amounts equals or exceeds the elective-share amount, the
surviving spouse is not entitled to any further amount from recipients of the decedent’s net
probate estate or nonprobate transfers to others, unless the surviving spouse is entitled to a
supplemental elective-share amount under Section 2-202(b).

Example 3 – 15-Year or Longer Marriage under Redesigned Elective Share; Marital

Assets Disproportionately Titled in Decedent’s Name. A and B were married to each other more
than 15 years. A died, survived by B. A’s will left nothing to B, and A made no nonprobate
transfers to B. A made nonprobate transfers to others in the amount of $100,000 as defined in
Section 2-205.

Augmented Estate Marital-Property

Portion (100%)

A’s net probate estate $300,000 $300,000

A’s nonprobate transfers to others $100,000 $100,000

A’s nonprobate transfers to B $0 $0

B’s assets and nonprobate transfers to

others $200,000 $200,000

Augmented Estate $600,000 $600,000

Elective-Share Amount (50% of Marital-property portion) ...................................$300,000

Less amount already Satisfied ................................................................................$200,000
Unsatisfied Balance ................................................................................................$100,000

Under Section 2-209(a)(2), the full value of B’s assets ($200,000) counts first toward
satisfying B’s entitlement. B, therefore, is treated as already having received $200,000 of B’s
ultimate entitlement of $300,000. Section 2-209(c) makes A’s net probate estate and nonprobate
transfers to others liable for the unsatisfied balance of the elective-share amount, $100,000,
which is the amount needed to bring B’s own $200,000 up to $300,000.

Example 4 – 15-Year or Longer Marriage under Redesigned Elective Share; Marital

Assets Disproportionately Titled in Survivor’s Name. As in Example 3, A and B were married to
each other more than 15 years. A died, survived by B. A’s will left nothing to B, and A made no
nonprobate transfers to B. A made nonprobate transfers to others in the amount of $50,000 as
defined in Section 2-205.

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Augmented Estate Marital-Property
Portion (100%)

A’s net probate estate $150,000 $150,000

A’s nonprobate transfers to others $50,000 $50,000

A’s nonprobate transfers to B $0 $0

B’s assets and nonprobate transfers to

others $400,000 $400,000

Augmented Estate $600,000 $600,000

Elective-Share Amount (50% of Marital-property portion) ...................................$300,000

Less amount already Satisfied ................................................................................$400,000
Unsatisfied Balance ...........................................................................................................$0

Under Section 2-209(a)(2), the full value of B’s assets ($400,000) counts first toward
satisfying B’s entitlement. B, therefore, is treated as already having received more than B’s
ultimate entitlement of $300,000. B has no claim on A’s net probate estate or nonprobate
transfers to others.

In a marriage that has lasted less than 15 years, only a portion of the survivor’s assets –
not all – count toward making up the elective-share amount. This is because, in these shorter-
term marriages, the marital-property portion of the survivor’s assets under Section 2-203(b) is
less than 100% and, under Section 2-209(a)(2), the portion of the survivor’s assets that count
toward making up the elective-share amount is limited to the marital-property portion of those
assets.

To explain why this is appropriate requires further elaboration of the underlying theory of
the redesigned system. The system avoids the classification and tracing-to-source problems in
determining the marital-property portion of the couple’s assets. This is accomplished under
Section 2-203(b) by applying an ever-increasing percentage, as the length of the marriage
increases, to the couple’s combined assets without regard to when or how those assets were
acquired. By approximation, the redesigned system equates the marital-property portion of the
couple’s combined assets with the couple’s marital assets – assets subject to equalization under
the partnership/marital-sharing theory. Thus, in a marriage that has endured long enough for the
marital-property portion of their assets to be 60% under Section 2-203(b), 60% of each spouse’s
assets are treated as marital assets. Section 2-209(a)(2) therefore counts only 60% of the
survivor’s assets toward making up the elective share amount.

Example 5 – Under 15-Year Marriage under the Redesigned Elective Share; Marital
Assets Disproportionately Titled in Decedent’s Name. A and B were married to each other more

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than 5 but less than 6 years. A died, survived by B. A’s will left nothing to B, and A made no
nonprobate transfers to B. A made nonprobate transfers to others in the amount of $100,000 as
defined in Section 2-205.

Augmented Estate Marital-Property

Portion (30%)

A’s net probate estate $300,000 $90,000

A’s nonprobate transfers to others $100,000 $30,000

A’s nonprobate transfers to B $0 $0

B’s assets and nonprobate transfers to others $200,000 $60,000

Augmented Estate $600,000 $180,000

Elective-Share Amount (50% of Marital-property portion) ..................................... $90,000

Less amount already Satisfied .................................................................................. $60,000
Unsatisfied Balance .................................................................................................. $30,000

Under Section 2-209(a)(2), the marital-property portion of B’s assets (30% of $200,000,
or $60,000) counts first toward satisfying B’s entitlement. B, therefore, is treated as already
having received $60,000 of B’s ultimate entitlement of $90,000. Under Section 2-209(c), B has
a claim on A’s net probate estate and nonprobate transfers to others of $30,000.

Deferred Marital-Property Alternative

By making the elective share percentage a flat 50 percent of the marital-property portion
of the augmented estate, the 2008 revision disentangles the elective share percentage from the
approximation schedule, thus allowing the marital-property portion of the augmented estate to be
defined either by the approximation schedule or by the deferred-marital-property approach.
Although one of the benefits of the 2008 revision is added clarity, an important byproduct of the
revision is that it facilitates the inclusion of an alternative provision for enacting states that prefer
a deferred marital-property approach. See Alan Newman, Incorporating the Partnership Theory
of Marriage into Elective-Share Law: the Approximation System of the Uniform Probate Code
and the Deferred-Community-Property Alternative, 49 Emory L.J. 487 (2000).

The Support Theory

The partnership/marital-sharing theory is not the only driving force behind elective-share
law. Another theoretical basis for elective-share law is that the spouses’ mutual duties of support
during their joint lifetimes should be continued in some form after death in favor of the survivor,
as a claim on the decedent’s estate. Current elective-share law implements this theory poorly.
The fixed fraction, whether it is the typical one-third or some other fraction, disregards the

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survivor’s actual need. A one-third share may be inadequate to the surviving spouse’s needs,
especially in a modest estate. On the other hand, in a very large estate, it may go far beyond the
survivor’s needs. In either a modest or a large estate, the survivor may or may not have ample
independent means, and this factor, too, is disregarded in conventional elective-share law. The
redesigned elective share system implements the support theory by granting the survivor a
supplemental elective-share amount related to the survivor’s actual needs. In implementing a
support rationale, the length of the marriage is quite irrelevant. Because the duty of support is
founded upon status, it arises at the time of the marriage.

Section 2-202(b) – the “Supplemental Elective-share Amount.” Section 2-202(b) is the

provision that implements the support theory by providing a supplemental elective-share amount
of $75,000. The $75,000 figure is bracketed to indicate that individual states may wish to select
a higher or lower amount.

In satisfying this $75,000 amount, the surviving spouse’s own titled-based ownership
interests count first toward making up this supplemental amount; included in the survivor’s
assets for this purpose are amounts shifting to the survivor at the decedent’s death and amounts
owing to the survivor from the decedent’s estate under the accrual-type elective-share apparatus
discussed above, but excluded are (1) amounts going to the survivor under the Code’s probate
exemptions and allowances and (2) the survivor’s Social Security benefits (and other
governmental benefits, such as Medicare insurance coverage). If the survivor’s assets are less
than the $75,000 minimum, then the survivor is entitled to whatever additional portion of the
decedent’s estate is necessary, up to 100 percent of it, to bring the survivor’s assets up to that
minimum level. In the case of a late marriage, in which the survivor is perhaps aged in the mid-
seventies, the minimum figure plus the probate exemptions and allowances (which under the
Code amount to a minimum of another $64,500) is pretty much on target – in conjunction with
Social Security payments and other governmental benefits – to provide the survivor with a fairly
adequate means of support.

Example 6 – Supplemental Elective-share Amount. After A’s death in Example 1, B

married C. Five years later, B died, survived by C. B’s will left nothing to C, and B made no
nonprobate transfers to C. B made no nonprobate transfers to others as defined in Section 2-205.

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Augmented Estate Marital-Property
Portion (30%)

B’s net probate estate $90,000 $27,000

B’s nonprobate transfers to others $0 $0

B’s nonprobate transfers to C $0 $0

C’s assets and nonprobate transfers to

others $10,000 $3,000

Augmented Estate $100,000 $30,000

Elective-Share Amount (50% of Marital-property portion) .....................................$90,000

Less amount already Satisfied ..................................................................................$60,000
Unsatisfied Balance ..................................................................................................$30,000

Solution under Redesigned Elective Share. Under Section 2-209(a)(2), $3,000 (30%) of
C’s assets count first toward making up C’s elective-share amount; under Section 2-209(c), the
remaining $12,000 elective-share amount would come from B’s net probate estate.

Application of Section 2-202(b) shows that C is entitled to a supplemental elective-share

amount. The calculation of C’s supplemental elective-share amount begins by determining the
sum of the amounts described in sections:

2-207 .........................................................................................................................$10,000
2-209(a)(1) ...........................................................................................................................0
Elective-share amount payable from decedent’s probate estate
under Section 2-209(c)..............................................................................................$12,000
Total ..........................................................................................................................$22,000

The above calculation shows that C is entitled to a supplemental elective-share amount

under Section 2-202(b) of $53,000 ($75,000 minus $22,000). The supplemental elective-share
amount is payable entirely from B’s net probate estate, as prescribed in Section 2-209(c).

The end result is that C is entitled to $65,000 ($12,000 + $53,000) by way of elective
share from B’s net probate estate (and nonprobate transfers to others, had there been any). Sixty-
five thousand dollars is the amount necessary to bring C’s $10,000 in assets up to $75,000.

Decedent’s Nonprobate Transfers to Others

The pre-1990 Code made great strides toward preventing “fraud on the spouse’s share.”
The problem of “fraud on the spouse’s share” arises when the decedent seeks to evade the

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spouse’s elective share by engaging in various kinds of nominal inter-vivos transfers. To render
that type of behavior ineffective, the original Code adopted the augmented-estate concept, which
extended the elective-share entitlement to property that was the subject of specified types of
inter-vivos transfer, such as revocable inter-vivos trusts.

In the redesign of the elective share, the augmented-estate concept has been strengthened.
The pre-1990 Code left several loopholes ajar in the augmented estate – a notable one being life
insurance the decedent buys, naming someone other than his or her surviving spouse as the
beneficiary. With appropriate protection for the insurance company that pays off before
receiving notice of an elective-share claim, the redesigned elective-share system includes these
types of insurance policies in the augmented estate as part of the decedent’s nonprobate transfers
to others under Section 2-205.

Historical Note. This General Comment was revised in 1993 and in 2008.

2008 Legislative Note: States that have previously enacted the UPC elective share need
not amend their enactment, except that (1) the supplemental elective-share amount under Section
2-202(b) should be increased to $75,000, (2) the amendment to Section 2-205(3) relating to gifts
within two years of death should be adopted, and (3) Section 2-209(e) should be added so that
the unsatisfied balance of the elective-share or supplemental elective-share amount is treated as
a general pecuniary devise for purposes of Section 3-904.

SECTION 2-201. DEFINITIONS. In this [part]:

(1) As used in sections other than Section 2-205, “decedent’s nonprobate transfers to

others” means the amounts that are included in the augmented estate under Section 2-205.

(2) “Fractional interest in property held in joint tenancy with the right of survivorship,”

whether the fractional interest is unilaterally severable or not, means the fraction, the numerator

of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the

number of joint tenants who survive the decedent and which, if the decedent was not a joint

tenant, is the number of joint tenants.

(3) “Marriage,” as it relates to a transfer by the decedent during marriage, means any

marriage of the decedent to the decedent’s surviving spouse.

(4) “Nonadverse party” means a person who does not have a substantial beneficial

interest in the trust or other property arrangement that would be adversely affected by the

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exercise or nonexercise of the power that the person possesses respecting the trust or other

property arrangement. A person having a general power of appointment over property is deemed

to have a beneficial interest in the property.

(5) “Power” or “power of appointment” includes a power to designate the beneficiary of a

beneficiary designation.

(6) “Presently exercisable general power of appointment” means a power of

appointment under which, at the time in question, the decedent held a power to create a

present or future interest in the decedent, the decedent’s creditors, the decedent’s estate,

or creditors of the decedent’s estate, whether or not the decedent then had the capacity to

exercise the power. The term includes a power to revoke or invade the principal of a trust

or other property arrangement.

(7) “Property” includes values subject to a beneficiary designation.

(8) “Right to income” includes a right to payments under a commercial or private

annuity, an annuity trust, a unitrust, or a similar arrangement.

(9) “Transfer”, as it relates to a transfer by or of the decedent, includes:

(A) an exercise or release of a presently exercisable general power of

appointment held by the decedent,

(B) a lapse at death of a presently exercisable general power of

appointment held by the decedent, and

(C) an exercise, release, or lapse of a general power of appointment that

the decedent reserved or of a power described in Section 2-205(2)(B) that the decedent

conferred on a nonadverse party.

Comment

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Technical amendments were made to this section in 2019 to remove gendered
language (e.g., “his [or her]”).

SECTION 2-202. ELECTIVE SHARE.

(a) [Elective-Share Amount.] The surviving spouse of a decedent who dies domiciled in

this state has a right of election, under the limitations and conditions stated in this [part], to take

an elective-share amount equal to 50 percent of the value of the marital-property portion of the

augmented estate.

(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in

Sections 2-207, 2-209(a)(1), and that part of the elective-share amount payable from the

decedent’s net probate estate and nonprobate transfers to others under Section 2-209(c) and (d) is

less than [$75,000], the surviving spouse is entitled to a supplemental elective-share amount

equal to [$75,000], minus the sum of the amounts described in those sections. The supplemental

elective-share amount is payable from the decedent’s net probate estate and from recipients of

the decedent’s nonprobate transfers to others in the order of priority set forth in Section 2-209(c)

and (d).

(c) [Effect of Election on Statutory Benefits.] If the right of election is exercised by or on

behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property,

and family allowance, if any, are not charged against but are in addition to the elective-share and

supplemental elective-share amounts.

(d) [Non-Domiciliary.] The right, if any, of the surviving spouse of a decedent who dies

domiciled outside this state to take an elective share in property in this state is governed by the

law of the decedent’s domicile at death.

Comment

Pre-1990 Provision. The pre-1990 provisions granted the surviving spouse a one-third

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share of the augmented estate. The one-third fraction was largely a carry over from common-law
dower, under which a surviving widow had a one-third interest for life in her deceased husband’s
land.

Purpose and Scope of Revisions. The revision of this section is the first step in the
overall plan of implementing a partnership or marital-sharing theory of marriage, with a support
theory back-up.

Subsection (a). Subsection (a) implements the partnership theory by providing that the
elective-share amount is 50 percent of the value of the marital-property portion of the augmented
estate. The augmented estate is defined in Section 2-203(a) and the marital-property portion of
the augmented estate is defined in Section 2-203(b).

Subsection (b). Subsection (b) implements the support theory of the elective share by
providing a [$75,000] supplemental elective-share amount, in case the surviving spouse’s assets
and other entitlements are below this figure.

2008 Cost-of-Living Adjustments. As originally promulgated in 1990, the dollar

amount in subsection (b) was $50,000. To adjust for inflation, this amount was increased in
2008 to $75,000. The dollar amount in this subsection is subject to annual cost-of-living
adjustments under Section 1-109.

Subsection (c). The homestead, exempt property, and family allowances provided by
Article II, Part 4, are not charged to the electing spouse as a part of the elective share.
Consequently, these allowances may be distributed from the probate estate without reference to
whether an elective share right is asserted.

Cross Reference. To have the right to an elective share under subsection (a), the
decedent’s spouse must survive the decedent. Under Section 2-702(a), the requirement of
survivorship is satisfied only if it can be established that the spouse survived the decedent by 120
hours.

Historical Note. This Comment was revised in 1993 and 2008.

SECTION 2-203. COMPOSITION OF THE AUGMENTED ESTATE; MARITAL-

PROPERTY PORTION.

(a) Subject to Section 2-208, the value of the augmented estate, to the extent provided in

Sections 2-204, 2-205, 2-206, and 2-207, consists of the sum of the values of all property,

whether real or personal; movable or immovable, tangible or intangible, wherever situated, that

constitute:

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(1) the decedent’s net probate estate;

(2) the decedent’s nonprobate transfers to others;

(3) the decedent’s nonprobate transfers to the surviving spouse; and

(4) the surviving spouse’s property and nonprobate transfers to others.

Alternative A

(b) The value of the marital-property portion of the augmented estate consists of the sum

of the values of the four components of the augmented estate as determined under subsection (a)

multiplied by the following percentage:

If the decedent and the spouse The percentage is:

were married to each other:

Less than 1 year ...................................................................................... 3%

1 year but less than 2 years ..................................................................... 6%

2 years but less than 3 years .................................................................. 12%

3 years but less than 4 years ................................................................. 18%

4 years but less than 5 years ................................................................. 24%

5 years but less than 6 years .................................................................. 30%

6 years but less than 7 years ................................................................. 36%

7 years but less than 8 years ................................................................. 42%

8 years but less than 9 years .................................................................. 48%

9 years but less than 10 years ............................................................... 54%

10 years but less than 11 years .............................................................. 60%

11 years but less than 12 years ............................................................. 68%

12 years but less than 13 years .............................................................. 76%

13 years but less than 14 years .............................................................. 84%

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14 years but less than 15 years .............................................................. 92%

15 years or more .................................................................................. 100%

Alternative B

(b) The value of the marital-property portion of the augmented estate equals the value of

that portion of the augmented estate that would be marital property at the decedent’s death under

[the Model Marital Property Act] [copy in definition from Model Marital Property Act, including

the presumption that all property is marital property] [copy in other definition chosen by the

enacting state].

End of Alternatives

Comment

Subsection (a) operates as an umbrella section identifying the augmented estate as

consisting of the sum of the values of four components. On the decedent’s side are the values of
(1) the decedent’s “net” probate estate (Section 2-204) and (2) the decedent’s nonprobate
transfers to others (Section 2-205). Straddling between the decedent’s side and the surviving
spouse’s side is the value of (3) the decedent’s nonprobate transfers to the surviving spouse
(Section 2-206). On the surviving spouse’s side are the values of (4) the surviving spouse’s net
assets and the surviving spouse’s nonprobate transfers to others (Section 2-207). Under Section
2-202(a), the elective-share percentage is 50 percent of the value of the marital-property portion
of the augmented estate.

Subsection (b) contains alternative provisions. Alternative A is for states that wish to
define the marital-property portion of the augmented estate by approximation based on the length
of the marriage. Alternative B is for states that wish to define the marital-property portion of the
estate in terms of a deferred marital property approach such as the Model Marital Property Act
(1983).

Alternative A provides a schedule for determining the marital-property portion of the

value of the four components of the augmented estate. The schedule deems by approximation
that 100 percent of the components of the augmented estate is marital property after 15 years of
marriage. Government data indicate that the median length of a first marriage that does not end
in divorce is 46.3 years, the median length of a post-divorce remarriage that does not end in
divorce is 35.1 years, and the median length of a post-widowhood remarriage that does not end
in divorce is 14.4 years. Enacting states may determine that this data supports lengthening the
schedule in subsection (b) to 20 or even 25 years. See Lawrence W. Waggoner, The Uniform
Probate Code’s Elective Share: Time for a Reassessment, 37 U. Mich. J. L. Reform 1, 11-29
(2003).

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Alternative B is provided for states that decide not to define the marital-property portion
of the augmented estate by approximation, but rather in terms of property actually acquired
during the marriage other than by gift or inheritance. See Waggoner, supra, at 30-32.

Historical Note. This Comment was added in 1993 and revised in 2008 and 2011.

SECTION 2-204. DECEDENT’S NET PROBATE ESTATE. The value of the

augmented estate includes the value of the decedent’s probate estate, reduced by funeral and

administration expenses, homestead allowance, family allowances, exempt property, and

enforceable claims.

Comment

This section, which in the 1990 version appeared as a paragraph of a single, long section
defining the augmented estate, establishes as the first component of the augmented estate the
value of the decedent’s probate estate, reduced by funeral and administration expenses,
homestead allowance (Section 2-402), family allowances (Section 2-404), exempt property
(Section 2-403), and enforceable claims. The term “claims” is defined in Section 1-201 as
including “liabilities of the decedent or protected person whether arising in contract, in tort, or
otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the
appointment of a conservator, including funeral expenses and expenses of administration. The
term does not include estate or inheritance taxes, or demands or disputes regarding title of a
decedent or protected person to specific assets alleged to be included in the estate.”

Various aspects of Section 2-204 are illustrated by Examples 10, 11, and 12 in the
Comment to Section 2-205, below.

Historical Note. This Comment was added in 1993.

SECTION 2-205. DECEDENT’S NONPROBATE TRANSFERS TO OTHERS.

The value of the augmented estate includes the value of the decedent’s nonprobate transfers to

others, not included under Section 2-204, of any of the following types, in the amount provided

respectively for each type of transfer:

(1) Property owned or owned in substance by the decedent immediately before death that

passed outside probate at the decedent’s death. Property included under this category consists

of:

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(A) Property over which the decedent alone, immediately before death, held a

presently exercisable general power of appointment. The amount included is the value of the

property subject to the power, to the extent the property passed at the decedent’s death, by

exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the

decedent’s estate or surviving spouse.

(B) The decedent’s fractional interest in property held by the decedent in joint

tenancy with the right of survivorship. The amount included is the value of the decedent’s

fractional interest, to the extent the fractional interest passed by right of survivorship at the

decedent’s death to a surviving joint tenant other than the decedent’s surviving spouse.

(C) The decedent’s ownership interest in property or accounts held in POD, TOD,

or co-ownership registration with the right of survivorship. The amount included is the value of

the decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the

decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving

spouse.

(D) Proceeds of insurance, including accidental death benefits, on the life of the

decedent, if the decedent owned the insurance policy immediately before death or if and to the

extent the decedent alone and immediately before death held a presently exercisable general

power of appointment over the policy or its proceeds. The amount included is the value of the

proceeds, to the extent they were payable at the decedent’s death to or for the benefit of any

person other than the decedent’s estate or surviving spouse.

(2) Property transferred in any of the following forms by the decedent during marriage:

(A) Any irrevocable transfer in which the decedent retained the right to the

possession or enjoyment of, or to the income from, the property if and to the extent the

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decedent’s right terminated at or continued beyond the decedent’s death. The amount included is

the value of the fraction of the property to which the decedent’s right related, to the extent the

fraction of the property passed outside probate to or for the benefit of any person other than the

decedent’s estate or surviving spouse.

(B) Any transfer in which the decedent created a power over income or property,

exercisable by the decedent alone or in conjunction with any other person, or exercisable by a

nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent’s

estate, or creditors of the decedent’s estate. The amount included with respect to a power over

property is the value of the property subject to the power, and the amount included with respect

to a power over income is the value of the property that produces or produced the income, to the

extent the power in either case was exercisable at the decedent’s death to or for the benefit of any

person other than the decedent’s surviving spouse or to the extent the property passed at the

decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any

person other than the decedent’s estate or surviving spouse. If the power is a power over both

income and property and the preceding sentence produces different amounts, the amount

included is the greater amount.

(3) Property that passed during marriage and during the two-year period next preceding

the decedent’s death as a result of a transfer by the decedent if the transfer was of any of the

following types:

(A) Any property that passed as a result of the termination of a right or interest in,

or power over, property that would have been included in the augmented estate under paragraph

(1) (A), (B), or (C), or under paragraph (2), if the right, interest, or power had not terminated

until the decedent’s death. The amount included is the value of the property that would have

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been included under those paragraphs if the property were valued at the time the right, interest,

or power terminated, and is included only to the extent the property passed upon termination to

or for the benefit of any person other than the decedent or the decedent’s estate, spouse, or

surviving spouse. As used in this subparagraph, “termination,” with respect to a right or interest

in property, occurs when the right or interest terminated by the terms of the governing instrument

or the decedent transferred or relinquished the right or interest, and, with respect to a power over

property, occurs when the power terminated by exercise, release, lapse, default, or otherwise,

but, with respect to a power described in paragraph (1)(A), “termination” occurs when the power

terminated by exercise or release, but not otherwise.

(B) Any transfer of or relating to an insurance policy on the life of the decedent if

the proceeds would have been included in the augmented estate under paragraph (1)(D) had the

transfer not occurred. The amount included is the value of the insurance proceeds to the extent

the proceeds were payable at the decedent’s death to or for the benefit of any person other than

the decedent’s estate or surviving spouse.

(C) Any transfer of property, to the extent not otherwise included in the

augmented estate, made to or for the benefit of a person other than the decedent’s surviving

spouse. The amount included is the value of the transferred property to the extent the transfers to

any one donee in either of the two years exceeded [$12,000] [the amount excludable from

taxable gifts under 26 U.S.C. Section 2503(b) [or its successor] on the date next preceding the

date of the decedent’s death].

Legislative Note: In paragraph (3)(C), use the first alternative in the brackets if the
second alternative is considered an unlawful delegation of legislative power.

Comment

This section, which in the 1990 version appeared in substance as a paragraph of a single,

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long section defining the augmented estate, establishes as the second component of the
augmented estate the value of the decedent’s nonprobate transfers to others. In the 1990 version,
the term “reclaimable estate” was used rather than the term “nonprobate transfers to others”.

This component is divided into three basic categories: (1) property owned or owned in
substance by the decedent immediately before death that passed outside probate to persons other
than the surviving spouse; (2) property transferred by the decedent during marriage that passed
outside probate to persons other than the surviving spouse; and (3) property transferred by the
decedent during marriage and during the two-year period next preceding the decedent’s death.
Various aspects of each category and each subdivision within each category are discussed and
illustrated below.

Paragraph (1) – Property Owned or Owned in Substance by the Decedent. This

category covers property that the decedent owned or owned in substance immediately before
death and that passed outside probate at the decedent’s death to a person or persons other than
the surviving spouse. Property owned by the decedent’s surviving spouse does not include the
value of enhancements to the surviving spouse’s earning capacity (e.g., the value of a law,
medical, or business degree).

Paragraph (1) subdivides this category into four specific components:

(A) Property over which the decedent alone, immediately before death, held a presently
exercisable general power of appointment. The amount included is the value of the property
subject to the power, to the extent the property passed at the decedent’s death, by exercise,
release, lapse, in default, or otherwise, to or for the benefit of any person other than the
decedent’s estate or surviving spouse;

(B) The decedent’s fractional interest in property held by the decedent in joint tenancy
with the right of survivorship. The amount included is the value of the decedent’s fractional
interest, to the extent the fractional interest passed by right of survivorship at the decedent’s
death to a surviving joint tenant other than the decedent’s surviving spouse.

(C) The decedent’s ownership interest in property or accounts held in POD, TOD, or co-
ownership registration with the right of survivorship. The amount included is the value of the
decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the
decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving
spouse.

(D) Proceeds of insurance, including accidental death benefits, on the life of the decedent,
if the decedent owned the insurance policy immediately before death or if and to the extent the
decedent alone and immediately before death held a presently exercisable general power of
appointment over the policy or its proceeds. The amount included is the value of the proceeds,
to the extent they were payable at the decedent’s death to or for the benefit of any person other
than the decedent’s estate or surviving spouse.

With one exception for nonseverable joint tenancies (see Example 4 below), each of the

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above components covers a type of asset of which the decedent could have become the full,
technical owner by merely exercising his or her power of appointment, incident of ownership, or
right of severance or withdrawal. Had the decedent exercised these powers or rights to become
the full, technical owner, the decedent could have controlled the devolution of these assets by his
or her will; by not exercising these powers or rights, the decedent allowed the assets to pass
outside probate to persons other than the surviving spouse. Thus, in effect, property covered by
these components passes at the decedent’s death by nonprobate transfer from the decedent to
others. This is what justifies including these components in the augmented estate without regard
to the person who created the decedent’s substantive ownership interest, whether the decedent or
someone else, and without regard to when it was created, whether before or after the decedent’s
marriage.

Although the augmented estate under the pre-1990 Code did not include life insurance,
annuities, etc., payable to other persons, the revisions do include their value; this move
recognizes that such arrangements were, under the pre-1990 Code, used to deplete the estate and
reduce the spouse’s elective-share entitlement.

Various aspects of paragraph (1) are illustrated by the following examples. Other
examples illustrating various aspects of this paragraph are Example 19 in this Comment, below,
and Examples 20 and 21 in the Comment to Section 2-206, below. In each of the following
examples, G is the decedent and S is the decedent’s surviving spouse.

Example 1 – General Testamentary Power. G’s mother, M, created a testamentary trust,

providing for the income to go to G for life, remainder in corpus to such persons, including G,
G’s creditors, G’s estate, or the creditors of G’s estate, as G by will appoints; in default of
appointment, to X. G died, survived by S and X. G’s will did not exercise his power in favor of
S.

The value of the corpus of the trust at G’s death is not included in the augmented estate
under paragraph (1)(A), regardless of whether G exercised the power in favor of someone other
than S or let the power lapse, so that the trust corpus passed in default of appointment to X.
Section 2-205(1)(A) only applies to presently exercisable general powers; G’s power was a
general testamentary power. (Note that paragraph (2)(B) does cover property subject to a
general testamentary power, but only if the power was created by G during marriage. G’s
general testamentary power was created by M and hence not covered by paragraph (2)(B).)

Example 2 – Nongeneral Power and “5-and-5” Power. G’s father, F, created a

testamentary trust, providing for the income to go to G for life, remainder in corpus to such
persons, except G, G’s creditors, G’s estate, or the creditors of G’s estate, as G by will appoints;
in default of appointment, to X. G was also given a noncumulative annual power to withdraw an
amount equal to the greater of $5,000 or five percent of the trust corpus. G died, survived by S
and X. G did not exercise her power in favor of S.

G’s power over the remainder interest does not cause inclusion of the value of the full
corpus in the augmented estate under paragraph (1)(A) because that power was a nongeneral
power.

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The value of the greater of $5,000 or five percent of the corpus of the trust at G’s death is
included in the augmented estate under paragraph (1)(A), to the extent that that property passed
at G’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any
person other than the decedent’s estate or surviving spouse, because that portion of the trust
corpus was subject to a presently exercisable general power of appointment held by G
immediately before G’s death. No additional amount is included, however, whether G exercised
the withdrawal power or allowed it to lapse in the years prior to G’s death. (Note that paragraph
(3)(i) is inapplicable to this case. That paragraph only applies to property subject to powers
created by the decedent during marriage that lapse within the two-year period next preceding the
decedent’s death.)

Example 3 – Revocable Inter-Vivos Trust. G created a revocable inter-vivos trust,

providing for the income to go to G for life, remainder in corpus to such persons, except G, G’s
creditors, G’s estate, or the creditors of G’s estate, as G by will appoints; in default of
appointment, to X. G died, survived by S and X. G never exercised his power to revoke, and the
corpus of the trust passed at G’s death to X.

Regardless of whether G created the trust before or after marrying S, the value of the
corpus of the trust at G’s death is included in the augmented estate under paragraph (1)(A)
because, immediately before G’s death, the trust corpus was subject to a presently exercisable
general power of appointment (the power to revoke: see Section 2-201(6)) held by G.
(Note that if G created the trust during marriage, paragraph (2)(B) also requires inclusion
of the value of the trust corpus. Because these two subparagraphs overlap, and because both
subparagraphs include the same value, Section 2-208(c) provides that the value of the trust
corpus is included under one but not both subparagraphs.)

Example 4 – Joint Tenancy. G, X, and Y owned property in joint tenancy. G died,

survived by S, X, and Y.

Because G’s fractional interest in the property immediately before death was one-third,
and because that one-third fractional interest passed by right of survivorship to X and Y at G’s
death, one-third of the value of the property at G’s death is included in the augmented estate
under paragraph (1)(B). This is the result whether or not under local law G had the unilateral
right to sever her fractional interest. See Section 2-201(2).

Example 5 – TOD Registered Securities and POD Account. G registered securities that G
owned in TOD form. G also contributed all the funds in a savings account that G registered in
POD form. X was designated to take the securities and Y was designated to take the savings
account on G’s death. G died, survived by S, X, and Y.

Because G was the sole owner of the securities immediately before death (see Sections 6-
302 and 6-306), and because ownership of the securities passed to X upon G’s death (see Section
6-307), the full value of the securities at G’s death is included in the augmented estate under
paragraph (1)(C). Because G contributed all the funds in the savings account, G’s ownership
interest in the savings account immediately before death was 100 percent (see Section 6-211).
Because that 100 percentage ownership interest passed by right of survivorship to Y at G’s death,

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the full value of the account at G’s death is included in the augmented estate under paragraph
(1)(C).

Example 6 – Joint Checking Account. G, X, and Y were registered as co-owners of a

joint checking account. G contributed 75 percent of the funds in the account. G died, survived
by S, X, and Y.

G’s ownership interest in the account immediately before death, determined under
Section 6-211, was 75 percent of the account. Because that percentage ownership interest passed
by right of survivorship to X and Y at G’s death, 75 percent of the value of the account at G’s
death is included in the augmented estate under paragraph (1)(C).

Example 7 – Joint Checking Account. G’s mother, M, added G’s name to her checking
account so that G could pay her bills for her. M contributed all the funds in the account. The
account was registered in co-ownership form with right of survivorship. G died, survived by S
and M.

Because G had contributed none of his own funds to the account, G’s ownership interest
in the account immediately before death, determined under Section 6-211, was zero.
Consequently, no part of the value of the account at G’s death is included in the augmented
estate under paragraph (1)(C).

Example 8 – Life Insurance. G, as owner of a life-insurance policy insuring her life,

designated X and Y as the beneficiaries of that policy. G died owning the policy, survived by S,
X, and Y.

The full value of the proceeds of that policy is included in the augmented estate under
paragraph (1)(D).

Paragraph (2) – Property Transferred by the Decedent During Marriage. This

category covers property that the decedent transferred in specified forms during “marriage”
(defined in Section 2-201(3) as “any marriage of the decedent to the decedent’s surviving
spouse”). If the decedent and the surviving spouse were married to each other more than once,
transfers that took place during any of their marriages to each other count as transfers during
marriage.

The word “transfer,” as it relates to a transfer by or of the decedent, is defined in Section

2-201(10), as including “(A) an exercise or release of a presently exercisable general power of
appointment held by the decedent, (B) a lapse at death of a presently exercisable general power
of appointment held by the decedent, and (C) an exercise, release, or lapse of a general power of
appointment that the decedent created in himself [or herself] and of a power described in Section
2-205(2)(B) that the decedent conferred on a nonadverse party.”

Paragraph (2) covers the following specific forms of transfer:

(A) Any irrevocable transfer in which the decedent retained the right to the possession or

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enjoyment of, or to the income from, the property if and to the extent the decedent’s right
terminated at or continued beyond the decedent’s death. The amount included is the value of the
fraction of the property to which the decedent’s right related, to the extent the fraction of the
property passed outside probate to or for the benefit of any person other than the decedent’s
estate or surviving spouse.

(B) Any transfer in which the decedent created a power over income or property,
exercisable by the decedent alone or in conjunction with any other person, or exercisable by a
nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent’s
estate, or creditors of the decedent’s estate. The amount included with respect to a power over
property is the value of the property subject to the power, and the amount included with respect
to a power over income is the value of the property that produces or produced the income, to the
extent the power in either case was exercisable at the decedent’s death to or for the benefit of any
person other than the decedent’s surviving spouse or to the extent the property passed at the
decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any
person other than the decedent’s estate or surviving spouse. If the power is a power over both
income and property and the preceding sentence produces different amounts, the amount
included is the greater amount.

Various aspects of Paragraph (2) are illustrated by the following examples. Other
examples illustrating various aspects of this paragraph are Examples 1 and 3 above, and Example
22 in the Comment to Section 2-206, below. In the following examples, as in the examples
above, G is the decedent and S is the decedent’s surviving spouse.

Example 9 – Retained Income Interest for Life. Before death, and during marriage, G
created an irrevocable inter-vivos trust, providing for the income to be paid annually to G for
life, then for the corpus of the trust to go to X. G died, survived by S and X.

The value of the corpus of the trust at G’s death is included in the augmented estate under
paragraph (2)(A). This paragraph applies to a retained income interest that terminates at the
decedent’s death, as here. The amount included is the value of the property that passes outside
probate to any person other than the decedent’s estate or surviving spouse, which in this case is
the full value of the corpus that passes outside probate to X.

Had G retained the right to only one-half of the income, with the other half payable to Y
for G’s lifetime, only one half of the value of the corpus at G’s death would have been included
under paragraph (2)(A) because that paragraph specifies that “the amount included is the value of
the fraction of the property to which the decedent’s right related.” Note, however, that if G had
created the trust within two years before death, paragraph (3)(C) would require the inclusion of
the value at the date the trust was established of the other half of the income interest for G’s life
and of the remainder interest in the other half of the corpus, each value to be reduced by as much
as $12,000 as appropriate under the facts, taking into account other gifts made to Y and to X in
the same year, if any.

Example 10 – Retained Unitrust Interest for a Term. Before death, and during marriage,
G created an irrevocable inter-vivos trust, providing for a fixed percentage of the value of the

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corpus of the trust (determined annually) to be paid annually to G for 10 years, then for the
corpus of the trust (and any accumulated income) to go to X. G died six years after the trust was
created, survived by S and X.

The full value of the corpus at G’s death is included in the augmented estate under a
combination of Sections 2-204 and 2-205(2)(A).

Section 2-205(2)(A) requires the inclusion of the commuted value of X’s remainder
interest at G’s death. This paragraph applies to a retained income interest, which under Section
2-201(8) includes a unitrust interest. Moreover, Section 2-205(2)(A) not only applies to a
retained income interest that terminates at the decedent’s death, but also applies to a retained
income interest that continues beyond the decedent’s death, as here. The amount included is the
value of the interest that passes outside probate to a person other than the decedent’s estate or
surviving spouse, which in this case is the commuted value of X’s remainder interest at G’s
death.

Section 2-204 requires the inclusion of the commuted value of the remaining four years
of G’s unitrust interest because that interest passes through G’s probate estate to G’s devisees or
heirs.

Because both the four-year unitrust interest and the remainder interest that directly
succeeds it are included in the augmented estate, there is no need to derive separate values for
X’s remainder interest and for G’s remaining unitrust interest. The sum of the two values will
equal the full value of the corpus, and that is the value that is included in the augmented estate.
(Note, however, that for purposes of Section 2-209 (Sources from Which Elective Share
Payable), it might become necessary to derive separate values for these two interests.)

Had the trust been revocable, the end-result would have been the same. The only
difference would be that the revocability of the trust would cause paragraph (2)(A) to be
inapplicable, but would also cause overlapping application of paragraphs (1)(A) and (2)(B) to
X’s remainder interest. Because each of these paragraphs yields the same value, Section 2-
208(c) would require the commuted value of X’s remainder interest to be included in the
augmented estate under any one, but only one, of them. Note that neither paragraphs (1)(A) nor
(2)(B) would apply to G’s remaining four-year term because that four-year term would have
passed to G’s estate by lapse of G’s power to revoke. As above, the commuted value of G’s
remaining four-year term would be included in the augmented estate under Section 2-204,
obviating the need to derive separate valuations of G’s four-year term and X’s remainder
interest.

Example 11 – Personal Residence Trust. Before death, and during marriage, G created
an irrevocable inter-vivos trust of G’s personal residence, retaining the right to occupy the
residence for 10 years, then for the residence to go to X. G died six years after the trust was
created, survived by S and X.

The full value of the residence at G’s death is included in the augmented estate under a
combination of Sections 2-204 and 2-205(2)(A).

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Section 2-205(2)(A) requires the inclusion of the commuted value of X’s remainder
interest at G’s death. This paragraph applies to a retained right to possession that continues
beyond the decedent’s death, as here. The amount included is the value of the interest that
passes outside probate to a person other than the decedent’s estate or surviving spouse, which in
this case is the commuted value of X’s remainder interest at G’s death.

Section 2-204 requires the inclusion of the commuted value of G’s remaining four-year
term because that interest passes through G’s probate estate to G’s devisees or heirs.

As in Example 10, there is no need to derive separate valuations of the remaining four-
year term and the remainder interest that directly succeeds it. The sum of the two values will
equal the full value of the residence at G’s death, and that is the amount included in the
augmented estate. (Note, however, that for purposes of Section 2-209 (Sources from Which
Elective Share Payable), it might become necessary to derive separate values for these two
interests.)

Example 12 – Retained Annuity Interest for a Term. Before death, and during marriage,
G created an irrevocable inter-vivos trust, providing for a fixed dollar amount to be paid annually
to G for 10 years, then for half of the corpus of the trust to go to X; the other half was to remain
in trust for an additional five years, after which time the remaining corpus was to go to X. G
died 14 years after the trust was created, survived by S and X.

The value of the one-half of the corpus of the trust remaining at G’s death is included in
the augmented estate under a combination of Sections 2-204 and 2-205(2)(A). The other one-
half of the corpus of the trust that was distributed to X four years before G’s death is not
included in the augmented estate.

Section 2-205(2)(A) requires the inclusion of the commuted value of X’s remainder
interest in half of the corpus of the trust. This subsection applies to a retained income interest,
which under Section 2-201(8), includes an annuity interest that continues beyond the decedent’s
death, as here. The amount included is the value of the interest that passes outside probate to a
person other than the decedent’s estate or surviving spouse, which in this case is the commuted
value of X’s remainder interest at G’s death.

Section 2-204 requires the inclusion of the commuted value of the remaining one year of
G’s annuity interest in half of the corpus of the trust, which passed through G’s probate estate to
G’s devisees or heirs.

There is no need to derive separate valuations of G’s remaining annuity interest and X’s
remainder interest that directly succeeds it. The sum of the two values will equal the full value
of the remaining one-half of the corpus of the trust at G’s death, and that is the amount included
in the augmented estate. (Note, however, that for purposes of Section 2-209 (Sources from
Which Elective Share Payable), it might become necessary to derive separate values for these
two interests.)

Had G died eleven years after the trust was created, so that the termination of half of the

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trust would have occurred within the two-year period next preceding G’s death, the value of the
half of the corpus of the trust that was distributed to X 10 years after the trust was created would
also have been included in the augmented estate under Section 2-205(3)(A).

Example 13 – Commercial Annuity. Before G’s death, and during marriage, G purchased
three commercial annuities from an insurance company. Annuity One was a single-life annuity
that paid a fixed sum to G annually and that contained a refund feature payable to X if G died
within 10 years. Annuity Two was a single-life annuity that paid a fixed sum to G annually, but
contained no refund feature. Annuity Three was a self and survivor annuity that paid a fixed sum
to G annually for life, and then paid a fixed sum annually to X for life. G died six years after
purchasing the annuities, survived by S and X.

Annuity One: The value of the refund payable to X at G’s death under Annuity One is
included in the augmented estate under paragraph (2)(A). G retained an income interest, as
defined in Section 2-201(8), that terminated at G’s death. The amount included is the value of
the interest that passes outside of probate to a person other than the decedent’s estate or surviving
spouse, which in this case is the refund amount to which X is entitled.

Annuity Two: Annuity Two does not cause any value to be included in the augmented
estate because it expired at G’s death; although G retained an income interest, as defined in
Section 2-201(8), that terminated at G’s death, nothing passed outside probate to any person
other than G’s estate or surviving spouse.

Annuity Three: The commuted value at G’s death of the annuity payable to X under
Annuity Three is included in the augmented estate under paragraph (2)(A). G retained an
income interest, as defined in Section 2-201(8), that terminated at G’s death. The amount
included is the value of the interest that passes outside probate to a person other than the
decedent’s estate or surviving spouse, which in this case is the commuted value of X’s right to
the annuity payments for X’s lifetime.

Example 14 – Joint Power. Before death, and during marriage, G created an inter-vivos
trust, providing for the income to go to X for life, remainder in corpus at X’s death to X’s then-
living descendants, by representation; if none, to a specified charity. G retained a power,
exercisable only with the consent of X, allowing G to withdraw all or any portion of the corpus
at any time during G’s lifetime. G died without exercising the power, survived by S and X.

The value of the corpus of the trust at G’s death is included in the augmented estate under
paragraph (2)(B). This paragraph applies to a power created by the decedent over the corpus of
the trust that is exercisable by the decedent “in conjunction with any other person,” who in this
case is X. Note that the fact that X has an interest in the trust that would be adversely affected by
the exercise of the power in favor of G is irrelevant. The amount included is the full value of the
corpus of the trust at G’s death because the power related to the full corpus of the trust and the
full corpus passed at the decedent’s death, by lapse or default of the power, to a person other than
the decedent’s estate or surviving spouse – X, X’s descendants, and the specified charity.

Example 15 – Power in Nonadverse Party. Before death, and during marriage, G created

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an inter-vivos trust, providing for the income to go to X for life, remainder in corpus to X’s then-
living descendants, by representation; if none, to a specified charity. G conferred a power on the
trustee, a bank, to distribute, in the trustee’s complete and uncontrolled discretion, all or any
portion of the trust corpus to G or to X. One year before G’s death, the trustee distributed
$50,000 of trust corpus to G and $40,000 of trust corpus to X. G died, survived by S and X.

The full value of the portion of the corpus of the trust remaining at G’s death is included
in the augmented estate under paragraph (2)(B). This paragraph applies to a power created by
the decedent over the corpus of the trust that is exercisable by a “nonadverse party.” As defined
in Section 2-201(4), the term “nonadverse party” is “a person who does not have a substantial
beneficial interest in the trust or other property arrangement that would be adversely affected by
the exercise or nonexercise of the power that he [or she] possesses respecting the trust or other
property arrangement.” The trustee in this case is a nonadverse party. The amount included is
the full value of the corpus of the trust at G’s death because the trustee’s power related to the full
corpus of the trust and the full corpus passed at the decedent’s death, by lapse or default of the
power, to a person other than the decedent’s estate or surviving spouse – X, X’s descendants, and
the specified charity.

In addition to the full value of the remaining corpus at G’s death, an additional amount is
included in the augmented estate because of the $40,000 distribution of corpus to X within two
years before G’s death. As defined in Section 2-201(9), a transfer of the decedent includes the
exercise “of a power described in Section 2-205(2)(B) that the decedent conferred on a
nonadverse party.” Consequently, the $40,000 distribution to X is considered to be a transfer of
the decedent within two years before death, and is included in the augmented estate under
paragraph (3)(C) to the extent it exceeded $12,000 of the aggregate gifts to X that year. If no
other gifts were made to X in that year, the amount included would be $28,000 ($40,000 -
$12,000).

Paragraph (3) – Property Transferred by the Decedent During Marriage and

During the Two-Year Period Next Preceding the Decedent’s Death. This paragraph – called
the two-year rule – requires inclusion in the augmented estate of the value of property that the
decedent transferred in specified forms during marriage and within two years of death. The word
“transfer,” as it relates to a transfer by or of the decedent, is defined in Section 2-201(9), as
including “(A) an exercise or release of a presently exercisable general power of appointment
held by the decedent, (B) a lapse at death of a presently exercisable general power of
appointment held by the decedent, and (C) an exercise, release, or lapse of a general power of
appointment that the decedent created in himself [or herself] and of a power described in Section
2-205(2)(B) that the decedent conferred on a nonadverse party.”

The two-year rule of paragraph (3) covers the following specific forms of transfer:

(A) Any property that passed as a result of the termination of a right or interest in, or
power over, property that would have been included in the augmented estate under paragraph (1)
(A), (B), or (C), or under paragraph (2), if the right, interest, or power had not terminated until
the decedent’s death. The amount included is the value of the property that would have been
included under those paragraphs if the property were valued at the time the right, interest, or

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power terminated, and is included only to the extent the property passed upon termination to or
for the benefit of any person other than the decedent or the decedent’s estate, spouse, or
surviving spouse. As used in this subparagraph, “termination,” with respect to a right or interest
in property, occurs when the right or interest terminated by the terms of the governing instrument
or the decedent transferred or relinquished the right or interest, and, with respect to a power over
property, occurs when the power terminated by exercise, release, lapse, default, or otherwise,
but, with respect to a power described in paragraph (1)(A), “termination” occurs when the power
terminated by exercise or release, but not otherwise.

(B) Any transfer of or relating to an insurance policy on the life of the decedent if the
proceeds would have been included in the augmented estate under paragraph (1)(D) had the
transfer not occurred. The amount included is the value of the insurance proceeds to the extent
the proceeds were payable at the decedent’s death to or for the benefit of any person other than
the decedent’s estate or surviving spouse.

(C) Any transfer of property, to the extent not otherwise included in the augmented
estate, made to or for the benefit of a person other than the decedent’s surviving spouse. The
amount included is the value of the transferred property to the extent the aggregate transfers to
any one donee in either of the two years exceeded $12,000.

Various aspects of paragraph (3) are illustrated by the following examples. Other
examples illustrating various aspects of this paragraph are Examples 2, 9, 12, 14, and 15, above,
and Examples 33 and 34 in the Comment to Section 2-207, below. In the following examples, as
in the examples above, G is the decedent and S is the decedent’s surviving spouse.

Example 16 – Retained Income Interest Terminating Within Two Years Before Death.
Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the
income to go to G for 10 years, then for the corpus of the trust to go to X. G died 11 years after
the trust was created, survived by S and X. G was married to S when the trust terminated.

The full value of the corpus of the trust at the date of its termination is included in the
augmented estate under paragraph (3)(A). The full value of the corpus at death would have been
included in the augmented estate under paragraph (2)(A) had G’s income interest not terminated
until death; G’s income interest terminated within the two-year period next preceding G’s death;
G was married to S when the trust was created and when the income interest terminated; and the
trust corpus upon termination passed to a person other than S, G, or G’s estate.

Example 17 – Personal Residence Trust Terminating Within Two Years Before Death.
Before death, and during marriage, G created an irrevocable inter-vivos trust of G’s personal
residence, retaining the right to occupy the residence for 10 years, then for the residence to go to
X. G died eleven years after the trust was created, survived by S and X. G was married to S
when the right to possession terminated.

The full value of the residence at the date the trust terminated is included in the
augmented estate under paragraph (3)(A). The full value of the residence would have been
included in the augmented estate under paragraph (2)(A) had G’s right to possession not

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terminated until death; G’s right to possession terminated within the two-year period next
preceding G’s death; G was married to S when the trust was created and when the right to
possession terminated; and the residence passed upon termination to a person other than S, G, or
G’s estate.

Example 18 – Irrevocable Assignment of Life-Insurance Policy Within Two Years Before

Death. In Example 8, G irrevocably assigned the life-insurance policy to X and Y within two
years preceding G’s death. G was married to S when the policy was assigned. G died, survived
by S, X, and Y.

The full value of the proceeds are included in the augmented estate under paragraph
(3)(B). The full value of the proceeds would have been included in the augmented estate under
paragraph (1)(D) had G owned the policy at death; G assigned the policy within the two-year
period next preceding G’s death; G was married to S when the policy was assigned; and the
proceeds were payable to a person other than S or G’s estate.

Example 19 – Property Purchased in Joint Tenancy Within Two Years Before Death.
Within two years before death, and during marriage, G and X purchased property in joint
tenancy; G contributed $75,000 of the $100,000 purchase price and X contributed $25,000. G
died, survived by S and X.

Regardless of when or by whom the property was purchased, the value at G’s death of
G’s fractional interest of one-half is included in the augmented estate under paragraph (1)(B)
because G’s half passed to X as surviving joint tenant. Because the property was purchased
within two years before death, and during marriage, and because G’s contribution exceeded the
value of G’s fractional interest in the property, the excess contribution of $25,000 constitutes a
gift to X within the two-year period next preceding G’s death. Consequently, an additional
$13,000 ($25,000 minus $12,000) is included in the augmented estate under paragraph (3)(C) as
a gift to X.

Had G provided all of the $100,000 purchase price, then paragraph (3)(C) would require
$38,000 ($50,000 minus $12,000) to be included in the augmented estate (in addition to the
inclusion of one-half the value of the property at G’s death under paragraph (1)(B)).

Had G provided one-half or less of the $100,000 purchase price, then G would not have
made a gift to X within the two-year period next preceding G’s death. Half the value of the
property at G’s death would still be included in the augmented estate under paragraph (1)(B),
however.

Cross Reference. On obtaining written spousal consent to assure qualification for the
charitable deduction for charitable remainder trusts or outright charitable donations, see the
Comment to Section 2-208.

Historical Note. This Comment was added in 1993 and revised in 2008.

SECTION 2-206. DECEDENT’S NONPROBATE TRANSFERS TO THE

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SURVIVING SPOUSE. Excluding property passing to the surviving spouse under the federal

Social Security system, the value of the augmented estate includes the value of the decedent’s

nonprobate transfers to the decedent’s surviving spouse, which consist of all property that passed

outside probate at the decedent’s death from the decedent to the surviving spouse by reason of

the decedent’s death, including

(1) the decedent’s fractional interest in property held as a joint tenant with the right of

survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as

surviving joint tenant,

(2) the decedent’s ownership interest in property or accounts held in co-ownership

registration with the right of survivorship, to the extent the decedent’s ownership interest passed

to the surviving spouse as surviving co-owner, and

(3) all other property that would have been included in the augmented estate under

Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s

spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Comment

This section, which in the 1990 version appeared in substance as a paragraph of a single,
long section defining the augmented estate, establishes as the third component of the augmented
estate the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse. Under
this section, the decedent’s nonprobate transfers to the decedent’s surviving spouse consist of all
property that passed outside probate at the decedent’s death from the decedent to the surviving
spouse by reason of the decedent’s death, including:

(1) the decedent’s fractional interest in property held as a joint tenant with the right of
survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as
surviving joint tenant,

(2) the decedent’s ownership interest in property or accounts held in co-ownership

registration with the right of survivorship, to the extent the decedent’s ownership interest passed
to the surviving spouse as surviving co-owner, and

(3) all other property that would have been included in the augmented estate under

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Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s
spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Property passing to the surviving spouse under the federal Social Security system is
excluded.

Various aspects of Section 2-206 are illustrated by the following examples. In these
examples, as in the examples in the Comment to Section 2-205, above, G is the decedent and S is
the decedent’s surviving spouse.

Example 20 – Tenancy by the Entirety. G and S own property in tenancy by the entirety.
G died, survived by S.

Because the definition in Section 1-201 of “joint tenants with the right of survivorship”
includes tenants by the entirety, the provisions of Section 2-206 relating to joint tenancies with
right of survivorship apply to tenancies by the entirety.

In total, therefore, the full value of the property is included in the augmented estate – G’s
one-half under Section 2-206(1) and S’s one-half under Section 2-207(a)(1)(A).

Section 2-206(1) requires the inclusion of the value of G’s one-half fractional interest
because it passed to S as surviving joint tenant.

Section 2-207(a)(1)(A) requires the inclusion of S’s one-half fractional interest. Because
G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of
Section 2-207, is determined immediately before G’s death, disregarding the fact that G
predeceased S. Immediately before G’s death, S’s fractional interest was then a one-half
fractional interest. Despite Section 2-205(1)(B), none of S’s fractional interest is included under
Section 2-207(a)(2) because that provision does not apply to fractional interests that are included
under Section 2-207(a)(1)(A). Consequently, the value of S’s one-half interest is included under
Section 2-207(a)(1)(A) but not under Section 2-207(a)(2).

Example 21 – Joint Tenancy. G, S, and X own property in joint tenancy. G died more
than two years after the property was titled in that form, survived by S and X.

In total, two-thirds of the value of the property at G’s death is included in the augmented
estate – one-sixth under Section 2-205, one-sixth under Section 2-206, and one-third under
Section 2-207.

Section 2-205(1)(B) requires the inclusion of half of the value of G’s one-third fractional
interest because that half passed by right of survivorship to X.

Section 2-206(1) requires the inclusion of the value of the other half of G’s one-third
fractional interest because that half passed to S as surviving joint tenant.

Section 2-207(a)(1)(A) requires the inclusion of the value of S’s one-third interest.

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Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes
of Section 2-207, is determined immediately before G’s death, disregarding the fact that G
predeceased S. Immediately before G’s death, S’s fractional interest was then a one-third
fractional interest. Despite Section 2-205(1)(B), none of S’s fractional interest is included under
Section 2-207(a)(2) because that provision does not apply to fractional interests that are included
under Section 2-207(a)(1)(A). Consequently, the value of S’s one-third fractional interest is
included in the augmented estate under Section 2-207(a)(1)(A) but not under Section 2-
207(a)(2).

Example 22 – Income Interest Passing to Surviving Spouse. Before death, and during
marriage, G created an irrevocable inter-vivos trust, providing for the income to go to G for life,
then for the income to go to S for life, then for the corpus of the trust to go to X. G died,
survived by S and X.

The full value of the corpus of the trust at G’s death is included in the augmented estate
under a combination of Sections 2-205 and 2-206.

Section 2-206(3) requires the inclusion of the commuted value of S’s income interest.
Note that, although S owns the income interest as of G’s death, the value of S’s income interest
is not included under Section 2-207 because Section 2-207 only includes property interests that
are not included under Section 2-206.

Section 2-205(2)(A) requires the inclusion of the commuted value of X’s remainder
interest.

Example 23 – Corpus Passing to Surviving Spouse. Before death, and during marriage,
G created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for
the corpus of the trust to go to S. G died, survived by S.

The value of the corpus of the trust at G’s death is included in the augmented estate under
Section 2-206(3). Note that, although S owns the corpus as of G’s death, the value of S’s
ownership interest in the corpus is not included under Section 2-207 because Section 2-207 only
includes property interests that are not included under Section 2-206.

Example 24 – TOD Registered Securities, POD Account, and Life Insurance Payable to
Surviving Spouse. In Examples 5 and 8 in the Comment to Section 2-205, G designated S to take
the securities on death, registered S as the beneficiary of the POD savings account, and named S
as the beneficiary of the life-insurance policy.

The same values that were included in the augmented estate under Section 2-205(1) in
those examples are included in the augmented estate under Section 2-206.

Example 25 – Joint Checking Account. G and S were registered as co-owners of a joint

checking account. G contributed 75 percent of the funds in the account and S contributed 25
percent of the funds. G died, survived by S.

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G’s ownership interest in the account immediately before death, determined under
Section 6-211, was 75 percent of the account. Because that percentage ownership interest passed
by right of survivorship to S at G’s death, 75 percent of the value of the account at G’s death is
included in the augmented estate under Section 2-206. The remaining 25 percent of the account
is included in the augmented estate under Section 2-207.

Historical Note. This Comment was added in 1993 and revised in 2008.

SECTION 2-207. SURVIVING SPOUSE’S PROPERTY AND NONPROBATE

TRANSFERS TO OTHERS.

(a) [Included Property.] Except to the extent included in the augmented estate under

Section 2-204 or 2-206, the value of the augmented estate includes the value of:

(1) property that was owned by the decedent’s surviving spouse at the decedent’s

death, including

(A) the surviving spouse’s fractional interest in property held in joint

tenancy with the right of survivorship,

(B) the surviving spouse’s ownership interest in property or accounts held

in co-ownership registration with the right of survivorship, and

(C) property that passed to the surviving spouse by reason of the

decedent’s death, but not including the spouse’s right to homestead allowance, family allowance,

exempt property, or payments under the federal Social Security system; and

(2) property that would have been included in the surviving spouse’s nonprobate

transfers to others, other than the spouse’s fractional and ownership interests included under

subsection (a)(1)(A) or (B), had the spouse been the decedent.

(b) [Time of Valuation.] Property included under this section is valued at the decedent’s

death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of

subsection (a)(1)(A) and (B), the values of the spouse’s fractional and ownership interests are

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determined immediately before the decedent’s death if the decedent was then a joint tenant or a

co-owner of the property or accounts. For purposes of subsection (a)(2), proceeds of insurance

that would have been included in the spouse’s nonprobate transfers to others under Section 2-

205(1)(D) are not valued as if the spouse were deceased.

(c) [Reduction for Enforceable Claims.] The value of property included under this section

is reduced by enforceable claims against the surviving spouse.

Comment

This section, which in the 1990 version appeared in substance as a paragraph of a single,
long section defining the augmented estate, establishes as the fourth component of the
augmented estate the value of property owned by the surviving spouse at the decedent’s death
plus the value of amounts that would have been includible in the surviving spouse’s nonprobate
transfers to others had the spouse been the decedent, reduced by enforceable claims against that
property or that spouse, as provided in Sections 2-207(c) and 2-208(b)(1). Property owned by
the decedent’s surviving spouse does not include the value of enhancements to the surviving
spouse’s earning capacity (e.g., the value of a law, medical, or business degree).

(Note that amounts that would have been includible in the surviving spouse’s nonprobate
transfers to others under Section 2-205(1)(D) are not valued as if he or she were deceased. Thus,
if, at the decedent’s death, the surviving spouse owns a $1 million life-insurance policy on his or
her life, payable to his or her sister, that policy would not be valued at its face value of $1
million, but rather could be valued under the method used in the federal estate tax under Treas.
Reg. § 20.2031-8.)

The purpose of combining the estates and nonprobate transfers of both spouses is to
implement a partnership or marital-sharing theory. Under that theory, there is a fifty/fifty split of
the property acquired by both spouses. Hence the redesigned elective share includes the
survivor’s net assets in the augmented-estate entity. (Under a different rationale, no longer
appropriate under the redesigned system, the pre-1990 version of Section 2-202 also added the
value of property owned by the surviving spouse, but only to the extent the owned property had
been derived from the decedent. An incidental benefit of the redesigned system is that this
tracing-to-source feature of the pre-1990 version is eliminated.)

Various aspects of Section 2-207 are illustrated by the following examples. Other
examples illustrating various aspects of this section are Examples 20, 21, 22, 23, and 25 in the
Comment to Section 2-206. In the following examples, as in the examples in the comments to
Sections 2-205 and 2-206, above, G is the decedent and S is the decedent’s surviving spouse.

Example 26 – Inter-Vivos Trust Created by Surviving Spouse; Corpus Payable to Spouse

at Decedent’s Death. Before G’s death, and during marriage, S created an irrevocable inter-

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vivos trust, providing for the income to go to G for life, then for the corpus of the trust to go to S.
G died, survived by S.

The value of the corpus of the trust at G’s death is included in the augmented estate under
Section 2-207(a)(1) as either an interest owned by S at G’s death or as an interest that passed to
the spouse by reason of G’s death.

Example 27 – Inter-Vivos Trust Created by Another; Income Payable to Spouse for Life.
Before G’s death, X created an irrevocable inter-vivos trust, providing for the income to go to S
for life, then for the income to go to G for life, then for the corpus of the trust to go to Y. G died,
survived by S and Y.

The commuted value of S’s income interest as of G’s death is included in the augmented
estate under Section 2-207(a), as a property interest owned by the surviving spouse at the
decedent’s death.

Example 28 – Inter-Vivos Trust Created by Another; Income Payable to Spouse for Life.
Before G’s death, X created an irrevocable inter-vivos trust, providing for the income to go to G
for life, then for the income to go to S for life, then for the corpus of the trust to go to Y. G died,
survived by S and Y.

The commuted value of S’s income interest at the decedent’s death is included in the
augmented estate under Section 2-207(a)(1), as either a property interest owned by the surviving
spouse at the decedent’s death or a property interest that passed to the surviving spouse by reason
of the decedent’s death.

Example 29 – Life Insurance on Decedent’s Life Owned by Surviving Spouse; Proceeds

Payable to Spouse. Before G’s death, S bought a life-insurance policy on G’s life, naming S as
the beneficiary. G died, survived by S.

The value of the proceeds of the life-insurance policy is included in the augmented estate
under Section 2-207(a)(1), as property owned by the surviving spouse at the decedent’s death.

Example 30 – Life Insurance on Decedent’s Life Owned by Another; Proceeds Payable to

Spouse. Before G’s death, X bought a life-insurance policy on G’s life, naming S as the
beneficiary. G died, survived by S.

The value of the proceeds of the life-insurance policy is included in the augmented estate
under Section 2-207(a)(1)(C), as property that passed to the surviving spouse by reason of the
decedent’s death.

Example 31 – Joint Tenancy Between Spouse and Another. S and Y own property in
joint tenancy. G died, survived by S and Y.

The value of S’s one-half fractional interest at G’s death is included in the augmented
estate under Section 2-207(a)(1)(A). Despite Section 2-205(1)(B), none of S’s fractional interest

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is included under Section 2-207(a)(2) because that provision does not apply to fractional interests
required to be included under Section 2-207(a)(1)(A). Consequently, the value of S’s one-half is
included under Section 2-207(a)(1)(A) but not under Section 2-207(a)(2).

Example 32 – Inter-Vivos Trust with Retained Income Interest Created by Surviving

Spouse. Before G’s death, and during marriage, S created an irrevocable inter-vivos trust,
providing for the income to go to S for life, then for the income to go to G for life, then for the
corpus of the trust to go to X. G died, survived by S and X.

The value of the trust corpus at G’s death is included in the augmented estate under
Section 2-207(a)(2) because, if S were the decedent, that value would be included in the spouse’s
nonprobate transfers to others under Section 2-205(2)(A). Note that property included under
Section 2-207 is valued at the decedent’s death, taking the fact that the decedent predeceased the
spouse into account. Thus, G’s remainder in income for life is extinguished, and the full value of
the corpus is included in the augmented estate under Section 2-207(a)(2). The commuted value
of S’s income interest would also be included under Section 2-207(a)(1) but for the fact that
Section 2-208(c) provides that when two provisions apply to the same property interest, the
interest is not included under both provisions, but is included under the provision yielding the
highest value. Consequently, since Section 2-207(a)(2) yields a higher value (the full corpus)
than Section 2-207(a)(1) (the income interest), and since the income interest is part of the value
of the corpus, and hence both provisions apply to the same property interest, the full corpus is
included under Section 2-207(a)(2) and nothing is included under Section 2-207(a)(1).

Example 33 – Inter-Vivos Trust Created by Decedent; Income to Surviving Spouse. More

than two years before G’s death, and during marriage, G created an irrevocable inter-vivos trust,
providing for the income to go to S for life, then for the corpus of the trust to go to X. G died,
survived by S and X.

The commuted value of S’s income interest as of G’s death is included in the augmented
estate under Section 2-207. If G had created the trust within the two-year period next preceding
G’s death, the commuted value of X’s remainder interest as of the date of the creation of the trust
(less $12,000, assuming G made no other gifts to X in that year) would also have been included
in the augmented estate under Section 2-205(3)(C).

Example 34 – Inter-Vivos Trust Created by Surviving Spouse; No Retained Interest or

Power. More than two years before G’s death, and during marriage, S created an irrevocable
inter-vivos trust, providing for the income to go to G for life, then for the corpus of the trust to go
to Y. G died, survived by S and Y.

The value of the trust is not included in the augmented estate. If S had created the trust
within the two-year period next preceding G’s death, the commuted value of Y’s remainder
interest as of the date of the creation of the trust (less $12,000, assuming no other gifts to Y in
that year) would have been included in the augmented estate under Section 2-207(a)(2) because
if S were the decedent, the value of the remainder interest would have been included in S’s
nonprobate transfers to others under Section 2-205(3)(C).

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Historical Note. This Comment was added in 1993 and revised in 2008.

SECTION 2-208. EXCLUSIONS, VALUATION, AND OVERLAPPING

APPLICATION.

(a) [Exclusions.] The value of any property is excluded from the decedent’s nonprobate

transfers to others:

(1) to the extent the decedent received adequate and full consideration in money

or money’s worth for a transfer of the property; or

(2) if the property was transferred with the written joinder of, or if the transfer

was consented to in writing before or after the transfer by, the surviving spouse.

(b) [Valuation.] The value of property:

(1) Included in the augmented estate under Section 2-205, 2-206, or 2-207 is

reduced in each category by enforceable claims against the included property; and

(2) includes the commuted value of any present or future interest and the

commuted value of amounts payable under any trust, life insurance settlement option, annuity

contract, public or private pension, disability compensation, death benefit or retirement plan, or

any similar arrangement, exclusive of the federal Social Security system.

(c) [Overlapping Application; No Double Inclusion.] In case of overlapping application

to the same property of the paragraphs or subparagraphs of Section 2-205, 2-206, or 2-207, the

property is included in the augmented estate under the provision yielding the greatest value, and

under only one overlapping provision if they all yield the same value.

Comment

Subsection (a). This subsection excludes from the decedent’s nonprobate transfers to
others the value of any property (1) to the extent that the decedent received adequate and full
consideration in money or money’s worth for a transfer of the property or (2) if the property was
transferred with the written joinder of, or if the transfer was consented to in writing before or

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after the transfer by, the surviving spouse.

Consenting to Split-Gift Treatment Not Consent to the Transfer. Spousal consent to

split-gift treatment under I.R.C. § 2513 does not constitute written joinder of or consent to the
transfer by the spouse for purposes of subsection (a).

Obtaining the Charitable Deduction for Transfers Coming Within Section 2-205(2)
or (3). Because, under Section 2-201(8), the term “right to income” includes a right to payments
under an annuity trust or a unitrust, the value of a charitable remainder trust established by a
married grantor without written spousal consent or joinder would be included in the decedent’s
nonprobate transfers to others under Section 2-205(2)(A). Consequently, a married grantor
planning to establish a charitable remainder trust is advised to obtain the written consent of his or
her spouse to the transfer, as provided in Section 2-208(a), in order to be assured of qualifying
for the charitable deduction.

Similarly, outright gifts made by a married donor within two years preceding death are
included in the augmented estate under Section 2-205(3)(C) to the extent that the aggregate gifts
to any one donee exceed the amount excludable from taxable gifts under 26 U.S.C. Section
2503(b) [or its successor] on the date next preceding the date of the decedent’s death (or, if
referring to federal law is considered an unlawful delegation of legislative power, $12,000) in
either of the two years. Consequently, a married donor planning to donate more than that
amount to any charitable organization within a twelve-month period is advised to obtain the
written consent of his or her spouse to the transfer, as provided in Section 2-208(a), in order to be
assured of qualifying for the charitable deduction.

Spousal Waiver of ERISA Benefits. Under the Employee Retirement Income Security
Act (ERISA), death benefits under an employee benefit plan subject to ERISA must be paid in
the form of an annuity to the surviving spouse. A married employee wishing to designate
someone other than the spouse must obtain a waiver from the spouse. As amended in 1984 by
the Retirement Equity Act, ERISA requires each employee benefit plan subject to its provisions
to provide that an election of a waiver shall not take effect unless

(1) the spouse of the participant consents in writing to such election,

(2) such election designates a beneficiary (or form of benefits) which may not be changed
without spousal consent (or the consent of the spouse expressly permits designation by the
participant without any requirement of further consent by the spouse), and

(3) the spouse’s consent acknowledges the effect of such election and is witnessed by a
plan representative or a notary public.

See 29 U.S.C. § 1055(c) (1988); Int. Rev. Code § 417(a). Any spousal waiver that
complies with these requirements would satisfy Section 2-208(a) and would serve to exclude the
value of the death benefits from the decedent’s nonprobate transfers to others.

Cross Reference. See also Section 2-213 and Comment.

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Subsection (c). The application of subsection (c) is illustrated in Example 32 in the
Comment to Section 2-207.

Historical Note. This Comment was added in 1993. Subsection (a) was amended in
2008 by adding the phrase “before or after the transfer.”

SECTION 2-209. SOURCES FROM WHICH ELECTIVE SHARE PAYABLE.

(a) [Elective-Share Amount Only.] In a proceeding for an elective share, the following

are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions

due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to

others:

(1) amounts included in the augmented estate under Section 2-204 which pass or

have passed to the surviving spouse by testate or intestate succession and amounts included in

the augmented estate under Section 2-206; and

(2) the marital-property portion of amounts included in the augmented estate

under Section 2-207.

(b) [Marital Property Portion.] The marital-property portion under subsection (a)(2) is

computed by multiplying the value of the amounts included in the augmented estate under

Section 2-207 by the percentage of the augmented estate set forth in the schedule in Section 2-

203(b) appropriate to the length of time the spouse and the decedent were married to each other.

(c) [Unsatisfied Balance of Elective-Share Amount; Supplemental Elective-Share

Amount.] If, after the application of subsection (a), the elective-share amount is not fully

satisfied, or the surviving spouse is entitled to a supplemental elective-share amount, amounts

included in the decedent’s net probate estate, other than assets passing to the surviving spouse by

testate or intestate succession, and in the decedent’s nonprobate transfers to others under Section

2-205(1), (2), and (3)(B) are applied first to satisfy the unsatisfied balance of the elective-share

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amount or the supplemental elective-share amount. The decedent’s net probate estate and that

portion of the decedent’s nonprobate transfers to others are so applied that liability for the

unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is

apportioned among the recipients of the decedent’s net probate estate and of that portion of the

decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

(d) [Unsatisfied Balance of Elective-Share and Supplemental Elective-Share Amounts.]

If, after the application of subsections (a) and (c), the elective-share or supplemental elective-

share amount is not fully satisfied, the remaining portion of the decedent’s nonprobate transfers

to others is so applied that liability for the unsatisfied balance of the elective-share or

supplemental elective-share amount is apportioned among the recipients of the remaining portion

of the decedent’s nonprobate transfers to others in proportion to the value of their interests

therein.

(e) [Unsatisfied Balance Treated as General Pecuniary Devise.] The unsatisfied balance

of the elective-share or supplemental elective-share amount as determined under subsection (c)

or (d) is treated as a general pecuniary devise for purposes of Section 3-904.

Comment

Section 2-209 is an integral part of the overall redesign of the elective share. It
establishes the priority to be used in determining the sources from which the elective-share
amount is payable.

Subsection (a). Subsection (a) applies only to the elective-share amount determined
under Section 2-202(a), not to the supplemental elective-share amount determined under Section
2-202(b). Under subsection (a), the following are counted first toward satisfying the elective-
share amount (to the extent they are included in the augmented estate):

(1) amounts included in the augmented estate under Section 2-204 which pass or have
passed to the surviving spouse by testate or intestate succession and amounts included in the
augmented estate under Section 2-206, i.e., the value of the decedent’s nonprobate transfers to
the surviving spouse, including the proceeds of insurance (including accidental death benefits)
on the life of the decedent and benefits payable under a retirement plan in which the decedent

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was a participant, but excluding property passing under the Federal Social Security system; and

(2) the marital-property portion of amounts included in the augmented estate under
Section 2-207.

Under subsection (b), the marital-property portion of amounts included in the augmented
estate under Section 2-207 is computed by multiplying the value of the amounts included in the
augmented estate under Section 2-207 by the percentage of the augmented estate set forth in the
schedule in Section 2-203(b) appropriate to the length of time the spouse and the decedent were
married to each other.

If the combined value of the amounts described in subsection (a)(1) and (2) equals or
exceeds the elective-share amount, the surviving spouse is not entitled to any further amount
from the decedent’s probate estate or recipients of the decedent’s nonprobate transfers to others,
unless the surviving spouse is entitled to a supplemental elective-share amount under Section 2-
202(b).

Subsections (c) and (d). Subsections (c) and (d) apply to both the elective-share amount
and the supplemental elective-share amount, if any. As to the elective-share amount determined
under Section 2-202(a), the decedent’s probate estate and nonprobate transfers to others become
liable only if and to the extent that the amounts described in subsection (a) are insufficient to
satisfy the elective-share amount. The decedent’s probate estate and nonprobate transfers to
others are fully liable for the supplemental elective-share amount determined under Section 2-
202(b), if any.

Subsections (c) and (d) establish a layer of priority within the decedent’s net probate
estate (other than assets passing to the surviving spouse by testate or intestate succession) and
nonprobate transfers to others. The decedent’s probate estate and that portion of the decedent’s
nonprobate transfers to others that are included in the augmented estate under Section 2-205(1),
(2), and (3)(B) are liable first. Only if and to the extent that those amounts are insufficient does
the remaining portion of the decedent’s nonprobate transfers to others become liable.

Note that the exempt property and allowances provided by Sections 2-401, 2-402, and 2-
403 are not charged against, but are in addition to, the elective-share and supplemental elective-
share amounts.

The provision that the spouse is charged with amounts that would have passed to the
spouse but were disclaimed was deleted in 1993. That provision was introduced into the Code in
1975, prior to the addition of the QTIP provisions in the marital deduction of the federal estate
tax. At that time, most devises to the surviving spouse were outright devises and did not require
actuarial computation. Now, many if not most devises to the surviving spouse are in the form of
an income interest that qualifies for the marital deduction under the QTIP provisions, and these
devises require actuarial computations that should be avoided whenever possible.

The word “equitably” is eliminated from subsections (c) and (d) because it has caused
confusion about whether it grants discretion to the court to apportion liability for the unsatisfied

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balance among the recipients of the decedent’s net probate estate and of that portion of the
decedent’s nonprobate transfers to others in some proportion other than in proportion to the value
of their interests therein. The intent of including that word in the earlier version was merely to
describe the prescribed apportionment as “equitable,” not to grant authority to vary the
prescribed apportionment.

Historical Note. This Comment was revised in 1993 and 2008.

SECTION 2-210. PERSONAL LIABILITY OF RECIPIENTS.

(a) Only original recipients of the decedent’s nonprobate transfers to others, and the

donees of the recipients of the decedent’s nonprobate transfers to others, to the extent the donees

have the property or its proceeds, are liable to make a proportional contribution toward

satisfaction of the surviving spouse’s elective-share or supplemental elective-share amount. A

person liable to make contribution may choose to give up the proportional part of the decedent’s

nonprobate transfers to the person or to pay the value of the amount for which the person is

liable.

(b) If any section or part of any section of this [part] is preempted by federal law with

respect to a payment, an item of property, or any other benefit included in the decedent’s

nonprobate transfers to others, a person who, not for value, receives the payment, item of

property, or any other benefit is obligated to return the payment, item of property, or benefit, or

is personally liable for the amount of the payment or the value of that item of property or benefit,

as provided in Section 2-209, to the person who would have been entitled to it were that section

or part of that section not preempted.

Comment

Federal Preemption of State Law. See the Comment to Section 2-804 for a discussion
of federal preemption.

Historical Note. This Comment was added in 2014.

SECTION 2-211. PROCEEDING FOR ELECTIVE SHARE; TIME LIMIT.

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(a) Except as provided in subsection (b), the election must be made by filing in the court

and mailing or delivering to the personal representative, if any, a petition for the elective share

within nine months after the date of the decedent’s death, or within six months after the probate

of the decedent’s will, whichever limitation later expires. The surviving spouse must give notice

of the time and place set for hearing to persons interested in the estate and to the distributees and

recipients of portions of the augmented estate whose interests will be adversely affected by the

taking of the elective share. Except as provided in subsection (b), the decedent’s nonprobate

transfers to others are not included within the augmented estate for the purpose of computing the

elective share, if the petition is filed more than nine months after the decedent’s death.

(b) Within nine months after the decedent’s death, the surviving spouse may petition the

court for an extension of time for making an election. If, within nine months after the decedent’s

death, the spouse gives notice of the petition to all persons interested in the decedent’s

nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the

time for election. If the court grants the spouse’s petition for an extension, the decedent’s

nonprobate transfers to others are not excluded from the augmented estate for the purpose of

computing the elective-share and supplemental elective-share amounts, if the spouse makes an

election by filing in the court and mailing or delivering to the personal representative, if any, a

petition for the elective share within the time allowed by the extension.

(c) The surviving spouse may withdraw the spouse’s demand for an elective share at any

time before entry of a final determination by the court.

(d) After notice and hearing, the court shall determine the elective-share and

supplemental elective-share amounts, and shall order its payment from the assets of the

augmented estate or by contribution as appears appropriate under Sections 2-209 and 2-210. If it

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appears that a fund or property included in the augmented estate has not come into the possession

of the personal representative, or has been distributed by the personal representative, the court

nevertheless shall fix the liability of any person who has any interest in the fund or property or

who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained

against fewer than all persons against whom relief could be sought, but no person is subject to

contribution in any greater amount than the person would have been under Sections 2-209 and 2-

210 had relief been secured against all persons subject to contribution.

(e) An order or judgment of the court may be enforced as necessary in suit for

contribution or payment in other courts of this state or other jurisdictions.

Comment

This section is revised to coordinate the terminology with that used in revised Section 2-
205 and with the fact that an election can be made by a conservator, guardian, or agent on behalf
of a surviving spouse, as provided in Section 2-212(a).

Historical Note. This Comment was revised in 1993.

SECTION 2-212. RIGHT OF ELECTION PERSONAL TO SURVIVING

SPOUSE; INCAPACITATED SURVIVING SPOUSE.

(a) [Surviving Spouse Must Be Living at Time of Election.] The right of election may be

exercised only by a surviving spouse who is living when the petition for the elective share is

filed in the court under Section 2-211(a). If the election is not exercised by the surviving spouse

personally, it may be exercised on the surviving spouse’s behalf by his [or her] conservator,

guardian, or agent under the authority of a power of attorney.

Alternative A

(b) [Incapacitated Surviving Spouse.] If the election is exercised on behalf of a surviving

spouse who is an incapacitated person, that portion of the elective-share and supplemental

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elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s

nonprobate transfers to others under Section 2-209(c) and (d) must be placed in a custodial trust

for the benefit of the surviving spouse under the provisions of the [Enacting state] Uniform

Custodial Trust Act, except as modified below. For the purposes of this subsection, an election

on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be

on behalf of a surviving spouse who is an incapacitated person. For purposes of the custodial

trust established by this subsection, (i) the electing guardian, conservator, or agent is the

custodial trustee, (ii) the surviving spouse is the beneficiary, and (iii) the custodial trust is

deemed to have been created by the decedent spouse by written transfer that takes effect at the

decedent spouse’s death and that directs the custodial trustee to administer the custodial trust as

for an incapacitated beneficiary.

(c) [Custodial Trust.] For the purposes of subsection (b), the [Enacting state] Uniform

Custodial Trust Act must be applied as if Section 6(b) thereof were repealed and Sections 2(e),

9(b), and 17(a) were amended to read as follows:

(1) Neither an incapacitated beneficiary nor anyone acting on behalf of an

incapacitated beneficiary has a power to terminate the custodial trust; but if the beneficiary

regains capacity, the beneficiary then acquires the power to terminate the custodial trust by

delivering to the custodial trustee a writing signed by the beneficiary declaring the termination.

If not previously terminated, the custodial trust terminates on the death of the beneficiary.

(2) If the beneficiary is incapacitated, the custodial trustee shall expend so much

or all of the custodial trust property as the custodial trustee considers advisable for the use and

benefit of the beneficiary and individuals who were supported by the beneficiary when the

beneficiary became incapacitated, or who are legally entitled to support by the beneficiary.

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Expenditures may be made in the manner, when, and to the extent that the custodial trustee

determines suitable and proper, without court order but with regard to other support, income, and

property of the beneficiary [exclusive of] [and] benefits of medical or other forms of assistance

from any state or federal government or governmental agency for which the beneficiary must

qualify on the basis of need.

(3) Upon the beneficiary’s death, the custodial trustee shall transfer the

unexpended custodial trust property, in the following order: (i) under the residuary clause, if

any, of the will of the beneficiary’s predeceased spouse against whom the elective share was

taken, as if that predeceased spouse died immediately after the beneficiary; or (ii) to that

predeceased spouse’s heirs under Section 2-711 of [this state’s] Uniform Probate Code.

Alternative B

(b) [Incapacitated Surviving Spouse.] If the election is exercised on behalf of a surviving

spouse who is an incapacitated person, the court must set aside that portion of the elective-share

and supplemental elective-share amounts due from the decedent’s probate estate and recipients

of the decedent’s nonprobate transfers to others under Section 2-209(c) and (d) and must appoint

a trustee to administer that property for the support of the surviving spouse. For the purposes of

this subsection, an election on behalf of a surviving spouse by an agent under a durable power of

attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The

trustee must administer the trust in accordance with the following terms and such additional

terms as the court determines appropriate:

(1) Expenditures of income and principal may be made in the manner, when, and

to the extent that the trustee determines suitable and proper for the surviving spouse’s support,

without court order but with regard to other support, income, and property of the surviving

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spouse [exclusive of] [and] benefits of medical or other forms of assistance from any state or

federal government or governmental agency for which the surviving spouse must qualify on the

basis of need.

(2) During the surviving spouse’s incapacity, neither the surviving spouse nor

anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the

surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the

trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a

writing signed by the surviving spouse declaring the termination.

(3) Upon the surviving spouse’s death, the trustee shall transfer the unexpended

trust property in the following order: (i) under the residuary clause, if any, of the will of the

predeceased spouse against whom the elective share was taken, as if that predeceased spouse

died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under

Section 2-711.

End of Alternatives

Comment

Subsection (a). Subsection (a) is revised to make it clear that the right of election may
be exercised only by or on behalf of a living surviving spouse. If the election is not made by the
surviving spouse personally, it can be made on behalf of the surviving spouse by the spouse’s
conservator, guardian, or agent. In any case, the surviving spouse must be alive when the
election is made. The election cannot be made on behalf of a deceased surviving spouse.

Alternative A: Subsections (b) and (c). If the election is made on behalf of a surviving
spouse who is an “incapacitated person,” as defined in Section 5-103(7), that portion of the
elective-share and supplemental elective-share amounts which, under Section 2-209(c) and (d),
are payable from the decedent’s probate estate and nonprobate transfers to others must go into a
custodial trust under the Uniform Custodial Trust Act, as adjusted in subsection (c).

If the election is made on behalf of the surviving spouse by his or her guardian or
conservator, the surviving spouse is by definition an “incapacitated person.” If the election is
made by the surviving spouse’s agent under a durable power of attorney, the surviving spouse is
presumed to be an “incapacitated person”; the presumption is rebuttable.

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The terms of the custodial trust are governed by the Uniform Custodial Trust Act, except
as adjusted in subsection (c).

The custodial trustee is authorized to expend the custodial trust property for the use and
benefit of the surviving spouse to the extent the custodial trustee considers it advisable. In
determining the amounts, if any, to be expended for the spouse’s benefit, the custodial trustee is
directed to take into account the spouse’s other support, income, and property; these items would
include governmental benefits such as Social Security and Medicare.

Bracketed language in subsection (c)(2) (and in Alternative subsection (b)(1)) gives

enacting states a choice as to whether governmental benefits for which the spouse must qualify
on the basis of need, such as Medicaid, are also to be considered. If so, the enacting state should
include the bracketed word “and” but not the bracketed phrase “exclusive of” in its enactment; if
not, the enacting state should include the bracketed phrase “exclusive of” and not include the
bracketed word “and” in its enactment.

At the surviving spouse’s death, the remaining custodial trust property does not go to the
surviving spouse’s estate, but rather under the residuary clause of the will of the predeceased
spouse whose probate estate and nonprobate transfers to others were the source of the property in
the custodial trust, as if the predeceased spouse died immediately after the surviving spouse. In
the absence of a residuary clause, the property goes to the predeceased spouse’s heirs. See
Section 2-711.

Alternative B: Subsection (b). For states that have not enacted the Uniform Custodial
Trust Act, an Alternative subsection (b) is provided under which the court must set aside that
portion of the elective-share and supplemental elective-share amounts which, under Section 2-
209(c) and (d), are due from the decedent’s probate estate and nonprobate transfers to others and
must appoint a trustee to administer that property for the support of the surviving spouse, in
accordance with the terms set forth in Alternative subsection (b).

Planning for an Incapacitated Surviving Spouse Not Disrupted. Note that the portion
of the elective-share or supplemental elective-share amounts that go into the custodial or support
trust is that portion due from the decedent’s probate estate and nonprobate transfers to others
under Section 2-209(c) and (d). These amounts constitute the involuntary transfers to the
surviving spouse under the elective-share system.

Amounts voluntarily transferred to the surviving spouse under the decedent’s will, by
intestacy, or by nonprobate transfer, if any, do not go into the custodial or support trust. Thus,
estate planning measures deliberately established for a surviving spouse who is incapacitated are
not disrupted. For example, the decedent’s will might establish a trust that qualifies for or that
can be elected as qualifying for the federal estate tax marital deduction. Although the value of
the surviving spouse’s interests in such a trust count toward satisfying the elective-share amount
under Section 2-209(a)(1), the trust itself is not dismantled by virtue of Section 2-212(b) in order
to force that property into the nonqualifying custodial or support trust.

Rationale. The approach of this section is based on a general expectation that most

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surviving spouses are, at the least, generally aware of and accept their decedents’ overall estate
plans and are not antagonistic to them. Consequently, to elect the elective share, and not have
the disposition of that part of it that is payable from the decedent’s probate estate and nonprobate
transfers to others under Section 2-209(c) and (d) governed by subsections (b) and (c), the
surviving spouse must not be an incapacitated person. When the election is made by or on behalf
of a surviving spouse who is not an incapacitated person, the surviving spouse has personally
signified his or her opposition to the decedent’s overall estate plan.

If the election is made on behalf of a surviving spouse who is an incapacitated person,

subsections (b) and (c) control the disposition of that part of the elective-share amount or
supplemental elective-share amount payable under Section 2-209(c) and (d) from the decedent’s
probate estate and nonprobate transfers to others. The purpose of subsections (b) and (c),
generally speaking, is to assure that that part of the elective share is devoted to the personal
economic benefit and needs of the surviving spouse, but not to the economic benefit of the
surviving spouse’s heirs or devisees.

Historical Note. This comment was revised in 1993 and 2008.

SECTION 2-213. EFFECT OF PREMARITAL OR MARITAL AGREEMENT ON

RIGHT TO ELECT AND OTHER RIGHTS.

(a) In this section, “agreement” includes a subsequent agreement that affirms, modifies, or

waives an earlier agreement.

(b) The right of election of a surviving spouse and the rights of the surviving spouse to

homestead allowance, exempt property, and family allowance, or any of them, may be affirmed,

modified, or waived, only by a written agreement signed by the surviving spouse, before or after

marriage. The agreement is enforceable without consideration.

(c) An agreement under subsection (b) is not enforceable if the surviving spouse proves

that:

(1) the agreement was involuntary or the result of duress;

(2) the surviving spouse did not have access to independent legal representation

under subsection (d);

(3) unless the surviving spouse had independent legal representation when the

agreement was executed, the agreement did not include an explanation in plain language of the

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rights under subsection (b) being affirmed, modified, or waived; or

(4) before signing the agreement, the surviving spouse did not receive adequate

financial disclosure under subsection (e).

(d) A surviving spouse had access to independent legal representation if:

(1) before signing an agreement, the surviving spouse had a reasonable time to:

(A) decide whether to retain a lawyer to provide independent legal

representation; and

(B) locate a lawyer to provide independent legal representation, obtain the

lawyer’s advice, and consider the advice provided; and

(2) the other spouse was represented by a lawyer and the surviving spouse had the

financial ability to retain a lawyer or the other spouse agreed to pay the reasonable fees and

expenses of independent legal representation.

(e) A surviving spouse had adequate financial disclosure under this section if the

surviving spouse:

(1) received a reasonably accurate description and good-faith estimate of the

value of the property, liabilities, and income of the other spouse;

(2) expressly waived, in a separate signed record, the right to financial disclosure

beyond the disclosure provided; or

(3) had adequate knowledge or a reasonable basis for having adequate knowledge

of the information described in paragraph (1).

(f) A court may refuse to enforce a term of an agreement under subsection (b) if, in the

context of the agreement taken as a whole[:]

[(1)] the term was unconscionable at the time of signing[; or

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(2) enforcement of the term would result in substantial hardship for the surviving

spouse because of a material change in circumstances arising after the agreement was signed].

(g) An issue of unconscionability [or substantial hardship] of an agreement is for decision

by the court as a matter of law.

(h) Unless an agreement under subsection (b) provides to the contrary, a waiver of “all

rights,” or equivalent language, in the property or estate of a present or prospective spouse or a

complete property settlement entered into after or in anticipation of separation or divorce is a

waiver of all rights of elective share, homestead allowance, exempt property, and family

allowance by the spouse in the property of the other spouse and a renunciation of all benefits that

would otherwise pass to the renouncing spouse by intestate succession or by virtue of any will

executed before the waiver or property settlement.

Legislative Note: Subsection (b) places the burden of proof on the party challenging a
premarital or marital agreement affecting marital property rights at death. Amendments are
required if a state wants to place the burden of proof on a party seeking to enforce the
agreement.

If a state wants to permit review for “substantial hardship” at the time of enforcement,
the state should include the bracketed language in subsections (f) and (g).

Comment

This section incorporates the standards by which the validity of a premarital or marital
agreement is determined under the Uniform Premarital and Marital Agreements Act (UPMAA).
As stated in that act’s prefatory note, “[t]he general approach of [the UPMAA] is that parties
should be free, within broad limits, to choose the financial terms of their marriage. The limits are
those of due process in formation, on the one hand, and certain minimal standards of substantive
fairness, on the other.”

For examples of public policy constraints on the enforcement of the substantive terms of
premarital and marital agreements, see UPMAA Sections 9(e) and 10. This section does not
override those constraints, though they primarily concern rights at divorce rather than at death.

The Legislative Note on the burden of proof is explained as follows in the prefatory note
to the UPMAA: “[B]ecause a few states put the burden of proof on the party seeking
enforcement of marital (and, more rarely, premarital) agreements, a Legislative Note suggests

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[the need for] alternative language to reflect that burden of proof ” if a state so wishes.

The bracketed language in subsections (f) and (g) and the corresponding reference in the
Legislative Note are explained as follows in the prefatory note to the UPMAA: “Because a
significant minority of states authorizes some form of fairness review based on the parties’
circumstances at the time the agreement is to be enforced, a bracketed provision ... offers the
option of refusing enforcement based on a finding of substantial hardship at the time of
enforcement.” Extensive research by the drafting committee for the UPMAA located no
appellate authority applying this fairness review (at the time of enforcement) to a surviving
spouse’s rights at the first spouse’s death. Nevertheless, to be consistent with the language of the
UPMAA, the bracketed language is included in this section.

Effect of Premarital Agreement or Waiver on ERISA Benefits. As amended in 1984

by the Retirement Equity Act, ERISA requires each employee benefit plan subject to its
provisions to provide that an election of a waiver shall not take effect unless

(1) the spouse of the participant consents in writing to such election,

(2) such election designates a beneficiary (or form of benefits) which may not be changed
without spousal consent (or the consent of the spouse expressly permits designation by the
participant without any requirement of further consent by the spouse), and

(3) the spouse’s consent acknowledges the effect of such election and is witnessed by a
plan representative or a notary public.

See 29 U.S.C. § 1055(c); Int. Rev. Code § 417(a). See also Robins v. Geisel, 666
F.Supp.2d 463 (D. N.J. 2009) (waiver in premarital agreement did not qualify as a waiver under
ERISA); Strong v. Dubin, 901 N.Y.S.2d 214 (N.Y. App. Div. 2010) (waiver in premarital
agreement conformed with ERISA’s requirements and was held enforceable).

In Hurwitz v. Sher, 982 F.2d 778 (2d Cir.1992), the court held that a premarital
agreement was not an effective waiver of a wife’s claims to spousal death benefits under a
qualified profit sharing plan in which the deceased husband was the sole participant. The
premarital agreement provided, in part, that “each party hereby waives and releases to the other
party and to the other party’s heirs, executor, administrators and assigns any and all rights and
causes of action which may arise by reason of the marriage between the parties...with respect to
any property, real or personal, tangible or intangible...now owned or hereafter acquired by the
other party, as fully as though the parties had never married....” The court held that the premarital
agreement was not an effective waiver because it “did not designate a beneficiary and did not
acknowledge the effect of the waiver as required by ERISA.” 982 F.2d at 781. Although the
district court had held that the premarital agreement was also ineffective because the wife was
not married to the participant when she signed the agreement, the Second Circuit “reserve[d]
judgment on whether the [premarital] agreement might have operated as an effective waiver if its
only deficiency were that it had been entered into before marriage.” Id. at 781 n. 3. The court
did, however, quote Treas. Reg. § 1.401(a)-20 (1991), which specifically states that “an
agreement entered into prior to marriage does not satisfy the applicable consent requirements....”

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Id. at 782.

Cross Reference. See also Section 2-208 and Comment.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

2016 Amendment. This section was amended in 2016 to conform it with the Uniform
Premarital and Marital Agreements Act.

Historical Note. This Comment was revised in 1993, 2002, and 2016.

SECTION 2-214. PROTECTION OF PAYORS AND OTHER THIRD PARTIES.

(a) Although under Section 2-205 a payment, item of property, or other benefit is

included in the decedent’s nonprobate transfers to others, a payor or other third party is not liable

for having made a payment or transferred an item of property or other benefit to a beneficiary

designated in a governing instrument, or for having taken any other action in good faith reliance

on the validity of a governing instrument, upon request and satisfactory proof of the decedent’s

death, before the payor or other third party received written notice from the surviving spouse or

spouse’s representative of an intention to file a petition for the elective share or that a petition for

the elective share has been filed. A payor or other third party is liable for payments made or

other actions taken after the payor or other third party received written notice of an intention to

file a petition for the elective share or that a petition for the elective share has been filed.

(b) A written notice of intention to file a petition for the elective share or that a petition

for the elective share has been filed must be mailed to the payor’s or other third party’s main

office or home by registered or certified mail, return receipt requested, or served upon the payor

or other third party in the same manner as a summons in a civil action. Upon receipt of written

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notice of intention to file a petition for the elective share or that a petition for the elective share

has been filed, a payor or other third party may pay any amount owed or transfer or deposit any

item of property held by it to or with the court having jurisdiction of the probate proceedings

relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court

having jurisdiction of probate proceedings relating to decedents’ estates located in the county of

the decedent’s residence. The court shall hold the funds or item of property, and, upon its

determination under Section 2-211(d), shall order disbursement in accordance with the

determination. If no petition is filed in the court within the specified time under Section 2-211(a)

or, if filed, the demand for an elective share is withdrawn under Section 2-211(c), the court shall

order disbursement to the designated beneficiary. Payments or transfers to the court or deposits

made into court discharge the payor or other third party from all claims for amounts so paid or

the value of property so transferred or deposited.

(c) Upon petition to the probate court by the beneficiary designated in a governing

instrument, the court may order that all or part of the property be paid to the beneficiary in an

amount and subject to conditions consistent with this [part].

Comment

This section provides protection to “payors” and other third parties who made payments
or took any other action before receiving written notice of the spouse’s intention to make an
election under this part or that an election has been made. The term “payor” is defined in
Section 1-201 as meaning “a trustee, insurer, business entity, employer, government,
governmental agency or subdivision, or any other person authorized or obligated by law or a
governing instrument to make payments.”

Historical Note. Although this Comment was added in 1993, the substance of the
Comment previously appeared as the last paragraph of the Comment to Section 2-202, 8 U.L.A.
92, 93 (Supp.1992).

PART 3. SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS

SECTION 2-301. ENTITLEMENT OF SPOUSE; PREMARITAL WILL.

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(a) If a testator’s surviving spouse married the testator after the testator executed the

testator’s will, the surviving spouse is entitled to receive, as an intestate share, no less than the

value of the share of the estate the spouse would have received if the testator had died intestate as

to that portion of the testator’s estate, if any, that neither is devised to a child of the testator who

was born before the testator married the surviving spouse and who is not a child of the surviving

spouse nor is devised to a descendant of such a child or passes under Sections 2-603 or 2-604 to

such a child or to a descendant of such a child, unless:

(1) it appears from the will or other evidence that the will was made in

contemplation of the testator’s marriage to the surviving spouse;

(2) the will expresses the intention that it is to be effective notwithstanding any

subsequent marriage; or

(3) the testator provided for the spouse by transfer outside the will and the intent

that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is

reasonably inferred from the amount of the transfer or other evidence.

(b) In satisfying the share provided by this section, devises made by the will to the

testator’s surviving spouse, if any, are applied first, and other devises, other than a devise to a

child of the testator who was born before the testator married the surviving spouse and who is

not a child of the surviving spouse or a devise or substitute gift under Section 2-603 or 2-604 to a

descendant of such a child, abate as provided in Section 3-902.

Comment

Purpose and Scope of the Revisions. This section applies only to a premarital will, a
will executed prior to the testator’s marriage to his or her surviving spouse. If the decedent and
the surviving spouse were married to each other more than once, a premarital will is a will
executed by the decedent at any time when they were not married to each other but not a will
executed during a prior marriage. This section reflects the view that the intestate share of the
spouse in that portion of the testator’s estate not devised to certain of the testator’s children,

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under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass
to their descendants under the antilapse statute) is what the testator would want the spouse to
have if he or she had thought about the relationship of his or her old will to the new situation.

Under this section, a surviving spouse who married the testator after the testator executed
his or her will may be entitled to a certain minimum amount of the testator’s estate. The
surviving spouse’s entitlement under this section, if any, is granted automatically; it need not be
elected. If the surviving spouse exercises his or her right to take an elective share, amounts
provided under this section count toward making up the elective-share amount by virtue of the
language in subsection (a) stating that the amount provided by this section is treated as “an
intestate share.” Under Section 2-209(a)(1), amounts passing to the surviving spouse by intestate
succession count first toward making up the spouse’s elective-share amount.

Subsection (a). Subsection (a) is revised to make it clear that a surviving spouse who, by
a premarital will, is devised, under trust or not, less than the share of the testator’s estate he or
she would have received had the testator died intestate as to that part of the estate, if any, not
devised to certain of the testator’s children, under trust or not, (or that is not devised to their
descendants, under trust or not, or does not pass to their descendants under the antilapse statute)
is entitled to be brought up to that share. Subsection (a) was amended in 1993 to make it clear
that any lapsed devise that passes under Section 2-604 to a child of the testator by a prior
marriage, rather than only to a descendant of such a child, is covered.

Example. G’s will devised the residue of his estate “to my two children, A and B, in
equal shares.” A and B are children of G’s prior marriage. G is survived by A and by G’s new
spouse, X. B predeceases G, without leaving any descendants who survived G by 120 hours.
Under Section 2-604, B’s half of the residue passes to G’s child, A. A is a child of the testator’s
prior marriage but not a descendant of B. X’s right under Section 2-301 are to take an intestate
share in that portion of G’s estate not covered by the residuary clause.

The pre-1990 version of Section 2-301 was titled “Omitted Spouse,” and the section used
phrases such as “fails to provide” and “omitted spouse.” The implication of the title and these
phrases was that the section was inapplicable if the person the decedent later married was a
devisee in his or her premarital will. It was clear, however, from the underlying purpose of the
section that this was not intended. The courts recognized this and refused to interpret the section
that way, but in doing so they have been forced to say that a premarital will containing a devise
to the person to whom the testator was married at death could still be found to “fail to provide”
for the survivor in the survivor’s capacity as spouse. See Estate of Christensen, 665 P.2d 646
(Utah 1982); Estate of Ganier, 418 So.2d 256 (Fla.1982); Note, “The Problem of the ‘Un-
omitted’ Spouse Under Section 2-301 of the [Pre-1990] Uniform Probate Code,” 52 U. Chi. L.
Rev. 481 (1985). By making the existence and amount of a premarital devise to the spouse
irrelevant, the revisions of subsection (a) make the operation of the statute more purposive.

Subsection (a)(1), (2), and (3) Exceptions. The moving party has the burden of proof
on the exceptions contained in subsections (a)(1), (2), and (3). For a case interpreting the
language of subsection (a)(3), see Estate of Bartell, 776 P.2d 885 (Utah 1989). This section can
be barred by a premarital agreement, marital agreement, or waiver as provided in Section 2-213.

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Subsection (b). Subsection (b) is also revised to provide that the value of any premarital
devise to the surviving spouse, equitable or legal, is used first to satisfy the spouse’s entitlement
under this section, before any other devises suffer abatement. This revision is made necessary by
the revision of subsection (a): If the existence or amount of a premarital devise to the surviving
spouse is irrelevant, any such devise must be counted toward and not be in addition to the
ultimate share to which the spouse is entitled. Normally, a devise in favor of the person whom
the testator later marries will be a specific or general devise, not a residuary devise. The effect
under the pre-1990 version of subsection (b) was that the surviving spouse could take the
intestate share under Section 2-301, which in the pre-1990 version was satisfied out of the
residue (under the rules of abatement in Section 3-902), plus the devise in his or her favor. The
revision of subsection (b) prevents this “double dipping,” so to speak.

Reference. The theory of this section is discussed in Waggoner, “Spousal Rights in Our
Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J.
683, 748-51 (1992).

Historical Note. This comment was revised in 1993. For the prior version, see 8 U.L.A.
101 (Supp. 1992).

SECTION 2-302. OMITTED CHILD.

(a) [Parent-Child Relationship Established After Execution of Will.] Except as

provided in subsection (b), if a testator becomes a parent of a child after the execution of the

testator’s will and fails to provide in the will for the child, the omitted child receives a share in

the estate as follows:

(1) If the testator had no child living when the testator executed the will, the

omitted child receives a share in the estate equal in value to that which the child would have

received had the testator died intestate, unless the will devised all or substantially all of the estate

to another parent of the omitted child and that parent survives the testator and is entitled to take

under the will.

(2) If the testator had one or more children living when the testator executed the

will, and the will devised property or an interest in property to one or more of the then-living

children, the omitted child is entitled to share in the testator’s estate as follows:

(A) The portion of the testator’s estate in which the omitted child is

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entitled to share is limited to devises made to the testator’s then-living children under the will.

(B) The omitted child is entitled to receive the share of the testator’s

estate, as limited in subparagraph (A), that the child would have received had the testator

included all omitted children with the children to whom devises were made under the will and

had given an equal share of the estate to each child.

(C) To the extent feasible, the interest granted the omitted child under this

section must be of the same character, whether equitable or legal, present or future, as that

devised to the testator’s then-living children under the will.

(D) In the satisfaction of a share provided by this paragraph, devises to the

testator’s children who were living when the will was executed abate ratably. In abating the

devises of the then-living children, the court shall preserve to the maximum extent possible the

character of the testamentary plan adopted by the testator.

(b) [Intentional Omission of Child; Provision for Child Outside Will.] Neither

subsection (a)(1) nor subsection (a)(2) applies if:

(1) it appears from the will that the omission was intentional; or

(2) the testator provided for the omitted child by transfer outside the will and the

intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements

or is reasonably inferred from the amount of the transfer or other evidence.

(c) [Omission of Child Believed Dead.] If at the time of execution of the will the testator

fails to provide in the will for a living child solely because the testator believes the child to be

dead, the child is entitled to share in the estate as if the child were an omitted child.

(d) [Abatement.] In the satisfaction of a share provided by subsection (a)(1), devises

made by the will abate under Section 3-902.

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Comment

This section provides for both the case where a child was born or adopted after the
execution of the will and not foreseen at the time and thus not provided for in the will, and the
rare case where a testator omits a child because of the mistaken belief that the child is dead. For
the purpose of this section, the term “child” refers to a child who would take under a class gift
created in the testator’s will. See Section 2-705.

Basic Purposes and Scope of 1990 Revisions. This section was substantially revised in
1990. The revisions had two basic objectives. The first was to provide that a will that devised,
under trust or not, all or substantially all of the testator’s estate to the other parent of the omitted
child prevents an after-born or after-adopted child from taking an intestate share if none of the
testator’s children was living when the testator executed the will. (Under this rule, the other
parent must survive the testator and be entitled to take under the will.)

Under the pre-1990 Code, such a will prevented the omitted child’s entitlement only if
the testator had one or more children living when the testator executed the will. The rationale for
the revised rule is found in the empirical evidence (cited in the Comment to Section 2-102) that
suggests that even testators with children tend to devise their entire estates to their surviving
spouses, especially in smaller estates. The testator’s purpose is not to disinherit the children;
rather, such a will evidences a purpose to trust the surviving parent to use the property for the
benefit of the children, as appropriate. This attitude of trust of the surviving parent carries over to
the case where none of the children have been born when the will is executed.

The second basic objective of the 1990 revisions was to provide that if the testator had
children when the testator executed the will, and if the will made provision for one or more of
the then-living children, an omitted after-born or after-adopted child does not take a full intestate
share (which might be substantially larger or substantially smaller than given to the living
children). Rather, the omitted after-born or after-adopted child participates on a pro rata basis in
the property devised, under trust or not, to the then-living children.

A more detailed description of the rules as revised in 1990 follows.

No Child Living When Will Executed. If the testator had no child living when the
testator executed the will, subsection (a)(1) provided that an omitted after-born or after-adopted
child receives the share the child would have received had the testator died intestate, unless the
will devised, under trust or not, all or substantially all of the estate to the other parent of the
omitted child. If the will did devise, under trust or not, all or substantially all of the estate to the
other parent of the omitted child, and if that other parent survives the testator and is entitled to
take under the will, the omitted after-born or after-adopted child receives no share of the estate.
In the case of an after-adopted child, the term “other parent” refers to the other adopting parent.
(The other parent of the omitted child might survive the testator, but not be entitled to take under
the will because, for example, that devise, under trust or not, to the other parent was revoked
under Section 2-803 or 2-804.)

One or More Children Living When Will Executed. If the testator had one or more

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children living when the will was executed, subsection (a)(2), which implements the second
basic objective stated above, provided that an omitted after-born or after-adopted child only
receives a share of the testator’s estate if the testator’s will devised property or an equitable or
legal interest in property to one or more of the children living at the time the will was executed;
if not, the omitted after-born or after-adopted child receives nothing.

Subsection (a)(2) is modeled on N.Y. Est. Powers & Trusts Law § 5-3.2. Subsection
(a)(2) is illustrated by the following example.

Example. When G executed her will, she had two living children, A and B. Her will
devised $7,500 to each child. After G executed her will, she had another child, C.

C is entitled to $5,000. $2,500 (1/3 of $7,500) of C’s entitlement comes from A’s $7,500
devise (reducing it to $5,000); and $2,500 (1/3 of $7,500) comes from B’s $7,500 devise
(reducing it to $5,000).

Variation. If G’s will had devised $10,000 to A and $5,000 to B, C would be entitled to
$5,000. $3,333 (1/3 of $10,000) of C’s entitlement comes from A’s $10,000 devise (reducing it
to $6,667); and $1,667 (1/3 of $5,000) comes from B’s $5,000 devise (reducing it to $3,333).

Subsection (b) Exceptions. To preclude operation of subsection (a)(1) or (2), the

testator’s will need not make any provision, even nominal in amount, for a testator’s present or
future children; under subsection (b)(1), a simple recital in the will that the testator intends to
make no provision for then living children or any the testator thereafter may have would be
sufficient.

For a case applying the language of subsection (b)(2), in the context of the omitted
spouse provision, see Estate of Bartell, 776 P.2d 885 (Utah 1989).

The moving party has the burden of proof on the elements of subsections (b)(1) and (2).

Subsection (c). Subsection (c) addresses the problem that arises if at the time of
execution of the will the testator fails to provide in the will for a living child solely because the
testator believes the child to be dead. Extrinsic evidence is admissible to determine whether the
testator omitted the living child solely because the testator believed the child to be dead. Cf.
Section 2-601, Comment. If the child was omitted solely because of that belief, the child is
entitled to share in the estate as if the child were an omitted after-born or after-adopted child.

Abatement Under Subsection (d). Under subsection (d) and Section 3-902, any intestate
estate would first be applied to satisfy the intestate share of an omitted after-born or after-
adopted child under subsection (a)(1).

2019 Revisions. This section was revised in 2019 to eliminate gendered terms and to
provide for the possibility that the omitted child may have more than two parents—for example,
the reference in the prior version of Subsection (a)(1) to “the other parent” is now “another
parent”.

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Historical Note. This Comment was revised in 1993, 2010, and 2019.

PART 4. EXEMPT PROPERTY AND ALLOWANCES

GENERAL COMMENT

For decedents who die domiciled in this state, this part grants various allowances to the
decedent’s surviving spouse and certain children. The allowances have priority over unsecured
creditors of the estate and persons to whom the estate may be devised by will. If there is a
surviving spouse, all of the allowances described in this part, which (as revised to adjust for
inflation) total $25,000, plus whatever is allowed to the spouse for support during administration,
normally pass to the spouse. If the surviving spouse and minor or dependent children live apart
from one another, the minor or dependent children may receive some of the support allowance.
If there is no surviving spouse, minor or dependent children become entitled to the homestead
exemption of $15,000 and to support allowances. The exempt property section confers rights on
the spouse, if any, or on all children, to $10,000 in certain chattels, or funds if the unencumbered
value of chattels is below the $10,000 level. This provision is designed in part to relieve a
personal representative of the duty to sell household chattels when there are children who will
have them.

These family protection provisions supply the basis for the important small estate
provisions of Article III, Part 12.

States adopting the Code may see fit to alter the dollar amounts suggested in these
sections, or to vary the terms and conditions in other ways so as to accommodate existing
traditions. Although creditors of estates would be aided somewhat if all family exemption
provisions relating to probate estates were the same throughout the country, there is probably
less need for uniformity of law regarding these provisions than for any of the other parts of this
article. Still, it is quite important for all states to limit their homestead, support allowance and
exempt property provisions, if any, so that they apply only to estates of decedents who were
domiciliaries of the state.

Cross Reference. Notice that under Section 2-104 a spouse or child claiming under this
part must survive the decedent by 120 hours.

SECTION 2-401. APPLICABLE LAW. This [part] applies to the estate of a decedent

who dies domiciled in this state. Rights to homestead allowance, exempt property, and family

allowance for a decedent who dies not domiciled in this state are governed by the law of the

decedent’s domicile at death.

SECTION 2-402. HOMESTEAD ALLOWANCE. A decedent’s surviving spouse is

entitled to a homestead allowance of [$22,500]. If there is no surviving spouse, each minor child

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and each dependent child of the decedent is entitled to a homestead allowance amounting to

[$22,500] divided by the number of minor and dependent children of the decedent. The

homestead allowance is exempt from and has priority over all claims against the estate.

Homestead allowance is in addition to any share passing to the surviving spouse or minor or

dependent child by the will of the decedent, unless otherwise provided, by intestate succession,

or by way of elective share.

Comment

As originally adopted in 1969, the bracketed dollar amount was $5,000. To adjust for
inflation, the bracketed amount was increased to $15,000 in 1990 and to $22,500 in 2008. The
dollar amount in this section is subject to annual cost-of-living adjustments under Section 1-109.

See Section 2-802 for the definition of “spouse,” which controls in this part. Also, see
Section 2-104. Waiver of homestead is covered by Section 2-213. “Election” between a
provision of a will and homestead is not required unless the will so provides.

A set dollar amount for homestead allowance was dictated by the desirability of having a
certain level below which administration may be dispensed with or be handled summarily,
without regard to the size of allowances under Section 2-404. The “small estate” line is
controlled largely, though not entirely, by the size of the homestead allowance. This is because
Part 12 of Article III dealing with small estates rests on the assumption that the only justification
for keeping a decedent’s assets from his creditors is to benefit the decedent’s spouse and
children.

Another reason for a set amount is related to the fact that homestead allowance may
prefer a decedent’s minor or dependent children over his or her other children. It was felt
desirable to minimize the consequence of application of an arbitrary age line among children of
the decedent.

Historical Note. This Comment was revised in 2008.

[SECTION 2-402A. CONSTITUTIONAL HOMESTEAD.

The value of any constitutional right of homestead in the family home received by a

surviving spouse or child must be charged against the spouse or child’s homestead allowance to

the extent the family home is part of the decedent’s estate or would have been but for the

homestead provision of the constitution.]

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Comment

This optional section is designed for adoption only in states with a constitutional
homestead provision. The value of the surviving spouse’s constitutional right of homestead may
be considerably less than the full value of the family home if the constitution gives him or her
only a terminable life estate enjoyable in common with minor children.

SECTION 2-403. EXEMPT PROPERTY. In addition to the homestead allowance,

the decedent’s surviving spouse is entitled from the estate to a value, not exceeding $15,000 in

excess of any security interests therein, in household furniture, automobiles, furnishings,

appliances, and personal effects. If there is no surviving spouse, the decedent’s children are

entitled jointly to the same value. If encumbered chattels are selected and the value in excess of

security interests, plus that of other exempt property, is less than $15,000, or if there is not

$15,000 worth of exempt property in the estate, the spouse or children are entitled to other assets

of the estate, if any, to the extent necessary to make up the $15,000 value. Rights to exempt

property and assets needed to make up a deficiency of exempt property have priority over all

claims against the estate, but the right to any assets to make up a deficiency of exempt property

abates as necessary to permit earlier payment of homestead allowance and family allowance.

These rights are in addition to any benefit or share passing to the surviving spouse or children by

the decedent’s will, unless otherwise provided, by intestate succession, or by way of elective

share.

Comment

As originally adopted in 1969, the dollar amount exempted was set at $3,500. To adjust
for inflation, the amount was increased to $10,000 in 1990 and to $15,000 in 2008. The dollar
amount in this section is subject to annual cost-of-living adjustments under Section 1-109.

Unlike the exempt amount described in Sections 2-402 and 2-404, the exempt amount
described in this section is available in a case in which the decedent left no spouse but left only
adult children. The provision in this section that establishes priorities is required because of
possible difference between beneficiaries of the exemptions described in this section and those
described in Sections 2-402 and 2-404.

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Section 2-213 covers waiver of exempt property rights. This section indicates that a
decedent’s will may put a spouse to an election with reference to exemptions, but that no election
is presumed to be required.

Historical Note. This Comment was revised in 2008.

SECTION 2-404. FAMILY ALLOWANCE.

(a) In addition to the right to homestead allowance and exempt property, the decedent’s

surviving spouse and minor children whom the decedent was obligated to support and children

who were in fact being supported by the decedent are entitled to a reasonable allowance in

money out of the estate for their maintenance during the period of administration, which

allowance may not continue for longer than one year if the estate is inadequate to discharge

allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is

payable to the surviving spouse, if living, for the use of the surviving spouse and minor and

dependent children or for the sole use of the surviving spouse if there are no minor or dependent

children; otherwise to the children, or persons having their care and custody. If a minor child or

dependent child is not living with the surviving spouse, the allowance may be made partially to

the child or the child’s guardian or other person having the child’s care and custody, and partially

to the spouse, as their needs may appear. The family allowance is exempt from and has priority

over all claims except the homestead allowance.

(b) The family allowance is not chargeable against any benefit or share passing to the

surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate

succession, or by way of elective share. The death of any person entitled to family allowance

terminates the right to allowances not yet paid.

Comment

The allowance provided by this section does not qualify for the marital deduction under
the federal estate tax because the interest is a non-deductible terminable interest. A broad code

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must be drafted to provide the best possible protection for the family in all cases, even though
this may not provide desired tax advantages for certain larger estates. In the estates falling in the
federal estate tax bracket where careful planning may be expected, it is important to the
operation of formula clauses that the family allowance be clearly deductible or clearly
nondeductible. With the section clearly creating a non-deductible interest, estate planners can
create a plan that will operate with certainty. Finally, in order to facilitate administration of this
allowance without court supervision it is necessary to provide a fairly simple and definite
framework.

In determining the amount of the family allowance, account should be taken of both the
previous standard of living and the nature of other resources available to the family to meet
current living expenses until the estate can be administered and assets distributed. While the
death of the principal income producer may necessitate some change in the standard of living,
there must also be a period of adjustment. If the surviving spouse has a substantial income, this
may be taken into account. Whether life insurance proceeds payable in a lump sum or periodic
installments were intended by the decedent to be used for the period of adjustment or to be
conserved as capital may be considered. A living trust may provide the needed income without
resorting to the probate estate.

Obviously, need is relative to the circumstances, and what is reasonable must be decided
on the basis of the facts of each individual case. Note, however, that under the next section the
personal representative may not determine an allowance of more than $2,250 per month for one
year; a court order would be necessary if a greater allowance is reasonably necessary.

Historical Note. This Comment was revised in 2010 to reflect the increase in the amount
of the allowance. Subsection (a) was amended in 2021 to clarify that a surviving spouse is
entitled to a family allowance even if there are no minor or dependent children.

SECTION 2-405. SOURCE, DETERMINATION, AND DOCUMENTATION.

(a) If the estate is otherwise sufficient, property specifically devised may not be used to

satisfy rights to homestead allowance or exempt property. Subject to this restriction, the

surviving spouse, guardians of minor children, or children who are adults may select property of

the estate as homestead allowance and exempt property. The personal representative may make

those selections if the surviving spouse, the children, or the guardians of the minor children are

unable or fail to do so within a reasonable time or there is no guardian of a minor child. The

personal representative may execute an instrument or deed of distribution to establish the

ownership of property taken as homestead allowance or exempt property. The personal

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representative may determine the family allowance in a lump sum not exceeding $27,000 or

periodic installments not exceeding $2,250 per month for one year, and may disburse funds of

the estate in payment of the family allowance and any part of the homestead allowance payable

in cash. The personal representative or an interested person aggrieved by any selection,

determination, payment, proposed payment, or failure to act under this section may petition the

court for appropriate relief, which may include a family allowance other than that which the

personal representative determined or could have determined.

(b) If the right to an elective share is exercised on behalf of a surviving spouse who is an

incapacitated person, the personal representative may add any unexpended portions payable

under the homestead allowance, exempt property, and family allowance to the trust established

under Section 2-212(b).

Comment

Scope and Purpose of 1990 Revision. As originally adopted in 1969, the maximum
family allowance the personal representative was authorized to determine without court order
was a lump sum of $6,000 or periodic installments of $500 per month for one year. To adjust for
inflation, the amounts were increased in 1990 to $18,000 and $1,500 respectively and in 2008 to
$22,500 and $2,250. The dollar amount in this section is subject to annual cost-of-living
adjustments under Section 1-109.

A new subsection (b) was added to provide for the case where the right to an elective
share is exercised on behalf of a surviving spouse who is an incapacitated person. In that case,
the personal representative is authorized to add any unexpended portions under the homestead
allowance, exempt property, and family allowance to the custodial trust established by Section 2-
212(b).

If Domiciliary Assets Insufficient. Note that a domiciliary personal representative can

collect against out of state assets if domiciliary assets are insufficient.

Cross References. See Sections 3-902, 3-906 and 3-907.

Historical Note. This comment was revised in 1993 and 2008.

PART 5. WILLS, WILL CONTRACTS, AND CUSTODY AND DEPOSIT OF WILLS

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GENERAL COMMENT

Part 5 of Article II was retitled in 1990 to reflect the fact that it now includes the
provisions on will contracts (pre-1990 Section 2-701) and on custody and deposit of wills (pre-
1990 Sections 2-901 and 2-902).

Part 5 deals with capacity and formalities for execution and revocation of wills. The
basic intent of the pre-1990 sections was to validate wills whenever possible. To that end, the
minimum age for making wills was lowered to eighteen, formalities for a written and attested
will were reduced, holographic wills written and signed by the testator were authorized, choice
of law as to validity of execution was broadened, and revocation by operation of law was limited
to divorce or annulment. In addition, the statute also provided for an optional method of
execution with acknowledgment before a public officer (the self-proved will).

These measures have been retained, and the purpose of validating wills whenever
possible has been strengthened by the addition of a new section, Section 2-503, which allows a
will to be upheld despite a harmless error in its execution.

SECTION 2-501. WHO MAY MAKE WILL. An individual 18 or more years of age

who is of sound mind may make a will.

Comment

This section states a uniform minimum age of eighteen for capacity to execute a will.
“Minor” is defined in Section 1-201, and may involve an age different from that prescribed here.

SECTION 2-502. EXECUTION; WITNESSED OR NOTARIZED WILLS;

HOLOGRAPHIC WILLS.

(a) [Witnessed or Notarized Wills.] Except as otherwise provided in subsection (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

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paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will;

or

(B) acknowledged by the testator before a notary public or other

individual authorized by law to take acknowledgements.

(b) [Holographic Wills.] A will that does not comply with subsection (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 the testator’s will can be

established by extrinsic evidence, including, for holographic wills, portions of the document that

are not in the testator’s handwriting.

Comment

Subsection (a): Witnessed or Notarized Wills. Three formalities for execution of a

witnessed or notarized will are imposed. Subsection (a)(1) requires the will to be in writing.
Any reasonably permanent record is sufficient. See Restatement (Third) of Property: Wills and
Other Donative Transfers § 3.1 cmt. i (1999).

Under subsection (a)(2), the testator must sign the will or some other individual must sign
the testator’s name in the testator’s presence and by the testator’s direction. If the latter
procedure is followed, and someone else signs the testator’s name, the so-called “conscious
presence” test is codified, under which a signing is sufficient if it was done in the testator’s
conscious presence, i.e., within the range of the testator’s senses such as hearing; the signing
need not have occurred within the testator’s line of sight. For application of the “conscious-
presence” test, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1
cmt. n (1999); Cunningham v. Cunningham, 80 Minn. 180, 83 N.W. 58 (1900) (conscious-
presence requirement held satisfied where “the signing was within the sound of the testator’s
voice; he knew what was being done....”); Healy v. Bartless, 73 N.H. 110, 59 A. 617 (1904)
(individuals are in the decedent’s conscious presence “whenever they are so near at hand that he
is conscious of where they are and of what they are doing, through any of his senses, and where
he can readily see them if he is so disposed.”); Demaris’ Estate, 166 Or. 36, 110 P.2d 571
(1941) (“[W]e do not believe that sight is the only test of presence. We are convinced that any of
the senses that a testator possesses, which enable him to know whether another is near at hand
and what he is doing, may be employed by him in determining whether [an individual is] in his
[conscious] presence....”).

Signing may be by mark, nickname, or initials, subject to the general rules relating to that

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which constitutes a “signature”. See Restatement (Third) of Property: Wills and Other Donative
Transfers § 3.1 cmt. j (1999). There is no requirement that the testator “publish” the document
as his or her will, or that he or she request the witnesses to sign, or that the witnesses sign in the
presence of the testator or of each other. The testator may sign the will outside the presence of
the witnesses, if he or she later acknowledges to the witnesses that the signature is his or hers (or
that his or her name was signed by another) or that the document is his or her will. An
acknowledgment need not be expressly stated, but can be inferred from the testator’s conduct.
Norton v. Georgia Railroad Bank & Tr. Co., 248 Ga. 847, 285 S.E.2d 910 (1982).

There is no requirement that the testator’s signature be at the end of the will; thus, if the
testator writes his or her name in the body of the will and intends it to be his or her signature, the
statute is satisfied. See Restatement (Third) of Property: Wills and Other Donative Transfers §
3.1 cmts. j & k (1999).

Subsection (a)(3) requires that the will either be (A) signed by at least two individuals,
each of whom witnessed at least one of the following: (i) the signing of the will; (ii) the
testator’s acknowledgment of the signature; or (iii) the testator’s acknowledgment of the will; or
(B) acknowledged by the testator before a notary public or other individual authorized by law to
take acknowledgments. Subparagraph (B) was added in 2008 in order to recognize the validity
of notarized wills.

Under subsection (a)(3)(A), the witnesses must sign as witnesses (see, e.g., Mossler v.
Johnson, 565 S.W.2d 952 (Tex. Civ. App. 1978)), and must sign within a reasonable time after
having witnessed the testator’s act of signing or acknowledgment. There is, however, no
requirement that the witnesses sign before the testator’s death. In a particular case, the
reasonable-time requirement could be satisfied even if the witnesses sign after the testator’s
death.
Under subsection (a)(3)(B), a will, whether or not it is properly witnessed under
subsection (a)(3)(A), can be acknowledged by the testator before a notary public or other
individual authorized by law to take acknowledgments. Note that a signature guarantee is not an
acknowledgment before a notary public or other person authorized by law to take
acknowledgments. The signature guarantee program, which is regulated by federal law, is
designed to facilitate transactions relating to securities. See 17 C.F.R. § 240.17Ad-15.

Allowing notarized wills as an optional method of execution addresses cases that have
begun to emerge in which the supervising attorney, with the client and all witnesses present,
circulates one or more estate-planning documents for signature, and fails to notice that the client
or one of the witnesses has unintentionally neglected to sign one of the documents. See, e.g.,
Dalk v. Allen, 774 So.2d 787 (Fla. Dist. Ct. App. 2000); Sisson v. Park Street Baptist Church, 24
E.T.R.2d 18 (Ont. Gen. Div. 1998). This often, but not always, arises when the attorney prepares
multiple estate-planning documents – a will, a durable power of attorney, a health-care power of
attorney, and perhaps a revocable trust. It is common practice, and sometimes required by state
law, that the documents other than the will be notarized. It would reduce confusion and chance
for error if all of these documents could be executed with the same formality.

In addition, lay people (and, sad to say, some lawyers) think that a will is valid if

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notarized, which is not true under non-UPC law. See, e.g., Estate of Saueressig, 136 P.3d 201
(Cal. 2006). In re Estate of Hall, 51 P.3d 1134 (Mont. 2002), a notarized but otherwise
unwitnessed will was upheld, but not under the pre-2008 version of Section 2-502, which did not
authorize notarized wills. The will was upheld under the harmless-error rule of Section 2-503.
There are also cases in which a testator went to his or her bank to get the will executed, and the
bank’s notary notarized the document, mistakenly thinking that notarization made the will valid.
Cf., e.g., Orrell v. Cochran, 695 S.W.2d 552 (Tex. 1985). Under non-UPC law, the will is
usually held invalid in such cases, despite the lack of evidence raising any doubt that the will
truly represented the decedent’s wishes.

Other uniform acts affecting property or person do not require either attesting witnesses
or notarization. See, e.g., Uniform Trust Code Section 402(a)(2); Uniform Power of Attorney
Act Section 105; Uniform Health-Care Decisions Act Section 2(f).

A will that does not meet the requirements of subsection (a) may be valid under
subsection (b) as a holograph or under the harmless error rule of Section 2-503.

Subsection (b): Holographic Wills. This subsection authorizes holographic wills. On

holographic wills, see Restatement (Third) of Property: Wills and Other Donative Transfers §
3.2 (1999). Subsection (b) enables a testator to write his or her own will in handwriting. There
need be no witnesses. The only requirement is that the signature and the material portions of the
document be in the testator’s handwriting.

By requiring only the “material portions of the document” to be in the testator’s

handwriting (rather than requiring, as some existing statutes do, that the will be “entirely” in the
decedent’s handwriting), a holograph may be valid even though immaterial parts such as date or
introductory wording are printed, typed, or stamped.

A valid holograph can also be executed on a printed will form if the material portions of
the document are handwritten. The fact, for example, that the will form contains printed
language such as “I give, devise, and bequeath to _______” does not disqualify the document as
a holographic will, as long as the testator fills out the remaining portion of the dispositive
provision in his or her own hand.

Subsection (c): Extrinsic Evidence. Under subsection (c), testamentary intent can be
shown by extrinsic evidence, including for holographic wills the printed, typed, or stamped
portions of the form or document. Handwritten alterations, if signed, of a validly executed
nonhandwritten will can operate as a holographic codicil to the will. If necessary, the
handwritten codicil can derive meaning, and hence validity as a holographic codicil, from
nonhandwritten portions of the document. See Restatement (Third) of Property: Wills and
Other Donative Transfers § 3.2 cmt. g (1999). This position intentionally contradicts Estate of
Foxley, 575 N.W.2d 150 (Neb. 1998), a decision condemned in Reporter’s Note No. 4 to the
Restatement as a decision that “reached a manifestly unjust result”.

2008 Revisions. In 2008, this section was amended by adding subsection (a)(3)(B).
Subsection (a)(3)(B) and its rationale are discussed in Waggoner, The UPC Authorizes Notarized

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Wills, 34 ACTEC J. 58 (2008).

Historical Note. This Comment was revised in 2008.

SECTION 2-503. Harmless Error. Although a document or writing added upon a

document was not executed in compliance with Section 2-502, the document or writing is treated

as if it had been executed in compliance with that section if the proponent of the document or

writing establishes by clear and convincing evidence that the decedent intended the document or

writing to constitute:

(1) the decedent’s will,

(2) a partial or complete revocation of the will,

(3) an addition to or an alteration of the will, or

(4) a partial or complete revival of the decedent’s formerly revoked will or of a formerly

revoked portion of the will.

Comment

Purpose of New Section. By way of dispensing power, this new section allows the
probate court to excuse a harmless error in complying with the formal requirements for executing
or revoking a will. The measure accords with legislation in force in the Canadian province of
Manitoba and in several Australian jurisdictions. The Uniform Laws Conference of Canada
approved a comparable measure for the Canadian Uniform Wills Act in 1987.

Legislation of this sort was enacted in the state of South Australia in 1975. The
experience there has been closely studied by a variety of law reform commissions and in the
scholarly literature. See, e.g., Law Reform Commission of British Columbia, Report on the
Making and Revocation of Wills (1981); New South Wales Law Reform Commission, Wills:
Execution and Revocation (1986); Langbein, Excusing Harmless Errors in the Execution of
Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1
(1987). A similar measure has been in effect in Israel since 1965 (see British Columbia Report,
supra, at 44-46; Langbein, supra, at 48-51).

Consistent with the general trend of the revisions of the UPC, Section 2-503 unifies the
law of probate and nonprobate transfers, extending to will formalities the harmless error
principle that has long been applied to defective compliance with the formal requirements for
nonprobate transfers. See, e.g., Annot., 19 A.L.R.2d 5 (1951) (life insurance beneficiary
designations).

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Evidence from South Australia suggests that the dispensing power will be applied mainly
in two sorts of cases. See Langbein, supra, at 15-33. When the testator misunderstands the
attestation requirements of Section 2-502(a) and neglects to obtain one or both witnesses, new
Section 2-503 permits the proponents of the will to prove that the defective execution did not
result from irresolution or from circumstances suggesting duress or trickery – in other words,
that the defect was harmless to the purpose of the formality. The measure reduces the tension
between holographic wills and the two-witness requirement for attested wills under Section 2-
502(a). Ordinarily, the testator who attempts to make an attested will but blunders will still have
achieved a level of formality that compares favorably with that permitted for holographic wills
under the Code.

The other recurrent class of case in which the dispensing power has been invoked in
South Australia entails alterations to a previously executed will. Sometimes the testator adds a
clause, that is, the testator attempts to interpolate a defectively executed codicil. More
frequently, the amendment has the character of a revision – the testator crosses out former text
and inserts replacement terms. Lay persons do not always understand that the execution and
revocation requirements of Section 2-502 call for fresh execution in order to modify a will;
rather, lay persons often think that the original execution has continuing effect.

By placing the burden of proof upon the proponent of a defective instrument, and by
requiring the proponent to discharge that burden by clear and convincing evidence (which courts
at the trial and appellate levels are urged to police with rigor), Section 2-503 imposes procedural
standards appropriate to the seriousness of the issue. Experience in Israel and South Australia
strongly supports the view that a dispensing power like Section 2-503 will not breed litigation.
Indeed, as an Israeli judge reported to the British Columbia Law Reform Commission, the
dispensing power “actually prevents a great deal of unnecessary litigation,” because it eliminates
disputes about technical lapses and limits the zone of dispute to the functional question of
whether the instrument correctly expresses the testator’s intent. British Columbia Report, supra,
at 46.

The larger the departure from Section 2-502 formality, the harder it will be to satisfy the
court that the instrument reflects the testator’s intent. Whereas the South Australian and Israeli
courts lightly excuse breaches of the attestation requirements, they have never excused
noncompliance with the requirement that a will be in writing, and they have been extremely
reluctant to excuse noncompliance with the signature requirement. See Langbein, supra, at 23-
29, 49-50. The main circumstance in which the South Australian courts have excused signature
errors has been in the recurrent class of cases in which two wills are prepared for simultaneous
execution by two testators, typically husband and wife, and each mistakenly signs the will
prepared for the other. E.g., Estate of Blakely, 32 S.A.S.R. 473 (1983). Recently, the New York
Court of Appeals remedied such a case without aid of statute, simply on the ground “what has
occurred is so obvious, and what was intended so clear.” In re Snide, 52 N.Y.2d 193, 196, 418
N.E.2d 656, 657, 437 N.Y.S.2d 63, 64 (1981).

Section 2-503 means to retain the intent-serving benefits of Section 2-502 formality
without inflicting intent-defeating outcomes in cases of harmless error.

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Reference. The rule of this section is supported by the Restatement (Third) of Property:
Wills and Other Donative Transfers § 3.3 (1999).

SECTION 2-504. SELF-PROVED WILL.

(a) A will that is executed with attesting witnesses may be simultaneously executed,

attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the

witnesses, each made before an officer authorized to administer oaths under the laws of the state

in which execution occurs and evidenced by the officer’s certificate, under official seal, in

substantially the following form:

I, _______________, the testator, sign my name to this instrument this __________ day
(name)
of __________, and being first duly sworn, do hereby declare to the undersigned authority that I

sign and execute this instrument as my will and that I sign it willingly (or willingly direct another

to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed,

and that I am [18] years of age or older, of sound mind, and under no constraint or undue

influence.

_______________________
Testator

We, _____________, ______________, the witnesses, sign our names to this instrument,
(name) (name)

being first duly sworn, and do hereby declare to the undersigned authority that the testator signs

and executes this instrument as (his)(her) will and that (he)(she) signs it willingly (or willingly

directs another to sign for (his)(her)), and that each of us, in the presence and hearing of the

testator, hereby signs this will as witness to the testator’s signing, and that to the best of our

knowledge the testator is [18] years of age or older, of sound mind, and under no constraint or

undue influence.

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________________________
Witness

________________________
Witness

State of __________

County of __________

Subscribed, sworn to and acknowledged before me by ______, the testator, and

subscribed and sworn to before me by ______, and ______, witness, this ______ day of ______.

(Seal)

___________________________________
(Signed)

___________________________________
(Official capacity of officer)

(b) A will that is executed with attesting witnesses may be made self-proved at any time

after its execution by the acknowledgment thereof by the testator and the affidavits of the

witnesses, each made before an officer authorized to administer oaths under the laws of the state

in which the acknowledgment occurs and evidenced by the officer’s certificate, under official

seal, attached or annexed to the will in substantially the following form:

The State of __________

County of __________

We, _____________, ___________, and _____________, the testator and the witnesses,
(name) (name) (name)
respectively, whose names are signed to the attached or foregoing instrument, being first duly

sworn, do hereby declare to the undersigned authority that the testator signed and executed the

instrument as the testator’s will and that (he)(she) had signed willingly (or willingly directed

another to sign for (him)(her)), that (he)(she) executed it as (his)(her) free and voluntary act for

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the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the

testator, signed the will as witness and that to the best of (his)(her) knowledge the testator was at

that time [18] years of age or older, of sound mind, and under no constraint or undue influence.

________________________ Testator

________________________ Witness

________________________ Witness

Subscribed, sworn to and acknowledged before me by ______, the testator, and

subscribed and sworn to before me by ______, and ______, witnesses, this ______ day of

______.

(Seal) ___________________________________
(Signed)

___________________________________
(Official capacity of officer)

(c) A signature affixed to a self-proving affidavit attached to a will is considered a

signature affixed to the will, if necessary to prove the will’s due execution.

Comment

A self-proved will may be admitted to probate as provided in Sections 3-303, 3-405, and
3-406 without the testimony of any attesting witness, but otherwise it is treated no differently
from a will not self-proved. Thus, a self-proved will may be contested (except in regard to
questions of proper execution), revoked, or amended by a codicil in exactly the same fashion as a
will not self-proved. The procedural advantage of a self-proved will is limited to formal testacy
proceedings because Section 3-303, which deals with informal probate, dispenses with the
necessity of testimony of witnesses even though the instrument is not self-proved under this
section.

Subsection (c) was added in 1990 to counteract an unfortunate judicial interpretation of

similar self-proving will provisions in a few states, under which a signature on the self-proving
affidavit was held not to constitute a signature on the will, resulting in invalidity of the will in
cases in which the testator or witnesses got confused and only signed on the self-proving
affidavit. See Mann, Self-proving Affidavits and Formalism in Wills Adjudication, 63 Wash. U.
L.Q. 39 (1985); Estate of Ricketts, 773 P.2d 93 (Wash. Ct. App. 1989).

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2008 Revision. Section 2-502(a) was amended in 2008 to add an optional method of
execution by having a will notarized rather than witnessed by two attesting witnesses. The
amendment to Section 2-502 necessitated amending this section so that it only applies to a will
that is executed with attesting witnesses.

Historical Note. This Comment was revised in 2008.

SECTION 2-505. WHO MAY WITNESS.

(a) An individual generally competent to be a witness may act as a witness to a will.

(b) The signing of a will by an interested witness does not invalidate the will or any

provision of it.

Comment

This section carries forward the position of the pre-1990 Code. The position adopted
simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a
witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this
change is not to foster use of interested witnesses, and attorneys will continue to use disinterested
witnesses in execution of wills. But the rare and innocent use of a member of the testator’s
family on a home-drawn will is not penalized.

This approach does not increase appreciably the opportunity for fraud or undue influence.
A substantial devise by will to a person who is one of the witnesses to the execution of the will is
itself a suspicious circumstance, and the devise might be challenged on grounds of undue
influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and
undue influence; and in most cases of undue influence, the influencer is careful not to sign as a
witness, but to procure disinterested witnesses.

Under Section 3-406, an interested witness is competent to testify to prove execution of

the will.

SECTION 2-506. CHOICE OF LAW AS TO EXECUTION. A written will is valid

if executed in compliance with Section 2-502 or 2-503 or if its execution complies with the law

at the time of execution of the place where the will is executed, or of the law of the place where

at the time of execution or at the time of death the testator is domiciled, has a place of abode, or

is a national.

Comment

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This section permits probate of wills in this state under certain conditions even if they are
not executed in accordance with the formalities of Section 2-502 or 2-503. Such wills must be in
writing but otherwise are valid if they meet the requirements for execution of the law of the place
where the will is executed (when it is executed in another state or country) or the law of
testator’s domicile, abode or nationality at either the time of execution or at the time of death.
Thus, if testator is domiciled in state 1 and executes a typed will merely by signing it without
witnesses in state 2 while on vacation there, the court of this state would recognize the will as
valid if the law of either state 1 or state 2 permits execution by signature alone. Or if a national
of Mexico executes a written will in this state which does not meet the requirements of Section
2-502 but meets the requirements of Mexican law, the will would be recognized as validly
executed under this section. The purpose of this section is to provide a wide opportunity for
validation of expectations of testators.

SECTION 2-507. REVOCATION BY WRITING OR BY ACT.

(a) A will or any part thereof is revoked:

(1) by executing a subsequent will that revokes the previous will or part expressly

or by inconsistency; or

(2) by performing a revocatory act on the will, if the testator performed the 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) If a subsequent will does not expressly revoke a previous will, the execution of the

subsequent will wholly revokes the previous will by inconsistency if the testator intended the

subsequent will to replace rather than supplement the previous will.

(c) The testator is presumed to have intended a subsequent will to replace rather than

supplement a previous will if the subsequent will makes a complete disposition of the testator’s

estate. If this presumption arises and is not rebutted by clear and convincing evidence, the

previous will is revoked; only the subsequent will is operative on the testator’s death.

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(d) The testator is presumed to have intended a subsequent will to supplement rather than

replace a previous will if the subsequent will does not make a complete disposition of the

testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence,

the subsequent will revokes the previous will only to the extent the subsequent will is

inconsistent with the previous will; each will is fully operative on the testator’s death to the

extent they are not inconsistent.

Comment

Purpose and Scope of Revisions. Revocation of a will may be by either a subsequent

will or an authorized act done to the document. Revocation by subsequent will cannot be
effective unless the subsequent will is valid.

Revocation by Inconsistency. As originally promulgated, this section provided no

standard by which the courts were to determine whether in a given case a subsequent will with
no revocation clause revokes a prior will, wholly or partly, by inconsistency. Some courts seem
to have been puzzled about the standard to be applied. New subsections (b), (c), and (d) codify
the workable and common-sense standard set forth in the Restatement (Second) of Property
(Donative Transfers) § 34.2 comment b (1991). Under these subsections, the question whether
the subsequent will was intended to replace rather than supplement the previous will depends
upon whether the second will makes a complete disposition of the testator’s estate. If the second
will does make a complete disposition of the testator’s estate, a presumption arises that the
second will was intended to replace the previous will. If the second will does not make a
complete disposition of the testator’s estate, a presumption arises that the second will was
intended to supplement rather than replace the previous will. The rationale is that, when the
second will does not make a complete disposition of the testator’s estate, the second will is more
in the nature of a codicil to the first will. This standard has been applied in the cases without the
benefit of a statutory provision to this effect. E.g., Gilbert v. Gilbert, 652 S.W.2d 663 (Ky. Ct.
App. 1983).

Example. Five years before her death, G executed a will (Will #1), devising her antique
desk to A; $20,000 to B; and the residue of her estate to C. Two years later, A died, and G
executed another will (Will #2), devising her antique desk to A’s spouse, X; $10,000 to B; and
the residue of her estate to C. Will #2 neither expressly revoked Will #1 nor made any other
reference to it. G’s net probate estate consisted of her antique desk (worth $10,000) and other
property (worth $90,000). X, B, and C survived G by 120 hours.

Solution. Will #2 was presumptively intended by G to replace Will #1 because Will #2

made a complete disposition of G’s estate. Unless this presumption is rebutted by clear and
convincing evidence, Will #1 is wholly revoked; only Will #2 is operative on G’s death.

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If, however, Will #2 had not contained a residuary clause, and hence had not made a
complete disposition of G’s estate, “Will #2” is more in the nature of a codicil to Will #1, and the
solution would be different. Now, Will #2 would presumptively be treated as having been
intended to supplement rather than replace Will #1. In the absence of evidence clearly and
convincingly rebutting this presumption, Will #1 would be revoked only to the extent Will #2 is
inconsistent with it; both wills would be operative on G’s death, to the extent they are not
inconsistent. As to the devise of the antique desk, Will #2 is inconsistent with Will #1, and the
antique desk would go to X. There being no residuary clause in Will #2, there is nothing in Will
#2 that is inconsistent with the residuary clause in Will #1, and so the residue would go to C.
The more difficult question relates to the cash devises in the two wills. The question whether
they are inconsistent with one another is a question of interpretation in the individual case.
Section 2-507 does not establish a presumption one way or the other on that question. If the
court finds that the cash devises are inconsistent with one another, i.e., if the court finds that the
cash devise in Will #2 was intended to replace rather than supplement the cash devise in Will #1,
then B takes $10,000. But, if the court finds that the cash devises are not inconsistent with one
another, B would take $30,000.

Revocatory Act. In the case of an act of revocation done to the document, subsection
(a)(2) is revised to provide that a burning, tearing, or canceling is a sufficient revocatory act even
though the act does not touch any of the words on the will. This is consistent with cases on
burning or tearing (e.g., White v. Casten, 46 N.C. 197 (1853) (burning); Crampton v. Osburn,
356 Mo. 125, 201 S.W.2d 336 (1947) (tearing)), but inconsistent with most, but not all, cases on
cancellation (e.g., Yont v. Eads, 317 Mass. 232, 57 N.E.2d 531 (1944); Kronauge v. Stoecklein,
33 Ohio App.2d 229, 293 N.E.2d 320 (1972); Thompson v. Royall, 163 Va. 492, 175 S.E. 748
(1934); contra, Warner v. Warner’s Estate, 37 Vt. 356 (1864)). By substantial authority, it is
held that removal of the testator’s signature – by, for example, lining it through, erasing or
obliterating it, tearing or cutting it out of the document, or removing the entire signature page –
constitutes a sufficient revocatory act to revoke the entire will. Board of Trustees of the
University of Alabama v. Calhoun, 514 So.2d 895 (Ala.1987) and cases cited therein.

Subsection (a)(2) is also revised to codify the “conscious-presence” test. As revised,

subsection (a)(2) provides that, if the testator does not perform the revocatory act, but directs
another to perform the act, the act is a sufficient revocatory act if the other individual performs it
in the testator’s conscious presence. The act need not be performed in the testator’s line of sight.
See the Comment to Section 2-502 for a discussion of the “conscious-presence” test.

Revocatory Intent. To effect a revocation, a revocatory act must be accompanied by

revocatory intent. Determining whether a revocatory act was accompanied by revocatory intent
may involve exploration of extrinsic evidence, including the testator’s statements as to intent.

Partial Revocation. This section specifically permits partial revocation.

Dependent Relative Revocation. Each court is free to apply its own doctrine of
dependent relative revocation. See generally Palmer, “Dependent Relative Revocation and Its
Relation to Relief for Mistake,” 69 Mich. L. Rev. 989 (1971). Note, however, that dependent
relative revocation should less often be necessary under the revised provisions of the Code.

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Dependent relative revocation is the law of second best, i.e., its application does not produce the
result the testator actually intended, but is designed to come as close as possible to that intent. A
precondition to the application of dependent relative revocation is, or should be, good evidence
of the testator’s actual intention; without that, the court has no basis for determining which of
several outcomes comes the closest to that actual intention.

When there is good evidence of the testator’s actual intention, however, the revised
provisions of the Code would usually facilitate the effectuation of the result the testator actually
intended. If, for example, the testator by revocatory act revokes a second will for the purpose of
reviving a former will, the evidence necessary to establish the testator’s intent to revive the
former will should be sufficient under Section 2-509 to effect a revival of the former will,
making the application of dependent relative revocation as to the second will unnecessary. If, by
revocatory act, the testator revokes a will in conjunction with an effort to execute a new will, the
evidence necessary to establish the testator’s intention that the new will be valid should, in most
cases, be sufficient under Section 2-503 to give effect to the new will, making the application of
dependent relative revocation as to the old will unnecessary. If the testator lines out parts of a
will or dispositive provision in conjunction with an effort to alter the will’s terms, the evidence
necessary to establish the testator’s intention that the altered terms be valid should be sufficient
under Section 2-503 to give effect to the will as altered, making dependent relative revocation as
to the lined-out parts unnecessary.

SECTION 2-508. REVOCATION BY CHANGE OF CIRCUMSTANCES. Except

as provided in Sections 2-803 and 2-804, a change of circumstances does not revoke a will or

any part of it.

SECTION 2-509. REVIVAL OF REVOKED WILL.

(a) If a subsequent will that wholly revoked a previous will is thereafter revoked 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.

(b) If a subsequent will that partly revoked a previous will is thereafter revoked 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

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effect as executed.

(c) 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.

Comment

Purpose and Scope of Revisions. Although a will takes effect as a revoking instrument
when it is executed, it takes effect as a dispositive instrument at death. Once revoked, therefore,
a will is ineffective as a dispositive instrument unless it has been revived. This section covers
the standards to be applied in determining whether a will (Will #1) that was revoked by a
subsequent will (Will #2), either expressly or by inconsistency, has been revived by the
revocation of the subsequent will, i.e., whether the revocation of Will #2 (the revoking will)
revives Will #1 (the will that Will #2 revoked).

As revised, this section is divided into three subsections. Subsections (a) and (b) cover
the effect of revoking Will #2 (the revoking will) by a revocatory act under Section 2-507(a)(2).
Under subsection (a), if Will #2 (the revoking will) wholly revoked Will #1, the revocation of
Will #2 does not revive Will #1 unless “it is evident from the circumstances of the revocation of
[Will #2] or from the testator’s contemporary or subsequent declarations that the testator
intended [Will #1] to take effect as executed.” This standard places the burden of persuasion on
the proponent of Will #1 to establish that the decedent’s intention was that Will #1 is to be his or
her valid will. Testimony regarding the decedent’s statements at the time he or she revokes Will
#2 or at a later date can be admitted. Indeed, all relevant evidence of intention is to be
considered by the court on this question; the open-ended statutory language is not to be
undermined by translating it into discrete subsidiary elements, all of which must be met, as the
court did in Estate of Boysen, 309 N.W.2d 45 (Minn.1981). See Langbein & Waggoner,
“Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code,” 55 Alb. L. Rev.
871, 885-87 (1992).

The pre-1990 version of this section did not distinguish between complete and partial
revocation. Regardless of whether Will #2 wholly or partly revoked Will #1, the pre-1990
version presumed against revival of Will #1 when Will #2 was revoked by act.

As revised, this section properly treats the two situations as distinguishable. The
presumption against revival imposed by subsection (a) is justified because where Will #2 wholly
revoked Will #1, the testator understood or should have understood that Will #1 had no
continuing effect. Consequently, subsection (a) properly presumes that the testator’s act of
revoking Will #2 was not accompanied by an intent to revive Will #1.

Subsection (b) establishes the opposite presumption where Will #2 (the revoking will)

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revoked Will #1 only in part. In this case, the revocation of Will #2 revives the revoked part or
parts of Will #1 unless “it is evident from the circumstances of the revocation of [Will #2] or
from the testator’s contemporary or subsequent declarations that the testator did not intend the
revoked part to take effect as executed.” This standard places the burden of persuasion on the
party arguing that the revoked part or parts of Will #1 were not revived. The justification is that
where Will #2 only partly revoked Will #1, Will #2 is only a codicil to Will #1, and the testator
knows (or should know) that Will #1 does have continuing effect. Consequently, subsection (b)
properly presumes that the testator’s act of revoking Will #2 (the codicil) was accompanied by
an intent to revive or reinstate the revoked parts of Will #1.

Subsection (c) covers the effect on Will #1 of revoking Will #2 (the revoking will) by
another, later, will (Will #3). Will #1 remains revoked except to the extent that Will #3 shows an
intent to have Will # 1 effective.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A.
118 (Supp.1992).

SECTION 2-510. INCORPORATION BY REFERENCE. A writing in existence

when a will is executed may be incorporated by reference if the language of the will manifests

this intent and describes the writing sufficiently to permit its identification.

Comment

This section codifies the common-law doctrine of incorporation by reference, except that
the sometimes troublesome requirement that the will refer to the document as being in existence
when the will was executed has been eliminated.

SECTION 2-511. UNIFORM TESTAMENTARY ADDITIONS TO TRUSTS ACT

(1991).

(a) A will may validly devise property to the trustee of a trust established or to be

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

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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 the trust

was amended after the execution of the will or the testator’s death.

(b) Unless the testator’s will provides otherwise, property devised to a trust described 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.

(c) Unless the testator’s will provides otherwise, a revocation or termination of the trust

before the testator’s death causes the devise to lapse.

Comment

This section, which was last revised in 1990, was codified separately in 1991 as the free-
standing Uniform Testamentary Additions to Trusts Act (1991). In addition to making a few
stylistic changes, several substantive changes to this section were made in the 1990 revision.

As revised, it has been made clear that the “trust” need not have been established (funded
with a trust res) during the decedent’s lifetime, but can be established (funded with a res) by the
devise itself. The pre-1990 version probably contemplated this result and reasonably could be so
interpreted (because of the phrase “regardless of the existence...of the corpus of the trust”).
Indeed, a few cases have expressly stated that statutory language like the pre-1990 version of this
section authorizes pour-over devises to unfunded trusts. E.g., Clymer v. Mayo, 473 N.E.2d 1084
(Mass.1985); Trosch v. Maryland Nat’l Bank, 32 Md. App. 249, 359 A.2d 564 (1976). The
authority of these pronouncements is problematic, however, because the trusts in these cases
were so-called “unfunded” life-insurance trusts. An unfunded life-insurance trust is not a trust
without a trust res; the trust res in an unfunded life-insurance trust is the contract right to the
proceeds of the life-insurance policy conferred on the trustee by virtue of naming the trustee the
beneficiary of the policy. See Gordon v. Portland Trust Bank, 201 Or. 648, 271 P.2d 653 (1954)
(“[T]he [trustee as the] beneficiary [of the policy] is the owner of a promise to pay the proceeds
at the death of the insured....”); Gurnett v. Mutual Life Ins. Co., 356 Ill. 612, 191 N.E. 250
(1934). Thus, the term “unfunded life-insurance trust” does not refer to an unfunded trust, but to
a funded trust that has not received additional funding. For further indication of the problematic
nature of the idea that the pre-1990 version of this section permits pour-over devises to unfunded
trusts, see Estate of Daniels, 665 P.2d 594 (Colo.1983) (pour-over devise failed; before signing
the trust instrument, the decedent was advised by counsel that the “mere signing of the trust
agreement would not activate it and that, before the trust could come into being, [the decedent]

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would have to fund it;” decedent then signed the trust agreement and returned it to counsel “to
wait for further directions on it;” no further action was taken by the decedent prior to death; the
decedent’s will devised the residue of her estate to the trustee of the trust, but added that the
residue should go elsewhere “if the trust created by said agreement is not in effect at my death.”)

Additional revisions of this section are designed to remove obstacles to carrying out the
decedent’s intention that were contained in the pre-1990 version. These revisions allow the trust
terms to be set forth in a written instrument executed after as well as before or concurrently with
the execution of the will; require the devised property to be administered in accordance with the
terms of the trust as amended after as well as before the decedent’s death, even though the
decedent’s will does not so provide; and allow the decedent’s will to provide that the devise is
not to lapse even if the trust is revoked or terminated before the decedent’s death.

Revision of Uniform Testamentary Additions to Trusts Act. The freestanding Uniform

Testamentary Additions to Trusts Act (UTATA) was revised in 1991 in accordance with the
revisions to UPC Section 2-511. States that enact Section 2-511 need not enact the UTATA as
revised in 1991 and should repeal the original version of the UTATA if previously enacted in the
state.

SECTION 2-512. EVENTS OF INDEPENDENT SIGNIFICANCE. A will may

dispose of property by reference to acts and events that have significance apart from their effect

upon the dispositions made by the will, whether they occur before or after the execution of the

will or before or after the testator’s death. The execution or revocation of another individual’s

will is such an event.

SECTION 2-513. SEPARATE WRITING IDENTIFYING DEVISE OF CERTAIN

TYPES OF TANGIBLE PERSONAL PROPERTY. Whether or not the provisions relating to

holographic wills apply, a will may refer to a written statement or list to dispose of items of

tangible personal property not otherwise specifically disposed of by the will, other than money.

To be admissible under this section as evidence of the intended disposition, the writing must be

signed by the testator and must describe the items and the devisees with reasonable certainty.

The writing may be referred to as one to be in existence at the time of the testator’s death; it may

be prepared before or after the execution of the will; it may be altered by the testator after its

preparation; and it may be a writing that has no significance apart from its effect on the

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dispositions made by the will.

Comment

Purpose and Scope of Revision. As part of the broader policy of effectuating a

testator’s intent and of relaxing formalities of execution, this section permits a testator to refer in
his or her will to a separate document disposing of tangible personalty other than money. The
pre-1990 version precluded the disposition of “evidences of indebtedness, documents of title, and
securities, and property used in a trade or business.” These limitations are deleted in the revised
version, partly to remove a source of confusion in the pre-1990 version, which arose because
evidences of indebtedness, documents of title, and securities are not items of tangible personal
property to begin with, and partly to permit the disposition of a broader range of items of
tangible personal property.

The language “items of tangible personal property” does not require that the separate
document specifically itemize each item of tangible personal property covered. The only
requirement is that the document describe the items covered “with reasonable certainty.”
Consequently, a document referring to “all my tangible personal property other than money” or
to “all my tangible personal property located in my office” or using similar catch-all type of
language would normally be sufficient.

The separate document disposing of an item or items of tangible personal property may
be prepared after execution of the will, so would not come within Section 2-510 on incorporation
by reference. It may even be altered from time to time. The only requirement is that the
document be signed by the testator. The pre-1990 version of this section gave effect to an
unsigned document if it was in the testator’s handwriting. The revisions remove the language
giving effect to such an unsigned document. The purpose is to prevent a mere handwritten draft
from becoming effective without sufficient indication that the testator intended it to be effective.
The signature requirement is designed to prevent mere drafts from becoming effective against
the testator’s wishes. An unsigned document could still be given effect under Section 2-503,
however, if the proponent could carry the burden of proving by clear and convincing evidence
that the testator intended the document to be effective.

The typical case covered by this section would be a list of personal effects and the
persons whom the decedent desired to take specified items.

Sample Clause. Section 2-513 might be utilized by a clause in the decedent’s will such
as the following:

I might leave a written statement or list disposing of items of tangible personal property.
If I do and if my written statement or list is found and is identified as such by my Personal
Representative no later than 30 days after the probate of this will, then my written statement or
list is to be given effect to the extent authorized by law and is to take precedence over any
contrary devise or devises of the same item or items of property in this will.

Section 2-513 only authorizes disposition of tangible personal property “not otherwise

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specifically disposed of by the will.” The sample clause above is consistent with this restriction.
By providing that the written statement or list takes precedence over any contrary devise in the
will, a contrary devise is made conditional upon the written statement or list not contradicting it;
if the written statement or list does contradict a devise in the will, the will does not otherwise
specifically dispose of the property.

If, however, the clause in the testator’s will does not provide that the written statement or
list is to take precedence over any contrary devise in the will (or contain a provision having
similar effect), then the written statement or list is ineffective to the extent it purports to dispose
of items of property that were otherwise specifically disposed of by the will.

SECTION 2-514. CONTRACTS CONCERNING SUCCESSION. A contract to

make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the

effective date of this [article], may be established only by (i) provisions of a will stating material

provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence

proving the terms of the contract, or (iii) a writing evidencing the contract and signed by the

party alleged to have breached the contract. The execution of a joint will or mutual wills does not

create a presumption of a contract not to revoke the will or wills.

Comment

Section Relocated. In the 1969 Code, Section 2-514 appeared as Section 2-701. The
1990 amendments relocated this section to make room for Part 7, which was added in 1990. No
substantive revision was made.

The purpose of this section is to tighten the methods by which contracts concerning
succession may be proved. Oral contracts not to revoke wills have given rise to must litigation in
a number of states; and in many states if two persons execute a single document as their joint
will, this gives rise to a presumption that the parties had contracted not to revoke the will except
by consent of both.

This section requires that the will must set forth the material provisions of the contract,
or the will must make express reference to the contract and extrinsic evidence prove the terms of
the contract, or there must be a separate writing evidencing the contract and signed by the party
alleged to have breached the contract. Oral testimony regarding the contract is permitted if the
will makes reference to the contract, but this provision of the statute is not intended to affect
normal rules regarding admissibility of evidence.

This section does not preclude recovery in quantum meruit for the value of services
rendered the testator.

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2021 Technical Amendment. Clause (iii) was amended in 2021 to clarify that, consistent
with the Statute of Frauds, a separate writing evidencing a contract must be signed by the party
alleged to have breached the contract. Depending on the circumstances, this party may or may
not be the decedent.

Historical Note. This Comment was revised in 2010 and 2021.

SECTION 2-515. DEPOSIT OF WILL WITH COURT IN TESTATOR’S

LIFETIME. A will may be deposited by the testator or the testator’s agent with any court for

safekeeping, under rules of the court. The will must be sealed and kept confidential. During the

testator’s lifetime, a deposited will must be delivered only to the testator or to a person

authorized in writing signed by the testator to receive the will. A conservator may be allowed to

examine a deposited will of a protected testator under procedures designed to maintain the

confidential character of the document to the extent possible, and to ensure that it will be

resealed and kept on deposit after the examination. Upon being informed of the testator’s death,

the court shall notify any person designated to receive the will and deliver it to that person on

request; or the court may deliver the will to the appropriate court.

Comment

Many states already have statutes permitting deposit of wills during a testator’s lifetime.
Most of these statutes have elaborate provisions governing purely administrative matters: how
the will is to be enclosed in a sealed wrapper, what is to be endorsed on the wrapper, the form of
receipt or certificate given to the testator, the fee to be charged, how the will is to be opened after
testator’s death and who is to be notified. Under this section, details have been left to court rule,
except as other relevant statutes such as one governing fees may apply.

It is, of course, vital to maintain the confidential nature of deposited wills. However, this
obviously does not prevent the opening of the will after the death of the testator if necessary in
order to determine the executor or other interested persons to be notified. Nor should it prevent
opening the will to microfilm for confidential record storage, for example. These matters could
again be regulated by court rule.

The provision permitting examination of a will of a protected person by the conservator

supplements Section 5-411.

SECTION 2-516. DUTY OF CUSTODIAN OF WILL; LIABILITY.

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After the death of a testator and on request of an interested person, a person having

custody of a will of the testator shall deliver it with reasonable promptness to a person able to

secure its probate and if none is known, to an appropriate court. A person who wilfully fails to

deliver a will is liable to any person aggrieved for any damages that may be sustained by the

failure. A person who wilfully refuses or fails to deliver a will after being ordered by the court in

a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of

court.

Comment

In addition to a Registrar or clerk, a person authorized to accept delivery of a will from a

custodian may be a universal successor or other person authorized under the law of another
nation to carry out the terms of a will.

SECTION 2-517. PENALTY CLAUSE FOR CONTEST. A provision in a will

purporting to penalize an interested person for contesting the will or instituting other proceedings

relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Comment

This section replicates Section 3-905.

PART 6. RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS

GENERAL COMMENT

Parts 6 and 7 address a variety of construction problems that commonly occur in wills,
trusts, and other types of governing instruments. All of the “rules” set forth in these parts yield
to a finding of a contrary intention and are therefore rebuttable presumptions.

The rules of construction set forth in Part 6 apply only to wills. The rules of construction
set forth in Part 7 apply to wills and other governing instruments.

The sections in part 6 deal with such problems as death before the testator (lapse), the
inclusiveness of the will as to property of the testator, effect of failure of a gift in the will, change
in form of securities specifically devised, ademption by reason of fire, sale and the like,
exoneration, and exercise of a power of appointment by general language in the will.

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SECTION 2-601. SCOPE. In the absence of a finding of a contrary intention, the rules

of construction in this [part] control the construction of a will.

Comment

Purpose and Scope of 1990 Revisions. Common-law rules of construction yield to a

finding of a contrary intention. The pre-1990 version of this section provided that the rules of
construction in Part 6 yielded only to a “contrary intention indicated by the will.” To align the
statutory rules of construction in Part 6 with those established at common law, this section was
revised in 1990 so that the rules of construction yield to a “finding of a contrary intention.” As
revised, evidence extrinsic to the will as well as the content of the will itself is admissible for the
purpose of rebutting the rules of construction in Part 6.

As originally promulgated, this section began with the sentence: “The intention of a
testator as expressed in his will controls the legal effect of his dispositions.” This sentence was
removed primarily because it was inappropriate and unnecessary in a part of the Code containing
rules of construction. Deleting this sentence did not signify a retreat from the widely accepted
proposition that a testator’s intention controls the legal effect of his or her dispositions.

A further reason for deleting this sentence is that a possible, though unintended, reading
of the sentence might have been that it prevented the judicial adoption of a general reformation
doctrine for wills, as approved by the American Law Institute in the Restatement (Third) of
Property: Wills and Other Donative Transfers § 12.1 (2003), and as advocated in Langbein &
Waggoner, “Reformation of Wills on the Ground of Mistake: Change of Direction in American
Law?”, 130 U. Pa. L. Rev. 521 (1982). Striking this sentence removed that possible impediment
to the judicial adoption of a general reformation doctrine for wills as approved by the American
Law Institute, as advocated in the Langbein-Waggoner article, and (as of 2008) codified in
Section 2-805.

Cross Reference. See Section 8-101(b) for the application of the rules of construction in
this part to documents executed prior to the effective date of this article.

Historical Note. This Comment was revised in 2008.

SECTION 2-602. WILL MAY PASS ALL PROPERTY AND AFTER-ACQUIRED

PROPERTY. A will may provide for the passage of all property the testator owns at death and

all property acquired by the estate after the testator’s death.

Comment

Purpose and Scope of Revision. This section is revised to assure that, for example, a
residuary clause in a will not only passes property owned at death that is not otherwise devised,
even though the property was acquired by the testator after the will was executed, but also passes

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property acquired by a testator’s estate after his or her death. This reverses a case like Braman
Estate, 435 Pa. 573, 258 A.2d 492 (1969), where the court held that Mary’s residuary devise to
her sister Ruth “or her estate,” which had passed to Ruth’s estate where Ruth predeceased Mary
by about a year, could not go to Ruth’s residuary legatee. The court held that Ruth’s will had no
power to control the devolution of property acquired by Ruth’s estate after her death; such
property passed, instead, by intestate succession from Ruth. This section, applied to the Braman
Estate case, would mean that the property acquired by Ruth’s estate after her death would pass
under her residuary clause.

The added language also makes it clear that items such as bonuses awarded to an
employee after his or her death pass under his or her will.

SECTION 2-603. ANTILAPSE; DECEASED DEVISEE; CLASS GIFTS.

(a) [Definitions.] In this section:

(1) “Alternative devise” means a devise that is expressly created by the will and,

under the terms of the will, can take effect instead of another devise on the happening of one or

more events, including survival of the testator or failure to survive the testator, whether an event

is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause

constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically

provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general,

pass under the residuary clause.

(2) “Class member” includes an individual who fails to survive the testator but

who would have taken under a devise in the form of a class gift had the individual survived the

testator.

(3) “Descendant of a grandparent”, as used in subsection (b), means an individual

who qualifies as a descendant of a grandparent of the testator or of the donor of a power of

appointment under the (i) rules of construction applicable to a class gift created in the testator’s

will if the devise or exercise of the power is in the form of a class gift or (ii) rules for intestate

succession if the devise or exercise of the power is not in the form of a class gift.

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(4) “Descendants”, as used in the phrase “surviving descendants” of a deceased

devisee or class member in subsections (b)(1) and (2), mean the descendants of a deceased

devisee or class member who would take under a class gift created in the testator’s will.

(5) “Devise” includes an alternative devise, a devise in the form of a class gift,

and an exercise of a power of appointment.

(6) “Devisee” includes (i) a class member if the devise is in the form of a class

gift, (ii) an individual or class member who was deceased at the time the testator executed the

will as well as an individual or class member who was then living but who failed to survive the

testator, and (iii) an appointee under a power of appointment exercised by the testator’s will.

(7) “Stepchild” means a child of the surviving, deceased, or former spouse of the

testator or of the donor of a power of appointment, and not of the testator or donor.

(8) “Surviving”, in the phrase “surviving devisees” or “surviving descendants”,

means devisees or descendants who neither predeceased the testator nor are deemed to have

predeceased the testator under Section 2-702.

(9) “Testator” includes the donee of a power of appointment if the power is

exercised in the testator’s will.

(b) [Substitute Gift.] If a devisee fails to survive the testator and is a grandparent, a

descendant of a grandparent, or a stepchild of either the testator or the donor of a power of

appointment exercised by the testator’s will, the following apply:

(1) Except as provided in paragraph (4), if the devise is not in the form of a class

gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the

devisee’s surviving descendants. They take by representation the property to which the devisee

would have been entitled had the devisee survived the testator.

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(2) Except as provided in paragraph (4), if the devise is in the form of a class gift,

other than a devise to “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,”

“relatives,” or “family,” or a class described by language of similar import, a substitute gift is

created in the surviving descendants of any deceased devisee. The property to which the

devisees would have been entitled had all of them survived the testator passes to the surviving

devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes

the share to which the surviving devisee would have been entitled had the deceased devisees

survived the testator. Each deceased devisee’s surviving descendants who are substituted for the

deceased devisee take by representation the share to which the deceased devisee would have

been entitled had the deceased devisee survived the testator. For the purposes of this paragraph,

“deceased devisee” means a class member who failed to survive the testator and left one or more

surviving descendants.

(3) For the purposes of Section 2-601, words of survivorship, such as in a devise

to an individual “if he [or she] survives me,” or in a devise to “my surviving children,” are not, in

the absence of additional evidence, a sufficient indication of an intent contrary to the application

of this section.

(4) If the will creates an alternative devise with respect to a devise for which a

substitute gift is created by paragraph (1) or (2), the substitute gift is superseded by the

alternative devise if:

(A) the alternative devise is in the form of a class gift and one or more

members of the class is entitled to take under the will; or

(B) the alternative devise is not in the form of a class gift and the

expressly designated devisee of the alternative devise is entitled to take under the will.

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(5) Unless the language creating a power of appointment expressly excludes the

substitution of the descendants of an appointee for the appointee, a surviving descendant of a

deceased appointee of a power of appointment can be substituted for the appointee under this

section, whether or not the descendant is an object of the power.

(c) [More Than One Substitute Gift; Which One Takes.] If, under subsection (b),

substitute gifts are created and not superseded with respect to more than one devise and the

devises are alternative devises, one to the other, the determination of which of the substitute gifts

takes effect is resolved as follows:

(1) Except as provided in paragraph (2), the devised property passes under the

primary substitute gift.

(2) If there is a younger-generation devise, the devised property passes under the

younger-generation substitute gift and not under the primary substitute gift.

(3) In this subsection:

(A) “Primary devise” means the devise that would have taken effect had

all the deceased devisees of the alternative devises who left surviving descendants survived the

testator.

(B) “Primary substitute gift” means the substitute gift created with respect

to the primary devise.

(C) “Younger-generation devise” means a devise that (i) is to a descendant

of a devisee of the primary devise, (ii) is an alternative devise with respect to the primary devise,

(iii) is a devise for which a substitute gift is created, and (iv) would have taken effect had all the

deceased devisees who left surviving descendants survived the testator except the deceased

devisee or devisees of the primary devise.

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(D) “Younger-generation substitute gift” means the substitute gift created

with respect to the younger-generation devise.

Comment

Purpose and Scope. Section 2-603 is a comprehensive antilapse statute that resolves a
variety of interpretive questions that have arisen under standard antilapse statutes, including the
antilapse statute of the pre-1990 Code.

Theory of Lapse. As explained in Restatement (Third) of Property: Wills and Other

Donative Transfers § 1.2 (1999), the common-law rule of lapse is predicated on the principle that
a will transfers property at the testator’s death, not when the will was executed, and on the
principle that property cannot be transferred to a deceased individual. Under the rule of lapse, all
devises are automatically and by law conditioned on survivorship of the testator. A devise to a
devisee who predeceases the testator fails (lapses); the devised property does not pass to the
devisee’s estate, to be distributed according to the devisee’s will or pass by intestate succession
from the devisee. (Section 2-702 modifies the rule of lapse by presumptively conditioning
devises on a 120-hour period of survival.)

“Antilapse” Statutes – Rationale of Section 2-603. Statutes such as Section 2-603 are
commonly called “antilapse” statutes. An antilapse statute is remedial in nature, tending to
preserve equality of treatment among different lines of succession. Although Section 2-603 is a
rule of construction, and hence under Section 2-601 yields to a finding of a contrary intention,
the remedial character of the statute means that it should be given the widest possible latitude to
operate in considering whether the testator had formed a contrary intent. See Restatement
(Third) of Property: Wills and Other Donative Transfers § 5.5 cmt. f (1999).

The 120-hour Survivorship Period. In effect, the requirement of survival of the

testator’s death means survival of the 120-hour period following the testator’s death. This is
because, under Section 2-702(a), “an individual who is not established to have survived an event
...by 120 hours is deemed to have predeceased the event.” As made clear by subsection (a)(8),
for the purposes of Section 2-603, the “event” to which Section 2-702(a) relates is the testator’s
death.

General Rule of Section 2-603 – Subsection (b). Subsection (b) states the general rule
of Section 2-603. Subsection (b)(1) applies to individual devises; subsection (b)(2) applies to
devises in class gift form. For the distinction between an individual devise and a devise in class
gift form, see Restatement (Third) of Property: Wills and Other Donative Transfers §§ 13.1,
13.2 (2008). Together, subsections (b)(1) and (2) show that the “antilapse” label is somewhat
misleading. Strictly speaking, these subsections do not reverse the common-law rule of lapse.
They do not abrogate the law-imposed condition of survivorship, so that devised property passes
to the estates of predeceasing devisees. Subsections (b)(1) and (2) leave the law-imposed
condition of survivorship intact, but modify the devolution of lapsed devises by providing a
statutory substitute gift in the case of specified relatives. The statutory substitute gift is to the
devisee’s descendants who survive the testator by 120 hours; they take the property to which the

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devisee would have been entitled had the devisee survived the testator by 120 hours.

Class Gifts. In line with modern policy, subsection (b)(2) continues the pre-1990 Code’s
approach of expressly extending the antilapse protection to class gifts. Subsection (b)(2) applies
to single-generation class gifts (see Restatement (Third) of Property: Wills and Other Donative
Transfers §§ 14.1, 14.2 (2008)) in which one or more class members fail to survive the testator
(by 120 hours) leaving descendants who survive the testator (by 120 hours); in order for the
subsection to apply, it is not necessary that any of the class members survive the testator (by 120
hours). Multiple-generation class gifts, i.e., class gifts to “issue,” “descendants,” “heirs of the
body,” “heirs,” “next of kin,” “relatives,” “family,” or a class described by language of similar
import are excluded, however, because antilapse protection is unnecessary in class gifts of these
types. They already contain within themselves the idea of representation, under which a
deceased class member’s descendants are substituted for him or her. See Sections 2-708, 2-709,
2-711; Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.3, 14.4
(2008).

“Void” Gifts. By virtue of subsection (a)(6), subsection (b) applies to the so-called
“void” gift, where the devisee is dead at the time of execution of the will. Though contrary to
some decisions, it seems likely that the testator would want the descendants of a person included,
for example, in a class term but dead when the will is made to be treated like the descendants of
another member of the class who was alive at the time the will was executed but who dies before
the testator.

Protected Relatives. The specified relatives whose devises are protected by this section
are the testator’s grandparents and their descendants and the testator’s stepchildren or, in the case
of a testamentary exercise of a power of appointment, the testator’s (donee’s) or donor’s
grandparents and their descendants and the testator’s or donor’s stepchildren. Subsection (a)(3),
added by technical amendment in 2008, defines “descendant of a grandparent” as an individual
who qualifies as a descendant of a grandparent of the testator or of the donor of a power of
appointment under the (i) rules of construction applicable to a class gift created in the testator’s
will if the devise or exercise of the power is in the form of a class gift or (ii) rules for intestate
succession if the devise or exercise of the power is not in the form of a class gift.

Section 2-603 extends the “antilapse” protection to devises to the testator’s own
stepchildren. The term “stepchild” is defined in subsection (a)(7). Antilapse protection is not
extended to devises to descendants of the testator’s stepchildren or to stepchildren of any of the
testator’s relatives. As to the testator’s own stepchildren, note that under Section 2-804 a devise
to a stepchild might be revoked if the testator and the stepchild’s adoptive or genetic parent
become divorced; the antilapse statute does not, of course, apply to a deceased stepchild’s devise
if it was revoked by Section 2-804. Subsections (b)(1) and (2) give this result by providing that
the substituted descendants take the property to which the deceased devisee or deceased class
member would have been entitled if he or she had survived the testator. If a deceased stepchild
whose devise was revoked by Section 2-804 had survived the testator, that stepchild would not
have been entitled to his or her devise, and so his or her descendants take nothing, either.

Other than stepchildren, devisees related to the testator by affinity are not protected by

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this section.

Section 2-603 Applicable to Testamentary Exercise of a Power of Appointment

Where Appointee Fails to Survive the Testator. Subsections (a)(5), (6), (7), (9), and (b)(5)
extend the protection of this section to appointees under a power of appointment exercised by the
testator’s will. The extension of the antilapse statute to powers of appointment is a step long
overdue. The extension is supported by the Restatement (Third) of Property: Wills and Other
Donative Transfers § 19.12 (2008).

Substitute Gifts. The substitute gifts provided for by subsections (b)(1) and (2) are to
the deceased devisee’s descendants. Subsection (a)(4), added by technical amendment in 2008,
defines “descendants” as the descendants of a deceased devisee or class member who would take
under a class gift created in the testator’s will. As such, the rules of construction in Section 2-
705 are applicable. The rules of construction in Section 2-705 are subject to a finding of a
contrary intent as described in Section 2-701. A contrary intent to the rules of construction in
Section 2-705 could be found, for example, in the definitions section of the testator’s will.

The 120-hour survival requirement stated in Section 2-702 does not require descendants
who would be substituted for their parent by this section to survive their parent by any set
period. Thus, if a devisee who is a protected relative survives the testator by less than 120 hours,
the substitute gift is to the devisee’s descendants who survive the testator by 120 hours; survival
of the devisee by 120 hours is not required.

The statutory substitute gift is divided among the devisee’s descendants “by
representation,” a phrase defined in Section 2-709(b).

Section 2-603 Restricted to Wills. Section 2-603 is applicable only when a devisee of a
will predeceases the testator. It does not apply to beneficiary designations in life-insurance
policies, retirement plans, or transfer-on-death accounts, nor does it apply to inter-vivos trusts,
whether revocable or irrevocable. See, however, Sections 2-706 and 2-707 for rules of
construction applicable when the beneficiary of a life-insurance policy, a retirement plan, or a
transfer-on-death account predeceases the decedent or when the beneficiary of a future interest is
not living when the interest is to take effect in possession or enjoyment.

Contrary Intention – the Rationale of Subsection (b)(3). An antilapse statute is a rule

of construction, designed to carry out presumed intention. In effect, Section 2-603 declares that
when a testator devises property “to A (a specified relative),” the testator (if he or she had
thought further about it) is presumed to have wanted to add: “but if A is not alive (120 hours
after my death), I devise the property in A’s stead to A’s descendants (who survive me by 120
hours).”

Under Section 2-601, the rule of Section 2-603 yields to a finding of a contrary intention.
A foolproof means of expressing a contrary intention is to add to a devise the phrase “and not to
[the devisee’s] descendants.” See Restatement (Third) of Property: Wills and Other Donative
Transfers § 5.5 cmt. i (1999). In the case of a power of appointment, the phrase “and not to an
appointee’s descendants” can be added by the donor of the power in the document creating the

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power of appointment, if the donor does not want the antilapse statute to apply to an appointment
under a power. See Restatement (Third) of Property: Wills and Other Donative Transfers §
19.12 cmts. c & g (2008). In addition, adding to the residuary clause a phrase such as “including
all lapsed or failed devises,” adding to a nonresiduary devise a phrase such as “if the devisee
does not survive me, the devise is to pass under the residuary clause,” or adding a separate clause
providing generally that “if the devisee of any nonresiduary devise does not survive me, the
devise is to pass under the residuary clause” makes the residuary clause an “alternative devise.”
Under subsection (b)(4), as clarified by technical amendment in 2008, an alternative devise
supersedes a substitute gift created by subsection (b)(1) or (2) if: (A) the alternative devise is in
the form of a class gift and one or more members of the class is entitled to take under the will; or
(B) the alternative devise is not in the form of a class gift and the expressly designated devisee of
the alternative devise is entitled to take under the will. See infra Example 3.

A much-litigated question is whether mere words of survivorship – such as in a devise

“to my daughter, A, if A survives me” or “to my surviving children” – automatically defeat the
antilapse statute. Lawyers who believe that the attachment of words of survivorship to a devise
is a foolproof method of defeating an antilapse statute are mistaken. The very fact that the
question is litigated so frequently is itself proof that the use of mere words of survivorship is far
from foolproof. In addition, the results of the litigated cases are divided on the question. To be
sure, many cases hold that mere words of survivorship do automatically defeat the antilapse
statute. E.g., Estate of Stroble, 636 P.2d 236 (Kan. Ct. App. 1981); Annot., 63 A.L.R.2d 1172,
1186 (1959); Annot., 92 A.L.R. 846, 857 (1934). Other cases, however, and the Restatement
(Third) of Property: Wills and Other Donative Transfers § 5.5 cmt. h (1999), reach the opposite
conclusion. E.g., Ruotolo v. Tietjen, 890 A.2d 166 (Conn. App. Ct. 2006), aff’d per curiam, 916
A.2d 1 (Conn. 2007) (residuary devise of half of the residue to testator’s stepdaughter “if she
survives me”; stepdaughter predeceased testator leaving a daughter who survived testator; citing
this section and the Restatement, court held that the survival language did not defeat the antilapse
statute); Estate of Ulrikson, 290 N.W.2d 757 (Minn. 1980) (residuary devise to testator’s brother
Melvin and sister Rodine, and “in the event that either one of them shall predecease me, then to
the other surviving brother or sister”; Melvin and Rodine predeceased testator, Melvin but not
Rodine leaving descendants who survived testator; court held residue passed to Melvin’s
descendants under antilapse statute); Detzel v. Nieberding, 219 N.E.2d 327 (Ohio P. Ct. 1966)
(devise of $5,000 to sister “provided she be living at the time of my death”; sister predeceased
testator; court held $5,000 devise passed under antilapse statute to sister’s descendants);
Henderson v. Parker, 728 S.W.2d 768 (Tex. 1987) (devise of all of testator’s property “unto our
surviving children of this marriage”; two of testator’s children survived testator, but one child,
William, predeceased testator leaving descendants who survived testator; court held that share
William would have taken passed to William’s descendants under antilapse statute; words of
survivorship found ineffective to counteract antilapse statute because court interpreted those
words as merely restricting the devisees to those living at the time the will was executed). It may
also be noted that the antilapse statutes in some other common-law countries expressly provide
that words of survivorship do not defeat the statute. See, e.g., Queensland Succession Act 1981,
§ 33(2) (“A general requirement or condition that [protected relatives] survive the testator or
attain a specified age is not a contrary intention for the purposes of this section.”).

Subsection (b)(3) adopts the position that mere words of survivorship do not – by

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themselves, in the absence of additional evidence – lead to automatic defeat of the antilapse
statute. As noted in French, “Antilapse Statutes Are Blunt Instruments: A Blueprint for
Reform,” 37 Hastings L. J. 335, 369 (1985) “courts have tended to accord too much significance
to survival requirements when deciding whether to apply antilapse statutes.”

A formalistic argument sometimes employed by courts adopting the view that words of
survivorship automatically defeat the antilapse statute is that, when words of survivorship are
used, there is nothing upon which the antilapse statute can operate; the devise itself, it is said, is
eliminated by the devisee’s having predeceased the testator. The language of subsections (b)(1)
and (2), however, nullify this formalistic argument by providing that the predeceased devisee’s
descendants take the property to which the devisee would have been entitled had the devisee
survived the testator.

Another objection to applying the antilapse statute is that mere words of survivorship
somehow establish a contrary intention. The argument is that attaching words of survivorship
indicates that the testator thought about the matter and intentionally did not provide a substitute
gift to the devisee’s descendants. At best, this is an inference only, which may or may not
accurately reflect the testator’s actual intention. An equally plausible inference is that the words
of survivorship are in the testator’s will merely because the testator’s lawyer used a will form
with words of survivorship. The testator who went to lawyer X and ended up with a will
containing devises with a survivorship requirement could by chance have gone to lawyer Y and
ended up with a will containing devises with no survivorship requirement – with no different
intent on the testator’s part from one case to the other.

Even a lawyer’s deliberate use of mere words of survivorship to defeat the antilapse
statute does not guarantee that the lawyer’s intention represents the client’s intention. Any
linkage between the lawyer’s intention and the client’s intention is speculative unless the lawyer
discussed the matter with the client. Especially in the case of younger-generation devisees, such
as the client’s children or nieces and nephews, it cannot be assumed that all clients, on their own,
have anticipated the possibility that the devisee will predecease the client and will have thought
through who should take the devised property in case the never-anticipated event happens.

If, however, evidence establishes that the lawyer did discuss the question with the client,
and that the client decided that, for example, if the client’s child predeceases the client, the
deceased child’s children (the client’s grandchildren) should not take the devise in place of the
deceased child, then the combination of the words of survivorship and the extrinsic evidence of
the client’s intention would support a finding of a contrary intention under Section 2-601. See
Example 1, below. For this reason, Sections 2-601 and 2-603 will not expose lawyers to
malpractice liability for the amount that, in the absence of the finding of the contrary intention,
would have passed under the antilapse statute to a deceased devisee’s descendants. The success
of a malpractice claim depends upon sufficient evidence of a client’s intention and the lawyer’s
failure to carry out that intention. In a case in which there is evidence that the client did not want
the antilapse statute to apply, that evidence would support a finding of a contrary intention under
Section 2-601, thus preventing the client’s intention from being defeated by Section 2-603 and
protecting the lawyer from liability for the amount that, in the absence of the finding of a
contrary intention, would have passed under the antilapse statute to a deceased devisee’s

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descendants.

Any inference about actual intention to be drawn from mere words of survivorship is
especially problematic in the case of will substitutes such as life insurance, where it is less likely
that the insured had the assistance of a lawyer in drafting the beneficiary designation. Although
Section 2-603 only applies to wills, a companion provision is Section 2-706, which applies to
will substitutes, including life insurance. Section 2-706 also contains language similar to that in
subsection (b)(3), directing that words of survivorship do not, in the absence of additional
evidence, indicate an intent contrary to the application of this section. It would be anomalous to
provide one rule for wills and a different rule for will substitutes.

The basic operation of Section 2-603 is illustrated in the following example:

Example 1. G’s will devised “$10,000 to my surviving children.” G had two children, A
and B. A predeceased G, leaving a child, X, who survived G by 120 hours. B also survived G
by 120 hours.

Solution: Under subsection (b)(2), X takes $5,000 and B takes $5,000. The substitute
gift to A’s descendant, X, is not defeated by the fact that the devise is a class gift nor, under
subsection (b)(3), is it automatically defeated by the fact that the word “surviving” is used.

Note that subsection (b)(3) provides that words of survivorship are not by themselves to
be taken as expressing a contrary intention for purposes of Section 2-601. Under Section 2-601,
a finding of a contrary intention could appropriately be based on affirmative evidence that G
deliberately used the words of survivorship to defeat the antilapse statute. In the case of such a
finding, B would take the full $10,000 devise. Relevant evidence tending to support such a
finding might be a pre-execution letter or memorandum to G from G’s attorney stating that G’s
attorney used the word “surviving” for the purpose of assuring that if one of G’s children were to
predecease G, that child’s descendants would not take the predeceased child’s share under any
statute or rule of law.

In the absence of persuasive evidence of a contrary intent, however, the antilapse statute,
being remedial in nature, and tending to preserve equality among different lines of succession,
should be given the widest possible chance to operate and should be defeated only by a finding
of intention that directly contradicts the substitute gift created by the statute. Mere words of
survivorship – by themselves – do not directly contradict the statutory substitute gift to the
descendants of a deceased devisee. The common law of lapse already conditions all devises on
survivorship (and Section 2-702 presumptively conditions all devises on survivorship by 120
hours). As noted above, the antilapse statute does not reverse the law-imposed requirement of
survivorship in any strict sense; it merely alters the devolution of lapsed devises by substituting
the deceased devisee’s descendants in place of those who would otherwise take. Thus, mere
words of survivorship merely duplicate the law-imposed survivorship requirement deriving from
the rule of lapse, and do not contradict the statutory substitute gift created by subsection (b)(1) or
(2).

Subsection (b)(4). Under subsection (b)(4), as clarified by technical amendment in

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2008, a statutory substitute gift is superseded if the testator’s will expressly provides for its own
alternative devisee and if: (A) the alternative devise is in the form of a class gift and one or more
members of the class is entitled to take under the will; or (B) the alternative devise is not in the
form of a class gift and the expressly designated devisee of the alternative devise is entitled to
take under the will. For example, the statute’s substitute gift would be superseded in the case of
a devise “to A if A survives me; if not, to B,” where B survived the testator but A predeceased
the testator leaving descendants who survived the testator. Under subsection (b)(4), B, not A’s
descendants, would take. In the same example, however, it should be noted that A’s descendants
would take under the statute if B as well as A predeceased the testator, for in that case B (the
“expressly designated devisee of the alternative devise”) would not be entitled to take under the
will. This would be true even if B left descendants who survived the testator; B’s descendants
are not “expressly designated devisees of the alternative devise.”

It should also be noted that, for purposes of Section 2-601, an alternative devise might
indicate a contrary intention even if subsection (b)(4) is inapplicable. To illustrate this point,
consider a variation of Example 1. Suppose that in Example 1, G’s will devised “$10,000 to my
surviving children, but if none of my children survives me, to the descendants of deceased
children”. The alternative devise to the descendants of deceased children would not cause the
substitute gift to X to be superseded under subsection (b)(4) because the condition precedent to
the alternative devise – “if none of my children survives me” – was not satisfied; one of G’s
children, B, survived G. Hence the alternative devisees would not be entitled to take under the
will. Nevertheless, the italicized language would indicate that G did not intend to substitute
descendants of deceased children unless all of G’s children failed to survive G. Thus, although
A predeceased G leaving a child, X who survived G by 120 hours, X would not be substituted for
A. B, G’s surviving child, would take the whole $10,000 devise.

The above variation of Example 1 is to be distinguished from other variations, such as

one in which G’s will devised “$10,000 to my surviving children, but if none of my children
survives me, to my brothers and sisters”. The italicized language in this variation would not
indicate that G did not intend to substitute descendants of deceased children unless all of G’s
children failed to survive G. In addition, even if one or more of G’s brothers and sisters survived
G, the alternative devise would not cause the substitute gift to X to be superseded under
subsection (b)(4); the alternative devisees would not be entitled to take under the will because
the alternative devise is expressly conditioned on none of G’s children surviving G. Thus, X
would be substituted for A, allowing X and B to divide the $10,000 equally (as in the original
version of Example 1.)

Subsection (b)(4) is further illustrated by the following examples:

Example 2. G’s will devised “$10,000 to my sister, S” and devised “the rest, residue, and
remainder of my estate to X-Charity.” S predeceased G, leaving a child, N, who survived G by
120 hours.

Solution: S’s $10,000 devise goes to N, not to X-Charity. The residuary clause does not
create an “alternative devise,” as defined in subsection (a)(1), because neither it nor any other
language in the will specifically provides that S’s $10,000 devise or lapsed or failed devises in

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general pass under the residuary clause.

Example 3. Same facts as Example 2, except that G’s residuary clause devised “the rest,
residue, and remainder of my estate, including all failed and lapsed devises, to X-Charity.”

Solution: S’s $10,000 devise goes to X-Charity, not to N. Under subsection (b)(4), the
substitute gift to N created by subsection (b)(1) is superseded. The residuary clause expressly
creates an “alternative devise,” as defined in subsection (a)(1), in favor of X-Charity and that
alternative devisee, X-Charity, is entitled to take under the will.

Example 4. G’s will devised “$10,000 to my two children, A and B, or to the survivor of
them.” A predeceased G, leaving a child, X, who survived G by 120 hours. B also survived G by
120 hours.

Solution: B takes the full $10,000. Because the takers of the $10,000 devise are both
named and numbered (“my two children, A and B”), the devise is not in the form of a class gift.
See Restatement (Third) of Property: Wills and Other Donative Transfers § 13.2 (2008). The
substance of the devise is as if it read “half of $10,000 to A, but if A predeceases me, that half to
B if B survives me and the other half of $10,000 to B, but if B predeceases me, that other half to
A if A survives me.” With respect to each half, A and B have alternative devises, one to the
other. Subsection (b)(1) creates a substitute gift to A’s descendant, X, with respect to A’s
alternative devise in each half. Under subsection (b)(4), however, that substitute gift to X with
respect to each half is superseded by the alternative devise to B because the alternative devisee,
B, survived G by 120 hours and is entitled to take under G’s will.

Example 5. G’s will devised “$10,000 to my two children, A and B, or to the survivor of
them.” A and B predeceased G. A left a child, X, who survived G by 120 hours; B died
childless.

Solution: X takes the full $10,000. Because the devise itself is in the same form as the
one in Example 4, the substance of the devise is as if it read “half of $10,000 to A, but if A
predeceases me, that half to B if B survives me and the other half of $10,000 to B, but if B
predeceases me, that other half to A if A survives me.” With respect to each half, A and B have
alternative devises, one to the other. As in Example 4, subsection (b)(1) creates a substitute gift
to A’s descendant, X, with respect to A’s alternative devise in each half. Unlike the situation in
Example 4, however, neither substitute gift to X is superseded under subsection (b)(4) by the
alternative devise to B because, in this case, the alternative devisee, B, failed to survive G by 120
hours and is therefore not entitled to take either half under G’s will.

Note that the order of deaths as between A and B is irrelevant. The phrase “or to the
survivor” does not mean the survivor as between them if they both predecease G; it refers to the
one who survives G if one but not the other survives G.

Example 6. G’s will devised “$10,000 to my son, A, if he is living at my death; if not, to

A’s children.” A predeceased G. A’s child, X, also predeceased G. A’s other child, Y and X’s
children, M and N, survived G by 120 hours.

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Solution: Half of the devise ($5,000) goes to Y. The other half ($5,000) goes to M and
N.

Because A failed to survive G by 120 hours and left descendants who survived G by 120
hours, subsection (b)(1) substitutes A’s descendants who survived G by 120 hours for A. But
that substitute gift is superseded under subsection (b)(4) by the alternative devise to A’s children.
Under subsection (b)(4), as clarified by technical amendment in 2008, an alternative devise
supersedes a substitute gift if the alternative devise is in the form of a class gift and one or more
members of the class is entitled to take under the will. Because the alternative devise is in the
form of a class gift (see Restatement (Third) of Property: Wills and Other Donative Transfers §
13.1 (2008), and because one member of the class, Y, survived the testator and is entitled to take,
the substitute gift under subsection (b)(1) is superseded.

Because the alternative devise to A’s children is in the form of a class gift, however, and
because one of the class members, X, failed to survive G by 120 hours and left descendants who
survived G by 120 hours, subsection (b)(2) applies and substitutes M and N for X.

Subsection (c). Subsection (c) is necessary because there can be cases in which
subsections (b)(1) or (2) create substitute gifts with respect to two or more alternative devises of
the same property, and those substitute gifts are not superseded under the terms of subsection
(b)(4). Subsection (c) provides the tie-breaking mechanism for such situations.

The initial step is to determine which of the alternative devises would take effect had all
the devisees themselves survived the testator (by 120 hours). In subsection (c), this devise is
called the “primary devise.” Unless subsection (c)(2) applies, subsection (c)(1) provides that the
devised property passes under substitute gift created with respect to the primary devise. This
substitute gift is called the “primary substitute gift.” Thus, the devised property goes to the
descendants of the devisee or devisees of the primary devise.

Subsection (c)(2) provides an exception to this rule. Under subsection (c)(2), the devised
property does not pass under the primary substitute gift if there is a “younger-generation devise”
– defined as a devise that (i) is to a descendant of a devisee of the primary devise, (ii) is an
alternative devise with respect to the primary devise, (iii) is a devise for which a substitute gift is
created, and (iv) would have taken effect had all the deceased devisees who left surviving
descendants survived the testator except the deceased devisee or devisees of the primary devise.
If there is a younger-generation devise, the devised property passes under the “younger-
generation substitute gift” – defined as the substitute gift created with respect to the younger-
generation devise.

Subsection (c) is illustrated by the following examples:

Example 7. G’s will devised “$5,000 to my son, A, if he is living at my death; if not, to

my daughter, B” and devised “$7,500 to my daughter, B, if she is living at my death; if not, to
my son, A.” A and B predeceased G, both leaving descendants who survived G by 120 hours.

Solution: A’s descendants take the $5,000 devise as substitute takers for A, and B’s

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descendants take the $7,500 devise as substitute takers for B. In the absence of a finding based
on affirmative evidence such as described in the solution to Example 1, the mere words of
survivorship do not by themselves indicate a contrary intent.

Both devises require application of subsection (c). In the case of both devises, the statute
produces a substitute gift for the devise to A and for the devise to B, each devise being an
alternative devise, one to the other. The question of which of the substitute gifts takes effect is
resolved by determining which of the devisees themselves would take the devised property if
both A and B had survived G by 120 hours.

With respect to the devise of $5,000, the primary devise is to A because A would have
taken the devised property had both A and B survived G by 120 hours. Consequently, the
primary substitute gift is to A’s descendants and that substitute gift prevails over the substitute
gift to B’s descendants.

With respect to the devise of $7,500, the primary devise is to B because B would have
taken the devised property had both A and B survived G by 120 hours, and so the substitute gift
to B’s descendants is the primary substitute gift and it prevails over the substitute gift to A’s
descendants.

Subsection (c)(2) is inapplicable because there is no younger-generation devise. Neither

A nor B is a descendant of the other.

Example 8. G’s will devised “$10,000 to my son, A, if he is living at my death; if not, to

A’s children, X and Y.” A and X predeceased G. A’s child, Y, and X’s children, M and N,
survived G by 120 hours.

Solution: Half of the devise ($5,000) goes to Y. The other half ($5,000) goes to M and
N. The disposition of the latter half requires application of subsection (c).

Subsection (b)(1) produces substitute gifts as to that half for the devise of that half to A
and for the devise of that half to X, each of these devises being alternative devises, one to the
other. The primary devise is to A. But there is also a younger-generation devise, the alternative
devise to X. X is a descendant of A, X would take if X but not A survived G by 120 hours, and
the devise is one for which a substitute gift is created by subsection (b)(1). So, the younger-
generation substitute gift, which is to X’s descendants (M and N), prevails over the primary
substitute gift, which is to A’s descendants (Y, M, and N).

Note that the outcome of this example is the same as in Example 6.

Example 9. Same facts as Example 5, except that both A and B predeceased the testator
and both left descendants who survived the testator by 120 hours.

Solution: A’s descendants take half ($5,000) and B’s descendants take half ($5,000).

As to the half devised to A, subsection (b)(1) produces a substitute gift to A’s

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descendants and a substitute gift to B’s descendants (because the language “or to the survivor of
them” created an alternative devise in B of A’s half). As to the half devised to B, subsection
(b)(1) produces a substitute gift to B’s descendants and a substitute gift to A’s descendants
(because the language “or to the survivor of them” created an alternative devise in A of B’s half).
Thus, with respect to each half, resort must be had to subsection (c) to determine which
substitute gift prevails.

Under subsection (c)(1), each half passes under the primary substitute gift. The primary
devise as to A’s half is to A and the primary devise as to B’s half is to B because, if both A and
B had survived G by 120 hours, A would have taken half ($5,000) and B would have taken half
($5,000). Neither A nor B is a descendant of the other, so subsection (c)(2) does not apply.
Only if one were a descendant of the other would the other’s descendant take it all, under the rule
of subsection (c)(2).

Technical Amendments. Technical amendments in 2008 added definitions of

“descendant of a grandparent” and “descendants” as used in subsections (b)(1) and (2) and
clarified subsection (b)(4). The two new definitions resolve questions of status previously
unanswered. The technical amendment of subsection (b)(4) makes that subsection easier to
understand but does not change its substance.

Reference. This section is discussed in Halbach & Waggoner, ‘The UPC’s New
Survivorship and Antilapse Provisions,’ 55 Alb. L. Rev. 1091 (1992).

Historical Note. This Comment was revised in 1993 and 2008.

SECTION 2-604. FAILURE OF TESTAMENTARY PROVISION.

(a) Except as provided in Section 2-603, a devise, other than a residuary devise, that fails

for any reason becomes a part of the residue.

(b) Except as provided in Section 2-603, if the residue is devised to two or more persons,

the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or

to other residuary devisees in proportion to the interest of each in the remaining part of the

residue.

Comment

This section applies only if Section 2-603 does not produce a substitute taker for a
devisee who fails to survive the testator by 120 hours. There is also a special rule for disclaimers
contained in Section 2-1106(b)(3); a disclaimed devise may be governed by either Section 2-603
or the present section, depending on the circumstances.

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A devise of “all of my estate”, or a devise using words of similar import, constitutes a
residuary devise for purposes of this section.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

2021 Technical Amendment. This Comment was amended in 2021 to correct the
reference to Section 2-1106(b)(3).

Historical Note. This Comment was revised in 1993, 2002, and 2021.

SECTION 2-605. INCREASE IN SECURITIES; ACCESSIONS.

(a) If a testator executes a will that devises securities and the testator then owned

securities that meet the description in the will, the devise includes additional securities owned by

the testator at death to the extent the additional securities were acquired by the testator after the

will was executed as a result of the testator’s ownership of the described securities and are

securities of any of the following types:

(1) securities of the same organization acquired by reason of action initiated by

the organization or any successor, related, or acquiring organization, excluding any acquired by

exercise of purchase options;

(2) securities of another organization acquired as a result of a merger,

consolidation, reorganization, or other distribution by the organization or any successor, related,

or acquiring organization; or

(3) securities of the same organization acquired as a result of a plan of

reinvestment.

(b) Distributions in cash before death with respect to a described security are not part of

the devise.

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Comment

Purpose and Scope of Revisions. The rule of subsection (a), as revised, relates to a
devise of securities (such as a devise of 100 shares of XYZ Company), regardless of whether that
devise is characterized as a general or specific devise. If the testator executes a will that makes a
devise of securities and if the testator then owned securities that meet the description in the will,
then the devisee is entitled not only to the described securities to the extent they are owned by
the testator at death; the devisee is also entitled to any additional securities owned by the testator
at death that were acquired by the testator during his or her lifetime after the will was executed
and were acquired as a result of the testator’s ownership of the described securities by reason of
an action specified in subsection (a)(1), (2), or (3), such as the declaration of stock splits or stock
dividends or spinoffs of a subsidiary.

The impetus for these revisions derives from the rule on stock splits enunciated by
Bostwick v. Hurstel, 364 Mass. 282, 304 N.E.2d 186 (1973), and now codified in Massachusetts
as to actions covered by subsections (a)(1) and (2). Mass. Gen. Laws c. 191, § 1A(4).

Subsection (a) Not Exclusive. Subsection (a) is not exclusive, i.e., it is not to be
understood as setting forth the only conditions under which additional securities of the types
described in subsections (a)(1), through (3) are included in the devise. For example, the express
terms of subsection (a) do not apply to a case in which the testator owned the described securities
when he or she executed the will, but later sold (or otherwise disposed of) those securities, and
then later purchased (or otherwise acquired) securities that meet the description in the will,
following which additional securities of the type or types described in subsection (a)(1), (2), or
(3) are acquired as a result of the testator’s ownership of the later-acquired securities. Nor do the
express terms of subsection (a) apply to a similar (but less likely) case in which the testator did
not own the described securities when he or she executed the will, but later purchased (or
otherwise acquired) such securities. Subsection (a) does not preclude a court, in an appropriate
case, from deciding that additional securities of the type described in subsection (a)(1), (2), or (3)
acquired as a result of the testator’s ownership of the later-acquired securities pass under the
devise in either of these two cases, or in other cases if appropriate.

Subsection (b) codifies existing law that distributions in cash such as interest, accrued
rent, or cash dividends declared and payable as of a record date before the testator’s death, do not
pass as a part of the devise. It makes no difference whether such cash distributions were paid
before or after death. See Section 4 of the Revised Uniform Principal and Income Act.

Cross Reference. The term “organization” is defined in Section 1-201.

SECTION 2-606. NONADEMPTION OF SPECIFIC DEVISES; UNPAID

PROCEEDS OF SALE, CONDEMNATION, OR INSURANCE; SALE BY

CONSERVATOR OR AGENT.

(a) A specific devisee has a right to specifically devised property in the testator’s estate at

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the testator’s death and to:

(1) any balance of the purchase price, together with any security agreement, owed

by a purchaser at the testator’s death by reason of sale of the property;

(2) any amount of a condemnation award for the taking of the property unpaid at

death;

(3) any proceeds unpaid at death on fire or casualty insurance on or other recovery

for injury to the property;

(4) any property owned by the testator at death and acquired as a result of

foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised

obligation;

(5) any real property or tangible personal property owned by the testator at death

which the testator acquired as a replacement for specifically devised real property or tangible

personal property; and

(6) if not covered by paragraphs (1) through (5), a pecuniary devise equal 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.

(b) If specifically devised property is sold or mortgaged by a conservator or by an agent

acting within the authority of a durable power of attorney for an incapacitated principal, or a

condemnation award, insurance proceeds, or recovery 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

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

proceeds, or the recovery.

(c) The right of a specific devisee under subsection (b) is reduced by any right the devisee

has under subsection (a).

(d) For the purposes of the references in subsection (b) to a conservator, subsection (b)

does not apply if, after the sale, mortgage, condemnation, casualty, or recovery, it was

adjudicated that the testator’s incapacity ceased and the testator survived the adjudication for at

least one year.

(e) For the purposes of the references in subsection (b) to an agent acting within the

authority of a durable power of attorney for an incapacitated principal, (i) “incapacitated

principal” means a principal who is an incapacitated person, (ii) no adjudication of incapacity

before death is necessary, and (iii) the acts of an agent within the authority of a durable power of

attorney are presumed to be for an incapacitated principal.

Comment

Purpose and Scope of Revisions. Under the “identity” theory followed by most courts,
the common-law doctrine of ademption by extinction is that a specific devise is adeemed –
rendered ineffective – if the specifically devised property is not owned by the testator at death.
In applying the “identity” theory, courts do not inquire into the testator’s intent to determine
whether the testator’s objective in disposing of the specifically devised property was to revoke
the devise. The only thing that matters is that the property is no longer owned at death. The
application of the “identity” theory of ademption has resulted in harsh results in a number of
cases, where it was reasonable clear that the testator did not intend to revoke the devise. Notable
examples include McGee v. McGee, 413 A.2d 72 (R.I. 1980); Estate of Dungan, 73 A.2d 776
(Del. Ch. 1950).

Recently, some courts have begun to break away from the “identity” theory and adopt
instead the so-called “intent” theory. E.g., Estate of Austin, 113 Cal. App. 3d 167, 169 Cal. Rptr.
648 (1980). The major import of the revisions of this section is to adopt the “intent” theory in
subsections (a)(5) and (6).

Subsection (a)(5) does not import a tracing principle into the question of ademption, but
rather should be seen as a sensible “mere change in form” principle.

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Example 1. G’s will devised to X “my 1984 Ford.” After she executed her will, she sold
her 1984 Ford and bought a 1988 Buick; later, she sold the 1988 Buick and bought a 1993
Chrysler. She still owned the 1993 Chrysler when she died. Under subsection (a)(5), X takes the
1993 Chrysler.

Variation. If G had sold her 1984 Ford (or any of the replacement cars) and used the
proceeds to buy shares in a mutual fund, which she owned at death, subsection (a)(5) does not
give X the shares in the mutual fund. If G owned an automobile at death as a replacement for
her 1984 Ford, however, X would be entitled to that automobile, even though it was bought with
funds other than the proceeds of the sale of the 1984 Ford.

Subsection (a)(6) applies only to the extent the specifically devised property is not in the
testator’s estate at death and its value or its replacement is not covered by the provisions of
subsections (a)(1) through (5). In that event, subsection (a)(6) allows the devisee claiming that
an ademption has not occurred to establish that the facts and circumstances indicate that
ademption of the devise was not intended by the testator or that ademption of the devise is
inconsistent with the testator’s manifested plan of distribution.

Example 2. G’s will devised to his son, A, “that diamond ring I inherited from
grandfather” and devised to his daughter, B, “that diamond brooch I inherited from
grandmother.” After G executed his will, a burglar entered his home and stole the diamond ring
(but not the diamond brooch, as it was in G’s safety deposit box at his bank).

Under subsection (a)(6), A could likely establish that G intended A’s devise to not adeem
or that ademption would be inconsistent with G’s manifested plan of distribution. In fact, G’s
equalizing devise to B affirmatively indicates that ademption is inconsistent with G’s manifested
plan of distribution. The likely result is that, under subsection (a)(6), A would be entitled to the
value of the diamond ring.

Example 3. G’s will devised her painting titled The Bar by Edouard Manet to X. After
executing her will, G donated the painting to a museum. G’s deliberate act of giving away the
specifically devised property is a fact and circumstance indicating that ademption of the devise
was intended. In the absence of persuasive evidence to the contrary, therefore, X would not be
entitled to the value of the painting.

Reference. Section 2-606 is discussed in Alexander, “Ademption and the Domain of

Formality in Wills Law,” 55 Alb. L. Rev. 1067 (1992).

Historical Note. The above Comment was revised in 1993 and 1997. For the prior
version, see 8 U.L.A. 134 (Supp.1992).

1997 Technical Amendment. By technical amendment effective July 31, 1997,

subsection (a)(6) was substantially revised. Subsection (a)(6) previously provided:

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

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(6) unless the facts and circumstances indicate that ademption of the devise was intended
by the testator or ademption of the devise is consistent with the testator’s manifested plan of
distribution, the value of the specifically devised property to the extent the specifically devised
property is not in the testator’s estate at death and its value or its replacement is not covered by
paragraphs (1) through (5).

Of the seven enactments of Section 2-606 as of early 1997, five omitted subsection (a)(6).
Attorneys, accustomed to the concept that a specific devise automatically fails if the devised
property is not in the testator’s estate at death, were confused by the reverse assumption stated in
original (a)(6). The confusion was heightened by the fact that (a)(6), stating a general rule,
followed five carefully tailored safe harbors. The replacement provision, like the other
exceptions, places the burden on the devisee to establish that an ademption has not occurred.

SECTION 2-607. NONEXONERATION. A specific devise passes subject to any

mortgage interest existing at the date of death, without right of exoneration, regardless of a

general directive in the will to pay debts.

Comment

See Section 3-814 empowering the personal representative to pay an encumbrance under
some circumstances; the last sentence of that section makes it clear that such payment does not
increase the right of the specific devisee. The present section governs the substantive rights of
the devisee. The common law rule of exoneration of the specific devise is abolished by this
section, and the contrary rule is adopted.

For the rule as to exempt property, see Section 2-403.

The rule of this section is not inconsistent with Section 2-606(b). If a conservator or
agent for an incapacitated principal mortgages specifically devised property, Section 2-606(b)
provides that the specific devisee is entitled to a pecuniary devise equal to the amount of the
unpaid loan. Section 2-606(b) does not contradict this section, which provides that the specific
devise passes subject to any mortgage interest existing at the date of death, without right of
exoneration.

SECTION 2-608. EXERCISE OF POWER OF APPOINTMENT. In the absence of

a requirement that a power of appointment be exercised by a reference, or by an express or

specific reference, to the power, a general residuary clause in a will, or a will making general

disposition of all of the testator’s property, expresses an intention to exercise a power of

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appointment held by the testator only if (i) the power is a general power exercisable in favor of

the powerholder’s estate and the creating instrument does not contain an effective gift if the

power is not exercised or (ii) the testator’s will manifests an intention to include the property

subject to the power.

Comment

General Residuary Clause. This section, in conjunction with Section 2-601, provides
that a general residuary clause (such as “All the residue of my estate, I devise to…”) in the
testator’s will or a will making general disposition of all of the testator’s property (such as “All
of my estate, I devise to...”) is presumed to express an intent to exercise a power of appointment
only if one or the other of two circumstances or sets of circumstances are satisfied. One such
circumstance (whether the power is general or nongeneral) is if the testator’s will manifests an
intention to include the property subject to the power. A simple example of a residuary clause
that manifests such an intention is a so-called “blending” clause, such as “All the residue of my
estate, including any property over which I have a power of appointment, I devise to....”

The other circumstance under which a general residuary clause or a will making general
disposition of all of the testator’s property is presumed to express an intent to exercise a power is
if the power is a general power exercisable in favor of the powerholder’s estate and the
instrument that created the power does not contain an effective gift over in the event the power is
not exercised (a “gift in default”). In well planned estates, a general power of appointment will
be accompanied by a gift in default. The gift-in-default clause is ordinarily expected to take
effect; it is not merely an after-thought just in case the power is not exercised. The power is not
expected to be exercised, and in fact is often conferred mainly to gain a tax benefit – the federal
estate-tax marital deduction under Section 2056(b)(5) of the Internal Revenue Code or, now,
inclusion of the property in the gross estate of a younger-generation beneficiary under Section
2041 of the Internal Revenue Code, in order to avoid the possibly higher rates imposed by the
federal generation-skipping tax. See Blattmachr & Pennell, “Adventures in Generation
Skipping, Or How We Learned to Love the ‘Delaware Tax Trap,’” 24 Real Prop. Prob. & Tr. J.
75 (1989). A general power should not be exercised in such a case without clear evidence of an
intent to appoint.

In poorly planned estates, on the other hand, there may be no gift-in-default clause. In
the absence of a gift-in-default clause, it seems better to let the property pass under the
powerholder’s will than force it to return to the donor’s estate, for the reason that the donor died
before the powerholder died and it seems better to avoid forcing a reopening of the donor’s
estate.

Cross Reference. See also Section 2-704 for a provision governing the effect of a
requirement that a power of appointment be exercised by a reference (or by an express or
specific reference) to the power.

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2014 Amendment. This section was amended in 2014 to conform it to Section 302 of
the Uniform Powers of Appointment Act.

SECTION 2-609. ADEMPTION BY SATISFACTION.

(a) Property a testator gave in the testator’s lifetime to a person is treated as a satisfaction

of a devise in whole or in part, only if (i) the will provides for deduction of the gift, (ii) the

testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that

its value is to be deducted from the value of the devise, or (iii) the devisee acknowledged in

writing that the gift is in satisfaction of the devise or that its value is to be deducted from the

value of the devise.

(b) For purposes of partial satisfaction, property given during lifetime is valued as of the

time the devisee came into possession or enjoyment of the property or at the testator’s death,

whichever occurs first.

(c) If the devisee fails to survive the testator, the gift is treated as a full or partial

satisfaction of the devise, as appropriate, in applying Sections 2-603 and 2-604, unless the

testator’s contemporaneous writing provides otherwise.

Comment

Scope and Purpose of Revisions. In addition to minor stylistic changes, this section is
revised to delete the requirement that the gift in satisfaction of a devise be made to the devisee.
The purpose is to allow the testator to satisfy a devise to A by making a gift to B. Consider why
this might be desirable. G’s will made a $20,000 devise to his child, A. G was a widower.
Shortly before his death, G in consultation with his lawyer decided to take advantage of the
$10,000 annual gift tax exclusion and sent a check for $10,000 to A and another check for
$10,000 to A’s spouse, B. The checks were accompanied by a letter from G explaining that the
gifts were made for tax purposes and were in lieu of the $20,000 devise to A. The removal of the
phrase “to that person” from the statute allows the $20,000 devise to be fully satisfied by the
gifts to A and B.

This section parallels Section 2-109 on advancements and follows the same policy of
requiring written evidence that lifetime gifts are to be taken into account in the distribution of an
estate, whether testate or intestate. Although courts traditionally call this “ademption by
satisfaction” when a will is involved, and “advancement” when the estate is intestate, the

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difference in terminology is not significant.

Some wills expressly provide for lifetime advances by a hotchpot clause. Where the will
contains no such clause, this section requires either the testator to declare in writing that the gift
is in satisfaction of the devise or its value is to be deducted from the value of the devise or the
devisee to acknowledge the same in writing.

To be a gift in satisfaction, the gift need not be an outright gift; it can be in the form of a
will substitute, such as designating the devisee as the beneficiary of the testator’s life-insurance
policy or the beneficiary of the remainder interest in a revocable inter-vivos trust.

Subsection (b) on value accords with Section 2-109 and applies if, for example, property
such as stock is given. If the devise is specific, a gift of the specific property to the devisee
during lifetime adeems the devise by extinction rather than by satisfaction, and this section
would be inapplicable. Unlike the common law of satisfaction, however, specific devises are not
excluded from the rule of this section. If, for example, the testator makes a devise of a specific
item of property, and subsequently makes a gift of cash or other property to the devisee,
accompanied by the requisite written intent that the gift satisfies the devise, the devise is satisfied
under this section even if the subject of the specific devise is still in the testator’s estate at death
(and hence would not be adeemed under the doctrine of ademption by extinction).

Under subsection (c), if a devisee to whom a gift in satisfaction is made predeceases the
testator and his or her descendants take under Section 2-603 or 2-604, they take the same devise
as their ancestor would have taken had the ancestor survived the testator; if the devise is reduced
by reason of this section as to the ancestor, it is automatically reduced as to the devisee’s
descendants. In this respect, the rule in testacy differs from that in intestacy; see Section 2-
109(c).

PART 7. RULES OF CONSTRUCTION APPLICABLE TO WILLS AND OTHER

GOVERNING INSTRUMENTS

GENERAL COMMENT

Part 7 contains rules of construction applicable to wills and other governing instruments,
such as deeds, trusts, appointments, beneficiary designations, and so on. Like the rules of
construction in Part 6 (which apply only to wills), the rules of construction in this part yield to a
finding of a contrary intention.

Some of the sections in Part 7 are revisions of sections contained in Part 6 of the pre-
1990 Code. Although these sections originally applied only to wills, their restricted scope was
inappropriate.

Some of the sections in Part 7 are new, having been added to the Code as desirable means
of carrying out common intention.

Application to Pre-Existing Governing Instruments. Under Section 8-101(b), for

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decedents dying after the effective date of enactment, the provisions of this Code apply to
governing instruments executed prior to as well as on or after the effective date of enactment.
The Joint Editorial Board for the Uniform Probate Code has issued a statement concerning the
constitutionality under the Contracts Clause of this feature of the Code. The statement, titled
“Joint Editorial Board Statement Regarding the Constitutionality of Changes in Default Rules as
Applied to Pre-Existing Documents,” can be found at 17 Am. C. Tr. & Est. Couns. Notes 184
(1991) or can be obtained from the Uniform Law Commission, www.uniformlaws.org.

Historical Note. This General Comment was revised in 1993. For the prior version, see
8 U.L.A. 137 (Supp. 1992).

SECTION 2-701. SCOPE. In the absence of a finding of a contrary intention, the rules

of construction in this [part] control the construction of a governing instrument. The rules of

construction in this [part] apply to a governing instrument of any type, except as the application

of a particular section is limited by its terms to a specific type or types of provision or governing

instrument.

Comment

The rules of construction in this part apply to governing instruments of any type, except
as the application of a particular section is limited by its terms to a specific type or types of
provision or governing instrument.

The term “governing instrument” is defined in Section 1-201 as “a deed, will, trust,
insurance or annuity policy, account with POD designation, security registered in beneficiary
form (TOD), pension, profit-sharing, retirement, or similar benefit plan, instrument creating or
exercising a power of appointment or a power of attorney, or a dispositive, appointive, or
nominative instrument of any similar type.”

Certain of the sections in this part are limited in their application to provisions or
governing instruments of a certain type or types. Section 2-704, for example, applies only to a
governing instrument creating a power of appointment. Section 2-706 applies only to governing
instruments that are “beneficiary designations,” a term defined in Section 1-201 as referring to “a
governing instrument naming a beneficiary of an insurance or annuity policy, of an account with
POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-
sharing, retirement, or similar benefit plan, or other nonprobate transfer at death.” Section 2-707
applies only to governing instruments creating a future interest under the terms of a trust.

Cross References. See the Comment to Section 2-601.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A.
138 (Supp. 1992).

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SECTION 2-702. REQUIREMENT OF SURVIVAL BY 120 HOURS.

(a) [Requirement of Survival by 120 Hours Under Probate Code.] For the purposes of this

[code], except as provided in subsection (d), an individual who is not established by clear and

convincing evidence to have survived an event, including the death of another individual, by 120

hours is deemed to have predeceased the event.

(b) [Requirement of Survival by 120 Hours under Governing Instrument.] Except as

provided in subsection (d), for purposes of a provision of a governing instrument that relates to

an individual surviving an event, including the death of another individual, an individual who is

not established by clear and convincing evidence to have survived the event, by 120 hours is

deemed to have predeceased the event.

(c) [Co-owners With Right of Survivorship; Requirement of Survival by 120 Hours.]

Except as provided in subsection (d), if (i) it is not established by clear and convincing evidence

that one of two co-owners with right of survivorship survived the other co-owner by 120 hours,

one-half of the property passes as if one had survived by 120 hours and one-half as if the other

had survived by 120 hours and (ii) there are more than two co-owners and it is not established by

clear and convincing evidence that at least one of them survived the others by 120 hours, the

property passes in the proportion that one bears to the whole number of co-owners. For the

purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants

by the entireties, and other co-owners of property or accounts held under circumstances that

entitles one or more to the whole of the property or account on the death of the other or others.

(d) [Exceptions.] Survival by 120 hours is not required if:

(1) the governing instrument contains language dealing explicitly with

simultaneous deaths or deaths in a common disaster and that language is operable under the facts

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of the case;

(2) the governing instrument expressly indicates that an individual is not required

to survive an event, including the death of another individual, by any specified period or

expressly requires the individual to survive the event by a specified period; but survival of the

event or the specified period must be established by clear and convincing evidence;

(3) the imposition of a 120-hour requirement of survival would cause a nonvested

property interest or a power of appointment to fail to qualify for validity under Section 2-

901(a)(1), (b)(1), or (c)(1) or to become invalid under Section 2-901(a)(2), (b)(2), or (c)(2); but

survival must be established by clear and convincing evidence; or

(4) the application of a 120-hour requirement of survival to multiple governing

instruments would result in an unintended failure or duplication of a disposition; but survival

must be established by clear and convincing evidence.

(e) [Protection of Payors and Other Third Parties.]

(1) A payor or other third party is not liable for having made a payment or

transferred an item of property or any other benefit to a beneficiary designated in a governing

instrument who, under this section, is not entitled to the payment or item of property, or for

having taken any other action in good faith reliance on the beneficiary’s apparent entitlement

under the terms of the governing instrument, before the payor or other third party received

written notice of a claimed lack of entitlement under this section. A payor or other third party is

liable for a payment made or other action taken after the payor or other third party received

written notice of a claimed lack of entitlement under this section.

(2) Written notice of a claimed lack of entitlement under paragraph (1) must be

mailed to the payor’s or other third party’s main office or home by registered or certified mail,

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return receipt requested, or served upon the payor or other third party in the same manner as a

summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under

this section, a payor or other third party may pay any amount owed or transfer or deposit any

item of property held by it to or with the court having jurisdiction of the probate proceedings

relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court

having jurisdiction of probate proceedings relating to decedents’ estates located in the county of

the decedent’s residence. The court shall hold the funds or item of property and, upon its

determination under this section, shall order disbursement in accordance with the determination.

Payments, transfers, or deposits made to or with the court discharge the payor or other third party

from all claims for the value of amounts paid to or items of property transferred to or deposited

with the court.

(f) [Protection of Bona Fide Purchasers; Personal Liability of Recipient.]

(1) A person who purchases property for value and without notice, or who

receives a payment or other item of property in partial or full satisfaction of a legally enforceable

obligation, is neither obligated under this section to return the payment, item of property, or

benefit nor is liable under this section for the amount of the payment or the value of the item of

property or benefit. But a person who, not for value, receives a payment, item of property, or

any other benefit to which the person is not entitled under this section is obligated to return the

payment, item of property, or benefit, or is personally liable for the amount of the payment or the

value of the item of property or benefit, to the person who is entitled to it under this section.

(2) If this section or any part of this section is preempted by federal law with

respect to a payment, an item of property, or any other benefit covered by this section, a person

who, not for value, receives the payment, item of property, or any other benefit to which the

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person is not entitled under this section is obligated to return the payment, item of property, or

benefit, or is personally liable for the amount of the payment or the value of the item of property

or benefit, to the person who would have been entitled to it were this section or part of this

section not preempted.

Comment

Scope and Purpose of Revision. This section parallels Section 2-104, which requires an
heir to survive the intestate by 120 hours in order to inherit.

The scope of this section is expanded to cover all provisions of a governing instrument
and this Code that relate to an individual surviving an event (including the death of another
individual). As expanded, this section imposes the 120-hour requirement of survival in the areas
covered by the Uniform Simultaneous Death Act. By 1993 technical amendment, an anomalous
provision exempting securities registered under Part 3 of Article VI (Uniform TOD Security
Registration Act) from the 120-hour survival requirement was eliminated. The exemption
reflected a temporary concern attributable to UTODSRA’s preparation prior to discussion of
inserting a 120-hour survival requirement in the freestanding Uniform Simultaneous Death Act
(USDA).

In the case of a multiple-party account such as a joint checking account registered in the
name of the decedent and his or her spouse with right of survivorship, the 120-hour requirement
of survivorship will not, under the facility-of-payment provision of Section 6-222(1), interfere
with the surviving spouse’s ability to withdraw funds from the account during the 120-hour
period following the decedent’s death.

Note that subsection (d)(1) provides that the 120-hour requirement of survival is
inapplicable if the governing instrument “contains language dealing explicitly with simultaneous
deaths or deaths in a common disaster and that language is operable under the facts of the case.”
The application of this provision is illustrated by the following example.

Example. G died leaving a will devising her entire estate to her husband, H, adding that
“in the event he dies before I do, at the same time that I do, or under circumstances as to make it
doubtful who died first,” my estate is to go to my brother Melvin. H died about 38 hours after
G’s death, both having died as a result of injuries sustained in an automobile accident.

Under subsection (b), G’s estate passes under the alternative devise to Melvin because
H’s failure to survive G by 120 hours means that H is deemed to have predeceased G. The
language in the governing instrument does not, under subsection (d)(1), nullify the provision that
causes H, because of his failure to survive G by 120 hours, to be deemed to have predeceased G.
Although the governing instrument does contain language dealing with simultaneous deaths, that
language is not operable under the facts of the case because H did not die before G, at the same
time as G, or under circumstances as to make it doubtful who died first.

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Note that subsection (d)(4) provides that the 120-hour requirement of survival is
inapplicable if “the application of this section to multiple governing instruments would result in
an unintended failure or duplication of a disposition.” The application of this provision is
illustrated by the following example.

Example. Pursuant to a common plan, H and W executed mutual wills with reciprocal
provisions. Their intention was that a $50,000 charitable devise would be made on the death of
the survivor. To that end, H’s will devised $50,000 to the charity if W predeceased him. W’s
will devised $50,000 to the charity if H predeceased her. Subsequently, H and W were involved
in a common accident. W survived H by 48 hours.

Were it not for subsection (d)(4), not only would the charitable devise in W’s will be
effective, because H in fact predeceased W, but the charitable devise in H’s will would also be
effective, because W’s failure to survive H by 120 hours would result in her being deemed to
have predeceased H. Because this would result in an unintended duplication of the $50,000
devise, subsection (d)(4) provides that the 120-hour requirement of survival is inapplicable.
Thus, only the $50,000 charitable devise in W’s will is effective.

Subsection (d)(4) also renders the 120-hour requirement of survival inapplicable had H
and W died in circumstances in which it could not be established by clear and convincing
evidence that either survived the other. In such a case, an appropriate result might be to give
effect to the common plan by paying half of the intended $50,000 devise from H’s estate and half
from W’s estate.

Federal Preemption of State Law. See the Comment to Section 2-804 for a discussion
of federal preemption.

Revision of Uniform Simultaneous Death Act. The freestanding Uniform

Simultaneous Death Act (USDA) was revised in 1991 in accordance with the revisions of this
section. States that enact Sections 2-104 and 2-702 need not enact the USDA as revised in 1991
and should repeal the original version of the USDA if previously enacted in the state.

Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New
Survivorship and Antilapse Provisions,” 55 Alb. L. Rev. 1091 (1992).

Historical Note. This Comment was revised in 1993 and 2014.

SECTION 2-703. CHOICE OF LAW AS TO MEANING AND EFFECT OF

GOVERNING INSTRUMENT. The meaning and legal effect of a governing instrument is

determined by the local law of the state selected in the governing instrument, unless the

application of that law is contrary to the provisions relating to the elective share described in

[Part] 2, the provisions relating to exempt property and allowances described in [Part] 4, or any

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other public policy of this state otherwise applicable to the disposition.

Comment

Purpose and Scope of Revisions. The scope of this section is expanded to cover all
governing instruments, not just wills. As revised, this section enables the law of a particular
state to be selected in the governing instrument for purposes of interpreting the instrument
without regard to the location of property covered thereby. So long as local public policy is
accommodated, the section should be accepted as necessary and desirable.

Cross Reference. Choice of law rules regarding formal validity of a will are in Section
2-506. See also Sections 3-202 and 3-408.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A.
141 (Supp. 1992).

SECTION 2-704. POWER OF APPOINTMENT; COMPLIANCE WITH

SPECIFIC REFERENCE REQUIREMENT. A powerholder’s substantial compliance with a

formal requirement of appointment imposed in a governing instrument by the donor, including a

requirement that the instrument exercising the power of appointment make reference or specific

reference to the power, is sufficient if:

(1) the powerholder knows of and intends to exercise the power; and

(2) the powerholder’s manner of attempted exercise does not impair a material purpose of

the donor in imposing the requirement.

Comment

Rationale of Section. In the creation of powers of appointment, it has become common

estate-planning practice to require that the powerholder can exercise the power only by making
reference (or express or specific reference) to it. The question of whether the powerholder has
made a sufficiently specific reference is much litigated. The precise question often is whether a
so-called blanket-exercise clause – a clause referring to “any property over which I have a power
of appointment” – constitutes a sufficient reference to a particular power to exercise that power.
E.g., First National Bank v. Walker, 607 S.W.2d 469 (Tenn. 1980), and cases cited therein.

Section 2-704 adopts a substantial-compliance rule. If it could be shown that the

powerholder had knowledge of and intended to exercise the power, the blanket-exercise clause
would be sufficient to exercise the power, unless it could be shown that the donor had a material
purpose in insisting on the specific-reference requirement.

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References and Cross References. See Section 2-805, under which a powerholder’s
governing instrument mistakenly omitting a sufficiently specific reference to a particular power
can be reformed to include the necessary reference. See also Langbein & Waggoner,
“Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?,” 130
U. Pa. L. Rev. 521, 583, n. 223 (1982); Motes/Henes Trust v. Mote, 297 Ark. 380, 761 S.W.2d
938 (1988) (powerholder’s intended exercise given effect despite use of blanket-exercise clause);
In re Strobel, 149 Ariz. 213, 717 P.2d 892 (1986) (powerholder’s intended exercise given effect
despite defective reference to power).

See Section 2-608 for a provision governing whether a general residuary clause exercises
a power of appointment that does not require a reference (or an express or specific reference) by
the powerholder.

2014 Amendment. This section was amended in 2014 to conform it to Section 304 of
the Uniform Powers of Appointment Act.

SECTION 2-705. CLASS GIFTS CONSTRUED TO ACCORD WITH

INTESTATE SUCCESSION; EXCEPTIONS.

(a) [Definitions.] In this section:

(1) “Assisted reproduction” has the meaning set forth in Section 2-115.

(2) “De facto parent” has the meaning set forth in Section 2-115.

(3) “Distribution date” means the time when an immediate or a postponed class

gift is to take effect in possession or enjoyment.

(4) “Gestational period” has the meaning set forth in Section 2-104.

(5) “In-law” includes a step relative or a former step relative.

(6) “Relative” has the meaning set forth in Section 2-115.

(b) [Terms of Relationship.] Except as otherwise provided in subsections (c) and (d), a

class gift in a governing instrument which uses a term of relationship to identify the class

members is construed in accordance with the rules for intestate succession.

(c) [In-Laws.] A class gift in a governing instrument excludes in-laws unless:

(1) when the governing instrument was executed, the class was then and

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foreseeably would be empty; or

(2) the language or circumstances otherwise establish that in-laws were intended

to be included.

(d) [Transferor Not Parent.] In construing a class gift in a governing instrument of a

transferor who is not a parent of an individual, the individual is not considered the child of the

parent unless:

(1) the parent, a relative of the parent, or the spouse or surviving spouse of the

parent or of a relative of the parent performed functions customarily performed by a parent

before the individual reached [18] years of age; or

(2) the parent intended to perform functions under paragraph (1) but was

prevented from doing so by death or another reason, if the intent is proved by clear and

convincing evidence.

(e) [Class-Closing Rules.] The following rules apply for purposes of the class-closing

rules:

(1) If a particular time is during a gestational period that results in the birth of an

individual who lives at least [120 hours] after birth, the individual is deemed to be living at that

time.

(2) If the start of a pregnancy resulting in the birth of an individual occurs after

the death of the individual’s parent and the distribution date is the death of the parent, the

individual is deemed to be living on the distribution date if [the person with the power to appoint

or distribute among the class members received notice or had actual knowledge, not later than [6]

months after the parent’s death, of an intent to use genetic material in assisted reproduction and]

the individual lives at least [120 hours] after birth, and:

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(A) the embryo was in utero not later than [36] months after the deceased

parent’s death; or

(B) the individual was born not later than [45] months after the deceased

parent’s death.

(3) An individual who is in the process of being adopted when the class closes is

treated as adopted when the class closes if the adoption is subsequently granted.

(4) An individual who is in the process of being adjudicated a child of a de facto

parent when the class closes is treated as a child of the de facto parent when the class closes, if

the parentage is subsequently established.

Legislative Note: A state should consider enacting a provision requiring a fiduciary,

when notifying beneficiaries of the fiduciary’s appointment, to inquire whether a beneficiary has
knowledge of an intent to use genetic material in assisted reproduction. A state also should
consider requiring the fiduciary to indicate that written notice must be given to the fiduciary
within a designated time.

If a state has not enacted the Uniform Parentage Act (2017), it should consider adding
the following language as a new subsection in this section:

A class gift in a governing instrument of a transferor who is not the de

facto parent of an individual is not construed to treat the individual as the
child of the de facto parent if:
(1) the de facto parent opposed being adjudicated a parent; or
(2) the de facto parent or the individual died before the proceeding
to adjudicate parentage was commenced.

In a state that has enacted the Uniform Parentage Act (2017), no such provision relating
to involuntary or posthumous de facto parentage is needed.

Comment

This section facilitates a modern construction of gifts that identify the recipient by
reference to a relationship to someone; usually these gifts will be class gifts.

The rules set forth in this section are rules of construction, which under Section 2-701 are
controlling in the absence of a finding of a contrary intention.

Subsection (a): Definitions. With two exceptions, the definitions in subsection (a) rely

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on definitions contained in the Code’s intestacy sections. The exceptions are the definition of
“in-law,” which is defined (by technical amendment in 2021) to include a step relative or a
former step relative, and the definition of “distribution date,” which is relevant to the class-
closing rules contained in subsection (e). Distribution date is defined as the date when an
immediate or postponed class gift takes effect in possession or enjoyment.

Subsection (b): Terms of Relationship. Subsection (b) provides that—subject to the

exceptions contained in subsections (c) and (d), which are discussed below—a class gift that uses
a term of relationship—such as “spouses”, “children”, “grandchildren”, “descendants”, “issue”,
“parents”, “grandparents”, “brothers”, “sisters”, “nephews”, or “nieces”— to identify the takers
is construed in accordance with the rules for intestate succession. Thus, for example, a class gift
to “spouses” is construed in accordance with Section 2-102, which makes no distinction between
same-sex and opposite-sex spouses. Similarly, a class gift to an individual’s “siblings” is
construed in accordance with Section 2-107, which treats siblings equally without regard to how
many common ancestors in the same generation they share.

Default Rules. The rules in this section are default rules. Under Section 2-701, the rules in
this section yield if there is a finding of a contrary intention. One circumstance in which a court
should not find a contrary intention is when the governing instrument contains a provision
excluding a child born to parents who are not married to each other, but the provision does not
say anything about a child conceived by assisted reproduction. The question presented is whether
such a provision excluding a nonmarital child also applies to a child resulting from a posthumous
pregnancy after death has ended a marriage. In a strictly literal sense, a child resulting from a
posthumous pregnancy is a nonmarital child. See e.g., Woodward v. Commissioner of Social
Security, 760 N.E.2d 257, 266-67 (Mass. 2002) (“Because death ends a marriage, ...
posthumously conceived children are always nonmarital children.”). This interpretation should
be rejected. A child resulting from a posthumous pregnancy after death has ended a marriage
should be considered a marital child, not a nonmarital child. A provision in a will, trust, or other
governing instrument that relates to the exclusion of a nonmarital child, without more, likely was
not inserted with a child resulting from a posthumous pregnancy in mind. Unless the provision of
the governing instrument excluding a nonmarital child manifests an intent also to exclude a child
resulting from a posthumous pregnancy after death has ended a marriage, the provision should
not be interpreted to exclude such a child. For similar reasons, a provision in a governing
instrument excluding a nonmarital child which does not say anything about a child conceived by
assisted reproduction should not be construed to exclude a child born to a gestational or genetic
surrogate if the intended parents are married, whether the child is born while the intended parents
are alive or after the death of an intended parent.

Posthumous Pregnancy: Time Limits on Parentage in the Uniform Parentage Act (2017)
Inapplicable. Sections 708(b)(2), 810(b)(2), and 817(b)(2) of the Uniform Parentage Act (2017)
[UPA (2017)] impose time limits on the posthumous creation of parent-child relationships. These
time limits do not apply here. Subsection (b) provides that class gifts are construed in accordance
with the rules for intestate succession. The rules for intestate succession include Sections 2-120
and 2-121, which incorporate most of the provisions of the UPA (2017) but not these time limits.
These time limits are unnecessary and inappropriate in construing a term of relationship in a
class gift because the class membership already is governed by the class-closing rules. See the

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discussion of In Re Martin B. and Examples 13 and 14 later in this Comment.

Class Closing. As provided in subsection (e), inclusion in a class is subject to the class-
closing rules.

Subsection (c): In-Laws. Subsection (c) provides that class gifts are construed to
exclude in-laws (relatives by marriage, including step relatives, meaning a living or deceased
spouse’s relatives and their spouses, and former step relatives, meaning a former spouse’s
relatives and their spouses), unless (1) when the governing instrument was executed, the class
was then and foreseeably would be empty or (2) the language or circumstances otherwise
establish that in-laws were intended to be included. The Restatement (Third) of Property: Wills
and Other Donative Transfers § 14.9 adopts a similar rule of construction. As recognized in both
subsection (c) and the Restatement, there are situations in which the circumstances would tend to
include an in-law. As provided in subsection (e), inclusion in a class is subject to the class-
closing rules.

One situation in which the circumstances would tend to establish an intent to include a
relative by marriage is the situation in which, looking at the facts existing when the governing
instrument was executed, the class was then and foreseeably would be empty unless the
transferor intended to include relatives by marriage.

Example 1. G’s will devised property in trust, directing the trustee to pay the
income in equal shares “to G’s children who are living on each income payment date and
on the death of G’s last surviving child, to distribute the trust property to G’s issue then
living, such issue to take per stirpes, and if no issue of G is then living, to distribute the
trust property to the X Charity.” When G executed her will, she was past the usual
childbearing age, had no children of her own, and was married to a man who had four
children by a previous marriage. These children had lived with G and her husband for
many years, but G had never adopted them nor claimed to be their de facto parent. Under
these circumstances, it is reasonable to conclude that when G referred to her “children” in
her will she was referring to her stepchildren. Thus her stepchildren should be included in
the presumptive meaning of the gift “to G’s children” and the issue of her stepchildren
should be included in the presumptive meaning of the gift “to G’s issue.” If G, at the time
she executed her will, had children of her own, in the absence of additional facts, G’s
stepchildren should not be included in the presumptive meaning of the gift to “G’s
children,” and G’s stepchildren and their descendants should not be included in the
presumptive meaning of the gift to “G’s issue.”

Example 2. G’s will devised property in trust, directing the trustee to pay the
income to G’s wife, W, for life, and on her death, to distribute the trust property to “my
grandchildren.” W had children by a prior marriage who were G’s stepchildren. G never
had any children of his own and he never adopted his stepchildren nor claimed to be their
de facto parent. It is reasonable to conclude that under these circumstances G meant the
children of his stepchildren when his will gave the future interest under the trust to G’s
“grandchildren.”

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Example 3. G’s will devised property in trust, directing the trustee to pay the
income “to my daughter for life and on her death, to distribute the trust property to her
children.” When G executed his will, his son had died, leaving surviving the son’s wife,
G’s daughter-in-law, and two children. G had no daughter of his own. Under these
circumstances, the conclusion is justified that G’s daughter-in-law is the “daughter”
referred to in G’s will.

Another situation in which the circumstances would tend to establish an intent to include
a relative by marriage is the case of reciprocal wills, as illustrated in Example 4, which is based
on Martin v. Palmer, 1 S.W.3d 875 (Tex. Ct. App. 1999).

Example 4. G’s will devised her entire estate “to my husband if he survives me,
but if not, to my nieces and nephews.” G’s husband, H, predeceased her. H’s will devised
his entire estate “to my wife if she survives me, but if not, to my nieces and nephews.”
Both G and H had nieces and nephews. In these circumstances, “my nieces and nephews”
is construed to include G’s nieces and nephews by marriage. Were it otherwise, the
combined estates of G and H would pass only to the nieces and nephews of the spouse
who happened to survive.

Still another situation in which the circumstances would tend to establish an intent to
include a relative by marriage is a case in which an ancestor participated in raising a relative by
marriage.

Example 5. G’s will devised property in trust, directing the trustee to pay the
income in equal shares “to my nieces and nephews living on each income payment date
until the death of the last survivor of my nieces and nephews, at which time the trust shall
terminate and the trust property shall be distributed to the X Charity.” G’s wife, W, was
deceased when G executed his will. W had one brother who predeceased her. G and W
took the brother’s children, the wife’s nieces and nephews, into their home and raised
them. G had one sister who predeceased him, and G and W were close to her children,
G’s nieces and nephews. Under these circumstances, the conclusion is justified that the
disposition “to my nieces and nephews” includes the children of W’s brother as well as
the children of G’s sister.

The language of the disposition may also establish an intent to include relatives by
marriage, as illustrated in Examples 6, 7, and 8.

Example 6. G’s will devised half of his estate to his wife, W, and half to “my
children.” G had one child by a prior marriage, and W had two children by a prior
marriage. G did not adopt his stepchildren nor claimed to be their de facto parent. G’s
relationship with his stepchildren was close, and he participated in raising them. The use
of the plural “children” is a factor indicating that G intended to include his stepchildren in
the class gift to his children.

Example 7. G’s will devised the residue of his estate to “my nieces and nephews
named herein before.” G’s niece by marriage was referred to in two earlier provisions as

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“my niece.” The previous reference to her as “my niece” indicates that G intended to
include her in the residuary devise.

Example 8. G’s will devised the residue of her estate “in twenty-five (25) separate
equal shares, so that there shall be one (1) such share for each of my nieces and nephews
who shall survive me, and one (1) such share for each of my nieces and nephews who
shall not survive me but who shall have left a child or children surviving me.” G had 25
nieces and nephews, three of whom were nieces and nephews by marriage. The reference
to twenty-five nieces and nephews indicates that G intended to include her three nieces
and nephews by marriage in the residuary devise.

The results in Examples 1 through 8 also could be reached by application of Section 2-701.

Subsection (d): Transferor Not Parent. The general theory of subsection (d) is that a
transferor who is not the parent of an individual would want the individual to be included in a
class gift as a child of the individual’s parent only if (1) the parent, a relative of the parent, or the
spouse or surviving spouse of the parent or of a relative of the parent performed functions
customarily performed by a parent before the individual reached the age of majority, or (2) the
parent intended to perform such functions but was prevented from doing so by death or some
other reason, if such intent is proved by clear and convincing evidence.

The phrase “performed functions customarily performed by a parent” is derived from the
Restatement (Third) of Property: Wills and Other Donative Transfers. Reporter’s Note No. 4 to §
14.5 of the Restatement lists the following parental functions:

Custodial responsibility refers to physical custodianship and supervision of a

child. It usually includes, but does not necessarily require, residential or overnight responsibility.

Decisionmaking responsibility refers to authority for making significant life

decisions on behalf of the child, including decisions about the child’s education, spiritual
guidance, and health care.
Caretaking functions are tasks that involve interaction with the child or that direct,
arrange, and supervise the interaction and care provided by others. Caretaking functions include
but are not limited to all of the following:

(a) satisfying the nutritional needs of the child, managing the child’s
bedtime and wake-up routines, caring for the child when sick or injured, being attentive to the
child’s personal hygiene needs including washing, grooming, and dressing, playing with the
child and arranging for recreation, protecting the child’s physical safety, and providing
transportation;
(b) directing the child’s various developmental needs, including the
acquisition of motor and language skills, toilet training, self-confidence, and maturation;

(c) providing discipline, giving instruction in manners, assigning and

supervising chores, and performing other tasks that attend to the child’s needs for behavioral
control and self-restraint;

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(d) arranging for the child’s education, including remedial or special
services appropriate to the child’s needs and interests, communicating with teachers and
counselors, and supervising homework;

(e) helping the child to develop and maintain appropriate interpersonal

relationships with peers, siblings, and other family members;

(f) arranging for health-care providers, medical follow-up, and home

health care;
(g) providing moral and ethical guidance;

(h) arranging alternative care by a family member, babysitter, or other

child-care provider or facility, including investigation of alternatives, communication with
providers, and supervision of care.

Parenting functions are tasks that serve the needs of the child or the child’s
residential family. Parenting functions include caretaking functions, as defined [above], and all
of the following additional functions:

(a) providing economic support;

(b) participating in decisionmaking regarding the child’s welfare;

(c) maintaining or improving the family residence, including yard work,

and house cleaning;
(d) doing and arranging for financial planning and organization, car repair
and maintenance, food and clothing purchases, laundry and dry cleaning, and other tasks
supporting the consumption and savings needs of the household;

(e) performing any other functions that are customarily performed by a

parent or guardian and that are important to a child’s welfare and development.

Example 9. G’s will created a trust, providing for income to G’s daughter, A, for life,
remainder in corpus to A’s descendants who survive A, by representation. A and A’s
husband adopted a 47-year old man, X. Unless A or A’s husband functioned as a parent
of X before X reached the age of [18] or unless a relative of A or a spouse or surviving
spouse of a relative of A had done so, X would not be included as a member of the class
of A’s descendants who take the corpus of G’s trust on A’s death.

If, however, A executed a will containing a devise to her “children” or designated

her “children” as beneficiary of her life insurance policy, X would be included in the
class. Under Section 2-118(a), X is A’s child for purposes of intestate succession. The
general rule in subsection (b) applies to the construction of this class gift. Subsection (d)
is inapplicable because the transferor, A, is the parent.

As provided in subsection (e) of this section, inclusion of an individual in a class gift is subject to

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the class-closing rules.

Subsection (e): Class-Closing Rules. In order for an individual to be a taker under a

class gift that uses a term of relationship to identify the class members, the individual must (1)
qualify as a class member under subsections (b), (c), and (d) and (2) not be excluded by the
class-closing rules. For an exposition of the class-closing rules, see Restatement (Third) of
Property: Wills and Other Donative Transfers § 15.1. Section 15.1 provides that, “unless the
language or circumstances establish that the transferor had a different intention, a class gift that
has not yet closed physiologically closes to future entrants on the distribution date if a
beneficiary of the class gift is then entitled to distribution.”

Subsection (e)(1): Class Closing During a Gestational Period. Subsection (e)(1)

codifies the well-accepted rule that if a particular time is during a gestational period that results
in the birth of an individual who lives at least [120 hours] after birth, that individual is deemed to
be living at that particular time. A technical amendment in 2021 placed in brackets the 120-hour
period in subsections (e)(1) and (e)(2). See the Legislative Note and Comment to Section 2-104.

Subsection (e)(2): Children of Assisted Reproduction; Class Gift in Which

Distribution Date is Deceased Parent’s Death. Subsection (e)(2) changes the class-closing
rules in one respect. If the start of a pregnancy resulting in the birth of an individual occurs after
the death of the individual’s parent, and if the distribution date is the deceased parent’s death,
then the individual is treated as living on the distribution date if the individual lives [120 hours]
after birth and either (1) the embryo was in utero no later than [36] months after the deceased
parent’s death or (2) the individual was born no later than [45] months after the deceased
parent’s death. Bracketed language imposes an additional requirement: that the person with the
power to appoint or distribute the property receive notice or have actual knowledge within [6]
months of the parent’s death of intent to use genetic material in assisted reproduction and thereby
affect the class membership.

For a discussion of the 36-month and 45-month periods and the reason why the numbers
are in brackets, see the Comment to Section 2-104.

In the following three examples, it is assumed that the decedent, G, is a parent of the
child in accordance with (1) either Section 2-120 or Section 2-121 and (2) subsection (b) of this
section. The question is whether the child is included in the class under the class-closing rules.

Example 10. G, a member of the armed forces, executed a military will under 10
U.S.C. § 1044d shortly before being deployed to a war zone. G’s will devised “90 percent
of my estate to my wife, W, and 10 percent of my estate to my children.” G also left
frozen sperm at a sperm bank in case he should be killed in action. G was killed in action.
After G’s death, W gave timely notice to G’s personal representative of W’s intent to use
G’s genetic material in assisted reproduction. If either (1) the embryo was in utero within
[36] months after G’s death or (2) the child was born within [45] months after G’s death,
and if the child lived [120 hours] after birth, the child is treated as living at G’s death
and is included in the class.

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Example 11. G, a member of the armed forces, executed a military will under 10
U.S.C. § 1044d shortly before being deployed to a war zone. G’s will devised “90 percent
of my estate to my husband, H, and 10 percent of my estate to my issue by
representation.” G also left frozen embryos in case she should be killed in action. G was
killed in action. After G’s death, H gave timely notice to G’s personal representative of
H’s intent to use G’s genetic material in assisted reproduction. H arranged for the
embryos to be implanted in the uterus of a surrogate. If either (1) the embryo was in
utero within [36] months after G’s death or (2) the child was born within [45] months
after G’s death, and if the child lived [120 hours] after birth, the child is treated as living
at G’s death and is included in the class.

Example 12. The will of G’s mother created a testamentary trust, directing the
trustee to pay the income to G for life, then to distribute the trust principal to G’s
children. When G’s mother died, G was married but had no children. Shortly after being
diagnosed with leukemia, G feared that he would be rendered infertile by the disease or
by the treatment for the disease, so he left frozen sperm at a sperm bank. After G’s death,
G’s widow gave timely notice to G’s personal representative of the widow’s intent to use
G’s genetic material in assisted reproduction. If either (1) the embryo was in utero within
[36] months after G’s death or (2) the child was born within [45] months after G’s death,
and if the child lived [120 hours] after birth, the child is treated as living at G’s death and
is included in the class.

Under the facts of Examples 10 through 12, even if the time requirements were not met,
the question of class closing is distinct from the question of the existence of a parent-child
relationship. See the discussion of In re Martin B. below.

Subsection (e)(2) Inapplicable Unless Pregnancy is Posthumous and Distribution

Date Arises At Deceased Parent’s Death. Subsection (e)(2) only applies if there is a
posthumous pregnancy and if the distribution date arises at the deceased parent’s death.
Subsection (e)(2) does not apply if the pregnancy is not posthumous. It also does not apply if the
distribution date arises before or after the deceased parent’s death. The reason is that in all of
these cases the special rule in (e)(2) is not needed. Instead, the ordinary class-closing rules—
including subsections (e)(1), (e)(3), and (e)(4)—apply. See Sheldon F. Kurtz & Lawrence W.
Waggoner, The UPC Addresses the Class-Gift and Intestacy Rights of Children of Assisted
Reproduction Technologies, 25 ACTEC J. 30, 36 (2009).

A case that reached the same result that would be reached under this section is In re
Martin B., 841 N.Y.S.2d 207 (Sur. Ct. 2007). In that case, two children (who were born to a
deceased father’s widow approximately three and five years after his death) were included in
class gifts of principal to the deceased father’s “issue” or “descendants”. The children would be
included under this section because (1) the requirements in the UPA (2017) for a parent-child
relationship between the children and the deceased father were satisfied other than the time limits
rendered inapplicable by subsection (b), which references the rules for intestate succession,
including Section 2-120; (2) the distribution dates arose after the deceased father’s death; and (3)
the children were living on the distribution dates.

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Martin B. illustrates why the time limits in Sections 708(b)(2), 810(b)(2), and 817(b)(2)
of the UPA (2017) are not needed or appropriate in the construction of class gifts. The rules for
class closing govern. Consider also the following examples.

Example 13. G created a revocable inter vivos trust shortly before his death. The
trustee was directed to pay the income to G for life, then “to pay the income to my wife,
W, for life, then to distribute the trust principal by representation to my descendants who
survive W.” When G died, G and W had no children. Shortly before G’s death and after
being diagnosed with leukemia, G feared that he would be rendered infertile by the
disease or by the treatment for the disease, so he left frozen sperm at a sperm bank.
Assume that the parentage requirements of the UPA (2017) were satisfied except for the
time limits in Section 708(b)(2) of that Act. After G’s death, W decided to become
inseminated with G’s frozen sperm so that she could have his child. The child, X, was
born five years after G’s death. W raised X. Upon W’s death many years later, X was a
grown adult. X is entitled to receive the trust principal, because (1) X was living on the
distribution date, and (2) the requirements for a parent-child relationship between G and
X were satisfied except for the time limits in Section 708(b)(2) of the UPA (2017). These
time limits are rendered inapplicable by subsection (b), which references the rules for
intestate succession, including Section 2-120.

Example 14. The will of G’s mother created a testamentary trust, directing the
trustee to pay the income to G for life, then “to pay the income by representation to G’s
descendants from time to time living, and at the death of G’s last surviving child, to
distribute the trust principal by representation to G’s descendants who survive G’s last
surviving child.” When G’s mother died, G was married but had no children. Shortly
after being diagnosed with leukemia, G feared that he would be rendered infertile by the
disease or by the treatment for the disease, so he left frozen sperm at a sperm bank.
Assume that the parentage requirements of the UPA (2017) were satisfied except for the
time limits in Section 708(b)(2) of that Act. After G’s death, G’s widow gave timely
notice to the trustee of the widow’s intent to use G’s genetic material in assisted
reproduction. If either (1) the embryo was in utero within [36] months after G’s death or
(2) the child was born within [45] months after G’s death, and if the child lived [120
hours] after birth, the child is treated as living at G’s death and is included in the class
gift of income for which the distribution date is G’s death. Whether or not G’s widow
later decides to use his frozen sperm to have another child or children, G’s children
would be included in or excluded from the class gift of subsequent income distributions
based on the ordinary class-closing rules. The same would be true for any descendant of
G born between G’s death and the death of G’s last surviving child. The reason is that an
income interest in class-gift form is treated as creating separate class gifts in which the
distribution date is the time of each successive income payment. See Restatement (Third)
of Property: Wills and Other Donative Transfers § 15.1 cmt. p. Regarding the remainder
interest in principal that takes effect in possession on the death of G’s last surviving
child, the then-living descendants of G’s children would take the trust principal.
Subsection (e)(2) may apply to determine membership in the class gift to “G’s
descendants who survive G’s last surviving child” if G’s last surviving child is the
intended parent of an individual who is born through assisted reproduction within the

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prescribed time limits and lives [120 hours] after birth.

Subsections (e)(3) and (e)(4). For purposes of the class-closing rules, an individual who
is in the process of being adopted when the class closes is treated as adopted when the class
closes if the adoption is subsequently granted. An individual is “in the process of being adopted”
if a legal proceeding to adopt the individual had been filed before the class closed. However, the
phrase “in the process of being adopted” is not intended to be limited to the filing of a legal
proceeding, but is intended to grant flexibility to find on a case by case basis that the process
commenced earlier.

Similarly, under subsection (e)(4), an individual who is in the process of being

adjudicated a child of a de facto parent when the class closes is treated as a child of that de facto
parent when the class closes if the de facto parentage is subsequently established.

Historical Note. This Comment was revised in 1993, 2008, 2010, 2019, and 2021.

SECTION 2-706. LIFE INSURANCE; RETIREMENT PLAN; ACCOUNT WITH

POD DESIGNATION; TRANSFER-ON-DEATH REGISTRATION; DECEASED

BENEFICIARY.

(a) [Definitions.] In this section:

(1) “Alternative beneficiary designation” means a beneficiary designation that is

expressly created by the governing instrument and, under the terms of the governing instrument,

can take effect instead of another beneficiary designation on the happening of one or more

events, including survival of the decedent or failure to survive the decedent, whether an event is

expressed in condition-precedent, condition-subsequent, or any other form.

(2) “Beneficiary” means the beneficiary of a beneficiary designation under which

the beneficiary must survive the decedent and includes (i) a class member if the beneficiary

designation is in the form of a class gift and (ii) an individual or class member who was deceased

at the time the beneficiary designation was executed as well as an individual or class member

who was then living but who failed to survive the decedent, but excludes a joint tenant of a joint

tenancy with the right of survivorship and a party to a joint and survivorship account.

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(3) “Beneficiary designation” includes an alternative beneficiary designation and

a beneficiary designation in the form of a class gift.

(4) “Class member” includes an individual who fails to survive the decedent but

who would have taken under a beneficiary designation in the form of a class gift had the

individual survived the decedent.

(5) “Descendant of a grandparent”, as used in subsection (b), means an individual

who qualifies as a descendant of a grandparent of the decedent under the (i) rules of construction

applicable to a class gift created in the decedent’s beneficiary designation if the beneficiary

designation is in the form of a class gift or (ii) rules for intestate succession if the beneficiary

designation is not in the form of a class gift.

(6) “Descendants”, as used in the phrase “surviving descendants” of a deceased

beneficiary or class member in subsection (b)(1) and (2), mean the descendants of a deceased

beneficiary or class member who would take under a class gift created in the beneficiary

designation.

(7) “Stepchild” means a child of the decedent’s surviving, deceased, or former

spouse, and not of the decedent.

(8) “Surviving”, in the phrase “surviving beneficiaries” or “surviving

descendants”, means beneficiaries or descendants who neither predeceased the decedent nor are

deemed to have predeceased the decedent under Section 2-702.

(b) [Substitute Gift.] If a beneficiary fails to survive the decedent and is a grandparent, a

descendant of a grandparent, or a stepchild of the decedent, the following apply:

(1) Except as provided in paragraph (4), if the beneficiary designation is not in the

form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is

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created in the beneficiary’s surviving descendants. They take by representation the property to

which the beneficiary would have been entitled had the beneficiary survived the decedent.

(2) Except as provided in paragraph (4), if the beneficiary designation is in the

form of a class gift, other than a beneficiary designation to “issue,” “descendants,” “heirs of the

body,” “heirs,” “next of kin,” “relatives,” or “family,” or a class described by language of similar

import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The

property to which the beneficiaries would have been entitled had all of them survived the

decedent passes to the surviving beneficiaries and the surviving descendants of the deceased

beneficiaries. Each surviving beneficiary takes the share to which the surviving beneficiary

would have been entitled had the deceased beneficiaries survived the decedent. Each deceased

beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by

representation the share to which the deceased beneficiary would have been entitled had the

deceased beneficiary survived the decedent. For the purposes of this paragraph, “deceased

beneficiary” means a class member who failed to survive the decedent and left one or more

surviving descendants.

(3) For the purposes of Section 2-701, words of survivorship, such as in a

beneficiary designation to an individual “if he [or she] survives me,” or in a beneficiary

designation to “my surviving children,” are not, in the absence of additional evidence, a

sufficient indication of an intent contrary to the application of this section.

(4) If a governing instrument creates an alternative beneficiary designation with

respect to a beneficiary designation for which a substitute gift is created by paragraph (1) or (2),

the substitute gift is superseded by the alternative beneficiary designation if:

(A) the alternative beneficiary designation is in the form of a class gift and

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one or more members of the class is entitled to take; or

(B) the alternative beneficiary designation is not in the form of a class gift

and the expressly designated beneficiary of the alternative beneficiary designation is entitled to

take.

(c) [More Than One Substitute Gift; Which One Takes.] If, under subsection (b),

substitute gifts are created and not superseded with respect to more than one beneficiary

designation and the beneficiary designations are alternative beneficiary designations, one to the

other, the determination of which of the substitute gifts takes effect is resolved as follows:

(1) Except as provided in paragraph (2), the property passes under the primary

substitute gift.

(2) If there is a younger-generation beneficiary designation, the property passes

under the younger-generation substitute gift and not under the primary substitute gift.

(3) In this subsection:

(A) “Primary beneficiary designation” means the beneficiary designation

that would have taken effect had all the deceased beneficiaries of the alternative beneficiary

designations who left surviving descendants survived the decedent.

(B) “Primary substitute gift” means the substitute gift created with respect

to the primary beneficiary designation.

(C) “Younger-generation beneficiary designation” means a beneficiary

designation that (i) is to a descendant of a beneficiary of the primary beneficiary designation, (ii)

is an alternative beneficiary designation with respect to the primary beneficiary designation, (iii)

is a beneficiary designation for which a substitute gift is created, and (iv) would have taken

effect had all the deceased beneficiaries who left surviving descendants survived the decedent

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except the deceased beneficiary or beneficiaries of the primary beneficiary designation.

(D) “Younger-generation substitute gift” means the substitute gift created

with respect to the younger-generation beneficiary designation.

(d) [Protection of Payors.]

(1) A payor is protected from liability in making payments under the terms of the

beneficiary designation until the payor has received written notice of a claim to a substitute gift

under this section. Payment made before the receipt of written notice of a claim to a substitute

gift under this section discharges the payor, but not the recipient, from all claims for the amounts

paid. A payor is liable for a payment made after the payor has received written notice of the

claim. A recipient is liable for a payment received, whether or not written notice of the claim is

given.

(2) The written notice of the claim must be mailed to the payor’s main office or

home by registered or certified mail, return receipt requested, or served upon the payor in the

same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payor

may pay any amount owed by it to the court having jurisdiction of the probate proceedings

relating to the decedent’s estate or, if no proceedings have been commenced, to the court having

jurisdiction of probate proceedings relating to decedents’ estates located in the county of the

decedent’s residence. The court shall hold the funds and, upon its determination under this

section, shall order disbursement in accordance with the determination. Payment made to the

court discharges the payor from all claims for the amounts paid.

(e) [Protection of Bona Fide Purchasers; Personal Liability of Recipient.]

(1) A person who purchases property for value and without notice, or who

receives a payment or other item of property in partial or full satisfaction of a legally enforceable

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obligation, is neither obligated under this section to return the payment, item of property, or

benefit nor is liable under this section for the amount of the payment or the value of the item of

property or benefit. But a person who, not for value, receives a payment, item of property, or

any other benefit to which the person is not entitled under this section is obligated to return the

payment, item of property, or benefit, or is personally liable for the amount of the payment or the

value of the item of property or benefit, to the person who is entitled to it under this section.

(2) If this section or any part of this section is preempted by federal law with

respect to a payment, an item of property, or any other benefit covered by this section, a person

who, not for value, receives the payment, item of property, or any other benefit to which the

person is not entitled under this section is obligated to return the payment, item of property, or

benefit, or is personally liable for the amount of the payment or the value of the item of property

or benefit, to the person who would have been entitled to it were this section or part of this

section not preempted.

Comment

Purpose. This section provides an antilapse statute for “beneficiary designations” under
which the beneficiary must survive the decedent. The term “beneficiary designation” is defined
in Section 1-201 as “a governing instrument naming a beneficiary of an insurance or annuity
policy, of an account with POD designation, of a security registered in beneficiary form (TOD),
or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at
death.”

The terms of this section parallel those of Section 2-603, except that the provisions
relating to payor protection and personal liability of recipients have been added. The Comment
to Section 2-603 contains an elaborate exposition of Section 2-603, together with examples
illustrating its application. That Comment, in addition to the examples given below, should aid
understanding of Section 2-706. For a discussion of the reasons why Section 2-706 should not
be preempted by federal law, see the Comment to Section 2-804.

Example 1. G is the owner of a life-insurance policy. When the policy was taken out, G
was married to S; G and S had two young children, A and B. G died 45 years after the policy
was taken out. S predeceased G, A survived G by 120 hours and B predeceased G leaving three
children (X, Y, and Z) who survived G by 120 hours. G’s policy names S as the primary

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beneficiary of the policy, but because S predeceased G, the secondary (contingent) beneficiary
designation became operative. The secondary (contingent) beneficiary designation of G’s policy
states: “equally to the then living children born of the marriage of G and S.”

The printed terms of G’s policy provide:

“If two or more persons are designated as beneficiary, the beneficiary will be the
designated person or persons who survive the Insured, and if more than one survive, they will
share equally.”

Solution: The printed clause constitutes an “alternative beneficiary designation” for

purposes of subsection (b)(4), which supersedes the substitute gift to B’s descendants created by
subsection (b)(2). A is entitled to all of the proceeds of the policy.

Example 2. The facts are the same as in Example 1, except that G’s policy names “A and
B” as secondary (contingent) beneficiaries. The printed terms of the policy provide:

“If any designated Beneficiary predeceases the Insured, the interest of such Beneficiary
will terminate and shall be shared equally by such of the Beneficiaries as survive the Insured.”

Solution: The printed clause constitutes an ‘alternative beneficiary designation’ for

purposes of subsection (b)(4), which supersedes the substitute gift to B’s descendants created by
subsection (b)(1). A is entitled to all of the proceeds of the policy.

Example 3. The facts are the same as Examples 1 or 2, except that the printed terms of
the policy do not contain either quoted clause or a similar one.

Solution: Under Section 2-706, A would be entitled to half of the policy proceeds and X,
Y, and Z would divide the other half equally.

Example 4. The facts are the same as Example 3, except that the policy has a beneficiary
designation that provides that, if the adjacent box is checked, the share of any deceased
beneficiary shall be paid “in one sum and in equal shares to the children of that beneficiary who
survive.” G did not check the box adjacent to this option.

Solution: G’s deliberate decision not to check the box providing for the share of any
deceased beneficiary to go to that beneficiary’s children constitutes a clear indication of a
contrary intention for purposes of Section 2-701. A would be entitled to all of the proceeds of
the policy.

Example 5. G’s life-insurance policy names her niece, A, as primary beneficiary, and
provides that if A does not survive her, the proceeds are to go to her niece B, as contingent
beneficiary. A predeceased G, leaving children who survived G by 120 hours, B survived G by
120 hours.

Solution: The contingent beneficiary designation constitutes an “alternative beneficiary

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designation” for purposes of subsection (b)(4), which supersedes the substitute gift to A’s
descendants created by subsection (b)(1). The proceeds go to B, not to A’s children.

Example 6. G’s life-insurance policy names her niece, A, as primary beneficiary, and
provides that if A does not survive her, the proceeds are to go to her niece B, as contingent
beneficiary. The printed terms of the policy specifically state that if neither the primary nor
secondary beneficiaries survive the policyholder, the proceeds are payable to the policyholder’s
estate. A predeceased G, leaving children who survived G by 120 hours, B also predeceased G,
leaving children who survived G by 120 hours.

Solution: The second contingent beneficiary designation to G’s estate constitutes an

“alternative beneficiary designation” for purposes of subsection (b)(4), which supersedes the
substitute gifts to A’s and B’s descendants created by subsection (b)(1). The proceeds go to G’s
estate, not to A’s children or to B’s children.

References. This section is discussed in Halbach & Waggoner, “The UPC’s New
Survivorship and Antilapse Provisions,” 55 Alb. L. Rev. 1091 (1992). See also Restatement
(Third) of Property: Wills and Other Donative Transfers § 5.5 cmt. p (1999); § 7.2 cmt. k
(2003); Lebolt, “Making the Best of Egelhoff, Federal Common Law for ERISA-Preempted
Beneficiary Designations”, 28 J. Pension Planning & Compliance 29 (Fall 2002); Gallanis,
“ERISA and the Law of Succession”, 60 Ohio St. L. J. 185 (2004); Rayho, Note, 106 Mich. L.
Rev. 373 (2007).

Technical Amendments. Technical amendments in 1993 added language specifically

excluding joint and survivorship accounts and joint tenancies with the right of survivorship; this
amendment is consistent with the original purpose of the section. Technical amendments in
2008 added definitions of “descendant of a grandparent” and “descendants” as used in
subsections (b)(1) and (2) and clarified subsection (b)(4). The two new definitions resolve
questions of status previously unanswered. The technical amendment of subsection (b)(4) makes
that subsection easier to understand but does not change its substance.

Historical Note. This Comment was revised in 1993, 2008, and 2014.

SECTION 2-707. SURVIVORSHIP WITH RESPECT TO FUTURE INTERESTS

UNDER TERMS OF TRUST; SUBSTITUTE TAKERS.

(a) [Definitions.] In this section:

(1) “Alternative future interest” means an expressly created future interest that

can take effect in possession or enjoyment instead of another future interest on the happening of

one or more events, including survival of an event or failure to survive an event, whether an

event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary

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clause in a will does not create an alternative future interest with respect to a future interest

created in a nonresiduary devise in the will, whether or not the will specifically provides that

lapsed or failed devises are to pass under the residuary clause.

(2) “Beneficiary” means the beneficiary of a future interest and includes a class

member if the future interest is in the form of a class gift.

(3) “Class member” includes an individual who fails to survive the distribution

date but who would have taken under a future interest in the form of a class gift had the

individual survived the distribution date.

(4) “Descendants”, in the phrase “surviving descendants” of a deceased

beneficiary or class member in subsection (b)(1) and (2), mean the descendants of a deceased

beneficiary or class member who would take under a class gift created in the trust.

(5) “Distribution date,” with respect to a future interest, means the time when the

future interest is to take effect in possession or enjoyment. The distribution date need not occur

at the beginning or end of a calendar day, but can occur at a time during the course of a day.

(6) “Future interest” includes an alternative future interest and a future interest in

the form of a class gift.

(7) “Future interest under the terms of a trust” means a future interest that was

created by a transfer creating a trust or to an existing trust or by an exercise of a power of

appointment to an existing trust, directing the continuance of an existing trust, designating a

beneficiary of an existing trust, or creating a trust.

(8) Surviving”, in the phrase “surviving beneficiaries” or “surviving

descendants”, means beneficiaries or descendants who neither predeceased the distribution date

nor are deemed to have predeceased the distribution date under Section 2-702.

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(b) [Survivorship Required; Substitute Gift.] A future interest under the terms of a trust is

contingent on the beneficiary’s surviving the distribution date. If a beneficiary of a future

interest under the terms of a trust fails to survive the distribution date, the following apply:

(1) Except as provided in paragraph (4), if the future interest is not in the form of

a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created

in the beneficiary’s surviving descendants. They take by representation the property to which

the beneficiary would have been entitled had the beneficiary survived the distribution date.

(2) Except as provided in paragraph (4), if the future interest is in the form of a

class gift, other than a future interest to “issue,” “descendants,” “heirs of the body,” “heirs,”

“next of kin,” “relatives,” or “family,” or a class described by language of similar import, a

substitute gift is created in the surviving descendants of any deceased beneficiary. The property

to which the beneficiaries would have been entitled had all of them survived the distribution date

passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries.

Each surviving beneficiary takes the share to which the surviving beneficiary would have been

entitled had the deceased beneficiaries survived the distribution date. Each deceased

beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by

representation the share to which the deceased beneficiary would have been entitled had the

deceased beneficiary survived the distribution date. For the purposes of this paragraph,

“deceased beneficiary” means a class member who failed to survive the distribution date and left

one or more surviving descendants.

(3) For the purposes of Section 2-701, words of survivorship attached to a future

interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary

to the application of this section. Words of survivorship include words of survivorship that relate

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to the distribution date or to an earlier or an unspecified time, whether those words of

survivorship are expressed in condition-precedent, condition-subsequent, or any other form.

(4) If the governing instrument creates an alternative future interest with respect

to a future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift

is superseded by the alternative future interest if:

(A) the alternative future interest is in the form of a class gift and one or

more members of the class is entitled to take in possession or enjoyment; or

(B) the alternative future interest is not in the form of a class gift and the

expressly designated beneficiary of the alternative future interest is entitled to take in possession

or enjoyment.

(c) [More Than One Substitute Gift; Which One Takes.] If, under subsection (b),

substitute gifts are created and not superseded with respect to more than one future interest and

the future interests are alternative future interests, one to the other, the determination of which of

the substitute gifts takes effect is resolved as follows:

(1) Except as provided in paragraph (2), the property passes under the primary

substitute gift.

(2) If there is a younger-generation future interest, the property passes under the

younger-generation substitute gift and not under the primary substitute gift.

(3) In this subsection:

(A) “Primary future interest” means the future interest that would have

taken effect had all the deceased beneficiaries of the alternative future interests who left

surviving descendants survived the distribution date.

(B) “Primary substitute gift” means the substitute gift created with respect

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to the primary future interest.

(C) “Younger-generation future interest” means a future interest that (i) is

to a descendant of a beneficiary of the primary future interest, (ii) is an alternative future interest

with respect to the primary future interest, (iii) is a future interest for which a substitute gift is

created, and (iv) would have taken effect had all the deceased beneficiaries who left surviving

descendants survived the distribution date except the deceased beneficiary or beneficiaries of the

primary future interest.

(D) “Younger-generation substitute gift” means the substitute gift created

with respect to the younger-generation future interest.

(d) [If No Other Takers, Property Passes Under Residuary Clause or to Transferor’s

Heirs.] Except as provided in subsection (e), if, after the application of subsections (b) and (c),

there is no surviving taker, the property passes in the following order:

(1) if the trust was created in a nonresiduary devise in the transferor’s will or in a

codicil to the transferor’s will, the property passes under the residuary clause in the transferor’s

will; for purposes of this section, the residuary clause is treated as creating a future interest under

the terms of a trust.

(2) if no taker is produced by the application of paragraph (1), the property passes

to the transferor’s heirs under Section 2-711.

(e) [If No Other Takers and If Future Interest Created by Exercise of Power of

Appointment.] If, after the application of subsections (b) and (c), there is no surviving taker and

if the future interest was created by the exercise of a power of appointment:

(1) the property passes under the donor’s gift-in-default clause, if any, which

clause is treated as creating a future interest under the terms of a trust; and

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(2) if no taker is produced by the application of paragraph (1), the property passes

as provided in subsection (d). For purposes of subsection (d), “transferor” means the donor if the

power was a nongeneral power and means the donee if the power was a general power.

Comment

Rationale. The objective of this section is to project the antilapse idea into the area of
future interests, thus preventing disinheritance of a descending line that has one or more
members living on the distribution date and preventing a share from passing down a descending
line that has died out by the distribution date.

Scope. This section applies only to future interests under the terms of a trust. For
shorthand purposes, references in this Comment to the term “future interest” refer to a future
interest under the terms of a trust. The rationale for restricting this section to future interests
under the terms of a trust is that legal life estates in land, followed by indefeasibly vested
remainder interests, are still created in some localities, often with respect to farmland. In such
cases, the legal life tenant and the person holding the remainder interest can, together, give good
title in the sale of the land. If the antilapse idea were injected into this type of situation, the
ability of the parties to sell the land would be impaired if not destroyed because the antilapse
idea would, in effect, create a contingent substitute remainder interest in the present and future
descendants of the person holding the remainder interest.

Structure. The structure of this section substantially parallels the structure of the regular
antilapse statute, Section 2-603, and the antilapse-type statute relating to beneficiary
designations, Section 2-706.

Common-law Background. At common law, conditions of survivorship are not implied

with respect to future interests. The rule against implying a condition of survivorship applies
whether the future interest is created in trust or otherwise and whether the future interest is or is
not in the form of a class gift. The only exception, where a condition of survivorship is implied
at common law, is in the case of a multiple-generation class gift. See Restatement (Third) of
Property: Wills and Other Donative Transfers §§ 15.3, 15.4 (2008). For example, in the simple
case of a trust, “income to husband, A, for life, remainder to daughter, B,” B’s interest is not
defeated at common law if she predeceases A; B’s interest would pass through her estate to her
successors in interest (probably either her residuary legatees or heirs): see Waggoner, “The
Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts”, 94 Mich.
L. Rev. 2309, 2331-32 (1996)), who would become entitled to possession when A died. If any of
B’s successors in interest died before A, the interest held by that deceased successor in interest
would likewise pass through his or her estate to his or her successors in interest; and so on.
Thus, a benefit of a statutory provision reversing the common-law rule and providing substitute
takers is that it prevents cumbersome and costly distributions to and through the estates of
deceased beneficiaries of future interests, who may have died long before the distribution date.

Subsection (b). Subsection (b) imposes a condition of survivorship on future interests to

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the distribution date – defined as the time when the future interest is to take effect in possession
or enjoyment. The requirement of survivorship imposed by subsection (b) applies whether or not
the deceased beneficiary leaves descendants who survive the distribution date and are takers of a
substitute gift provided by subsection (b)(1) or (2). Imposing a condition of survivorship on a
future interest when the deceased beneficiary did not leave descendants who survive the
distribution date prevents a share from passing down a descending line that has died out by the
distribution date. Imposing a condition of survivorship on a future interest when the deceased
beneficiary did leave descendants who survive the distribution date, and providing a substitute
gift to those descendants, prevents disinheritance of a descending line that has one or more living
members on the distribution date.

The 120-hour Survivorship Period. In effect, the requirement of survival of the

distribution date means survival of the 120-hour period following the distribution date. This is
because, under Section 2-702(a), “an individual who is not established to have survived an event
...by 120 hours is deemed to have predeceased the event.” As made clear by subsection (a)(8),
for the purposes of Section 2-707, the “event” to which Section 2-702(a) relates is the
distribution date.

Note that the “distribution date” need not occur at the beginning or end of a calendar day,
but can occur at a time during the course of a day, such as the time of death of an income
beneficiary.

References in Section 2-707 and in this Comment to survival of the distribution date
should be understood as referring to survival of the distribution date by 120 hours.

Ambiguous Survivorship Language. Subsection (b) serves another purpose. It

resolves a frequently litigated question arising from ambiguous language of survivorship, such as
in a trust, “income to A for life, remainder in corpus to my surviving children.” Although some
case law interprets the word “surviving” as merely requiring survival of the testator (e.g., Nass’
Estate, 182 A. 401 (Pa. 1936)), the predominant position at common law interprets “surviving”
as requiring survival of the life tenant, A. Hawke v. Lodge, 77 A. 1090 (Del. Ch. 1910);
Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3 cmt. f; 15.4 cmt. g
(2008). The first sentence of subsection (b), in conjunction with paragraph (3), codifies the
predominant common-law/Restatement position that survival relates to the distribution date.

The first sentence of subsection (b), in combination with paragraph (3), imposes a
condition of survivorship to the distribution date (the time of possession or enjoyment) even
when an express condition of survivorship to an earlier time has been imposed. Thus, in a trust
like “income to A for life, remainder in corpus to B, but if B predeceases A, to B’s children who
survive B,” the first sentence of subsection (b) combined with paragraph (3) requires B’s
children to survive (by 120 hours) the death of the income beneficiary, A.

Rule of Construction. Note that Section 2-707 is a rule of construction. It is qualified

by the rule set forth in Section 2-701, and thus it yields to a finding of a contrary intention.
Consequently, in trusts like “income to A for life, remainder in corpus to B whether or not B
survives A,” or “income to A for life, remainder in corpus to B or B’s estate,” this section would

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not apply and, should B predecease A, B’s future interest would pass through B’s estate to B’s
successors in interest, who would become entitled to possession or enjoyment at A’s death.

Classification. Subsection (b) renders a future interest “contingent” on the beneficiary’s

survival of the distribution date. As a result, future interests are “nonvested” and subject to the
Rule Against Perpetuities. To prevent an injustice from resulting because of this, the Uniform
Statutory Rule Against Perpetuities, which has a wait-and-see element, is incorporated into the
Code as Article II, Part 9.

Substitute Gifts. Section 2-707 not only imposes a condition of survivorship to the
distribution date; like its antilapse counterparts, Sections 2-603 and 2-706, it provides substitute
takers in cases of a beneficiary’s failure to survive the distribution date.

The statutory substitute gift is divided among the devisee’s descendants “by
representation,” a phrase defined in Section 2-709(b). A technical amendment adopted in 2008
added subsection (a)(4), defining the term “descendants”.

Subsection (b)(1) – Future Interests Not in the Form of a Class Gift. Subsection
(b)(1) applies to non-class gifts, such as the “income to A for life, remainder in corpus to B” trust
discussed above. If B predeceases A, subsection (b)(1) creates a substitute gift with respect to
B’s future interest; the substitute gift is to B’s descendants who survive A (by 120 hours).

Subsection (b)(2) – Class Gift Future Interests. Subsection (b)(2) applies to single-
generation class gifts, such as in a trust “income to A for life, remainder in corpus to A’s
children.” See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.1,
14.2 (2008). Suppose that A had two children, X and Y. X predeceases A; Y survives A.
Subsection (b)(2) creates a substitute gift with respect to any of A’s children who fail to survive
A (by 120 hours) leaving descendants who survive A (by 120 hours). Thus, if X left descendants
who survived A (by 120 hours), those descendants would take X’s share; if X left no descendants
who survived A (by 120 hours), Y would take it all.

Subsection (b)(2) does not apply to future interests to multiple-generation classes such as
“issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “distributees,” “relatives,”
“family,” or the like. The reason is that these types of class gifts have their own internal systems
of representation, and so the substitute gift provided by subsection (b)(1) would be out of place
with respect to these types of future interests. See Restatement (Third) of Property: Wills and
Other Donative Transfers §§ 14.3, 14.4, 15.3 (2008). The first sentence of subsection (a) and
subsection (d) do apply, however. For example, suppose a nonresiduary devise “to A for life,
remainder to A’s issue, by representation.” If A leaves issue surviving him (by 120 hours), they
take. But if A leaves no issue surviving him (by 120 hours), the testator’s residuary devisees are
the takers.

Subsection (b)(4). Subsection (b)(4), as clarified by technical amendment in 2008,

provides that, if a governing instrument creates an alternative future interest with respect to a
future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift is
superseded by the alternative future interest if: (A) the alternative future interest is in the form of

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a class gift and one or more members of the class is entitled to take in possession or enjoyment;
or (B) the alternative future interest is not in the form of a class gift and the expressly designated
beneficiary of the alternative future interest is entitled to take in possession or enjoyment.
Consider, for example, a trust under which the income is to be paid to A for life, remainder in
corpus to B if B survives A, but if not to C if C survives A. If B predeceases A, leaving
descendants who survive A (by 120 hours), subsection (b)(1) creates a substitute gift to those
descendants. But, if C survives A (by 120 hours), the alternative future interest in C supersedes
the substitute gift to B’s descendants. Upon A’s death, the trust corpus passes to C.

Subsection (c). Subsection (c) is necessary because there can be cases in which
subsections (b)(1) or (2) create substitute gifts with respect to two or more alternative future
interests, and those substitute gifts are not superseded under the terms of subsection (b)(4).
Subsection (c) provides the tie-breaking mechanism for such situations.

The initial step is to determine which of the alternative future interests would take effect
had all the beneficiaries themselves survived the distribution date (by 120 hours). In subsection
(c), this future interest is called the “primary future interest.” Unless subsection (c)(2) applies,
subsection (c)(1) provides that the property passes under substitute gift created with respect to
the primary future interest. This substitute gift is called the “primary substitute gift.” Thus, the
property goes to the descendants of the beneficiary or beneficiaries of the primary future interest.

Subsection (c)(2) provides an exception to this rule. Under subsection (c)(2), the
property does not pass under the primary substitute gift if there is a “younger-generation future
interest” – defined as a future interest that (i) is to a descendant of a beneficiary of the primary
future interest, (ii) is an alternative future interest with respect to the primary future interest, (iii)
is a future interest for which a substitute gift is created, and (iv) would have taken effect had all
the deceased beneficiaries who left surviving descendants survived the distribution date except
the deceased beneficiary or beneficiaries of the primary future interest. If there is a younger-
generation future interest, the property passes under the “younger-generation substitute gift” –
defined as the substitute gift created with respect to the younger-generation future interest.

Subsection (d). Since it is possible that, after the application of subsections (b) and (c),
there are no substitute gifts, a back-stop set of substitute takers is provided in subsection (d) – the
transferor’s residuary devisees or heirs. Note that the transferor’s residuary clause is treated as
creating a future interest and, as such, is subject to this section. Note also that the meaning of the
back-stop gift to the transferor’s heirs is governed by Section 2-711, under which the gift is to
the transferor’s heirs determined as if the transferor died when A died. Thus there will always be
a set of substitute takers, even if it turns out to be the state. If the transferor’s surviving spouse
has remarried after the transferor’s death but before A’s death, he or she would not be a taker
under this provision.

Examples. The application of Section 2-707 is illustrated by the following examples.

Note that, in each example, the “distribution date” is the time of the income beneficiary’s death.
Assume, in each example, that an individual who is described as having “survived” the income
beneficiary’s death survived the income beneficiary’s death by 120 hours or more.

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Example 1. A nonresiduary devise in G’s will created a trust, income to A for life,
remainder in corpus to B if B survives A. G devised the residue of her estate to a charity. B
predeceased A. At A’s death, B’s child, X, is living.

Solution: On A’s death, the trust property goes to X, not to the charity. Because B’s
future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2).
Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is
to B’s child, X. Under subsection (b)(3), the words of survivorship attached to B’s future
interest (“to B if B survives A”) do not indicate an intent contrary to the creation of that
substitute gift. Nor, under subsection (b)(4), is that substitute gift superseded by an alternative
future interest because, as defined in subsection (a)(1), G’s residuary clause does not create an
alternative future interest. In the normal lapse situation, a residuary clause does not supersede
the substitute gift created by the antilapse statute, and the same analysis applies to this situation
as well.

Example 2. Same as Example 1, except that B left no descendants who survived A.

Solution: Subsection (b)(1) does not create a substitute gift with respect to B’s future
interest because B left no descendants who survived A. This brings subsection (d) into
operation, under which the trust property passes to the charity under G’s residuary clause.

Example 3. G created an irrevocable inter-vivos trust, income to A for life, remainder in

corpus to B if B survives A. B predeceased A. At A’s death, G and X, B’s child, are living.

Solution: X takes the trust property. Because B’s future interest is not in the form of a
class gift, subsection (b)(1) applies, not subsection (b)(2). Subsection (b)(1) creates a substitute
gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection
(b)(3), the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the
creation of that substitute gift. Nor, under subsection (b)(4), is the substitute gift superseded by
an alternative future interest; G’s reversion is not an alternative future interest as defined in
subsection (a)(1) because it was not expressly created.

Example 4. G created an irrevocable inter-vivos trust, income to A for life, remainder in

corpus to B if B survives A; if not, to C. B predeceased A. At A’s death, C and B’s child are
living.

Solution: C takes the trust property. Because B’s future interest is not in the form of a
class gift, subsection (b)(1) applies, not subsection (b)(2). Subsection (b)(1) creates a substitute
gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection
(b)(3), the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the
creation of that substitute gift. But, under subsection (b)(4), the substitute gift to B’s child is
superseded by the alternative future interest held by C because C, having survived A (by 120
hours), is entitled to take in possession or enjoyment.

Example 5. G created an irrevocable inter-vivos trust, income to A for life, remainder in

corpus to B, but if B predeceases A, to the person B appoints by will. B predeceased A. B’s will

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exercised his power of appointment in favor of C. C survives A. B’s child, X, also survives A.

Solution: B’s appointee, C, takes the trust property, not B’s child, X. Because B’s future
interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2).
Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is
to B’s child, X. Under subsection (b)(3), the words of survivorship (“to B if B survives A”) do
not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4),
the substitute gift to B’s child is superseded by the alternative future interest held by C because
C, having survived A (by 120 hours), is entitled to take in possession or enjoyment. Because C’s
future interest was created in “a” governing instrument (B’s will), it counts as an “alternative
future interest.”

Example 6. G creates an irrevocable inter-vivos trust, income to A for life, remainder in

corpus to A’s children who survive A; if none, to B. A’s children predecease A, leaving
descendants, X and Y, who survive A. B also survives A.

Solution: On A’s death, the trust property goes to B, not to X and Y. Because the future
interest in A’s children is in the form of a class gift (see Restatement (Third) of Property: Wills
and Other Donative Transfers § 13.1 (2008)), subsection (b)(2) applies, not subsection (b)(1).
Subsection (b)(2) creates a substitute gift with respect to the future interest in A’s children; the
substitute gift is to the descendants of A’s children, X and Y. Under subsection (b)(3), the words
of survivorship (“to A’s children who survive A”) do not indicate an intent contrary to the
creation of that substitute gift. But, under subsection (b)(4), the alternative future interest to B
supersedes the substitute gift to the descendants of A’s children because B survived A.

Alternative Facts: One of A’s children, J, survives A; A’s other child, K, predeceases A,
leaving descendants, X and Y, who survive A. B also survives A.

Solution: J takes half the trust property and X and Y split the other half. Although there
is an alternative future interest (in B) and although B did survive A, the alternative future interest
was conditioned on none of A’s children surviving A. Because that condition was not satisfied,
the expressly designated beneficiary of that alternative future interest, B, is not entitled to take in
possession or enjoyment. Thus, the alternative future interest in B does not supersede the
substitute gift to K’s descendants, X and Y.

Example 7. G created an irrevocable inter-vivos trust, income to A for life, remainder in

corpus to B if B survives A; if not, to C. B and C predecease A. At A’s death, B’s child and C’s
child are living.

Solution: Subsection (b)(1) produces substitute gifts with respect to B’s future interest
and with respect to C’s future interest. B’s future interest and C’s future interest are alternative
future interests, one to the other. B’s future interest is expressly conditioned on B’s surviving A.
C’s future interest is conditioned on B’s predeceasing A and C’s surviving A. The condition that
C survive A does not arise from express language in G’s trust but from the first sentence of
subsection (b); that sentence makes C’s future interest contingent on C’s surviving A. Thus,
because neither B nor C survived A, neither B nor C is entitled to take in possession or

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enjoyment. So, under subsection (b)(4), neither substitute gift, created with respect to the future
interests in B and C, is superseded by an alternative future interest. Consequently, resort must be
had to subsection (c) to break the tie to determine which substitute gift takes effect.

Under subsection (c), B is the beneficiary of the “primary future interest” because B
would have been entitled to the trust property had both B and C survived A. Unless subsection
(c)(2) applies, the trust property passes to B’s child as the taker under the “primary substitute
gift.”

Subsection (c)(2) would only apply if C’s future interest qualifies as a “younger-
generation future interest.” This depends upon whether C is a descendant of B, for C’s future
interest satisfies the other requirements necessary to make it a younger-generation future interest.
If C was a descendant of B, the substitute gift to C’s child would be a “younger-generation
substitute gift” and would become effective instead of the “primary substitute gift” to B’s
descendants. But if C was not a descendant of B, the property would pass under the “primary
substitute gift” to B’s descendants.

Example 8. G created an irrevocable inter-vivos trust, income to A for life, remainder in

corpus to A’s children who survive A; if none, to B. All of A’s children predecease A. X and Y,
who are descendants of one or more of A’s children, survive A. B predeceases A, leaving
descendants, M and N, who survive A.

Solution: On A’s death, the trust property passes to X and Y under the “primary
substitute gift,” unless B was a descendant of any of A’s children.

Subsection (b)(2) produces substitute gifts with respect to A’s children who predeceased
A leaving descendants who survived A. Subsection (b)(1) creates a substitute gift with respect to
B’s future interest. A’s children’s future interest and B’s future interest are alternative future
interests, one to the other. A’s children’s future interest is expressly conditioned on surviving A.
B’s future interest is conditioned on none of A’s children surviving A and on B’s surviving A.
The condition of survivorship as to B’s future interest does not arise because of express language
in G’s trust but because of the first sentence of subsection (b); that sentence makes B’s future
interest contingent on B’s surviving A. Thus, because none of A’s children survived A, and
because B did not survive A, none of A’s children nor B is entitled to take in possession or
enjoyment. So, under subsection (b)(4), neither substitute gift – i.e., neither the one created with
respect to the future interest in A’s children nor the one created with respect to the future interest
in B – is superseded by an alternative future interest. Consequently, resort must be had to
subsection (c) to break the tie to determine which substitute gift takes effect.

Under subsection (c), A’s children are the beneficiaries of the “primary future interest”
because they would have been entitled to the trust property had all of them and B survived A.
Unless subsection (c)(2) applies, the trust property passes to X and Y as the takers under the
“primary substitute gift.” Subsection (c)(2) would only apply if B’s future interest qualifies as a
“younger-generation future interest.” This depends upon whether B is a descendant of any of A’s
children, for B’s future interest satisfies the other requirements necessary to make it a “younger-
generation future interest.” If B was a descendant of one of A’s children, the substitute gift to B’s

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children, M and N, would be a “younger-generation substitute gift” and would become effective
instead of the “primary substitute gift” to X and Y. But if B was not a descendant of any of A’s
children, the property would pass under the “primary substitute gift” to X and Y.

Example 9. G’s will devised property in trust, income to niece Lilly for life, corpus on
Lilly’s death to her children; should Lilly die without leaving children, the corpus shall be
equally divided among my nephews and nieces then living, the child or children of nieces who
may be deceased to take the share their mother would have been entitled to if living.

Lilly never had any children. G had 3 nephews and 2 nieces in addition to Lilly. All 3
nephews and both nieces predeceased Lilly. A child of one of the nephews survived Lilly. One
of the nieces had 8 children, 7 of whom survived Lilly. The other niece had one child, who did
not survive Lilly. (This example is based on the facts of Bomberger’s Estate, 32 A.2d 729
(Pa.1943).)

Solution: The trust property goes to the 7 children of the nieces who survived Lilly. The
substitute gifts created by subsection (b)(2) to the nephew’s son or to the nieces’ children are
superseded under subsection (b)(4) because there is an alternative future interest (the “child or
children of nieces who may be deceased”) and expressly designated beneficiaries of that
alternative future interest (the 7 children of the nieces) are living at Lilly’s death and are entitled
to take in possession or enjoyment.

Example 10. G devised the residue of his estate in trust, income to his wife, W, for life,
remainder in corpus to their children, John and Florence; if either John or Florence should
predecease W, leaving descendants, such descendants shall take the share their parent would
have taken if living.

G’s son, John, survived W. G’s daughter, Florence, predeceased W. Florence never had
any children. Florence’s husband survived W. (This example is based on the facts of Matter of
Kroos, 99 N.E.2d 222 (N.Y.1951).)

Solution: John, of course, takes his half of the trust property. Because Florence left no
descendants who survived W, subsection (b)(1) does not create a substitute gift with respect to
Florence’s future interest in her half. Subsection (d)(1) is inapplicable because G’s trust was not
created in a nonresiduary devise or in a codicil to G’s will. Subsection (d)(2) therefore becomes
applicable, under which Florence’s half goes to G’s heirs determined as if G died when W died,
i.e., John. See Section 2-711.

Subsection (e). Subsection (e) was added in 1993 to clarify the passing of the property
in cases in which the future interest is created by the exercise of a power of appointment.

Technical Amendments. Technical amendments in 2008 added a definition of

“descendants” as used in subsections (b)(1) and (2) and clarified subsection (b)(4). The new
definition resolves questions of status previously unanswered. The technical amendment of
subsection (b)(4) makes that subsection easier to understand but does not change its substance.

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Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New
Survivorship and Antilapse Provisions”, 55 Alb. L. Rev. 1091 (1992).

Historical Note. This Comment was revised in 1993 and 2008.

SECTION 2-708. CLASS GIFTS TO “DESCENDANTS,” “ISSUE,” OR “HEIRS

OF THE BODY”; FORM OF DISTRIBUTION IF NONE SPECIFIED. If a class gift in

favor of “descendants,” “issue,” or “heirs of the body” does not specify the manner in which the

property is to be distributed among the class members, the property is distributed among the

class members who are living when the interest is to take effect in possession or enjoyment, in

such shares as they would receive, under the applicable law of intestate succession, if the

designated ancestor had then died intestate owning the subject matter of the class gift.

Comment

Purpose of New Section. This new section tracks Restatement (1st) of Property §
303(1), and does not accept the position taken in Restatement (Second) of Property, Donative
Transfers § 28.2 (1988), under which a per stirpes form of distribution is presumed, regardless of
the form of distribution used in the applicable law of intestate succession.

SECTION 2-709. REPRESENTATION; PER CAPITA AT EACH GENERATION;

PER STIRPES.

(a) [Definitions.] In this section:

(1) “Deceased child” or “deceased descendant” means a child or a descendant

who either predeceased the distribution date or is deemed to have predeceased the distribution

date under Section 2-702.

(2) “Distribution date,” with respect to an interest, means the time when the

interest is to take effect in possession or enjoyment. The distribution date need not occur at the

beginning or end of a calendar day, but can occur at a time during the course of a day.

(3) “Surviving ancestor,” “surviving child,” or “surviving descendant” means an

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ancestor, a child, or a descendant who neither predeceased the distribution date nor is deemed to

have predeceased the distribution date under Section 2-702.

(b) [Representation; Per Capita at Each Generation.] If an applicable statute or a

governing instrument calls for property to be distributed “by representation” or “per capita at

each generation,” the property is divided into as many equal shares as there are (i) surviving

descendants in the generation nearest to the designated ancestor which contains one or more

surviving descendants (ii) and deceased descendants in the same generation who left surviving

descendants, if any. Each surviving descendant in the nearest generation is allocated one share.

The remaining shares, if any, are combined and then divided in the same manner among the

surviving descendants of the deceased descendants as if the surviving descendants who were

allocated a share and their surviving descendants had predeceased the distribution date.

(c) [Per Stirpes.] If a governing instrument calls for property to be distributed “per

stirpes,” the property is divided into as many equal shares as there are (i) surviving children of

the designated ancestor and (ii) deceased children who left surviving descendants. Each

surviving child, if any, is allocated one share. The share of each deceased child with surviving

descendants is divided in the same manner, with subdivision repeating at each succeeding

generation until the property is fully allocated among surviving descendants.

(d) [Deceased Descendant With No Surviving Descendant Disregarded.] For the purposes

of subsections (b) and (c), an individual who is deceased and left no surviving descendant is

disregarded, and an individual who leaves a surviving ancestor who is a descendant of the

designated ancestor is not entitled to a share.

Comment

Purpose of New Section. This new section provides statutory definitions of

“representation,” “per capita at each generation,” and “per stirpes.” Subsection (b) applies to

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both private instruments and to provisions of applicable statutory law (such as Sections 2-603, 2-
706, and 2-707) that call for property to be divided “by representation.” The system of
representation employed is the same as that which is adopted in Section 2-106 for intestate
succession.

Subsection (c)’s definition of “per stirpes” accords with the predominant understanding
of the term. In 1993, the phrase “if any” was added to subsection (c) to clarify the point that,
under per stirpes, the initial division of the estate is made at the children generation even if no
child survives the ancestor.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A.
154 (Supp. 1992).

SECTION 2-710. WORTHIER-TITLE DOCTRINE ABOLISHED. The doctrine of

worthier title is abolished as a rule of law and as a rule of construction. Language in a governing

instrument describing the beneficiaries of a disposition as the transferor’s “heirs,” “heirs at law,”

“next of kin,” “distributees,” “relatives,” or “family,” or language of similar import, does not

create or presumptively create a reversionary interest in the transferor.

Comment

Purpose of New Section. This new section abolishes the doctrine of worthier title as a
rule of law and as a rule of construction.

Cross Reference. See Section 2-711 for a rule of construction concerning the meaning
of a disposition to the heirs, etc., of a designated person.

SECTION 2-711. INTERESTS IN “HEIRS” AND LIKE. If an applicable statute or a

governing instrument calls for a present or future distribution to or creates a present or future

interest in a designated individual’s “heirs,” “heirs at law,” “next of kin,” “relatives,” or

“family,” or language of similar import, the property passes to those persons, including the state,

and in such shares as would succeed to the designated individual’s intestate estate under the

intestate succession law of the designated individual’s domicile if the designated individual died

when the disposition is to take effect in possession or enjoyment. If the designated individual’s

surviving spouse is living but is remarried at the time the disposition is to take effect in

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possession or enjoyment, the surviving spouse is not an heir of the designated individual.

Comment

Purpose of New Section. This new section provides a statutory definition of “heirs,”
etc., when contained in a dispositive provision or a statute (such as Section 2-707(h)). This
section was amended in 1993 to make it applicable to present as well as future interests in favor
of heirs and the like. Application of this section to present interests codifies the position of the
Restatement (Second) of Property § 29.4 cmts. c & g (1987).

Cross Reference. See Section 2-710, abolishing the doctrine of worthier title.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A.
155 (Supp. 1992).

PART 8. GENERAL PROVISIONS CONCERNING PROBATE AND NONPROBATE

TRANSFERS

GENERAL COMMENT

Part 8 contains five general provisions that cut across probate and nonprobate transfers.
Part 8 previously contained a sixth provision, Section 2-801, which dealt with disclaimers.
Section 2-801 was replaced in 2002 by the Uniform Disclaimer of Property Interests Act, which
is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). To avoid
renumbering the other sections in this part, Section 2-801 is reserved for possible future use.

Section 2-802 deals with the effect of divorce and separation on the right to elect against
a will, exempt property and allowances, and an intestate share.

Section 2-803 spells out the legal consequence of intentional and felonious killing on the
right of the killer to take as heir under wills and revocable inter-vivos transfers, such as
revocable trusts and life-insurance beneficiary designations.

Section 2-804 deals with the consequences of a divorce on the right of the former spouse
(and relatives of the former spouse) to take under wills and revocable inter-vivos transfers, such
as revocable trusts and life-insurance beneficiary designations.

Sections 2-805 and 2-806, added in 2008, bring the reformation provisions in the
Uniform Trust Code into the UPC.

Application to Pre-Existing Governing Instruments. Under Section 8-101(b), for

decedents dying after the effective date of enactment, the provisions of this Code apply to
governing instruments executed prior to as well as on or after the effective date of enactment.
The Joint Editorial Board for the Uniform Probate Code has issued a statement concerning the
constitutionality under the Contracts Clause of this feature of the Code. The statement, titled
“Joint Editorial Board Statement Regarding the Constitutionality of Changes in Default Rules as

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Applied to Pre-Existing Documents”, can be found at 17 ACTEC Notes 184 (1991) or can be
obtained from the Uniform Law Commission, www.uniformlaws.org.

Historical Note. This General Comment was revised in 1993, 2002, and 2008.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

SECTION 2-801. [RESERVED.]

SECTION 2-802. EFFECT OF DIVORCE, ANNULMENT, AND DECREE OF

SEPARATION.

(a) An individual who is divorced from the decedent or whose marriage to the decedent

has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the

individual is married to the decedent at the time of death. A decree of separation that does not

terminate the marriage is not a divorce for purposes of this section.

(b) For purposes of [Parts] 1, 2, 3, and 4 of this [article], and of Section 3-203, a

surviving spouse does not include:

(1) an individual who obtains or consents to a final decree or judgment of divorce

from the decedent or an annulment of their marriage, which decree or judgment is not recognized

as valid in this state, unless subsequently they participate in a marriage ceremony purporting to

marry each to the other or live together as spouses;

(2) an individual who, following an invalid decree or judgment of divorce or

annulment obtained by the decedent, participates in a marriage ceremony with a third individual;

or

(3) an individual who was a party to a valid proceeding concluded by an order

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purporting to terminate all marital property rights.

Comment

Clarifying Revision in 1993. The only substantive revision of this section is a clarifying
revision of subsection (b)(2), making it clear that this subsection refers to an invalid decree of
divorce or annulment.

Rationale. Although some existing statutes bar the surviving spouse for desertion or
adultery, the present section requires some definitive legal act to bar the surviving spouse.
Normally, this is divorce. Subsection (a) states an obvious proposition, but subsection (b) deals
with the difficult problem of invalid divorce or annulment, which is particularly frequent as to
foreign divorce decrees but may arise as to a local decree where there is some defect in
jurisdiction; the basic principle underlying these provisions is estoppel against the surviving
spouse. Where there is only a legal separation, rather than a divorce, succession patterns are not
affected; but if the separation is accompanied by a complete property settlement, this may
operate under Section 2-213 as a waiver or renunciation of benefits under a prior will and by
intestate succession.

Cross Reference. See Section 2-804 for similar provisions relating to the effect of
divorce to revoke devises and other revocable provisions to a former spouse.

Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A.
159 (Supp.1992). Technical amendments to subsection (a) and subsection (b)(1) were made in
2017 to replace “husband and wife” with “spouse” or “spouses.” Further technical amendments
to subsection (a) were made in 2019, primarily to eliminate gendered terms (e.g., “he [or she]”).

SECTION 2-803. EFFECT OF HOMICIDE ON INTESTATE SUCCESSION,

WILLS, TRUSTS, JOINT ASSETS, LIFE INSURANCE, AND BENEFICIARY

DESIGNATIONS.

(a) [Definitions.] In this section:

(1) “Disposition or appointment of property” includes a transfer of an item of

property or any other benefit to a beneficiary designated in a governing instrument.

(2) “Governing instrument” means a governing instrument executed by the

decedent.

(3) “Revocable”, with respect to a disposition, appointment, provision, or

nomination, means one under which the decedent, at the time of or immediately before death,

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was alone empowered, by law or under the governing instrument, to cancel the designation in

favor of the killer, whether or not the decedent was then empowered to designate the decedent in

place of the killer and whether or not the decedent then had capacity to exercise the power.

(b) [Forfeiture of Statutory Benefits.] An individual who feloniously and intentionally

kills the decedent forfeits all benefits under this [article] with respect to the decedent’s estate,

including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead

allowance, exempt property, and a family allowance. If the decedent died intestate, the

decedent’s intestate estate passes as if the killer disclaimed the intestate share.

(c) [Revocation of Benefits Under Governing Instruments.] The felonious and

intentional killing of the decedent:

(1) revokes any revocable (i) disposition or appointment of property made by the

decedent to the killer in a governing instrument, (ii) provision in a governing instrument

conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of

the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary

or representative capacity, including a personal representative, executor, trustee, or agent; and

(2) severs the interests of the decedent and killer in property held by them at the

time of the killing as joint tenants with the right of survivorship [or as community property with

the right of survivorship], transforming the interests of the decedent and killer into equal

tenancies in common.

(d) [Effect of Severance.] A severance under subsection (c)(2) does not affect any third-

party interest in property acquired for value and in good faith reliance on an apparent title by

survivorship in the killer unless a writing declaring the severance has been noted, registered,

filed, or recorded in records appropriate to the kind and location of the property which are relied

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upon, in the ordinary course of transactions involving such property, as evidence of ownership.

(e) [Effect of Revocation.] Provisions of a governing instrument are given effect as if the

killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in

a fiduciary or representative capacity, as if the killer predeceased the decedent.

(f) [Wrongful Acquisition of Property.] A wrongful acquisition of property or interest

by a killer not covered by this section must be treated in accordance with the principle that a

killer cannot profit from the killer’s wrong.

(g) [Felonious and Intentional Killing; How Determined.] After all right to appeal has

been exhausted, a judgment of conviction establishing criminal accountability for the felonious

and intentional killing of the decedent conclusively establishes the convicted individual as the

decedent’s killer for purposes of this section. In the absence of a conviction, the court, upon the

petition of an interested person, must determine whether, under the preponderance of evidence

standard, the individual would be found criminally accountable for the felonious and intentional

killing of the decedent. If the court determines that, under that standard, the individual would be

found criminally accountable for the felonious and intentional killing of the decedent, the

determination conclusively establishes that individual as the decedent’s killer for purposes of this

section.

(h) [Protection of Payors and Other Third Parties.]

(1) A payor or other third party is not liable for having made a payment or

transferred an item of property or any other benefit to a beneficiary designated in a governing

instrument affected by an intentional and felonious killing, or for having taken any other action

in good faith reliance on the validity of the governing instrument, upon request and satisfactory

proof of the decedent’s death, before the payor or other third party received written notice of a

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claimed forfeiture or revocation under this section. A payor or other third party is liable for a

payment made or other action taken after the payor or other third party received written notice of

a claimed forfeiture or revocation under this section.

(2) Written notice of a claimed forfeiture or revocation under paragraph (1) must

be mailed to the payor’s or other third party’s main office or home by registered or certified mail,

return receipt requested, or served upon the payor or other third party in the same manner as a

summons in a civil action. Upon receipt of written notice of a claimed forfeiture or revocation

under this section, a payor or other third party may pay any amount owed or transfer or deposit

any item of property held by it to or with the court having jurisdiction of the probate proceedings

relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court

having jurisdiction of probate proceedings relating to decedents’ estates located in the county of

the decedent’s residence. The court shall hold the funds or item of property and, upon its

determination under this section, shall order disbursement in accordance with the determination.

Payments, transfers, or deposits made to or with the court discharge the payor or other third party

from all claims for the value of amounts paid to or items of property transferred to or deposited

with the court.

(i) [Protection of Bona Fide Purchasers; Personal Liability of Recipient.]

(1) A person who purchases property for value and without notice, or who

receives a payment or other item of property in partial or full satisfaction of a legally enforceable

obligation, is neither obligated under this section to return the payment, item of property, or

benefit nor is liable under this section for the amount of the payment or the value of the item of

property or benefit. But a person who, not for value, receives a payment, item of property, or

any other benefit to which the person is not entitled under this section is obligated to return the

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payment, item of property, or benefit, or is personally liable for the amount of the payment or the

value of the item of property or benefit, to the person who is entitled to it under this section.

(2) If this section or any part of this section is preempted by federal law with

respect to a payment, an item of property, or any other benefit covered by this section, a person

who, not for value, receives the payment, item of property, or any other benefit to which the

person is not entitled under this section is obligated to return the payment, item of property, or

benefit, or is personally liable for the amount of the payment or the value of the item of property

or benefit, to the person who would have been entitled to it were this section or part of this

section not preempted.

Comment

Purpose and Scope of Revisions. This section is substantially revised. Although the
revised version does make a few substantive changes in certain subsidiary rules (such as the
treatment of multiple party accounts, etc.), it does not alter the main thrust of the pre-1990
version. The major change is that the revised version is more comprehensive than the pre-1990
version. The structure of the section is also changed so that it substantially parallels the structure
of Section 2-804, which deals with the effect of divorce on revocable benefits to the former
spouse.

The pre-1990 version of this section was bracketed to indicate that it may be omitted by
an enacting state without difficulty. The revised version omits the brackets because the Joint
Editorial Board/Article II Drafting Committee believes that uniformity is desirable on the
question.

As in the pre-1990 version, this section is confined to felonious and intentional killing
and excludes the accidental manslaughter killing. Subsection (g) leaves no doubt that, for
purposes of this section, a killing can be “felonious and intentional,” whether or not the killer has
actually been convicted in a criminal prosecution. Under subsection (g), after all right to appeal
has been exhausted, a judgment of conviction establishing criminal accountability for the
felonious and intentional killing of the decedent conclusively establishes the convicted individual
as the decedent’s killer for purposes of this section. Acquittal, however, does not preclude the
acquitted individual from being regarded as the decedent’s killer for purposes of this section.
This is because different considerations as well as a different burden of proof enter into the
finding of criminal accountability in the criminal prosecution. Hence it is possible that the
defendant on a murder charge may be found not guilty and acquitted, but if the same person
claims as an heir, devisee, or beneficiary of a revocable beneficiary designation, etc. of the
decedent, the probate court, upon the petition of an interested person, may find that, under a

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preponderance of the evidence standard, he or she would be found criminally accountable for the
felonious and intentional killing of the decedent and thus be barred under this section from
sharing in the affected property. In fact, in many of the cases arising under this section there
may be no criminal prosecution because the killer has committed suicide.

It is now well accepted that the matter dealt with is not exclusively criminal in nature but
is also a proper matter for probate courts. The concept that a wrongdoer may not profit by his or
her own wrong is a civil concept, and the probate court is the proper forum to determine the
effect of killing on succession to the decedent’s property covered by this section. There are
numerous situations where the same conduct gives rise to both criminal and civil consequences.
A killing may result in criminal prosecution for murder and civil litigation by the decedent’s
family under wrongful death statutes. Another analogy exists in the tax field, where a taxpayer
may be acquitted of tax fraud in a criminal prosecution but found to have committed the fraud in
a civil proceeding.

The phrases “criminal accountability” and “criminally accountable” for the felonious and
intentional killing of the decedent not only include criminal accountability as an actor or direct
perpetrator, but also as an accomplice or co-conspirator.

Unlike the pre-1990 version, the revised version contains a subsection protecting payors
who pay before receiving written notice of a claimed forfeiture or revocation under this section,
and imposing personal liability on the recipient or killer.

The pre-1990 version’s provision on the severance of joint tenancies and tenancies by the
entirety also extended to “joint and multiple party accounts in banks, savings and loan
associations, credit unions and other institutions, and any other form of co-ownership with
survivorship incidents.” Under subsection (c)(2) of the revised version, the severance applies
only to “property held by [the decedent and killer] as joint tenants with the right of survivorship
[or as community property with the right of survivorship].” The terms “joint tenants with the
right of survivorship” and “community property with the right of survivorship” are defined in
Section 1-201. That definition includes tenancies by the entirety, but excludes “forms of co-
ownership registration in which the underlying ownership of each party is in proportion to that
party’s contribution.” Under subsection (c)(1), any portion of the decedent’s contribution to the
co-ownership registration running in favor of the killer would be treated as a revocable and
revoked disposition.

Subsection (e) was amended in 1993 to make it clear that the antilapse statute applies in
appropriate cases in which the killer is treated as having disclaimed.

Federal Preemption of State Law. See the Comment to Section 2-804 for a discussion
of federal preemption.

Cross References. See Section 1-201 for definitions of “beneficiary designated in a

governing instrument,” “governing instrument,” “joint tenants with the right of survivorship,”
“community property with the right of survivorship,” and “payor.”

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1997 Technical Amendment. By technical amendment effective July 31, 1997, the
word “equal” was added to subsection (c)(2) to make it clear that the effect of severing the
interests of the decedent and killer is to transform their interests into equal tenancies in common,
without regard to the percentage of consideration furnished by either. Although this was the
intent of this subsection, the court in Estate of Garland, 928 P.2d 928 (Mont. 1996),
misconstrued the original language and held that once the interests were severed and transformed
into tenancies in common, the shares “depend on the decedent’s and the [killer’s] individual
contributions to the acquisition and maintenance of the property.” This percentage-of-
consideration rule is inconsistent with both the general principle of Section 2-803 and with the
statutory language. Section 2-803 is based on the principle that while the killer should not gain
from the killing, neither should the killer be deprived of the killer’s own property. In the case of
a joint tenancy, neither the killer nor the victim could by a lawful, unilateral act have severed and
become owner of more than his or her fractional interest. This is true even if one joint tenant
provided more consideration than another joint tenant. Once property is titled in joint tenancy,
any excess consideration provided by one joint tenant constitutes an irrevocable gift to the other
joint tenant or tenants. The original statutory language established a fractional-interest rule by
providing that the interests that are transformed into tenancies in common are “the [severed]
interests of the decedent and killer.” This statutory language, as revised, confirms this strict
fractioning.

2019 Technical Amendments. Technical amendments were made to this section in 2019
to remove gendered language (e.g., “his [or her]”).

Historical Note. This Comment was revised in 1993, 1997, 2014, and 2019.

SECTION 2-804. REVOCATION OF PROBATE AND NONPROBATE

TRANSFERS BY DIVORCE; NO REVOCATION BY OTHER CHANGES OF

CIRCUMSTANCES.

(a) [Definitions.] In this section:

(1) “Disposition or appointment of property” includes a transfer of an item of

property or any other benefit to a beneficiary designated in a governing instrument.

(2) “Divorce or annulment” means any divorce or annulment, or any dissolution

or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse

within the meaning of Section 2-802. A decree of separation that does not terminate the marriage

is not a divorce for purposes of this section.

(3) “Divorced individual” includes an individual whose marriage has been

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annulled.

(4) “Governing instrument” means a governing instrument executed by the

divorced individual before the divorce or annulment of the marriage to the divorced individual’s

former spouse.

(5) “Relative of the divorced individual’s former spouse” means an individual

who is related to the divorced individual’s former spouse by application of the rules establishing

parent-child relationships under [[Subpart] 2 of [Part] 1] or affinity and who, after the divorce or

annulment, is not related to the divorced individual by application of the rules establishing

parent-child relationships under [[Subpart] 2 of [Part] 1] or affinity.

(6) “Revocable,” with respect to a disposition, appointment, provision, or

nomination, means one under which the divorced individual, at the time of the divorce or

annulment, was alone empowered, by law or under the governing instrument, to cancel the

designation in favor of the divorced individual’s former spouse or relative of the former spouse,

whether or not the divorced individual was then empowered to designate the divorced individual

in place of the former spouse or relative of the former spouse and whether or not the divorced

individual then had the capacity to exercise the power.

(b) [Revocation Upon Divorce.] Except as provided by the express terms of a governing

instrument, a court order, or a contract relating to the division of the marital estate made between

the divorced individuals before or after the marriage, divorce, or annulment, the divorce or

annulment of a marriage:

(1) revokes any revocable:

(A) disposition or appointment of property made by a divorced individual

to the divorced individual’s former spouse in a governing instrument and any disposition or

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appointment created by law or in a governing instrument to a relative of the divorced

individual’s former spouse,

(B) provision in a governing instrument conferring a general or nongeneral

power of appointment on the divorced individual’s former spouse or on a relative of the divorced

individual’s former spouse, and

(C) nomination in a governing instrument, nominating a divorced

individual’s former spouse or a relative of the divorced individual’s former spouse to serve in

any fiduciary or representative capacity, including a personal representative, executor, trustee,

conservator, agent, or guardian; and

(2) severs the interests of the former spouses in property held by them at the time

of the divorce or annulment as joint tenants with the right of survivorship [or as community

property with the right of survivorship], transforming the interests of the former spouses into

equal tenancies in common.

(c) [Effect of Severance.] A severance under subsection (b)(2) does not affect any third-

party interest in property acquired for value and in good faith reliance on an apparent title by

survivorship in the survivor of the former spouses unless a writing declaring the severance has

been noted, registered, filed, or recorded in records appropriate to the kind and location of the

property which are relied upon, in the ordinary course of transactions involving such property, as

evidence of ownership.

(d) [Effect of Revocation.] Provisions of a governing instrument are given effect as if the

former spouse and relatives of the former spouse disclaimed all provisions revoked by this

section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the

former spouse and relatives of the former spouse died immediately before the divorce or

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annulment.

(e) [Revival if Divorce Nullified.] Provisions revoked solely by this section are revived

by the divorced individual’s remarriage to the former spouse or by a nullification of the divorce

or annulment.

(f) [No Revocation for Other Change of Circumstances.] No change of circumstances

other than as described in this section and in Section 2-803 effects a revocation.

(g) [Protection of Payors and Other Third Parties.]

(1) A payor or other third party is not liable for having made a payment or

transferred an item of property or any other benefit to a beneficiary designated in a governing

instrument affected by a divorce, annulment, or remarriage, or for having taken any other action

in good faith reliance on the validity of the governing instrument, before the payor or other third

party received written notice of the divorce, annulment, or remarriage. A payor or other third

party is liable for a payment made or other action taken after the payor or other third party

received written notice of a claimed forfeiture or revocation under this section.

(2) Written notice of the divorce, annulment, or remarriage under subsection

(g)(1) must be mailed to the payor’s or other third party’s main office or home by registered or

certified mail, return receipt requested, or served upon the payor or other third party in the same

manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment,

or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any

item of property held by it to or with the court having jurisdiction of the probate proceedings

relating to the decedent’s estate or, if no proceedings have been commenced, to or with the court

having jurisdiction of probate proceedings relating to decedents’ estates located in the county of

the decedent’s residence. The court shall hold the funds or item of property and, upon its

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determination under this section, shall order disbursement or transfer in accordance with the

determination. Payments, transfers, or deposits made to or with the court discharge the payor or

other third party from all claims for the value of amounts paid to or items of property transferred

to or deposited with the court.

(h) [Protection of Bona Fide Purchasers; Personal Liability of Recipient.]

(1) A person who purchases property from a former spouse, relative of a former

spouse, or any other person for value and without notice, or who receives from a former spouse,

relative of a former spouse, or any other person a payment or other item of property in partial or

full satisfaction of a legally enforceable obligation, is neither obligated under this section to

return the payment, item of property, or benefit nor is liable under this section for the amount of

the payment or the value of the item of property or benefit. But a former spouse, relative of a

former spouse, or other person who, not for value, received a payment, item of property, or any

other benefit to which that person is not entitled under this section is obligated to return the

payment, item of property, or benefit, or is personally liable for the amount of the payment or the

value of the item of property or benefit, to the person who is entitled to it under this section.

(2) If this section or any part of this section is preempted by federal law with

respect to a payment, an item of property, or any other benefit covered by this section, a former

spouse, relative of the former spouse, or any other person who, not for value, received a

payment, item of property, or any other benefit to which that person is not entitled under this

section is obligated to return that payment, item of property, or benefit, or is personally liable for

the amount of the payment or the value of the item of property or benefit, to the person who

would have been entitled to it were this section or part of this section not preempted.

Comment

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Purpose and Scope of Revision. The revisions of this section, pre-1990 Section 2-508,
intend to unify the law of probate and nonprobate transfers. As originally promulgated, pre-1990
Section 2-508 revoked a predivorce devise to the testator’s former spouse. The revisions expand
the section to cover “will substitutes” such as revocable inter-vivos trusts, life-insurance and
retirement-plan beneficiary designations, transfer-on-death accounts, and other revocable
dispositions to the former spouse that the divorced individual established before the divorce (or
annulment). As revised, this section also effects a severance of the interests of the former
spouses in property that they held at the time of the divorce (or annulment) as joint tenants with
the right of survivorship; their co-ownership interests become tenancies in common.

As revised, this section is the most comprehensive provision of its kind, but many states
have enacted piecemeal legislation tending in the same direction. For example, Michigan and
Ohio have statutes transforming spousal joint tenancies in land into tenancies in common upon
the spouses’ divorce. Mich.Comp.Laws Ann. § 552.102; Ohio Rev.Code Ann. § 5302.20(c)(5).
Ohio, Oklahoma, and Tennessee have recently enacted legislation effecting a revocation of
provisions for the settlor’s former spouse in revocable inter-vivos trusts. Ohio Rev.Code Ann. §
1339.62; Okla.Stat.Ann. tit. 60, § 175; Tenn.Code Ann. § 35-50-5115 (applies to revocable and
irrevocable inter-vivos trusts). Statutes in Michigan, Ohio, Oklahoma, and Texas relate to the
consequence of divorce on life-insurance and retirement-plan beneficiary designations.
Mich.Comp.Laws Ann. § 552.101; Ohio Rev.Code Ann. § 1339.63; Okla.Stat.Ann. tit. 15, §
178; Tex.Fam.Code §§ 3.632-.633.

The courts have also come under increasing pressure to use statutory construction
techniques to extend statutes like the pre-1990 version of Section 2-508 to various will
substitutes. In Clymer v. Mayo, 473 N.E.2d 1084 (Mass.1985), the Massachusetts court held the
statute applicable to a revocable inter-vivos trust, but restricted its “holding to the particular facts
of this case-specifically the existence of a revocable pour-over trust funded entirely at the time of
the decedent’s death.” 473 N.E.2d at 1093. The trust in that case was an unfunded life-insurance
trust; the life insurance was employer-paid life insurance. In Miller v. First Nat’l Bank & Tr. Co.,
637 P.2d 75 (Okla.1981), the court also held such a statute to be applicable to an unfunded life-
insurance trust. The testator’s will devised the residue of his estate to the trustee of the life-
insurance trust. Despite the absence of meaningful evidence of intent to incorporate, the court
held that the pour-over devise incorporated the life-insurance trust into the will be reference, and
thus was able to apply the revocation-upon-divorce statute. In Equitable Life Assurance Society
v. Stitzel, 1 Pa.Fiduc.2d 316 (C.P.1981), however, the court held a statute similar to the pre-1990
version of Section 2-508 to be inapplicable to effect a revocation of a life-insurance beneficiary
designation of the former spouse.

Revoking Benefits of the Former Spouse’s Relatives. In several cases, including

Clymer v. Mayo, 473 N.E.2d 1084 (Mass.1985), and Estate of Coffed, 387 N.E.2d 1209
(N.Y.1979), the result of treating the former spouse as predeceasing the testator was that a gift in
the governing instrument was triggered in favor of relatives of the former spouse who, after the
divorce, were no longer relatives of the testator. In the Massachusetts case, the former spouse’s
nieces and nephews ended up with an interest in the property. In the New York case, the winners
included the former spouse’s child by a prior marriage. For other cases to the same effect, see
Porter v. Porter, 286 N.W.2d 649 (Iowa 1979); Bloom v. Selfon, 555 A.2d 75 (Pa.1989); Estate

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of Graef, 368 N.W.2d 633 (Wis.1985). Given that, during divorce process or in the aftermath of
the divorce, the former spouse’s relatives are likely to side with the former spouse, breaking
down or weakening any former ties that may previously have developed between the transferor
and the former spouse’s relatives, seldom would the transferor have favored such a result. This
section, therefore, also revokes these gifts.

Consequence of Revocation. The effect of revocation by this section is that the

provisions of the governing instrument are given effect as if the divorced individual’s former
spouse (and relatives of the former spouse) disclaimed all provisions revoked by this section (see
Section 2-1106 for the effect of a disclaimer). Note that this means that the antilapse statute
applies in appropriate cases in which the divorced individual or relative is treated as having
disclaimed. In the case of a revoked nomination in a fiduciary or representative capacity, the
provisions of the governing instrument are given effect as if the former spouse and relatives of
the former spouse died immediately before the divorce or annulment. If the divorced individual
(or relative of the divorced individual) is the donee of an unexercised power of appointment that
is revoked by this section, the gift-in-default clause, if any, is to take effect, to the extent that the
gift-in-default clause is not itself revoked by this section.

Federal Preemption of State Law. The Employee Retirement Income Security Act of
1974 (ERISA) federalizes pension and employee benefit law. Section 514(a) of ERISA, 29
U.S.C. § 1144(a), provides that the provisions of Titles I and IV of ERISA “shall supersede any
and all State laws insofar as they may now or hereafter relate to any employee benefit plan”
governed by ERISA.

ERISA’s preemption clause is extraordinarily broad. ERISA Section 514(a) does not
merely preempt state laws that conflict with specific provisions in ERISA. Section 514(a)
preempts “any and all State laws” insofar as they “relate to” any ERISA-governed employee
benefit plan.

A complex case law has arisen concerning the question of whether to apply ERISA
Section 514(a) to preempt state law in circumstances in which ERISA supplies no substantive
regulation. For example, until 1984, ERISA contained no authorization for the enforcement of
state domestic relations decrees against pension accounts, but the federal courts were virtually
unanimous in refusing to apply ERISA preemption against such state decrees. See, e.g.,
American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979). The Retirement
Equity Act of 1984 amended ERISA to add Sections 206(d)(3) and 514(b)(7), confirming the
judicially created exception for state domestic relations decrees.

The federal courts have been less certain about whether to defer to state probate law. In
Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. H.F. Johnson,
Inc., 830 F.2d 1009 (9th Cir. 1987), the court held that ERISA preempted the Montana nonclaim
statute (which is Section 3-803 of the Uniform Probate Code). On the other hand, in Mendez-
Bellido v. Board of Trustees, 709 F.Supp. 329 (E.D.N.Y. 1989), the court applied the New York
“slayer-rule” against an ERISA preemption claim, reasoning that “state laws prohibiting
murderers from receiving death benefits are relatively uniform [and therefore] there is little
threat of creating a ‘patchwork scheme of regulations’” that ERISA sought to avoid.

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It is to be hoped that the federal courts will show sensitivity to the primary role of state
law in the field of probate and nonprobate transfers. To the extent that the federal courts think
themselves unable to craft exceptions to ERISA’s preemption language, it is open to them to
apply state law concepts as federal common law. Because the Uniform Probate Code
contemplates multistate applicability, it is well suited to be the model for federal common law
absorption. See, e.g., Gallanis, “ERISA and the Law of Succession,” 65 Ohio State L.J. 185,
196-197 (2004).

Another avenue of reconciliation between ERISA preemption and the primacy of state
law in this field is envisioned in subsection (h)(2) of this section. It imposes a personal liability
for pension payments that pass to a former spouse or relative of a former spouse. This provision
respects ERISA’s concern that federal law govern the administration of the plan, while still
preventing unjust enrichment that would result if an unintended beneficiary were to receive the
pension benefits. Federal law has no interest in working a broader disruption of state probate
and nonprobate transfer law than is required in the interest of smooth administration of pension
and employee benefit plans.

Regrettably, the U.S. Supreme Court decided in Hillman v. Maretta, 133 S.Ct. 1943 (2013),
that a Virginia statute essentially equivalent to subsection (h)(2) of this section was pre-empted by
the federal law known as FEGLIA (the Federal Employees’ Group Life Insurance Act of 1954), 5
U.S.C. § 8701 et seq. FEGLIA provides that “[t]he provisions of any contract under [FEGLIA] which
relate to the nature of extent of coverage or benefits (including payments with respect to benefits)
shall supersede and preempt any law of any State … which relates to group life insurance to the
extent that the law or regulation is inconsistent with the contractual provisions. 5 U.S.C. §
8709(d)(1). The Court’s decision in Hillman has many unfortunate consequences. First, the decision
frustrates the dominant purpose of wealth transfer law, which is to implement the transferor’s
intention. The result in Hillman, that the decedent’s ex-spouse remained entitled to the proceeds of
the decedent’s life insurance policy purchased through a program established by FEGLIA, frustrates
the decedent’s intention. Second, the Hillman decision ignores the decades-long trend of unifying the
law governing probate and nonprobate transfers. The revocation-on-divorce rule has long been a part
of probate law (see, e.g., pre-1990 Section 2-508). In 1990, this section extended the rule of
revocation on divorce to nonprobate transfers. Third, the decision in Hillman fosters a division
between state- and federally-regulated nonprobate mechanisms. If the decedent in Hillman had
purchased a life insurance policy individually, rather than through the FEGLIA program, the policy
would have been governed by the Virginia counterpart of this section. For persuasive critiques of the
Hillman decision, see Langbein, “Destructive Federal Preemption of State Wealth Transfer Law in
Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff,” 67 Vand. L. Rev. ___ (2014);
Waggoner, “The Creeping Federalization of Wealth-Transfer Law,” 67 Vand. L. Rev. ___ (2014).

Cross References. See Section 1-201 for definitions of “beneficiary designated in a

governing instrument,” “governing instrument,” “joint tenants with the right of survivorship,”
“community property with the right of survivorship,” and “payor.”

References. The theory of this section is discussed in Waggoner, Spousal Rights in Our
Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J.
683, 689-701 (1992). See also Langbein, “The Nonprobate Revolution and the Future of the
Law of Succession,” 97 Harv. L. Rev. 1108 (1984).

242
1997 Technical Amendment. For an explanation of the 1997 technical amendment,
which added the word “equal” to subsection (b)(2), see the Comment to Section 2-803.

2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act,
which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The
statutory references in this Comment to former Section 2-801 have been replaced by appropriate
references to Part 11. Updating these statutory references has not changed the substance of this
Comment.

Historical Note. The above Comment was revised in 1993, 2002, 2014, and 2019. A
technical amendment to subsection (a)(2) was made in 2017 to replace “husband and wife” with
“spouse.” Further technical amendments were made in 2019, primarily to clarify the definition in
Subsection (a)(5) of “Relative of the divorced individual’s former spouse” and to eliminate
gendered terms (e.g., “his [or her]”) in Subsections (a) and (b).

SECTION 2-805. REFORMATION TO CORRECT MISTAKES. The court may

reform the terms of a governing instrument, even if unambiguous, to conform the terms to the

transferor’s intention if it is proved by clear and convincing evidence what the transferor’s

intention was and that the terms of the governing instrument were affected by a mistake of fact

or law, whether in expression or inducement.

Comment

Added in 2008, Section 2-805 is based on Section 415 of the Uniform Trust Code, which
in turn was based on Section 12.1 of the Restatement (Third) of Property: Wills and Other
Donative Transfers (2003).

Section 2-805 is broader in scope than Section 415 of the Uniform Trust Code because
Section 2-805 applies but is not limited to trusts.

Section 12.1, and hence Section 2-805, is explained and illustrated in the Comments to
Section 12.1 of the Restatement and also, in the case of a trust, in the Comment to Section 415 of
the Uniform Trust Code.

2010 Amendment. This section was revised by technical amendment in 2010. The
amendment better conforms the language of the section to the language of the Restatement
(Third) of Property provision on which the section is based.

SECTION 2-806. MODIFICATION TO ACHIEVE TRANSFEROR’S TAX

OBJECTIVES. To achieve the transferor’s tax objectives, the court may modify the terms of a

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governing instrument in a manner that is not contrary to the transferor’s probable intention. The

court may provide that the modification has retroactive effect.

Comment

Added in 2008, Section 2-806 is based on Section 416 of the Uniform Trust Code, which
in turn was based on Section 12.2 of the Restatement (Third) of Property: Wills and Other
Donative Transfers (2003).

Section 2-806 is broader in scope than Section 416 of the Uniform Trust Code because
Section 2-806 applies but is not limited to trusts.

Section 12.2, and hence Section 2-806, is explained and illustrated in the Comments to
Section 12.2 of the Restatement and also, in the case of a trust, in the Comment to Section 416 of
the Uniform Trust Code.

PART 9. STATUTORY RULE AGAINST PERPETUITIES; HONORARY TRUSTS

GENERAL COMMENT

Subpart 1 of this part incorporates into the Code the Uniform Statutory Rule Against
Perpetuities (USRAP or Uniform Statutory Rule) and Subpart 2 contains an optional section on
honorary trusts and trusts for pets. Subpart 2 is under continuing review and, after appropriate
study, might subsequently be revised to add provisions affecting certain types of commercial
transactions respecting land, such as options in gross, that directly or indirectly restrain
alienability.

In codifying Subparts 1 and 2, enacting states may deem it appropriate to locate them at
some place other than in the probate code.

Subpart 1. Uniform Statutory Rule Against Perpetuities (1986/1990)

GENERAL COMMENT

Simplified Wait-and-See/Deferred-Reformation Approach Adopted. The Uniform

Statutory Rule reforms the common-law Rule Against Perpetuities (common-law Rule) by
adding a simplified wait-and-see element and a deferred-reformation element.

Wait-and-see is a two-step strategy. Step One (Section 2-901(a)(1)) preserves the

validating side of the common-law Rule. By satisfying the common-law Rule, a nonvested
future interest in property is valid at the moment of its creation. Step Two (Section 2-901(a)(2))
is a salvage strategy for future interests that would have been invalid at common law. Rather
than invalidating such interests at creation, wait-and-see allows a period of time, called the
permissible vesting period, during which the nonvested interests are permitted to vest according
to the trust’s terms.

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The traditional method of measuring the permissible vesting period has been by reference
to lives in being at the creation of the interest (the measuring lives) plus 21 years. There are,
however, various difficulties and costs associated with identifying and tracing a set of actual
measuring lives to see which one is the survivor and when he or she dies. In addition, it has been
documented that the use of actual measuring lives plus 21 years does not produce a period of
time that self-adjusts to each disposition, extending dead-hand control no further than necessary
in each case; rather, the use of actual measuring lives (plus 21 years) generates a permissible
vesting period whose length almost always exceeds by some arbitrary margin the point of actual
vesting in cases traditionally validated by the wait-and-see strategy. The actual-measuring-lives
approach, therefore, performs a margin-of-safety function. Given this fact, and given the costs
and difficulties associated with the actual-measuring-lives approach, the Uniform Statutory Rule
forgoes the use of actual measuring lives and uses instead a permissible vesting period of a flat
90 years.

The philosophy behind the 90-year period is to fix a period of time that approximates the
average period of time that would traditionally be allowed by the wait-and-see doctrine. The
flat-period-of-years method was not used as a means of increasing permissible dead-hand control
by lengthening the permissible vesting period beyond its traditional boundaries. In fact, the 90-
year period falls substantially short of the absolute maximum period of time that could
theoretically be achieved under the common-law Rule itself, by the so-called “twelve-healthy-
babies ploy” – a ploy that would average out to a period of about 115 years 1, 25 years or 27.8%
longer than the 90 years allowed by USRAP. The fact that the traditional period roughly
averages out to a longish-sounding 90 years is a reflection of a quite different phenomenon: the
dramatic increase in longevity that society as a whole has experienced in the course of the
twentieth century.

The framers of the Uniform Statutory Rule derived the 90-year period as follows. The
first point recognized was that if actual measuring lives were to have been used, the length of the
permissible vesting period would, in the normal course of events, be governed by the life of the
youngest measuring life. The second point recognized was that no matter what method is used to
identify the measuring lives, the youngest measuring life, in standard trusts, is likely to be the
transferor’s youngest descendant living when the trust was created. 2 The 90-year period was
premised on these propositions. Using four hypothetical families deemed to be representative of
actual families, the framers of the Uniform Statutory Rule determined that, on average, the
transferor’s youngest descendant in being at the transferor’s death – assuming the transferor’s

1
Actuarially, the life expectancy of the longest living member of a group of twelve new-born babies is about 94
years; with the 21-year tack-on period, the “twelve-healthy-babies ploy” would produce, on average, a period of
about 115 years (94 + 21).
2
Under Section 2-707, the descendants of a beneficiary of a future interest are presumptively made substitute
beneficiaries, almost certainly making those descendants in being at the creation of the interest measuring lives,
were measuring lives to have been used.

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death to occur between ages 60 and 90, which is when 73 percent of the population die – is about
6 years old. See Waggoner, “Perpetuities: A Progress Report on the Draft Uniform Statutory
Rule Against Perpetuities,” 20 U. Miami Inst. on Est. Plan. Ch. 7 at 7-17 (1986). The remaining
life expectancy of a 6-year-old is about 69 years. The 69 years, plus the 21-year tack-on period,
gives a permissible vesting period of 90 years.

Acceptance of the 90-year-period Approach under the Federal Generation-skipping

Transfer Tax. Federal regulations, to be promulgated by the U.S. Treasury Department under
the generation-skipping transfer tax, will accept the Uniform Statutory Rule’s 90-year period as a
valid approximation of the period that, on average, would be produced by lives in being plus 21
years. See Temp. Treas. Reg. § 26.2601-1(b)(1)(v)(B)(2) (as to be revised). When originally
promulgated in 1988, this regulation was prepared without knowledge of the Uniform Statutory
Rule Against Perpetuities, which had been promulgated in 1986; as first promulgated, the
regulation only recognized a period measured by actual lives in being plus 21 years. After the
90-year approach of the Uniform Statutory Rule was brought to the attention of the U.S.
Treasury Department, the Department issued a letter of intent to amend the regulation to treat the
90-year period as the equivalent of a lives-in-being-plus-21-years period. Letter from Michael J.
Graetz, Deputy Assistant Secretary of the Treasury (Tax Policy), to Lawrence J. Bugge,
President, National Conference of Commissioners on Uniform State Laws (Nov. 16, 1990). For
further discussion of the coordination of the federal generation-skipping transfer tax with the
Uniform Statutory Rule, see the Comment to Section 2-901(e), infra, and the Comment to
Section 1(e) of the Uniform Statutory Rule Against Perpetuities.

The 90-year Period Will Seldom be Used Up. Nearly all trusts (or other property
arrangements) will terminate by their own terms long before the 90-year permissible vesting
period expires, leaving the permissible vesting period to extend unused (and ignored) into the
future long after the contingencies have been resolved and the property distributed. In the
unlikely event that the contingencies have not been resolved by the expiration of the permissible
vesting period, Section 2-903 requires the disposition to be reformed by the court so that all
contingencies are resolved within the permissible period.
In effect, wait-and-see with deferred reformation operates similarly to a traditional
perpetuity saving clause, which grants a margin-of-safety period measured by the lives of the
transferor’s descendants in being at the creation of the trust or other property arrangement (plus
21 years).

No New Learning Required. The Uniform Statutory Rule does not require the
practicing bar to learn a new and unfamiliar set of perpetuity principles. The effect of the
Uniform Statutory Rule on the planning and drafting of documents for clients should be
distinguished from the effect on the resolution of actual or potential perpetuity-violation cases.
The former affects many more practicing lawyers than the latter.

With respect to the planning and drafting end of the practice, the Uniform Statutory Rule
requires no modification of current practice and no new learning. Lawyers can and should
continue to use the same traditional perpetuity-saving/termination clause, using specified lives in
being plus 21 years, they used before enactment. Lawyers should not shift to a “later of” type
clause that purports to operate upon the later of (A) 21 years after the death of the survivor of

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specified lives in being or (B) 90 years. As explained in more detail in the Comment to Section
2-901, such a clause is not effective. If such a “later of” clause is used in a trust that contains a
violation of the common-law rule against perpetuities, Section 2-901(a), by itself, would render
the clause ineffective, limit the maximum permissible vesting period to 90 years, and render the
trust vulnerable to a reformation suit under Section 2-903. Section 2-901(e), however, saves
documents using this type of clause from this fate. By limiting the effect of such clauses to the
21-year period following the death of the survivor of the specified lives, subsection (e) in effect
transforms this type of clause into a traditional perpetuity-saving/termination clause, bringing the
trust into compliance with the common-law rule against perpetuities and rendering it
invulnerable to a reformation suit under Section 2-903.

Far fewer in number are those lawyers (and judges) who have an actual or potential
perpetuity-violation case. An actual or potential perpetuity-violation case will arise very
infrequently under the Uniform Statutory Rule. When such a case does arise, however, lawyers
(or judges) involved in the case will find considerable guidance for its resolution in the detailed
analysis contained in the commentary accompanying the Uniform Statutory Rule itself. In short,
the detailed analysis in the commentary accompanying the Uniform Statutory Rule need not be
part of the general learning required of lawyers in the drafting and planning of dispositive
documents for their clients. The detailed analysis is supplied in the commentary for the
assistance in the resolution of an actual violation. Only then need that detailed analysis be
consulted and, in such a case, it will prove extremely helpful.

General References. Fellows, “Testing Perpetuity Reforms: A Study of Perpetuity

Cases 1984-89,” 25 Real Prop. Prob. & Tr. J. 597 (1991) (testing the various types of perpetuity
reform measures and concluding, on the basis of empirical evidence, that the Uniform Statutory
Rule is the best opportunity offered to date for a uniform perpetuity law that efficiently and
effectively achieves a fair balance between present and future property owners); Waggoner, “The
Uniform Statutory Rule Against Perpetuities: Oregon Joins Up,” 26 Willamette L. Rev. 259
(1990) (explaining the operation of the Uniform Statutory Rule); Waggoner, “The Uniform
Statutory Rule Against Perpetuities: The Rationale of the 90-Year Waiting Period,” 73 Cornell
L. Rev. 157 (1988) (explaining the derivation of the 90-year period; Waggoner, “The Uniform
Statutory Rule Against Perpetuities,” 21 Real Prop., Prob. & Tr. J. 569 (1986) (explaining the
theory and operation of the Uniform Statutory Rule).

SECTION 2-901. STATUTORY RULE AGAINST PERPETUITIES.

(a) [Validity of Nonvested Property Interest.] A nonvested property interest is invalid

unless:

(1) when the interest is created, it is certain to vest or terminate no later than 21

years after the death of an individual then alive; or

(2) the interest either vests or terminates within 90 years after its creation.

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(b) [Validity of General Power of Appointment Subject to a Condition Precedent.] A

general power of appointment not presently exercisable because of a condition precedent is

invalid unless:

(1) when the power is created, the condition precedent is certain to be satisfied or

becomes impossible to satisfy no later than 21 years after the death of an individual then alive; or

(2) the condition precedent either is satisfied or becomes impossible to satisfy

within 90 years after its creation.

(c) [Validity of Nongeneral or Testamentary Power of Appointment.] A nongeneral

power of appointment or a general testamentary power of appointment is invalid unless:

(1) when the power is created, it is certain to be irrevocably exercised or

otherwise to terminate no later than 21 years after the death of an individual then alive; or

(2) the power is irrevocably exercised or otherwise terminates within 90 years

after its creation.

(d) [Possibility of Post-death Child Disregarded.] In determining whether a nonvested

property interest or a power of appointment is valid under subsection (a)(1), (b)(1), or (c)(1), the

possibility that a child will be born to an individual after the individual’s death is disregarded.

(e) [Effect of Certain “Later-of” Type Language.] If, in measuring a period from the

creation of a trust or other property arrangement, language in a governing instrument (i) seeks to

disallow the vesting or termination of any interest or trust beyond, (ii) seeks to postpone the

vesting or termination of any interest or trust until, or (iii) seeks to operate in effect in any

similar fashion upon, the later of (A) the expiration of a period of time not exceeding 21 years

after the death of the survivor of specified lives in being at the creation of the trust or other

property arrangement or (B) the expiration of a period of time that exceeds or might exceed 21

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years after the death of the survivor of lives in being at the creation of the trust or other property

arrangement, that language is inoperative to the extent it produces a period of time that exceeds

21 years after the death of the survivor of the specified lives.

Comment

Section 2-901 codifies the validating side of the common-law Rule and implements the
wait-and-see feature of the Uniform Statutory Rule Against Perpetuities. As provided in Section
2-906, this section and the other sections in Subpart 1 of Part 9 supersede the common-law Rule
Against Perpetuities (common-law Rule) in jurisdictions previously adhering to it (or repeals any
statutory version or variation thereof previously in effect in the jurisdiction). The common-law
Rule (or the statutory version or variation thereof) is replaced by the Statutory Rule in Section 2-
901 and by the other provisions of Subpart 1 of Part 9.

Section 2-901(a) covers nonvested property interests, and will be the subsection most
often applicable. Subsections (b) and (c) cover powers of appointment.

Paragraph (1) of subsections (a), (b), and (c) is a codified version of the validating side of
the common-law Rule. In effect, paragraph (1) of these subsections provides that nonvested
property interests and powers of appointment that are valid under the common-law Rule Against
Perpetuities, including those that are rendered valid because of a perpetuity saving clause,
continue to be valid under the Statutory Rule and can be declared so at their inceptions. This
means that no new learning is required of competent estate planners: The practice of lawyers
who competently draft trusts and other property arrangements for their clients is undisturbed.

Paragraph (2) of subsections (a), (b), and (c) establishes the wait-and-see rule. Paragraph
(2) provides that an interest or a power of appointment that is not validated by paragraph (1), and
hence would have been invalid under the common-law Rule, is given a second chance: Such an
interest is valid if it does not actually remain in existence and nonvested when the 90-year
permissible vesting period expires; such a power of appointment is valid if it ceases to be subject
to a condition precedent or is no longer exercisable when the permissible 90-year period expires.

Subsection (d). The rule established in subsection (d) deserves a special comment.
Subsection (d) declares that the possibility that a child will be born to an individual after the
individual’s death is to be disregarded. It is important to note that this rule applies only for the
purpose of determining the validity of an interest (or a power of appointment) under paragraph
(1) of subsection (a), (b), or (c). The rule of subsection (d) does not apply, for example, to
questions such as whether a child who is born to an individual after the individual’s death
qualifies as a taker of a beneficial interest – as a member of a class or otherwise. Neither
subsection (d), nor any other provision of Part 9, supersedes the widely accepted common-law
principle, codified in Section 2-104, that a child in gestation (a child sometimes described as a
child en ventre sa mere) who is later born alive (and, under Section 2-104, lives for 120 hours or
more after birth) is regarded as alive during gestation.

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The limited purpose of subsection (d) is to solve a perpetuity problem created by
advances in medical science. The problem is illustrated by a case such as “to A for life,
remainder to A’s children who reach 21.” When the common-law Rule was developing, the
possibility was recognized, strictly speaking, that one or more of A’s children might reach 21
more than 21 years after A’s death. The possibility existed because A’s wife (who might not be
a life in being) might be pregnant when A died. If she was, and if the child was born viable a
few months after A’s death, the child could not reach his or her 21st birthday within 21 years
after A’s death. The device then invented to validate the interest of A’s children was to “extend”
the allowable perpetuity period by tacking on a period of gestation, if needed. As a result, the
common-law perpetuity period was comprised of three components: (1) a life in being (2) plus
21 years (3) plus a period of gestation, when needed. Today, thanks to sperm banks, frozen
embryos, and even the possibility of artificially maintaining the body functions of a deceased
pregnant woman long enough to develop the fetus to viability – advances in medical science
unanticipated when the common-law Rule was in its developmental stages – having a pregnant
wife at death is no longer the only way of having children after death. These medical
developments, and undoubtedly others to come, make the mere addition of a period of gestation
inadequate as a device to confer initial validity under Section 2-901(a)(1) on the interest of A’s
children in the above example. The rule of subsection (d), however, does insure the initial
validity of the children’s interest. Disregarding the possibility that children of A will be born
after his death allows A to be the validating life. None of his children, under this assumption,
can reach 21 more than 21 years after his death.

Note that subsection (d) subsumes not only the case of children conceived after death, but
also the more conventional case of children in gestation at death. With subsection (d) in place,
the third component of the common-law perpetuity period is unnecessary and has been
jettisoned. The perpetuity period recognized in paragraph (1) of subsections (a), (b), and (c) has
only two components: (1) a life in being (2) plus 21 years.

As to the legal status of conceived-after-death children, that question has not yet been
resolved. For example, if in the above example A leaves sperm on deposit at a sperm bank and
after A’s death a woman (A’s widow or another) becomes pregnant as a result of artificial
insemination, the child or children produced thereby might not be included at all in the class gift.
Cf. Restatement (Second) of Property (Donative Transfers) Introductory Note to Ch. 26 (1988).
Without trying to predict how that question will be resolved in the future, the best way to handle
the problem from the perpetuity perspective is the rule in subsection (d) requiring the possibility
of post-death children to be disregarded.

Subsection (e)--Effect of Certain “Later-of” Type Language. Subsection (e) was

added to the Uniform Statutory Rule in 1990. It primarily applies to a non-traditional type of
“later of” clause (described below). Use of that type of clause might have produced unintended
consequences, which are now rectified by the addition of subsection (e).

In general, perpetuity saving or termination clauses can be used in either of two ways.
The predominant use of such clauses is as an override clause. That is, the clause is not an
integral part of the dispositive terms of the trust, but operates independently of the dispositive
terms; the clause provides that all interests must vest no later than at a specified time in the

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future, and sometimes also provides that the trust must then terminate, but only if any interest has
not previously vested or if the trust has not previously terminated. The other use of such a clause
is as an integral part of the dispositive terms of the trust; that is, the clause is the provision that
directly regulates the duration of the trust. Traditional perpetuity saving or termination clauses
do not use a “later of” approach; they mark off the maximum time of vesting or termination only
by reference to a 21-year period following the death of the survivor of specified lives in being at
the creation of the trust.

Subsection (e) applies to a non-traditional clause called a “later of” (or “longer of”)
clause. Such a clause might provide that the maximum time of vesting or termination of any
interest or trust must occur no later than the later of (A) 21 years after the death of the survivor of
specified lives in being at the creation of the trust or (B) 90 years after the creation of the trust.

Under the Uniform Statutory Rule as originally promulgated, this type of “later of” clause
would not achieve a “later of” result. If used as an override clause in conjunction with a trust
whose terms were, by themselves, valid under the common-law rule against perpetuities
(common-law Rule), the “later of” clause did no harm. The trust would be valid under the
common-law Rule as codified in subsection (a)(1) because the clause itself would neither
postpone the vesting of any interest nor extend the duration of the trust. But, if used either (1) as
an override clause in conjunction with a trust whose terms were not valid under the common-law
Rule or (2) as the provision that directly regulated the duration of the trust, the “later of” clause
would not cure the perpetuity violation in case (1) and would create a perpetuity violation in case
(2). In neither case would the clause qualify the trust for validity at common law under
subsection (a)(1) because the clause would not guarantee that all interests will be certain to vest
or terminate no later than 21 years after the death of an individual then alive. 3 In any given case,
90 years can turn out to be longer than the period produced by the specified-lives-in-being-plus-
21-years language.

Because the clause would fail to qualify the trust for validity under the common-law Rule
of subsection (a)(1), the nonvested interests in the trust would be subject to the wait-and-see
element of subsection (a)(2) and vulnerable to a reformation suit under Section 2-903. Under
subsection (a)(2), an interest that is not valid at common law is invalid unless it actually vests or
terminates within 90 years after its creation. Subsection (a)(2) does not grant such nonvested
interests a permissible vesting period of either 90 years or a period of 21 years after the death of
the survivor of specified lives in being. Subsection (a)(2) only grants such interests a period of
90 years in which to vest.

3
By substantial analogous authority, the specified-lives-in-being-plus-21-years prong of the “later of” clause under
discussion is not sustained by the separability doctrine (described in Part H of the Comment to § 1 of the Uniform
Statutory Rule Against Perpetuities). See, e.g., Restatement of Property § 376 comments e & f & illustration 3
(1944); Easton v. Hall, 323 Ill. 397, 154 N.E. 216 (1926); Thorne v. Continental Nat'l Bank & Trust Co., 305 Ill.
App. 222, 27 N.E.2d 302 (1940). The inapplicability of the separability doctrine is also supported by perpetuity
policy, as described in the text above.

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The operation of subsection (a), as outlined above, is also supported by perpetuity policy.
If subsection (a) allowed a “later of” clause to achieve a “later of” result, it would authorize an
improper use of the 90-year permissible vesting period of subsection (a)(2). The 90-year period
of subsection (a)(2) is designed to approximate the period that, on average, would be produced
by using actual lives in being plus 21 years. Because in any given case the period actually
produced by lives in being plus 21 years can be shorter or longer than 90 years, an attempt to
utilize a 90-year period in a “later of” clause improperly seeks to turn the 90-year average into a
minimum.

Set against this background, the addition of subsection (e) is quite beneficial. Subsection
(e) limits the effect of this type of “later of” language to 21 years after the death of the survivor
of the specified lives, in effect transforming the clause into a traditional perpetuity
saving/termination clause. By doing so, subsection (e) grants initial validity to the trust under
the common-law Rule as codified in subsection (a)(1) and precludes a reformation suit under
Section 2-903.

Note that subsection (e) covers variations of the “later of” clause described above, such
as a clause that postpones vesting until the later of (A) 20 years after the death of the survivor of
specified lives in being or (B) 89 years. Subsection (e) does not, however, apply to all
dispositions that incorporate a “later of” approach. To come under subsection (e), the specified-
lives prong must include a tack-on period of up to 21 years. Without a tack-on period, a “later
of” disposition, unless valid at common-law comes under subsection (a)(2) and is given 90 years
in which to vest. An example would be a disposition that creates an interest that is to vest upon
“the later of the death of my widow or 30 years after my death.”

Coordination of the Federal Generation-skipping Transfer Tax with the Uniform

Statutory Rule. In 1990, the Treasury Department announced a decision to coordinate the tax
regulations under the “grandfathering” provisions of the federal generation-skipping transfer tax
with the Uniform Statutory Rule. Letter from Michael J. Graetz, Deputy Assistant Secretary of
the Treasury (Tax Policy), to Lawrence J. Bugge, President, National Conference of
Commissioners on Uniform State Laws (Nov. 16, 1990) (hereinafter Treasury Letter).

Section 1433(b)(2) of the Tax Reform Act of 1986 generally exempts (“grandfathers”)
trusts from the federal generation-skipping transfer tax that were irrevocable on September 25,
1985. This section adds, however, that the exemption shall apply “only to the extent that such
transfer is not made out of corpus added to the trust after September 25, 1985.” The provisions of
Section 1433(b)(2) were first implemented by Temp. Treas. Reg. § 26.2601-1, promulgated by
T.D. 8187 on March 14, 1988. Insofar as the Uniform Statutory Rule is concerned, a key feature
of that temporary regulation is the concept that the statutory reference to “corpus added to the
trust after September 25, 1985” not only covers actual post-9/25/85 transfers of new property or
corpus to a grandfathered trust but “constructive” additions as well. Under the temporary
regulation as first promulgated, a “constructive” addition occurs if, after 9/25/85, the donee of a
nongeneral power of appointment exercises that power “in a manner that may postpone or
suspend the vesting, absolute ownership or power of alienation of an interest in property for a
period, measured from the date of creation of the trust, extending beyond any life in being at the
date of creation of the trust plus a period of 21 years. If a power is exercised by creating another

252
power it will be deemed to be exercised to whatever extent the second power may be exercised.”
Temp. Treas. Reg. § 26.2601-1(b)(1)(v)(B)(2) (1988).

Because the Uniform Statutory Rule was promulgated in 1986 and applies only
prospectively, any “grandfathered” trust would have become irrevocable prior to the enactment
of USRAP in any state. Nevertheless, the second sentence of Section 2-905(a) extends USRAP’s
wait-and-see approach to post-effective-date exercises of nongeneral powers even if the power
itself was created prior to USRAP’s effective date. Consequently, a post-USRAP-effective-date
exercise of a nongeneral power of appointment created in a “grandfathered” trust could come
under the provisions of the Uniform Statutory Rule.

The literal wording, then, of Temp. Treas. Reg. § 26.2601-1(b)(1)(v)(B)(2) (1988), as

first promulgated, could have jeopardized the grandfathered status of an exempt trust if (1) the
trust created a nongeneral power of appointment, (2) the donee exercised that nongeneral power,
and (3) USRAP is the perpetuity law applicable to the donee’s exercise. This possibility arose
not only because the donee’s exercise itself might come under the 90-year permissible vesting
period of subsection (a)(2) if it otherwise violated the common-law Rule and hence was not
validated under subsection (a)(1). The possibility also arose in a less obvious way if the donee’s
exercise created another nongeneral power. The last sentence of the temporary regulation states
that “if a power is exercised by creating another power it will be deemed to be exercised to
whatever extent the second power may be exercised.”

In late March 1990, the National Conference of Commissioners on Uniform State Laws
(NCCUSL) and the Joint Editorial Board for the Uniform Probate Code (JEB-UPC) filed a
formal request with the Treasury Department asking that measures be taken to coordinate the
regulation with USRAP. By the Treasury Letter referred to above, the Treasury Department
responded by stating that it “will amend the temporary regulations to accommodate the 90-year
period under USRAP as originally promulgated [in 1986] or as amended [in 1990 by the addition
of subsection (e)].” This should effectively remove the possibility of loss of grandfathered status
under the Uniform Statutory Rule merely because the donee of a nongeneral power created in a
grandfathered trust inadvertently exercises that power in violation of the common-law Rule or
merely because the donee exercises that power by creating a second nongeneral power that
might, in the future, be inadvertently exercised in violation of the common-law Rule.

The Treasury Letter states, however, that any effort by the donee of a nongeneral power
in a grandfathered trust to obtain a “later of” specified-lives-in-being-plus-21-years or 90-years
approach will be treated as a constructive addition, unless that effort is nullified by state law. As
explained above, the Uniform Statutory Rule, as originally promulgated in 1986 or as amended
in 1990 by the addition of subsection (e), nullifies any direct effort to obtain a “later of”
approach by the use of a “later of” clause.

The Treasury Letter states that an indirect effort to obtain a “later of” approach would
also be treated as a constructive addition that would bring grandfathered status to an end, unless
the attempt to obtain the later-of approach is nullified by state law. The Treasury Letter indicates
that an indirect effort to obtain a “later of” approach could arise if the donee of a nongeneral
power successfully attempts to prolong the duration of a grandfathered trust by switching from a

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specified-lives-in-being-plus-21-years perpetuity period to a 90-year perpetuity period, or vice
versa. Donees of nongeneral powers in grandfathered trusts would therefore be well advised to
resist any temptation to wait until it becomes clear or reasonably predictable which perpetuity
period will be longer and then make a switch to the longer period if the governing instrument
creating the power utilized the shorter period. No such attempted switch and no constructive
addition will occur if in each instance a traditional specified-lives-in-being-plus-21-years
perpetuity saving clause is used.

Any such attempted switch is likely in any event to be nullified by state law and, if so, the
attempted switch will not be treated as a constructive addition. For example, suppose that the
original grandfathered trust contained a standard perpetuity saving clause declaring that all
interests in the trust must vest no later than 21 years after the death of the survivor of specified
lives in being. In exercising a nongeneral power created in that trust, any indirect effort by the
donee to obtain a “later of” approach by adopting a 90-year perpetuity saving clause will likely
be nullified by subsection (e). If that exercise occurs at a time when it has become clear or
reasonably predictable that the 90-year period will prove longer, the donee’s exercise would
constitute language in a governing instrument that seeks to operate in effect to postpone the
vesting of any interest until the later of the specified-lives-in-being-plus-21-years period or 90
years. Under subsection (e), “that language is inoperative to the extent it produces a period of
time that exceeds 21 years after the death of the survivor of the specified lives.”

Quite apart from subsection (e), the relation-back doctrine generally recognized in the
exercise of nongeneral powers stands as a doctrine that could potentially be invoked to nullify an
attempted switch from one perpetuity period to the other perpetuity period. Under that doctrine,
interests created by the exercise of a nongeneral power are considered created by the donor of
that power. See, e.g., Restatement (Second) of Property, Donative Transfers § 11.1 comment b
(1986). As such, the maximum vesting period applicable to interests created by the exercise of a
nongeneral power would apparently be covered by the perpetuity saving clause in the document
that created the power, notwithstanding any different period the donee purports to adopt.

Reference. Section 2-901 is Section 1 of the Uniform Statutory Rule Against

Perpetuities (Uniform Act). For further discussion of this section, with numerous examples
illustrating its application, see the Official Comment to Section 1 of the Uniform Act.

SECTION 2-902. WHEN NONVESTED PROPERTY INTEREST OR POWER OF

APPOINTMENT CREATED.

(a) Except as provided in subsections (b) and (c) and in Section 2-905(a), the time of

creation of a nonvested property interest or a power of appointment is determined under general

principles of property law.

(b) For purposes of [Subpart] 1 of this [part], if there is a person who alone can exercise a

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power created by a governing instrument to become the unqualified beneficial owner of (i) a

nonvested property interest or (ii) a property interest subject to a power of appointment described

in Section 2-901(b) or (c), the nonvested property interest or power of appointment is created

when the power to become the unqualified beneficial owner terminates. [For purposes of

[Subpart] 1 of this [part], a joint power with respect to community property or to marital property

under the Uniform Marital Property Act held by individuals married to each other is a power

exercisable by one person alone.]

(c) For purposes of [Subpart] 1 of this [part], a nonvested property interest or a power of

appointment arising from a transfer of property to a previously funded trust or other existing

property arrangement is created when the nonvested property interest or power of appointment in

the original contribution was created.

Comment

Section 2-902 defines the time when, for purposes of Subpart 1 of Part 9, a nonvested
property interest or a power of appointment is created. The period of time allowed by Section 2-
901 is measured from the time of creation of the nonvested property interest or power of
appointment in question. Section 2-905, with certain exceptions, provides that Subpart 1 of Part
9 applies only to nonvested property interests and powers of appointment created on or after the
effective date of Subpart 1 of Part 9.

Subsection (a). Subsection (a) provides that, with certain exceptions, the time of
creation of nonvested property interests and powers of appointment is determined under general
principles of property law. Because a will becomes effective as a dispositive instrument upon
the decedent’s death, not upon the execution of the will, general principles of property law
determine that a nonvested property interest or a power of appointment created by will is created
at the decedent’s death. With respect to an inter-vivos transfer, an interest or power is created on
the date the transfer becomes effective for purposes of property law generally, normally the date
of delivery of the deed or the funding of the trust.

Nonvested Property Interests and Powers of Appointment Created by the Exercise of a

Power of Appointment. If a nonvested property interest or a power of appointment was created
by the testamentary or inter-vivos exercise of a power of appointment, general principles of
property law adopt the “relation-back” doctrine. Under that doctrine, the appointed interests or
powers are created when the power was created, not when it was exercised, if the exercised
power was a nongeneral power or a general testamentary power. If the nonvested property

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interest or power of appointment was created by the exercise of a nongeneral or a testamentary
power of appointment that was itself created by the exercise of a nongeneral or a testamentary
power of appointment, the relation-back doctrine is applied twice and the nonvested property
interest or power of appointment was created when the first power of appointment was created,
not when the second power was created or exercised.

Example 1. G’s will created a trust that provided for the income to go to G’s son, A, for
life, remainder to such of A’s descendants as A shall by will appoint.

A died leaving a will that exercised his nongeneral power of appointment, providing that
the trust is to continue beyond A’s death, paying the income to A’s daughter, X, for her lifetime,
remainder in corpus to such of X’s descendants as X shall by will appoint; in default of
appointment, to X’s descendants who survive X, by representation.

A’s exercise of his nongeneral power of appointment gave a nongeneral power of

appointment to X and a nonvested property interest to X’s descendants. For purposes of Section
2-901, X’s power of appointment and the nonvested property interest in X’s descendants is
deemed to have been “created” at G’s death when A’s nongeneral power of appointment was
created, not at A’s death when he exercised his power of appointment.

Suppose that X subsequently dies leaving a will that exercises her nongeneral power of
appointment. For purposes of Section 2-901, any nonvested property interest or power of
appointment created by an exercise of X’s nongeneral power of appointment is deemed to have
been “created” at G’s death, not at A’s death or at X’s death.

If the exercised power was a presently exercisable general power, the relation-back
doctrine is not followed; the time of creation of the appointed property interests or appointed
powers is regarded as the time when the power was irrevocably exercised, not when the power
was created.

Example 2. The same facts as Example 1, except that A’s will exercised his nongeneral
power of appointment by providing that the trust is to continue beyond A’s death, paying the
income to A’s daughter, X, for her lifetime, remainder in corpus to such person or persons,
including X, her estate, her creditors, and the creditors of her estate, as X shall appoint; in default
of appointment, to X’s descendants who survive X, by representation.

A’s exercise of his nongeneral power of appointment gave a presently exercisable general
power of appointment to X. For purposes of Section 2-901, any nonvested property interest or
power of appointment created by an exercise of X’s presently exercisable general power of
appointment is deemed to be “created” when X irrevocably exercises her power of appointment,
not when her power of appointment or A’s power of appointment was created.

A’s exercise of his nongeneral power also granted a nonvested property interest to X’s
descendants (under the gift-in-default clause). Were it not for the presently exercisable general
power granted to X, the nonvested property interest in X’s surviving descendants would, under
the relation-back doctrine, be deemed “created” for purposes of Section 2-901 at the time of G’s

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death. However, under Section 2-902(b), the fact that X is granted the presently exercisable
general power postpones the time of creation of the nonvested property interest of X’s
descendants. Under Section 2-902(b), that nonvested property interest is deemed not to have
been “created” for purposes of Section 2-901 at G’s death but rather when X’s presently
exercisable general power “terminates.” Consequently, the time of “creation” of the nonvested
interest of X’s descendants is postponed as of the time that X was granted the presently
exercisable general power (upon A’s death) and continues in abeyance until X’s power
terminates. X’s power terminates by the first to happen of the following: X’s irrevocable
exercise of her power; X’s release of her power; X’s entering into a contract to exercise or not to
exercise her power; X’s dying without exercising her power; or any other action or nonaction
that would have the effect of terminating her power.

Subsection (b). Subsection (b) provides that, if one person can exercise a power to
become the unqualified beneficial owner of a nonvested property interest (or a property interest
subject to a power of appointment described in Section 2-901(b) or 2-901(c)), the time of
creation of the nonvested property interest (or the power of appointment) is postponed until the
power to become the unqualified beneficial owner ceases to exist. This is in accord with existing
common law. The standard example of the application of this subsection is a revocable inter-
vivos trust. For perpetuity purposes, both at common law and under Subpart 1 of Part 9, the
nonvested property interests and powers of appointment created in the trust are created when the
power to revoke expires, usually at the settlor’s death. For another example of the application of
subsection (b), see the last paragraph of Example 2, above.

Subsection (c). Subsection (c) provides that nonvested property interests and powers of
appointment arising out of transfers to a previously funded trust or other existing property
arrangement are created when the nonvested property interest or power of appointment arising
out of the original contribution was created. This avoids an administrative difficulty that can
arise at common law when subsequent transfers are made to an existing irrevocable inter-vivos
trust. Arguably, at common law, each transfer starts the period of the Rule running anew as to
each transfer. The prospect of staggered periods is avoided by subsection (c). Subsection (c) is
in accord with the saving-clause principle of wait-and-see embraced by Part 9. If the irrevocable
inter-vivos trust had contained a saving clause, the perpetuity-period component of the clause
would be measured by reference to lives in being when the original contribution to the trust was
made, and the clause would cover subsequent contributions as well.

Reference. Section 2-902 is Section 2 of the Uniform Statutory Rule Against

Perpetuities (Uniform Act). For further discussion of this section, with examples illustrating its
application, see the Official Comment to Section 2 of the Uniform Act.

SECTION 2-903. REFORMATION. Upon the petition of an interested person, a court

shall reform a disposition in the manner that most closely approximates the transferor’s

manifested plan of distribution and is within the 90 years allowed by Section 2-901(a)(2), 2-

901(b)(2), or 2-901(c)(2) if:

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(1) a nonvested property interest or a power of appointment becomes invalid under

Section 2-901 (statutory rule against perpetuities);

(2) a class gift is not but might become invalid under Section 2-901 (statutory rule against

perpetuities) and the time has arrived when the share of any class member is to take effect in

possession or enjoyment; or

(3) a nonvested property interest that is not validated by Section 2-901(a)(1) can vest but

not within 90 years after its creation.

Comment

Section 2-903 implements the deferred-reformation feature of the Uniform Statutory Rule
Against Perpetuities. Upon the petition of an interested person, the court is directed to reform a
disposition within the limits of the allowable 90-year period, in the manner deemed by the court
most closely to approximate the transferor’s manifested plan of distribution, in any one of three
circumstances. The “interested person” who would frequently bring the reformation suit would
be the trustee.

Section 2-903 applies only to dispositions the validity of which is governed by the wait-
and-see element of Section 2-901(a)(2), 2-901(b)(2), or 2-901(c)(2); it does not apply to
dispositions that are initially valid under Section 2-901(a)(1), 2-901(b)(1), or 2-901(c)(1) – the
codified version of the validating side of the common-law Rule.

Section 2-903 will seldom be applied. Of the fraction of trusts and other property
arrangements that fail to meet the requirements for initial validity under the codified version of
the validating side of the common-law Rule, almost all of them will have been settled under their
own terms long before any of the circumstances requisite to reformation under Section 2-903
arise.

If, against the odds, one of the circumstances requisite to reformation does arise, it will be
found easier than perhaps anticipated to determine how best to reform the disposition. The court
is given two criteria to work with: (i) the transferor’s manifested plan of distribution, and (ii) the
allowable 90-year period. Because governing instruments are where transferors manifest their
plans of distribution, the imaginary horrible of courts being forced to probe the minds of long-
dead transferors will not materialize.

Paragraph (1). The theory of Section 2-903 is to defer the right to reformation until
reformation becomes truly necessary. Thus, the basic rule of Section 2-903(1) is that the right to
reformation does not arise until a nonvested property interest or a power of appointment becomes
invalid; under Section 2-901, this does not occur until the expiration of the 90-year permissible
vesting period. This approach is more efficient than the “immediate cy pres” approach to

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perpetuity reform because it substantially reduces the number of reformation suits. It also is
consistent with the saving-clause principle embraced by the Statutory Rule. Deferring the right
to reformation until the permissible vesting period expires is the only way to grant every
reasonable opportunity for the donor’s disposition to work itself out without premature
interference.

Paragraph (2). Although, generally speaking, reformation is deferred until an invalidity

has occurred, Section 2-903 grants an earlier right to reformation when it becomes necessary to
do so or when there is no point in waiting the full 90-year period out. Thus paragraph (2), which
pertains to class gifts that are not yet but still might become invalid under the Statutory Rule,
grants a right to reformation whenever the share of any class member whose share had vested
within the permissible vesting period might otherwise have to wait out the remaining part of the
90 years before obtaining his or her share. Reformation under this subsection will seldom be
needed, however, because of the common practice of structuring trusts to split into separate
shares or separate trusts at the death of each income beneficiary, one such separate share or
separate trust being created for each of the income beneficiary’s then-living children; when this
pattern is followed, the circumstances described in paragraph (2) will not arise.

Paragraph (3). Paragraph (3) also grants a right to reformation before the 90-year
permissible vesting period expires. The circumstances giving rise to the right to reformation
under paragraph (3) occurs if a nonvested property interest can vest but not before the 90-year
period has expired. Though unlikely, such a case can theoretically arise. If it does, the interest –
unless it terminates by its own terms earlier – is bound to become invalid under Section 2-901
eventually. There is no point in deferring the right to reformation until the inevitable happens.
Section 2-903 provides for early reformation in such a case, just in case it arises.

Infectious Invalidity. Given the fact that this section makes reformation mandatory, not
discretionary with the court, the common-law doctrine of infectious invalidity is superseded by
this section. In a state in which the courts have been particularly zealous about applying the
infectious-invalidity doctrine, however, an express codification of the abrogation of this doctrine
might be thought desirable. If so, the above section could be made subsection (a), with the
following new subsection (b) added:

(b) The common-law rule known as the doctrine of infectious invalidity is abolished.

Reference. Section 2-903 is Section 3 of the Uniform Statutory Rule Against

Perpetuities (Uniform Act). For further discussion of this section, with examples illustrating its
application, see the Official Comment to Section 3 of the Uniform Act.

SECTION 2-904. EXCLUSIONS FROM STATUTORY RULE AGAINST

PERPETUITIES. Section 2-901 (statutory rule against perpetuities) does not apply to:

(1) a nonvested property interest or a power of appointment arising out of a nondonative

transfer, except a nonvested property interest or a power of appointment arising out of

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(A) a premarital or postmarital agreement,

(B) a separation or divorce settlement,

(C) a spouse’s election,

(D) a similar arrangement arising out of a prospective, existing, or previous

marital relationship between the parties,

(E) a contract to make or not to revoke a will or trust,

(F) a contract to exercise or not to exercise a power of appointment,

(G) a transfer in satisfaction of a duty of support, or

(H) a reciprocal transfer;

(2) a fiduciary’s power relating to the administration or management of assets, including

the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to

determine principal and income;

(3) a power to appoint a fiduciary;

(4) a discretionary power of a trustee to distribute principal before termination of a trust

to a beneficiary having an indefeasibly vested interest in the income and principal;

(5) a nonvested property interest held by a charity, government, or governmental agency

or subdivision, if the nonvested property interest is preceded by an interest held by another

charity, government, or governmental agency or subdivision;

(6) a nonvested property interest in or a power of appointment with respect to a trust or

other property arrangement forming part of a pension, profit-sharing, stock bonus, health,

disability, death benefit, income deferral, or other current or deferred benefit plan for one or

more employees, independent contractors, or their beneficiaries or spouses, to which

contributions are made for the purpose of distributing to or for the benefit of the participants or

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their beneficiaries or spouses the property, income, or principal in the trust or other property

arrangement, except a nonvested property interest or a power of appointment that is created by

an election of a participant or a beneficiary or spouse; or

(7) a property interest, power of appointment, or arrangement that was not subject to the

common-law rule against perpetuities or is excluded by another statute of this state.

Comment

This section lists the interests and powers that are excluded from the Statutory Rule
Against Perpetuities. This section is in part declaratory of existing common law but in part not.
Under paragraph (7), all the exclusions from the common-law Rule recognized at common law
and by statute in the state are preserved.

The major departure from existing common law comes in paragraph (1). In line with
long-standing scholarly commentary, paragraph (1) excludes nondonative transfers from the
Statutory Rule. The Rule Against Perpetuities is an inappropriate instrument of social policy to
use as a control of such arrangements. The period of the Rule – a life in being plus 21 years – is
suitable for donative transfers only, and this point applies with equal force to the 90-year
allowable waiting period under the wait-and-see element of Section 2-901. That period, as
noted, represents an approximation of the period of time that would be produced, on average, by
tracing a set of actual measuring lives and adding a 21-year period following the death of the
survivor.

Certain types of transactions – although in some sense supported by consideration, and

hence arguably nondonative – arise out of a domestic situation, and should not be excluded from
the Statutory Rule. To avoid uncertainty with respect to such transactions, paragraph (1) lists
and restores such transactions, such as premarital or postmarital agreements, contracts to make or
not to revoke a will or trust, and so on, to the donative-transfers category that does not qualify for
an exclusion.

Reference. Section 2-904 is Section 4 of the Uniform Statutory Rule Against

Perpetuities (Uniform Act). For further discussion of this section, with examples illustrating its
application, see the Official Comment to Section 4 of the Uniform Act.

SECTION 2-905. PROSPECTIVE APPLICATION.

(a) Except as extended by subsection (b), [Subpart] 1 of this [part] applies to a nonvested

property interest or a power of appointment that is created on or after the effective date of

[Subpart] 1 of this [part]. For purposes of this section, a nonvested property interest or a power

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of appointment created by the exercise of a power of appointment is created when the power is

irrevocably exercised or when a revocable exercise becomes irrevocable.

(b) If a nonvested property interest or a power of appointment was created before the

effective date of [Subpart] 1 of this [part] and is determined in a judicial proceeding, commenced

on or after the effective date of [Subpart] 1 of this [part], to violate this state’s rule against

perpetuities as that rule existed before the effective date of [Subpart] 1 of this [part], a court upon

the petition of an interested person may reform the disposition in the manner that most closely

approximates the transferor’s manifested plan of distribution and is within the limits of the rule

against perpetuities applicable when the nonvested property interest or power of appointment

was created.

Comment

Section 2-905 provides that, except for Section 2-905(b), this part applies only to
nonvested property interests or powers of appointment created on or after the effective date of
this subpart. The second sentence of subsection (a) establishes a special rule for nonvested
property interests (and powers of appointment) created by the exercise of a power of
appointment. The import of this special rule, which applies to the exercise of all types of powers
of appointment (general testamentary powers and nongeneral powers as well as presently
exercisable general powers), is that all the provisions of this subpart except Section 2-905(b)
apply if the donee of a power of appointment exercises the power on or after the effective date of
this subpart, whether the donee’s exercise is revocable or irrevocable. In addition, all the
provisions of Subpart 1 except Section 2-905(b) apply if the donee exercised the power before
the effective date of this subpart if (i) that pre-effective-date exercise was revocable and (ii) that
revocable exercise becomes irrevocable on or after the effective date of this subpart. The special
rule, in other words, prevents the common-law doctrine of relation back from inappropriately
shrinking the reach of this subpart.

Although the Uniform Statutory Rule does not apply retroactively, Section 2-905(b)
authorizes a court to exercise its equitable power of reform instruments that contain a violation
of the state’s former rule against perpetuities and to which the Uniform Statutory Rule does not
apply because the offending property interest or power of appointment was created before the
effective date of this subpart. Courts are urged to consider reforming such dispositions by
judicially inserting a perpetuity saving clause, because a perpetuity saving clause would probably
have been used at the drafting stage of the disposition had it been drafted competently. To
obviate any possibility of an inequitable exercise of the equitable power to reform, Section 2-
905(b) limits the authority to reform to situations in which the violation of the former rule

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against perpetuities is determined in a judicial proceeding that is commenced on or after the
effective date of this subpart. The equitable power to reform would typically be exercised in the
same judicial proceeding in which the invalidity is determined.

Reference. Section 2-905 is Section 5 of the Uniform Statutory Rule Against

Perpetuities (Uniform Act). For further discussion of this section, with examples illustrating its
application, see the Official Comment to Section 5 of the Uniform Act.

SECTION 2-906. [SUPERSESSION.] [REPEAL.] [Subpart] 1 of this [part]

[supersedes the rule of the common law known as the rule against perpetuities] [repeals (list

statutes to be repealed)].

Comment

The first set of bracketed text is provided for states that follow the common-law Rule
Against Perpetuities. The second set of bracketed text is provided for the repeal of statutory
adoptions of the common-law Rule Against Perpetuities, statutory variations of the common-law
Rule Against Perpetuities, or statutory prohibitions on the suspension of the power of alienation
for more than a certain period. Some states may find it appropriate to enact both sets of
bracketed text by joining them with the word “and.” This would be appropriate in states having a
statute that declares that the common-law Rule Against Perpetuities is in force in the state except
as modified therein.

A cautionary note for states repealing listed statutes: If the statutes to be repealed contain
exclusions from the rule against perpetuities, states should consider whether to repeal or retain
those exclusions, in light of Section 2-904(7), which excludes from the Uniform Statutory Rule
property interests, powers of appointment, and other arrangements “excluded by another statute
of this state.”

Subpart 2. Honorary Trusts

GENERAL COMMENT

Subpart 2 contains an optional provision on honorary trusts and trusts for pets. If this
optional provision is enacted, a new paragraph (8) should be added to Section 2-904 to avoid an
overlap or conflict between Subpart 1 of Part 9 (USRAP) and Subpart 2 of Part 9. Paragraph (8)
makes it clear that Subpart 2 of Part 9 is the exclusive provision applicable to the property
interests or arrangements subjected to a time limit by the provisions of Subpart 2. Paragraph (8)
states:

(8) a property interest or arrangement subjected to a time limit under Subpart 2 of Part 9.

Additionally, the “or” at the end of Section 2-904(6) should be removed and placed after
Section 2-904(7).

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[OPTIONAL PROVISION FOR VALIDATING AND LIMITING THE DURATION OF

SO-CALLED HONORARY TRUSTS AND TRUSTS FOR PETS.]

[SECTION 2-907. HONORARY TRUSTS; TRUSTS FOR PETS.

(a) [Honorary Trust.] Subject to subsection (c), if (i) a trust is for a specific lawful

noncharitable purpose or for lawful noncharitable purposes to be selected by the trustee and (ii)

there is no definite or definitely ascertainable beneficiary designated, the trust may be performed

by the trustee for [21] years but no longer, whether or not the terms of the trust contemplate a

longer duration.

(b) [Trust for Pets.] Subject to this subsection and subsection (c), a trust for the care of a

designated domestic or pet animal is valid. The trust terminates when no living animal is

covered by the trust. A governing instrument must be liberally construed to bring the transfer

within this subsection, to presume against the merely precatory or honorary nature of the

disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible

in determining the transferor’s intent.

(c) [Additional Provisions Applicable to Honorary Trusts and Trusts for Pets.] In addition

to the provisions of subsection (a) or (b), a trust covered by either of those subsections is subject

to the following provisions:

(1) Except as expressly provided otherwise in the trust instrument, no portion of

the principal or income may be converted to the use of the trustee or to any use other than for the

trust’s purposes or for the benefit of a covered animal.

(2) Upon termination, the trustee shall transfer the unexpended trust property in

the following order:

(A) as directed in the trust instrument;

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(B) if the trust was created in a nonresiduary clause in the transferor’s will

or in a codicil to the transferor’s will, under the residuary clause in the transferor’s will; and

(C) if no taker is produced by the application of subparagraph (A) or (B),

to the transferor’s heirs under Section 2-711.

(3) For the purposes of Section 2-707, the residuary clause is treated as creating a

future interest under the terms of a trust.

(4) The intended use of the principal or income can be enforced by an individual

designated for that purpose in the trust instrument or, if none, by an individual appointed by a

court upon application to it by an individual.

(5) Except as ordered by the court or required by the trust instrument, no filing,

report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is

required by reason of the existence of the fiduciary relationship of the trustee.

(6) A court may reduce the amount of the property transferred, if it determines

that that amount substantially exceeds the amount required for the intended use. The amount of

the reduction, if any, passes as unexpended trust property under subsection (c)(2).

(7) If no trustee is designated or no designated trustee is willing or able to serve, a

court shall name a trustee. A court may order the transfer of the property to another trustee, if

required to assure that the intended use is carried out and if no successor trustee is designated in

the trust instrument or if no designated successor trustee agrees to serve or is able to serve. A

court may also make such other orders and determinations as shall be advisable to carry out the

intent of the transferor and the purpose of this section.]

Comment

Subsection (a) of this section authorizes so-called honorary trusts and places a 21-year
limit on their duration. The figure “21” is bracketed to indicate that an enacting state may select

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a different figure.

Subsection (b) provides more elaborate provisions for a particular type of honorary trust,
the trust for the care of domestic or pet animals. Under subsection (b), a trust for the care of a
designated domestic or pet animal is valid

Subsection (b) meets a concern of many pet owners by providing them a means for
leaving funds to be used for the pet’s care.

Under the Uniform Directed Trust Act (UDTA), approved by the Uniform Law
Commission in 2017, a person named by the terms of a trust to enforce the trust qualifies as a
“trust director” in a state that adopts the UDTA. See Official Comment to UDTA Section 6,
stating in relevant part:

Pet and other noncharitable purpose trust enforcers. Statutes in every state
validate a trust for a pet animal and certain other noncharitable purposes.
Following Uniform Probate Code § 2-907(c)(4) (1993) and Uniform Trust
Code §§ 408(b) and 409(2) (2000), most of these statutes authorize
enforcement of the trust by a person named in the terms of the trust. In a state
that enacts this act, such a person would be a trust director.

Historical Note. This Comment was revised in 1993 and 2018. For the prior version,
see 8 U.L.A. 180 (Supp. 1992).

PART 10. UNIFORM INTERNATIONAL WILLS ACT (1977)

PREFATORY NOTE

Introduction

The purpose of the Washington Convention of 1973 concerning international wills is to

provide testators with a way of making wills that will be valid as to form in all countries joining
the Convention. As proposed by the Convention, the objective would be achieved through
uniform local rules of form, rather than through local or international law that makes recognition
of foreign wills turn on choice of law rules involving possible application of foreign law. The
international will provisions, prepared for the National Conference of Commissioners on
Uniform State Laws by the Joint Editorial Board for the Uniform Probate Code which has
functioned as a special committee of the Conference for the project, should be enacted by all
states, including those that have not accepted the Uniform Probate Code. To that end, this statute
is framed both as a freestanding act and as an added part of the Uniform Probate Code. The
bracketed headings and numbers fit the proposal into UPC; the others present the proposal as a
free-standing act.

Uniform state enactment of these provisions will permit the Washington Convention of
1973 to be implemented through state legislation familiar to will draftsmen. Thus, local proof of
foreign law and reliance on federal legislation regarding wills can be avoided when foreign wills

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come into our states to be implemented. Also, the citizens of all states will have a will form
available that should greatly reduce perils of proof and risks of invalidity that attend proof of
American wills abroad.

History of the International Will

Discussions about possible international accord on an acceptable form of will led the
Governing Council of UNIDROIT (International Institute for the Unification of Private Law) in
1960 to appoint a small committee of experts from several countries to develop proposals.
Following week-long meetings at the Institute’s quarters in Rome in 1963, and on two occasions
in 1965, the Institute published and circulated a Draft Convention of December 1966 with an
annexed uniform law that would be required to be enacted locally by those countries agreeing to
the convention. The package and accompanying explanations were reviewed in this country by
the Secretary of State’s Advisory Committee on Private International Law. In turn, it referred
the proposal to a special committee of American probate specialists drawn from members of
NCCUSL’s Special Committee on the Uniform Probate Code and its advisers and reporters. The
resulting reports and recommendations were affirmative and urged the State Department to
cooperate in continuing efforts to develop the 1966 Draft Convention, and to endeavor to interest
other countries in the subject.

Encouraged by support for the project from this country and several others, UNIDROIT
served as host for a 1971 meeting in Rome of an expanded group that included some of the
original panel of experts and others from several countries that were not represented in the early
drafting sessions. The result of this meeting was a revised draft of the proposed convention and
annexed uniform law and this, in turn, was the subject of study and discussion by many more
persons in this country. In mid-1973, the proposal from UNIDROIT was discussed in a joint
program of the Real Property Probate and Trust Law Section, and the Section of International
Law at the American Bar Association’s annual meeting held that year in Washington, D.C. By
late 1973, the list of published, scholarly discussions of the International Will proposals included
Fratcher, “The Uniform Probate Code and the International Will”, 66 Mich. L. Rev. 469 (1968);
Wellman, “Recent Unidroit Drafts on the International Will”, 6 The International Lawyer 205
(1973); and Wellman, “Proposed International Convention Concerning Wills”, 8/4 Real
Property, Probate and Trust Journal 622 (1973).

In October 1973, pursuant to a commitment made earlier to UNIDROIT representatives

that it would provide leadership for the international will proposal if sufficient interest from other
countries became evident, the United States served as host for the diplomatic Conference on
Wills which met in Washington from October 10 to 26, 1973. 42 governments were represented
by delegations, 6 by observers. The United States delegation of 8 persons plus 2 Congressional
advisers and 2 staff advisers, was headed by Ambassador Richard D. Kearney, Chairman of the
Secretary of State’s Advisory Committee on Private International Law who also was selected
president of the Conference. The result of the Conference was the Convention of October 26,
1973 Providing a Uniform Law on the Form of an International Will, an appended Annex,
Uniform Law on the Form of an International Will, and a Resolution recommending
establishment of state assisted systems for the safekeeping and discovery of wills. These three
documents are reproduced at the end of these preliminary comments.

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A more detailed account of the UNIDROIT project and the 1973 Convention, together
with recommendations regarding United States implementation of the Convention, appears in
Nadelmann, “The Formal Validity of Wills and the Washington Convention 1973 Providing the
Form of an International Will”, XXII The American Journal of Comparative Law, 365 (1974).

Description of the Proposal

The 1973 Convention obligates countries becoming parties to make the annexed uniform
law a part of their local law. The proposed uniform law contemplates the involvement in will
executions under this law of a state-recognized expert who is referred to throughout the
proposals as the “authorized person”. Hence, the local law called for by the Convention must
designate authorized persons, and prescribe the formalities for an international will and the role
of authorized persons relating thereto. The Convention binds parties to respect the authority of
another party’s authorized persons and this obligation, coupled with local enactment of the
common statute prescribing the role of such persons and according finality to their certificates
regarding due execution of wills, assures recognition of international wills under local law in all
countries joining the Convention.

The Convention and the annexed uniform law deal only with the formal validity of wills.
Thus, the proposal is entirely neutral in relation to local laws dealing with revocation of wills, or
those defining the scope of testamentary power, or regulating the probate, interpretation, and
construction of wills, and the administration of decedents’ estates. The proposal describes a
highly formal mode of will execution; one that is sufficiently protective against imposition and
mistake to command international approval as being safe enough. However, failure to meet the
requirements of an international will does not necessarily result in invalidity, for the mode of
execution described for an international will does not pre-empt or exclude other standards of
testamentary validity.

The details of the prescribed mode of execution reflect a blend of common and civil law
elements. Two attesting witnesses are required in the tradition of the English Statute of Wills of
1837 and its American counterparts. The authorized person whose participation in the ceremony
of execution is required, and whose certificate makes the will self-proved, plays a role not unlike
that of the civil law notary, though he is not required to retain custody of the will as is customary
with European notaries.

The question of who should be given state recognition as authorized persons was
resolved by designation of all licensed attorneys. The reasons for this can be seen in the
observations about the role of Kurt H. Nadelmann, writing in The American Journal of
Comparative Law:

The duties imposed by the Uniform Law upon the person doing the certifying go beyond
legalization of signatures, the domain of the notary public. At least paralegal training is a
necessity. Abroad, in countries with the law trained notary, the designation is likely to go to this
class or at least to include it. Similarly, in countries with a closely supervised class of solicitors,
their designation may be expected.

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Attorneys are subject to training and licensing requirements everywhere in this country.
The degree to which they are supervised after qualification varies considerably from state to
state, but the trend is definitely in the direction of more rather than less supervision. Designation
of attorneys in the uniform law permits a state to bring the statute into its local law books without
undue delay.

Roles for Federal and State Law in Relation to International Will

Several alternatives are available for arranging federal and state laws on the subject of
international wills. The 1973 Convention obligates nations becoming parties to introduce the
annexed uniform law into their local law, and to recognize the authority, vis a vis will executions
and certificates relating to wills, of persons designated as authorized by other parties to the
Convention. But, the Convention includes a clause for federal states that may be used by the
United States as it moves, through the process of Senate Advice and Consent, to accept the
international compact. Through it, the federal government may limit the areas in this country to
which the Convention will be applicable. Thus, Article XIV of the 1973 Convention provides:

1. If a state has two or more territorial units in which different systems of law apply in
relation to matters respecting the form of wills, it may at the time of signature, ratification, or
accession, declare that this Convention shall extend to all its territorial units or only to one or
more of them, and may modify its declaration by submitting another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state
expressly the territorial units to which the Convention applies.

One alternative would be for the federal government to refrain from use of Article XIV
and to accept the Convention as applicable to all areas of the country. The obligation to
introduce the uniform law into local law then could be met by passage of a federal statute
incorporating the uniform law and designating authorized persons who can assist testators
desiring to use the international format, possibly leaving it open for state legislatures, if they
wish, to designate other or additional groups of authorized persons. As to constitutionality, the
federal statute on wills could be rested on the power of the federal government to bind the states
by treaty and to implement a treaty obligation to bring agreed upon rules into local law by any
appropriate method. Missouri v. Holland, 252 U.S. 416 (1920); Nadelmann, “The Formal
Validity of Wills and the Washington Convention 1973 Providing the Form of An International
Will”, XXII The Am. Jn’l of Comp. L. 365, 375 (1974). Prof. Nadelmann favors this approach,
arguing that new risks of invalidity of wills would arise if the treaty were limited so as to be
applicable only in designated areas of the country, presumably those where state enactment of
the uniform law already had occurred.

One disadvantage of this approach is that it would place a potentially important method
for validating wills in federal statutes where probate practitioners, long accustomed to finding the
statutes pertinent to their specialty in state compilations, simply would not discover it. Another,
of course, relates to more generalized concerns that would attend any move by the federal
government into an area of law traditionally reserved to the states.

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Alternatively, the federal government might accept the Convention and uniform law as
applicable throughout the land, so that international wills executed with the aid of authorized
persons of other countries would be good anywhere in this country, but refrain from any
designation of authorized persons, other than possibly of some minimum federal cadre, or of
those who could function within the District of Columbia, leaving the selection of more useful
groups of authorized persons entirely to the states. One result would be to narrow greatly the
advantage of international wills to American testators who wanted to execute their instruments at
home. In probable consequence, there would be pressure on state legislatures to enact the
uniform law so as to make the advantages of the system available to local testators. Assuming
some state legislatures respond to the pressure affirmatively and others negatively, a crazy-quilt
pattern of international will states would develop, leading possibly to some of the confusion and
risk of illegality feared by Prof. Nadelmann. On the other hand, since execution of an
international will involves use of an authorized person who derives authority from (on this
assumption) state legislation, it seems somewhat unlikely that testators in states which have not
designated authorized persons will be led to believe that they can make an international will
unless they go to a state where authorized persons have been designated. Hence, the confusion
may not be as great as if the Convention were inapplicable to portions of the country.

Finally, the federal government might use Article XIV as suggested earlier, and designate
some but not all states as areas of the country in which the Convention applied. This seems the
least desirable of all alternatives because it subjects international wills from abroad to the risk of
non-recognition in some states, and offers the risk of confusion of American testators regarding
the areas of the country where they can execute a will that will be received outside this country
as an international will.

Under any of the approaches, the desirability of widespread enactment of state statutes
embodying the uniform law and designating authorized persons, seems clear, as does the
necessity for this project of the National Conference of Commissioners on Uniform State Laws.

Style

In preparing the International Will proposal, the special committee, after considerable
discussion and consideration of alternatives, decided to stick as closely as possible to the
wording of the Annex to the Convention of October 26, 1973. The Convention and its Annex
were written in the English, French, Russian and Spanish languages, each version, as declared by
Article XVI of the Convention, being equally authentic. Not surprisingly, the English version of
the Annex has a style that is somewhat different than that to which the National Conference is
accustomed. Nonetheless, from the view of those using languages other than English who may
be reviewing our state statutes on the International Will to see if they adhere to the Annex, it is
more important to stick with the agreed formulations than it is to re-style these expressions to
suit our traditions. However, some changes from the Annex were made in the interests of clarity,
and because some of the language of the Annex is plainly inappropriate in a local enactment.
These changes are explained in the Comments.

Will Registration

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A bracketed Section 10 [2-1010], is included in the International Will proposal to aid
survivors in locating international and other wills that have been kept secret by testators during
their lives. Differing from the Section 2-901 of the Uniform Probate Code and the many existing
statutes from which Section 2-901 was derived which constitute the probate court as an agency
for the safekeeping of wills deposited by living testators, the bracketed proposal is for a system
of registering certain minimum information about wills, including where the instrument will be
kept pending the death of the testator. It can be separated or omitted from the rest of the Act.

This provision for a state will registration system is derived from recommendations by
the Council of Europe for common market countries. These recommendations were urged on the
group that assembled in Rome in 1971, and were received with interest by representatives of
United Kingdom, Canada and United States, where will-making laws and customs have not
included any officially sanctioned system for safekeeping of wills or for locating information
about wills, other than occasional statutes providing for ante-mortem deposit of wills with
probate courts. Interest was expressed also by the notaries from civil law countries who have
traditionally aided will-making both by formalizing execution and by being the source thereafter
of official certificates about wills, the originals of which are retained with the official records of
the notary and carefully protected and regulated by settled customs of the profession. All
recognized that acceptance of the international will would tend to increase the frequency with
which owners of property in several different countries relied on a single will to control all of
their properties. This prospect, plus increasing mobility of persons between countries, indicates
that new methods for safekeeping and locating wills after death should be developed. The
Resolution adopted as the final act of the 1973 Conference on Wills shows that the problem also
attracted the interest and attention of that assembly.

Apart from problems of wills that may have effect in more than one country, Americans
are moving from state to state with increasing frequency. As the international will statute
becomes enacted in most if not all states, our laws will tend to induce persons to rely on a single
will as sufficient even though they may own land in two or more states, and to refrain from
making new wills when they change domicile from one state to another. The spread of the
Uniform Probate Code, tending as it does to give wills the same meaning and procedural status
in all states, will have a similar effect.

General enactment of the will registration section should lead to development of new
state and interstate systems to meet the predictable needs of testators and survivors that will
follow as the law of wills is detached from provincial restraints. It is offered with the
international will provisions because both meet obvious needs of the times.

Documents from 1973 Convention

Three documents representing the work of the 1973 Convention are reproduced here for
the convenience of members of the Conference.

CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN

INTERNATIONAL WILL

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The States signatory to the present Convention,

DESIRING to provide to a greater extent for the respecting of last wills by establishing
an additional form of will hereinafter to be called an “international will” which, if employed,
would dispense to some extent with the search for the applicable law;

HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the
following provisions:

Article I 1. Each Contracting Party undertakes that not later than six months after the
date of entry into force of this Convention in respect of that Party it shall introduce into its law
the rules regarding an international will set out in the Annex to this Convention.

2. Each Contracting Party may introduce the provisions of the Annex into its law either
by reproducing the actual text, or by translating it into its official language or languages.

3. Each Contracting Party may introduce into its law such further provisions as are
necessary to give the provisions of the Annex full effect in its territory.

4. Each Contracting Party shall submit to the Depositary Government the text of the
rules introduced into its national law in order to implement the provisions of this Convention.

Article II 1. Each Contracting Party shall implement the provisions of the Annex in its
law, within the period provided for in the preceding article, by designating the persons who, in
its territory, shall be authorized to act in connection with international wills. It may also
designate as a person authorized to act with regard to its nationals its diplomatic or consular
agents abroad insofar as the local law does not prohibit it.
2. The Party shall notify such designation, as well as any modifications thereof, to the
Depositary Government.

Article III The capacity of the authorized person to act in connection with an
international will, if conferred in accordance with the law of a Contracting Party, shall be
recognized in the territory of the other Contracting Parties.

Article IV The effectiveness of the certificate provided for in Article 10 of the Annex
shall be recognized in the territories of all Contracting Parties.

Article V 1. The conditions requisite to acting as a witness of an international will shall

be governed by the law under which the authorized person was designated. The same rule shall
apply as regards an interpreter who is called upon to act.

2. Nonetheless no one shall be disqualified to act as a witness of an international will

solely because he is an alien.

Article VI 1. The signature of the testator, of the authorized person, and of the
witnesses to an international will, whether on the will or on the certificate, shall be exempt from

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any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary,

satisfy themselves as to the authenticity of the signature of the authorized person.

Article VII The safekeeping of an international will shall be governed by the law under
which the authorized person was designated.

Article VIII No reservation shall be admitted to this Convention or to its Annex.

Article IX 1. The present Convention shall be open for signature at Washington from
October 26, 1973, until December 31, 1974.

2. The Convention shall be subject to ratification.

3. Instruments of ratification shall be deposited with the Government of the United

States of America, which shall be the Depositary Government.

Article X 1. The Convention shall be open indefinitely for accession.

2. Instruments of accession shall be deposited with the Depositary Government.

Article XI 1. The present Convention shall enter into force six months after the date of
deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth
instrument of ratification or accession has been deposited, this Convention shall enter into force
six months after the deposit of its own instrument of ratification or accession.

Article XII 1. Any Contracting Party may denounce this Convention by written
notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the
Depositary Government has received the notification, but such denunciation shall not affect the
validity of any will made during the period that the Convention was in effect for the denouncing
State.

Article XIII 1. Any State may, when it deposits its instrument of ratification or
accession or at any time thereafter, declare, by a notice addressed to the Depositary Government,
that this Convention shall apply to all or part of the territories for the international relations of
which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary
Government shall have received notice thereof or, if at the end of such period the Convention has
not yet come into force, from the date of its entry into force.

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3. Each Contracting Party which has made a declaration in accordance with paragraph 1
of this Article may, in accordance with Article XII, denounce this Convention in relation to all or
part of the territories concerned.

Article XIV 1. If a State has two or more territorial units in which different systems of
law apply in relation to matters respecting the form of wills, it may at the time of signature,
ratification, or accession, declare that this Convention shall extend to all its territorial units or
only to one or more of them, and may modify its declaration by submitting another declaration at
any time.

2. These declarations shall be notified to the Depositary Government and shall state
expressly the territorial units to which the Convention applies.

Article XV If a Contracting Party has two or more territorial units in which different
systems of law apply in relation to matters respecting the form of wills, any reference to the
internal law of the place where the will is made or to the law under which the authorized person
has been appointed to act in connection with international wills shall be construed in accordance
with the constitutional system of the Party concerned.

Article XVI 1. The original of the present Convention, in the English, French, Russian
and Spanish languages, each version being equally authentic, shall be deposited with the
Government of the United States of America, which shall transmit certified copies thereof to
each of the signatory and acceding States and to the International Institute for the Unification of
Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States,
and to the International Institute for the Unification of Private Law, of:

(a) any signature;

(b) the deposit of any instrument of ratification or accession;

(c) any date on which this Convention enters into force in accordance with Article XI;

(d) any communication received in accordance with Article I, paragraph 4;

(e) any notice received in accordance with Article II, paragraph 2;

(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on
which such declaration takes effect;

(g) any denunciation received in accordance with Article XII, paragraph 1, or Article
XIII, paragraph 3, and the date on which the denunciation takes effect;

(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on
which the declaration takes effect.

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IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized to
that effect, have signed the present Convention.

DONE at Washington this twenty-sixth day of October, one thousand nine hundred and
seventy-three.

Annex

UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

Article 1 1. A will shall be valid as regards form, irrespective particularly of the place
where it is made, of the location of the assets and of the nationality, domicile or residence of the
testator, if it is made in the form of an international will complying with the provisions set out in
Articles 2 to 5 hereinafter.

2. The invalidity of the will as an international will shall not affect its formal validity as
a will of another kind.

Article 2 This law shall not apply to the form of testamentary dispositions made by two
or more persons in one instrument.

Article 3 1. The will shall be made in writing.

2. It need not be written by the testator himself.

3. It may be written in any language, by hand or by any other means.

Article 4 1. The testator shall declare in the presence of two witnesses and of a person
authorized to act in connection with international wills that the document is his will and that he
knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of
the will.

Article 5 1. In the presence of the witnesses and of the authorized person, the testator
shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. When the testator is unable to sign, he shall indicate the reason therefor to the
authorized person who shall make note of this on the will. Moreover, the testator may be
authorized by the law under which the authorized person was designated to direct another person
to sign on his behalf.

3. The witnesses and the authorized person shall there and then attest the will by signing
in the presence of the testator.

Article 6 1. The signatures shall be placed at the end of the will.

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2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he
is unable to sign, by the person signing on his behalf or, if there is no such person, by the
authorized person. In addition, each sheet shall be numbered.

Article 7 1. The date of the will shall be the date of its signature by the authorized
person.

2. This date shall be noted at the end of the will by the authorized person.

Article 8 In the absence of any mandatory rule pertaining to the safekeeping of the will,
the authorized person shall ask the testator whether he wishes to make a declaration concerning
the safekeeping of his will. If so and at the express request of the testator the place where he
intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

Article 9 The authorized person shall attach to the will a certificate in the form
prescribed in Article 10 establishing that the obligations of this law have been complied with.

Article 10 The certificate drawn up by the authorized person shall be in the following
form or in a substantially similar form:

CERTIFICATE
(Convention of October 26, 1973)

1. I, ____________________ (name, address and capacity), a person authorized to act in connection with
international wills

2. Certify that on ________ (date) at __________ (place)

3. (testator) ____________________ (name, address, date and place of birth) in my presence and that of
the witnesses

4. (a)____________________ (name, address, date and place of birth)

(b)____________________ (name, address, date and place of birth) has declared that the attached
document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6. (a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the
following reason _____

I have mentioned this declaration on the will

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*
the signature has been affixed by ____________________
(name, address)

7. (b) the witnesses and I have signed the will;

8. *(c) each page of the will has been signed by ____________ and numbered;

9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am
acting;

11. *(f) the testator has requested me to include the following statement concerning the safekeeping of
his will:

_________________________

_________________________

*To be completed if appropriate

12. PLACE

13. DATE

14. SIGNATURE and, if necessary, SEAL

Article 11 The authorized person shall keep a copy of the certificate and deliver another
to the testator.

Article 12 In the absence of evidence to the contrary, the certificate of the authorized
person shall be conclusive of the formal validity of the instrument as a will under this Law.

Article 13 The absence or irregularity of a certificate shall not affect the formal validity
of a will under this Law.

Article 14 The international will shall be subject to the ordinary rules of revocation of
wills.

Article 15 In interpreting and applying the provisions of this law, regard shall be had to
its international origin and to the need for uniformity in its interpretation.

RESOLUTION

The Conference

Considering the importance of measures to permit the safeguarding of wills and to find
them after the death of the testator;

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Emphasizing the special interest in such measures with respect to the international will,
which is often made by the testator far from his home;

RECOMMENDS to the States that participated in the present Conference

--that they establish an internal system, centralized or not, to facilitate the safekeeping,
search and discovery of an international will as well as the accompanying certificate, for
example, along the lines of the Convention on the Establishment of a Scheme of Registration of
Wills, concluded at Basel on May 16, 1972;

--that they facilitate the international exchange of information in these matters and, to this
effect, that they designate in each state an authority or a service to handle such exchanges.

SECTION 2-1001. DEFINITIONS. In this [part:]

(1) “International will” means a will executed in conformity with Sections 2-1002

through 2-1005.

(2) “Authorized person” and “person authorized to act in connection with international

wills” mean a person who by Section 2-1009, or by the laws of the United States including

members of the diplomatic and consular service of the United States designated by Foreign

Service Regulations, is empowered to supervise the execution of international wills.

Comment

The term “international will” connotes only that a will has been executed in conformity
with this act. It does not indicate that the will was planned for implementation in more than one
country, or that it relates to an estate that has or may have international implications. Thus, it
will be entirely appropriate to use an “international will” whenever a will is desired.

The reference in paragraph (2) to persons who derive their authority to act from federal
law, including Foreign Service Regulations, anticipates that the United States will become a
party to the 1973 Convention, and that Congress, pursuant to the obligation of the Convention,
will enact the annexed uniform law and include therein some designation, possibly of a cadre
only, of authorized persons. See the discussion under “Roles for Federal and State Law in
Relation to International Will”, in the Prefatory Note, supra. If all states enact similar laws and
designate all attorneys as authorized persons, the need for testators to resort to those designated
by federal law may be minimal. It seems desirable, nonetheless, to associate whoever may be
designated by federal law as suitable authorized persons for purposes of implementing state
enactments of the uniform act. The resulting “borrowing” of those designated federally should
minimize any difficulties that might arise from variances in the details of execution of
international wills that may develop in the state and federal enactment process.

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In the Explanatory Report of the 1973 Convention prepared by Mr. Jean-Pierre Plantard,
Deputy Secretary-General of the International Institute for the Unification of Private Law
(UNIDROIT) as published by the Institute in 1974, the following paragraphs that are relevant to
this section appear:

“The Uniform Law gives no definition of the term will. The preamble of the Convention
also uses the expression ‘last wills’. The material contents of the document are of little
importance as the Uniform Law governs only its form. There is, therefore, nothing to prevent
this form being used to register last wishes that do not involve the naming of an heir and which
in some legal systems are called by a special name, such as ‘Kodizill’ in Austrian Law (ABGB §
553).

“Although it is given the qualification ‘international’, the will dealt with by the Uniform
Law can easily be used for a situation without any international element, for example, by a
testator disposing in his own country of his assets, all of which are situated in that same country.
The adjective ‘international’, therefore, only indicates what was had in mind at the time when
this new will was conceived. Moreover, it would have been practically impossible to define a
satisfactory sphere of application, had one intended to restrict its use to certain situations with an
international element. Such an element could only be assessed by reference to several factors
(nationality, residence, domicile of the testator, place where the will was drawn up, place where
the assets are situated) and, moreover, these might vary considerably between when the will was
drawn up and the beginning of the inheritance proceedings.

“Use of the international will should, therefore, be open to all testators who decide they
want to use it. Nothing should prevent it from competing with the traditional forms if it offers
advantages of convenience and simplicity over the other forms and guarantees the necessary
certainty.”

SECTION 2-1002. INTERNATIONAL WILL; VALIDITY.

(a) A will shall be valid as regards form, irrespective particularly of the place where it is

made, of the location of the assets and of the nationality, domicile, or residence of the testator, if

it is made in the form of an international will complying with the requirements of this [part].

(b) The invalidity of the will as an international will shall not affect its formal validity as

a will of another kind.

(c) This [part] shall not apply to the form of testamentary dispositions made by two or

more persons in one instrument.

Comment

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This section combines what appears in Articles 1 and 2 of the Annex into a single
section. Except for the reference to later sections, the first sentence is identical to Article 1,
Section 1 of the Annex, the second sentence is identical to Article 1, Section 2, and the third is
identical to Article 2.

Mr. Plantard’s commentary that is pertinent to this section is as follows:

“The Uniform Law is intended to be introduced into the legal system of each Contracting
State. Article 1, therefore, introduces into the internal law of each Contracting State the new,
basic principle according to which the international will is valid irrespective of the country in
which it was made, the nationality, domicile or residence of the testator and the place where the
assets forming the estate are located.

“The scope of the Uniform Law is thus defined in the first sentence. As was mentioned
above, the idea behind it was to establish a new type of will, the form of which would be the
same in all countries. The Law obviously does not affect the subsistence of all the other forms of
will known under each national law....

“Some of the provisions relating to form laid down by the Uniform Law are considered
essential. Violation of these provisions is sanctioned by the invalidity of the will as an
international will. These are: that the will must be made in writing, the presence of two
witnesses and of the authorised person, signature by the testator and by the persons involved
(witnesses and authorised person) and the prohibition of joint wills. The other formalities, such
as the position of the signature and date, the delivery and form of the certificate, are laid down
for reasons of convenience and uniformity but do not affect the validity of the international will.

“Lastly, even when the international will is declared invalid because one of the essential
provisions contained in Articles 2 to 5 has not been observed, it is not necessarily deprived of all
effect. Paragraph 2 of Article 1 specifies that it may still be valid as a will of another kind, if it
conforms with the requirements of the applicable national law. Thus, for example, a will written,
dated and signed by the testator but handed over to an authorised person in the absence of
witnesses or without the signature of the witnesses and the authorised person could quite easily
be considered a valid holograph will. Similarly, an international will produced in the presence of
a person who is not duly authorised might be valid as a will witnessed in accordance with
Common law rules.

“However, in these circumstances, one could no longer speak of an international will and
the validity of the document would have to be assessed on the basis of the rules of internal law or
of private international law.

“A joint will cannot be drawn up in the form of an international will. This is the meaning
of Article 2 of the Uniform Law which does not give an opinion as to whether this prohibition on
joint wills, which exists in many legal systems, is connected with its form or its substance.

“A will made in this international form by several people together in the same document
would, therefore, be invalid as an international will but could possibly be valid as another kind of

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will, in accordance with Article 1, paragraph 2 of the Uniform Law.

“The terminology used in Article 2 is in harmony with that used in Article 4 of The
Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.”

SECTION 2-1003. INTERNATIONAL WILL; REQUIREMENTS.

(a) The will shall be made in writing. It need not be written by the testator . It may be

written in any language, by hand or by any other means.

(b) The testator shall declare in the presence of two witnesses and of a person authorized

to act in connection with international wills that the document is the testator’s will and that the

testator knows the contents thereof. The testator need not inform the witnesses, or the authorized

person, of the contents of the will.

(c) In the presence of the witnesses, and of the authorized person, the testator shall sign

the will or, if the testator has previously signed it, shall acknowledge the signature.

(d) When the testator is unable to sign, the absence of the testator’s signature does not

affect the validity of the international will if the testator indicates the reason for the inability to

sign and the authorized person makes note thereof on the will. In these cases, it is permissible for

any other person present, including the authorized person or one of the witnesses, at the direction

of the testator to sign the testator’s name, if the authorized person makes note of this also on the

will, but it is not required that any person sign the testator’s name on the testator’s behalf.

(e) The witnesses and the authorized person shall there and then attest the will by signing

in the presence of the testator.

Comment

The five subsections of this section correspond in content to Articles 3 through 5 of the
Annex to the 1973 Convention. Article 1, Section 1 makes it clear that compliance with all
requirements listed in Articles 3 through 5 is necessary in order to achieve an international will.
As re-organized for enactment in the United States, all mandatory requirements have been
grouped in this section. Except for subsection (d), each of the sentences in the subsections

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corresponds exactly with a sentence in the Annex. Subsection (d), derived from Article 5,
Section 2 of the Annex, was re-worded for the sake of clarity.

Mr. Plantard’s comments on the requirements are as follows:

“Paragraph 1 of Article 3 lays down an essential condition for a will’s validity as an

international will: it must be made in writing.

“The Uniform Law does not explain what is meant by ‘writing’. This is a word of
everyday language which, in the opinion of the Law’s authors, does not call for any definition
but which covers any form of expression made by signs on a durable substance.

“Paragraphs 2 and 3 show the very liberal approach of the draft.

“Under paragraph 2, the will does not necessarily have to be written by the testator
himself. This provision marks a moving away from the holograph will toward the other types of
will: the public will or the mystic will and especially the Common law will. The latter, which is
often very long, is only in exceptional cases written in the hand of the testator, who is virtually
obliged to use a lawyer, in order to use the technical formulae necessary to give effect to his
wishes. This is all the more so as wills frequently involve inter vivos family arrangements, and
fiscal considerations play a very important part in this matter.

“This provision also allows for the will of illiterate persons, or persons who, for some
other reason, cannot write themselves, for example paralysed or blind persons.

“According to paragraph 3 a will may be written in any language. This provision is in

contrast with the rules accepted in various countries as regards public wills. It will be noted that
the Uniform Law does not even require the will to be written in a language known by the
testator. The latter is, therefore, quite free to choose according to whichever suits him best: it is
to be expected that he will usually choose his own language but, if he thinks it is better, he will
sometimes also choose the language of the place where the will is drawn up or that of the place
where the will is mainly to be carried out. The important point is that he have full knowledge of
the contents of his will, as is guaranteed by Articles 4 and 10.

“Lastly, a will may be written by hand or by any other method. This provision is the
corollary of paragraph 2. What is mainly had in mind is a typewriter, especially in the case of a
will drawn up by a lawyer advising the testator.

“The liberal nature of the principles set out in Article 3 calls for certain guarantees on the
other hand. These are provided by the presence of three persons, already referred to in the
context of Articles III and V of the Convention, that is to say, the authorised person and the two
witnesses. It is evident that these three persons must all be simultaneously present with the
testator during the carrying out of the formalities laid down in Articles 4 and 5.

“Paragraph 1 of Article 4 requires, first of all, that the testator declare, in the presence of
these persons, that the document produced by him is his will and that he knows the contents

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thereof. The word ‘declares’ covers any unequivocal expression of intention, by way of words
as well as by gestures or signs, as, for example, in the case of a testator who is dumb. This
declaration must be made on pain of the international will being invalid. This is justified by the
fact that the will produced by the testator might have been materially drawn up by a person other
than the testator and even, in theory, in a language which is not his own.

“Paragraph 2 of the article specifies that this declaration is sufficient: the testator does
not need to ‘inform’ the witnesses or the authorised person ‘of the contents of the will’. This
rule makes the international will differ from the public will and brings it closer to the other types
of will: the holograph will and especially the mystic will and the Common law will.

“The testator can, of course, always ask for the will to be read, a precaution which can be
particularly useful if the testator is unable to read himself. The paragraph under consideration
does not in any way prohibit this; it only aims at ensuring respect for secrecy, if the testator
should so wish. The international will can therefore be a secret will without being a closed will.

“The declaration made by the testator under Article 4 is not sufficient: under Article 5,
paragraph 1, he must also sign his will. However, the authors of the Uniform Law presumed
that, in certain cases, the testator might already have signed the document forming his will before
producing it. To require a second signature would be evidence of an exaggerated formalism and
a will containing two signatures by the testator would be rather strange. That is why the same
paragraph provides that, when he has already signed the will, the testator can merely
acknowledge it. This acknowledgement is completely informal and is normally done by a simple
declaration in the presence of the authorised person and witnesses.

“The Uniform Law does not explain what is meant by ‘signature’. This is once more a
word drawn from everyday language, the meaning of which is usually the same in the various
legal systems. The presence of the authorised person, who will necessarily be a practising
lawyer will certainly guarantee that there is a genuine signature correctly affixed.

“Paragraph 2 was designed to give persons incapable of signing the possibility of making
an international will. All they have to do is indicate their incapacity and the reason therefor to
the authorised person. The authorised person must then note this declaration on the will which
will then be valid, even though it has not been signed by the testator. Indication of the reason for
incapacity is an additional guarantee as it can be checked. The certificate drawn up by the
authorised person in the form prescribed in Article 10 again reproduces this declaration.

“The authors of the Uniform Law were also conscious of the fact that in some legal
systems--for example, English law--persons who are incapable of signing can name someone to
sign in their place. Although this procedure is completely unknown to other systems in which a
signature is exclusively personal, it was accepted that the testator can ask another person to sign
in his name, if this is permitted under the law from which the authorised person derives his
authority. This amounts to nothing more than giving satisfaction to the practice of certain legal
systems, as the authorised person must, in any case, indicate on the will that the testator declared
that he could not sign, and give the reason therefor. This indication is sufficient to make the will
valid. There will, therefore, simply be a signature affixed by a third person instead of that of the

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testator. Although there is nothing stipulating this in the Uniform Law, one can expect the
authorised person to explain the source of this signature on the document, all the more so as the
signature of this substitute for the testator must also appear on the other pages of the will, by
virtue of Article 6.

“This method over which there were some differences of opinion at the Diplomatic
Conference, should not however interfere in any way with the legal systems which do not admit
a signature in the name of someone else. Besides, its use is limited to the legal systems which
admit it already and it is now implicitly accepted by the others when they recognise the validity
of a foreign document drawn up according to this method. However, this situation can be
expected to arise but rarely, as an international will made by a person who is incapable of signing
it will certainly be a rare event.

“Lastly, Article 5 requires that the witnesses and authorised person also sign the will
there and then in the presence of the testator. By using the words ‘attest the will by signing’,
when only the word ‘sign’ had been used when referring to the testator, the authors of the
Uniform Law intended to make a distinction between the person acknowledging the contents of a
document and those who have only to affix their signature in order to certify their participation
and presence.
“In conclusion, the international will will normally contain four signatures: that of the
testator, that of the authorised person and those of the two witnesses. The signature of the
testator might be missing: in this case, the will must contain a note made by the authorised
person indicating that the testator was incapable of signing, adding his reason. All these
signatures and notes must be made on pain of invalidity. Finally, if the signature of the testator
is missing, the will could contain the signature of a person designated by the testator to sign in
his name, in addition to the above-mentioned note made by the authorised person.”

SECTION 2-1004. INTERNATIONAL WILL; OTHER POINTS OF FORM.

(a) The signatures shall be placed at the end of the will. If the will consists of several

sheets, each sheet will be signed by the testator or, if the testator is unable to sign, by the person

signing on the testator’s behalf or, if there is no such person, by the authorized person. In

addition, each sheet shall be numbered.

(b) The date of the will shall be the date of its signature by the authorized person. That

date shall be noted at the end of the will by the authorized person.

(c) The authorized person shall ask the testator whether the testator wishes to make a

declaration concerning the safekeeping of the testator’s will. If so and at the express request of

the testator the place where the testator intends to have the will kept shall be mentioned in the

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certificate provided for in Section 2-1005.

(d) A will executed in compliance with Section 2-1003 shall not be invalid merely

because it does not comply with this section.

Comment

Mr. Plantard’s commentary about Articles 6, 7 and 8 of the Annex [supra] relate to
subsections (a), (b) and (c) respectively of this section. Subsections (a) and (b) are identical to
Articles 6 and 7; subsection (c) is the same as Article 8 of the Annex except that the prefatory
language “In the absence of any mandatory rule pertaining to the safekeeping of the will…” has
been deleted because it is inappropriate for inclusion in a local statute designed for enactment by
a state that has had no tradition or familiarity with mandatory rules regarding the safekeeping of
the wills. Subsection (d) embodies the sense of Article 1, Section 1 of the Annex which states
that compliance with Articles 2 to 5 is necessary and so indicates that compliance with the
remaining articles prescribing formal steps is not necessary.

Mr. Plantard’s commentary is as follows:

“The provisions of Article 6 and those of the following articles are not imposed on pain
of invalidity. They are nevertheless compulsory legal provisions which can involve sanctions,
for example, the professional, civil and even criminal liability of the authorised person,
according to the provisions of the law from which he derives his authority.

“The first paragraph, to guarantee a uniform presentation for international wills, simply
indicates that signatures shall be placed at the end of international wills, that is, at the end of the
text.

“Paragraph 2 provides for the frequent case in which the will consists of several sheets.
Each sheet has to be signed by the testator, to guarantee its authenticity and to avoid
substitutions. The use of the word ‘signed’ seems to imply that the signature must be in the same
form as that at the end of the will. However, in the legal systems which merely require that the
individual sheets to be paraphed, usually by means of initials, this would certainly have the same
value as signature, as a signature itself could simply consist of initials.

“The need for a signature on each sheet, for the purpose of authentifying each such sheet,
led to the introduction of a special system for the case when the testator is incapable of signing.
In this case it will generally be the authorised person who will sign each sheet in his place,
unless, in accordance with Article 5, paragraph 2, the testator has designated another person to
sign in his name. In this case, it will of course be this person who will sign each sheet.

“Lastly, it is prescribed that the sheets shall be numbered. Although no further details are
given on this subject, it will in practice be up to the authorised person to check if they have
already been numbered and, if not, to number them or ask the testator to do so.

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“The aim of this provision is obviously to guarantee the orderliness of the document and
to avoid losses, subtractions or substitutions.

“The date is an essential element of the will and its importance is quite clear in the case
of successive wills. Paragraph 1 of Article 7 indicates that the date of the will in the case of an
international will is the date on which it was signed by the authorised person, this being the last
of the formalities prescribed by the Uniform Law on pain of invalidity (Article 5, paragraph 3).
It is, therefore, from the moment of this signature that the international will is valid.

“Paragraph 2 stipulates that the date shall be noted at the end of the will by the authorised
person. Although this is compulsory for the authorised person, this formality is not sanctioned
by the invalidity of the will which, as is the case in many legal systems such as English, German
and Austrian law, remains fully valid even if it is not dated or is wrongly dated. The date will
then have to be proved by some other means. It can happen that the will has two dates, that of its
drawing up and the date on which it was signed by the authorised person as a result of which it
became an international will. Evidently only this last date is to be taken into consideration.

“During the preparatory work it had been intended to organise the safekeeping of the
international will and to entrust its care to the authorised person. This plan caused serious
difficulties both for the countries which do not have the notary as he is known in Civil law
systems and for the countries in which wills must be deposited with a public authority, as is the
case, for example, in the Federal Republic of Germany, where wills must be deposited with a
court.

“The authors of the Uniform Law therefore abandoned the idea of introducing a unified
system for the safekeeping of international wills. However, where a legal system already has
rules on this subject, these rules of course also apply to the international will as well as to other
types of will. Finally, the Washington Conference adopted, at the same time as the Convention,
a resolution recommending States, in particular, to organise a system facilitating the safekeeping
of international wills (see the commentary on this resolution, at the end of this Report). It should
lastly be underlined that States desiring to give testators an additional guarantee as regards the
international will will organise its safekeeping by providing, for example, that it shall be
deposited with the authorised person or with a public officer. Complementary legislation of this
kind could be admitted within the framework of paragraph 3 of Article 1 of the Convention, as
was mentioned in our commentary on that article.

“These considerations explain why Article 8 starts by stipulating that it only applies ‘in
the absence of any mandatory rule pertaining to the safekeeping of the will’. If there happens to
be such a rule in the national law from which the authorised person derives his authority this rule
shall govern the safekeeping of the will. If there is no such rule, Article 8 requires the authorised
person to ask the testator whether he wishes to make a declaration in this regard. In this way, the
authors of the Uniform Law sought to reconcile the advantage of exact information so as to
facilitate the discovery of the will after the death of the testator, on the one hand, and respect for
the secrecy which the testator may want as regards the place where his will is kept, on the other
hand. The testator is therefore quite free to make or not to make a declaration in this regard, but
his attention is nevertheless drawn to the possibility left open to him, and particularly to the

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opportunity he has, if he expressly asks for it, to have the details he thinks appropriate in this
regard mentioned on the certificate provided for in Article 9. It will thus be easier to find the
will again at the proper time, by means of the certificate made out in three copies, one of which
remains in the hands of the authorised person.”

SECTION 2-1005. INTERNATIONAL WILL; CERTIFICATE. The authorized

person shall attach to the will a certificate to be signed by him establishing that the requirements

of this [part] for valid execution of an international will have been complied with. The

authorized person shall keep a copy of the certificate and deliver another to the testator. The

certificate shall be substantially in the following form:

CERTIFICATE
(Convention of October 26, 1973)

1. I, ____________________ (name, address and capacity), a person authorized to act in connection with
international wills

2. Certify that on ________ (date) at __________ (place)

3. (testator) ____________________ (name, address, date and place of birth) in my presence and that of
the witnesses

4. (a)____________________ (name, address, date and place of birth)

(b)____________________ (name, address, date and place of birth) has declared that the attached
document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6. (a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the
following reason _____

I have mentioned this declaration on the will

*the signature has been affixed by ____________________

(name, address)

7. (b) the witnesses and I have signed the will;

8. *(c) each page of the will has been signed by ____________ and numbered;

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9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am
acting;

11. *(f) the testator has requested me to include the following statement concerning the safekeeping of
his will:

_________________________

_________________________

*To be completed if appropriate

12. PLACE

13. DATE

14. SIGNATURE and, if necessary, SEAL

Comment

This section embodies the content of Articles 9, 10 and 11 of the Annex with only minor,
clarifying changes. Those familiar with the pre-proved will authorized by Uniform Probate Code
Section 2-504 should be comfortable with Sections 2-1005 and 2-1006 of this act. Indeed,
inclusion of these provisions in the Annex was the result of a concession by those familiar with
civil law approaches to problems of execution and proof of wills, to the English speaking
countries where will ceremonies are divided between those occurring as testator acts, and those
occurring later when the will is probated. Further, since English and Canadian practices reduce
post-mortem probate procedures down to little more than the presentation of the will to an
appropriate registry and so, approach civil law customs, the concession was largely to
accommodate American states where post-mortem probate procedures are very involved. Thus,
the primary purpose of the certificate, which provides conclusive proof of the formal validity of
the will, is to put wills executed before a civil law notary and wills executed in the American
tradition on a par; with the certificate, both are good without question insofar as formal
requirements are concerned.

It should be noted that Article III of the Convention binds countries becoming parties to
recognize the capacity of an authorized person to act in relation to an international will, as
conferred by the law of another country that is a party. This means that an international will
coming into one of our states that has enacted the uniform law will be entirely good under local
law, and that the certificate from abroad will provide conclusive proof of its validity.

May an international will be contested? The answer is clearly affirmative as to contests

based on lack of capacity, fraud, undue influence, revocation or ineffectiveness based on the
contents of the will or substantive restraints on testamentary power. Contests based on failure to
follow mandatory requirements of execution are not precluded because the next section provides

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that the certificate is conclusive only “in the absence of evidence to the contrary”. However, the
Convention becomes relevant when one asks whether a probate court may require additional
proof of the genuineness of signatures by testators and witnesses. It provides:

Article VI 1. The signature of the testator, of the authorized person, and of the witnesses
to an international will, whether on the will or on the certificate, shall be exempt from any
legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary,

satisfy themselves as to the authenticity of the signature of the authorized person.

Presumably, the prohibition against legalization would not preclude additional proof of
genuineness if evidence tending to show forgery is introduced, but without contrary proof, the
certificate proves the will.

The authorized person is directed to attach the certificate to the will, and to keep a copy.
The sense of “keep” intended by the draftsman is “continuously keep,” or “preserve.”

If the will with attached certificate is to be retained by the authorized person or otherwise
placed for safekeeping out of the possession of the testator, good practice would involve an
unexecuted copy of the will that could be given to the testator for disposition or retention as he
saw fit. It would seem that good practice in these cases also would involve attachment of the
testator’s copy of the certificate to testator’s copy of the will. The statute is silent on this point,
however.

Mr. Plantard’s commentary on the articles of the Annex that are pertinent to Section 2-
1005, are as follows:

“This provision specifies that the authorised person must attach to the international will a
certificate drawn up in accordance with the form set out in Article 10, establishing that the
Uniform Law’s provisions have been complied with. The term ‘joint au testament’ means that
the certificate must be added to the will, that is, fixed thereto. The English text which uses the
word ‘attach’ is perfectly clear on this point. Furthermore, it results from Article 11 that the
certificate must be made out in three copies. This document, the contents of which are detailed
in Article 10, is proof that the formalities required for the validity of the international will have
been complied with. It also reveals the identity of the persons who participated in drawing up
the document and may, in addition, contain a declaration by the testator as to the place where he
intends his will to be kept. It should be stressed that the certificate is drawn up under the entire
responsibility of the authorised person who is the only person to sign it.

“Article 10 sets out the form for the certificate. The authorised person must abide by it,
in accordance with the provisions of Article 10 itself, laying down this or a substantially similar
form. This last phrase could not be taken as authorising him to depart from this form: it only
serves to allow for small changes of detail which might be useful in the interests of improving its
comprehensibility or presentation, for example, the omission of the particulars marked with an
asterisk indicating that they are to be completed where appropriate when in fact they do not need

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to be completed and thus become useless.

“Including the form of a certificate in one of the articles of a Uniform Law is unusual.
Normally these appear in the annexes to Conventions. However, in this way, the authors of the
Uniform Law underlined the importance of the certificate and its contents. Moreover, the
Uniform Law already forms the Annex to the Convention itself.

“The 14 particulars indicated on the certificate are numbered. These numbers must be
reproduced on each certificate, so as to facilitate its reading, especially when the reader speaks a
foreign language, as they will help him to find the relevant details more easily: the name of the
authorised person and the testator, addresses, etc.

“The certificate contains all the elements necessary for the identification of the authorized
person, testator and witnesses. It expressly mentions all the formalities which have to be carried
out in accordance with the provisions of the Uniform Law. Furthermore, the certificate contains
all the information required for the will’s registration according to the system introduced by the
Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, signed
at Basle on 16 May 1972.

“The authorised person must keep a copy of the certificate and deliver one to the testator.
Seeing that another copy has to be attached to the will in accordance with Article 9, it may be
deduced that the authorised person must make out altogether three copies of the certificate.
These cannot be simple copies but have to be three signed originals. This provision is useful for
a number of reasons. The fact that the testator keeps a copy of the certificate is a useful reminder
for him, especially when his will is being kept by the authorised person or deposited with
someone designated by national law. Moreover, discovery of the certificate among the testators’
papers will inform his heirs of the existence of a will and will enable them to find it more easily.
The fact that the authorised person keeps a copy of the certificate enables him to inform the heirs
as well, if necessary. Lastly, the fact that there are several copies of the certificate is a guarantee
against changes being made to one of them and even, to a certain extent, against certain changes
to the will itself, for example as regards its date.”

SECTION 2-1006. INTERNATIONAL WILL; EFFECT OF CERTIFICATE. In

the absence of evidence to the contrary, the certificate of the authorized person shall be

conclusive of the formal validity of the instrument as a will under this [part]. The absence or

irregularity of a certificate shall not affect the formal validity of a will under this [part].

Comment

This section, which corresponds to Articles 11 and 12 of the Annex, must be read with
the definition of “authorized person” in Section 2-1001, and Articles III and IV of the 1973
Convention which will become binding on all states if and when the United States joins that
treaty. Articles III and IV of the Convention provide:

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Article III The capacity of the authorized person to act in connection with an international
will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the
territory of the other Contracting Parties.

Article IV The effectiveness of the certificate provided for in Article 10 of the Annex
shall be recognized in the territories of all Contracting Parties.

In effect, the state enacting this law will be recognizing certificates by authorized persons
designated, not only by this state, but by the United States and other parties to the 1973
Convention. Once the identity of one making a certificate on an international will is established,
the will may be proved without more, assuming the presence of the recommended form of
certificate. Article IX(3) of the 1973 Convention constitutes the United States as the Depositary
under the Convention, and Article II obligates each country joining the Convention to notify the
Depositary Government of the persons designated by its law as authorized to act in connection
with international wills. Hence, persons interested in local probate of an international will from
another country will be enabled to determine from the Department of State whether the official
making the certificate in which they are interested had the requisite authority.

In this connection, it should be noted that under Article II of the Convention, each
contracting country may designate its diplomatic or consular representatives abroad as
authorized persons insofar as the local law does not prohibit it. Since the Uniform Act will be
the law locally, and since it does not prohibit persons designated by foreign states that are parties
to the Convention from acting locally in respect to international wills, there should be a
considerable amount of latitude in selecting authorized persons to assist with wills and a
correlative reduction in the chances of local non-recognition of an authorized person from
abroad. Also, it should be noted that the Uniform Act does not restrict the persons which it
constitutes as authorized persons in relation to the places where they can so function. This
supports the view that local law as embodied in this statute should not be construed as restrictive
in relation to local activities concerning international wills of foreign diplomatic and consular
representatives who are resident here.

The certificate requires the authorized person to state that the witnesses had the requisite
capacity. If the authorized person derives his authority from the law of a state other than that
where he is acting, it would be advisable to have the certificate identify the applicable law.

The Uniform Act is silent in regard to methods of meeting local probate requirements
contemplating deposit of the original will with the court. Section 3-409 of the Uniform Probate
Code, or its counterpart in a state that has not adopted the uniform law on the point, becomes
pertinent. The last sentence of UPC Section 3-409 provides:

“A will from a place which does not provide for probate of a will after death, may be
proved for probate in this state by a duly authenticated certificate of its legal custodian that the
copy introduced is a true copy and that the will has become effective under the law of the other
place.”

One final matter warrants mention. Implicit in local proof of an instrument by means of

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authentication provided by a foreign official, is the problem of proving the authority of the
official. The traditional, exceedingly formalistic, method of accomplishing this has been through
what has been known as “legalization”, a process that involves a number of certificates. The
capacity of the official who authenticates the signature of the party to the document, if derived
from his status as a county official, is proved by the certificate of a high county official. In turn,
the county official’s status is proved by the certificate of the area’s secretary of state, whose
status is established by another and so on until, ultimately, the Department of State certifies to
the identity of the highest state official in a format that will be persuasive to the receiving
country’s foreign relations representative.

Article VI of the 1973 Convention forbids legalization of the signature of testators and
witnesses. It provides:

1. The signature of the testator, of the authorized person, and of the witnesses to an
international will, whether on the will or on the certificate, shall be exempt from any legalization
or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary,

satisfy themselves as to the authenticity of the signature of the authorized person.

Thus, it would appear that if the United States, as contracting party, satisfies itself that the
signature of a foreign authorized person is authentic, and so indicates to those interested in local
probate of the document, the local court, though presumably able to receive and to act upon
evidence to the contrary, cannot reject an international will for lack of proof. This is not to say,
of course, that the authenticity of the signature of the foreign authorized person must be shown
through the aid of the State Department; plainly, the point may be implied from the face of the
document unless and until challenged.

Mr. Plantard’s commentary on this portion of the uniform law is as follows:

“Article 12 states that the certificate is conclusive of the formal validity of the
international will. It is therefore a kind of proof supplied in advance.

“This provision is only really understandable in those legal systems, like the United
States, where a will can only take effect after it has been subjected to a preliminary procedure of
verification (‘Probate’) designed to check on its validity. The mere presentation of the certificate
should suffice to satisfy the requirements of this procedure.

“However, the certificate is not always irrefutable as proof, as is indicated by the words
‘in the absence of evidence to the contrary’. If it is challenged, then the ensuing litigation will be
solved in accordance with the legal procedure applicable in the Contracting State where the will
and certificate are presented.

“The principle set out in Article 13 is already implied by Article 1, as only the provisions
of Articles 2 to 5 are prescribed on pain of invalidity. Besides, it is perfectly logical that the
absence of or irregularities in a certificate should not affect the formal validity of the will, as the

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certificate is a document serving essentially for purposes of proof drawn up by the authorised
person, without the testator taking any part either in drawing it up or in checking it. This
provision is in perfect harmony with Article 12 which by the terms ‘in the absence of evidence to
the contrary’ means that one can challenge what is stated in the certificate.

“In consideration of the fact that the authorised person will be a practising lawyer
officially designated by each Contracting State, it is difficult to imagine him omitting or
neglecting to draw up the certificate provided for by the national law to which he is subject.
Besides, he would lay himself open to an action based on his professional and civil liability. He
could even expose himself to sanctions laid down by his national law.

“However, the international will subsists, even if, by some quirk, the certificate which is
a means of proof but not necessarily the only one, should be missing, be incomplete or contain
particulars which are manifestly erroneous. In these undoubtedly very rare circumstances, proof
that the formalities prescribed on pain of invalidity have been carried out will have to be
produced in accordance with the legal procedures applicable in each State which has adopted the
Uniform Law.”

SECTION 2-1007. INTERNATIONAL WILL; REVOCATION. The international

will shall be subject to the ordinary rules of revocation of wills.

Comment

Mr. Plantard’s commentary on this portion of the uniform law is as follows:

“The authors of the Uniform Law did not intend to deal with the subject of the revocation
of wills. There is indeed no reason why the international will should be submitted to a regime
different from that of other kinds of will. Article 14 therefore merely gives expression to this
idea. Whether or not there has been revocation--for example, by a subsequent will--is to be
assessed in accordance with the law of each State which has adopted the Uniform Law, by virtue
of Article 14. Besides, this is a question mainly concerning rules of substance which would thus
overstep the scope of the Uniform Law.”

SECTION 2-1008. SOURCE AND CONSTRUCTION. Sections 2-1001 through 2-

1007 derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on the

Form of an International Will. In interpreting and applying this [part], regard shall be had to its

international origin and to the need for uniformity in its interpretation.

Comment

Mr. Plantard’s commentary on this portion of the uniform law is as follows:

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“This Article contains a provision which is to be found in a similar form in several
conventions or draft Uniform Laws. It seeks to avoid practising lawyers interpreting the
Uniform Law solely in terms of the principles of their respective internal law, as this would
prejudice the international unification being sought after. It requests judges to take the
international character of the Uniform Law into consideration and to work towards elaborating a
sort of common case-law, taking account of the foreign legal systems which provided the
foundation for the Uniform Law and the decisions handed down on the same text by the courts of
other countries. The effort toward unification must not be limited to just bringing about the
Law’s adoption, but should be carried on into the process of putting it into operation.”

SECTION 2-1009. PERSONS AUTHORIZED TO ACT IN RELATION TO

INTERNATIONAL WILL; ELIGIBILITY; RECOGNITION BY AUTHORIZING

AGENCY. Individuals who have been admitted to practice law before the courts of this state

and who are in good standing as active law practitioners in this state, are hereby declared to be

authorized persons in relation to international wills.

Comment

The subject of who should be designated to be authorized persons under the Uniform
Law is discussed under the heading “Description of the Proposal” in the Prefatory Note.

The first draft of the Uniform Law presented to the National Conference at its 1975
meeting in Quebec City included provision for a special new licensing procedure through which
others than attorneys might become qualified. The ensuing discussion resulted in rejection of
this approach in favor of the simpler approach of Section 2-1009. Among other difficulties with
the special licensee approach, representatives of the State Department expressed concern about
the attendant burden on the U.S. as Depositary Government, of receiving, keeping up to date, and
interpreting to foreign governments the results of fifty different state licensing systems.

[SECTION 2-1010. INTERNATIONAL WILL INFORMATION

REGISTRATION. The [Secretary of State] shall establish a registry system by which

authorized persons may register in a central information center, information regarding the

execution of international wills, keeping that information in strictest confidence until the death of

the maker and then making it available to any person desiring information about any will who

presents a death certificate or other satisfactory evidence of the testator’s death to the center.

Information that may be received, preserved in confidence until death, and reported as indicated

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is limited to the name, social-security or any other individual-identifying number established by

law, address, and date and place of birth of the testator, and the intended place of deposit or

safekeeping of the instrument pending the death of the maker. The [Secretary of State], at the

request of the authorized person, may cause the information it receives about execution of any

international will to be transmitted to the registry system of another jurisdiction as identified by

the testator, if that other system adheres to rules protecting the confidentiality of the information

similar to those established in this state.]

Comment

The relevance of this optional, bracketed section to the other sections constituting the
uniform law concerning international wills is explained in the Prefatory Note. Also, Mr.
Plantard’s observations regarding the Resolution attached to the 1973 Convention are pertinent.
He writes:

“The Resolution adopted by the Washington Conference and annexed to its Final Act
encourages States which adopt the Uniform Law to make additional provisions for the
registering and safekeeping of the international will. The authors of the Uniform Law
considered that it was not possible to lay down uniform rules on this subject on account of the
differences in tradition and outlook, but several times, both during the preparatory work and
during the final diplomatic phase, they underlined the importance of States making such
provisions.

“The Resolution recommends organising a system enabling…’the safekeeping, search

and discovery of an international will as well as the accompanying certificate’…

“Indeed lawyers know that many wills are never carried out because the very existence of
the will itself remains unknown or because the will is never found or is never produced. It would
be quite possible to organise a register or index which would enable one to know after the death
of a person whether he had drawn up a will. Some countries have already done something in this
field, for example, Quebec, Spain, the Federal Republic of Germany, where this service is
connected with the Registry of Births, Marriages and Deaths. Such a system could perfectly well
be fashioned so as to ensure respect for the legitimate wish of testators to keep the very existence
of their will secret.

“The Washington Conference also underlined that there is already an International

Convention on this subject, namely the Council of Europe Convention on the Establishment of a
Scheme of Registration of Wills, concluded at Basle on 16 May 1972, to which States which are
not members of the Council of Europe may accede.

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“In this Convention the Contracting States simply undertake to create an internal system
for registering wills. The Convention stipulates the categories of will which should be
registered, in terms which include the international will. Apart from national bodies in charge of
registration, the Convention also provides for the designation by each Contracting State of a
national body which must remain in contact with the national bodies of other States and
communicate registrations and any information asked for. The Convention specifies that
registration must remain secret during the life of the testator. This system, which will come into
force between a number of European States in the near future, interested the authors of the
Convention, even if they do not accede to it. The last paragraph of the Resolution follows the
pattern of the Basle Convention by recommending, in the interests of facilitating an international
exchange of information on this matter, the designation in each State of authorities or services to
handle such exchanges.

“As for the organisation of the safekeeping of international wills, the resolution merely
underlies the importance of this, without making any specific suggestions in this regard. This
problem has already been discussed in connection with Article 8 of the Uniform Law.”

The Council of Europe Convention on the Establishment of a Scheme of Registration of

Wills of May 16, 1972 and related documents were available to the reporter and provided the
guidelines for Section 2-1010 of this part.

PART 11. UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT (1999/2006)

GENERAL COMMENT

Part 11 incorporates into the Code the Uniform Disclaimer of Property Interests Act
(1999/2006) (UDPIA or Act). The UDPIA replaces the Code’s former disclaimer provision
(Section 2-801). It also replaces three Uniform Acts promulgated in 1978 (Uniform Disclaimer
of Property Interests Act, Uniform Disclaimer of Transfers by Will, Intestacy or Appointment
Act, and Uniform Disclaimer of Transfers under Nontestamentary Instruments Act). The new
Act is the most comprehensive disclaimer statute ever written. It is designed to allow every sort
of disclaimer, including those that are useful for tax planning purposes. It does not, however,
include a specific time limit on the making of any disclaimer. Because a disclaimer is a refusal
to accept, the only bar to a disclaimer should be acceptance of the offer. In addition, in almost
all jurisdictions disclaimers can be used for more than tax planning. A proper disclaimer will
often keep the disclaimed property from the disclaimant’s creditors. In short, the new Act is an
enabling statute which prescribes all the rules for refusing a proffered interest in or power over
property and the effect of that refusal on the power or interest while leaving the effect of the
refusal itself to other law. Section 2-1113(e) explicitly states that a disclaimer may be barred or
limited by law other than the Act.

The decision not to include a specific time limit – to “decouple” the disclaimer statute
from the time requirement applicable to a “qualified disclaimer” under IRC § 2518 – is also
designed to reduce confusion. The older Uniform Acts and almost all the current state statutes
(many of which are based on those Acts) were drafted in the wake of the passage of IRC § 2518
in 1976. That provision replaced the “reasonable time” requirement of prior law with a

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requirement that a disclaimer must be made within nine months of the creation of the interest
disclaimed if the disclaimer is to be a “qualified disclaimer” which is not regarded as transfer by
the disclaimant. The statutes that were written in response to this new provision of tax law
reflected the nine month time limit. Under most of these statutes (including the older Uniform
Acts and former Section 2-801) a disclaimer must be made within nine months of the creation of
a present interest (for example, as disclaimer of an outright gift under a will must be made within
nine months of the decedent’s death), which corresponds to the requirement of IRC § 2518. A
future interest, however, may be disclaimed within nine months of the time the interest vests in
possession or enjoyment (for example, a remainder whether or not contingent on surviving the
holder of the life income interest must be disclaimed within nine months of the death of the life
income beneficiary). The time limit for future interests does not correspond to IRC § 2518
which generally requires that a qualified disclaimer of a future interest be made within nine
months of the interest’s creation, no matter how contingent it may then be. The nine-month time
limit of the existing statutes really is a trap. While it superficially conforms to IRC § 2518, its
application to the disclaimer of future interests does not. The removal of all mention of time
limits will clearly signal the practitioner that the requirements for a tax qualified disclaimer are
set by different law.

The elimination of the time limit is not the only change from current statutes. The Act
abandons the concept of “relates back” as a proxy for when a disclaimer becomes effective.
Instead, by stating specifically when a disclaimer becomes effective and explicitly stating in
Section 2-1105(f) that a disclaimer “is not a transfer, assignment, or release,” the Act makes
clear the results of refusing property or powers through a disclaimer. Second, UDPIA creates
rules for several types of disclaimers that have not been explicitly addressed in previous statutes.
The Act provides detailed rules for the disclaimer of interests in jointly held property (Section 2-
1107). Such disclaimers have important uses especially in tax planning, but their status under
current law is not clear. Furthermore, although current statutes mention the disclaimer of jointly
held property, they provide no details. Recent developments in the law of qualified disclaimers
of jointly held property make fuller treatment of such disclaimers necessary. Section 2-1108
addresses the disclaimer by trustees of property that would otherwise become part of the trust.
The disclaimer of powers of appointment and other powers not held in a fiduciary capacity is
treated in Section 2-1109 and disclaimers by appointees, objects, and takers in default of exercise
of a power of appointment is the subject of Section 2-1110. Finally, Section 2-1111 provides
rules for the disclaimer of powers held in a fiduciary capacity.

SECTION 2-1101. [RESERVED.]

Comment

This section is marked “Reserved” in order to preserve corresponding numbering

between the free-standing form of the Uniform Disclaimers of Property Interests Act
(1999/2006) and its version as codified in the Uniform Probate Code. The result is that Section 2
of the free-standing Act becomes Section 2-1102 of the UPC, and so on.

SECTION 2-1102. DEFINITIONS. In this [part]:

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(1) “Disclaimant” means the person to whom a disclaimed interest or power would have

passed had the disclaimer not been made.

(2) “Disclaimed interest” means the interest that would have passed to the disclaimant

had the disclaimer not been made.

(3) “Disclaimer” means the refusal to accept an interest in or power over property.

(4) “Fiduciary” means a personal representative, trustee, agent acting under a power of

attorney, or other person authorized to act as a fiduciary with respect to the property of another

person.

(5) “Jointly held property” means property held in the name of two or more persons

under an arrangement in which all holders have concurrent interests and under which the last

surviving holder is entitled to the whole of the property.

(6) “Person” means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, government; governmental subdivision,

agency, or instrumentality; public corporation, or any other legal or commercial entity.

(7) “State” means a state of the United States, the District of Columbia, Puerto Rico, the

United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of

the United States. The term includes an Indian tribe or band, or Alaskan native village,

recognized by federal law or formally acknowledged by a state.

(8) “Trust” means:

(A) an express trust, charitable or noncharitable, with additions thereto, whenever

and however created; and

(B) a trust created pursuant to a statute, judgment, or decree which requires the

trust to be administered in the manner of an express trust.

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Comment

The definition of “disclaimant” (paragraph (1)) limits the term to the person who would
have received the disclaimed property or power if the disclaimer had not been made. The
disclaimant is not necessarily the person making the disclaimer, who may be a guardian,
custodian, or other fiduciary acting for the disclaimant or the personal representative of the
disclaimant’s estate.

The term “disclaimed interest” (paragraph (2)) refers to the subject matter of a disclaimer
of an interest in property and provides a compact term the use of which simplifies the drafting of
Section 2-1106.

The definition of “disclaimer” (paragraph (3)) expands previous definitions. Prior

Uniform Acts provided for a disclaimer of “the right of succession to any property or interest
therein” and former Section 2-801 referred to “an interest in or with respect to property or an
interest therein.” These previously authorized types of disclaimers are continued by the present
language referring to “an interest in...property.” The language referring to “power over property”
broadens the permissible scope of disclaimers to include any power over property that gives the
power-holder a right to control property, whether it be cast in the form of a power of
appointment or a fiduciary’s management power over property or discretionary power of
distribution over income or corpus.

Under the Act, a “fiduciary” (defined in paragraph (4)) is given the power to disclaim
except where specifically prohibited by state law or by the document creating the fiduciary
relationship. See Section 2-1105(b).

The term “jointly held property” (paragraph (5)) includes not only a traditional joint
tenancy but also other property that is “held,” but may not be “owned,” by two or more persons
with a right of survivorship. One form of such property is a joint bank account between parties
who are not married to each other which, under the laws of many states, is owned by the parties
in proportion to their deposits. (See Section 6-211(b).) This “holding” concept, as opposed to
“owning,” may also be true with joint brokerage accounts under the law of some states. See
Treas. Regs. § 25.2518-2(c)(4).

The terms “person” (paragraph (6)), “state” (paragraph (7)), and “trust” (paragraph (8)),
are also defined in Section 1-201 of this Code, but the more modern version of these definitions
is included here for ease of reference. For purposes of this part, the definitions in this section
control.

The term “trust” (paragraph (8)) means an express trust, whether private or charitable,
including a trust created by statute, court judgment or decree which is to be administered in the
manner of an express trust. Excluded from the Act’s coverage are resulting and constructive
trusts, which are not express trusts but remedial devices imposed by law. The Act is directed
primarily at express trusts which arise in an estate planning or other donative context, but the
definition of “trust” is not so limited. A trust created pursuant to a divorce action would be
included, even though such a trust is not donative but is created pursuant to a bargained for

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exchange. The extent to which even more commercially-oriented trusts are subject to the Act
will vary depending on the type of trust and the laws, other than this Act, under which the trust is
created. Commercial trusts come in various forms, including trusts created pursuant to a state
business trust act and trusts created to administer specified funds, such as to pay a pension or to
manage pooled investments. See John H. Langbein, The Secret Life of the Trust: The Trust as
an Instrument of Commerce, 107 Yale L.J. 165 (1997).

SECTION 2-1103. SCOPE. This [part] applies to disclaimers of any interest in or

power over property, whenever created.

SECTION 2-1104. PART SUPPLEMENTED BY OTHER LAW.

(a) Unless displaced by a provision of this [part], the principles of law and equity

supplement this [part].

(b) This [part] does not limit any right of a person to waive, release, disclaim, or

renounce an interest in or power over property under a law other than this [part].

Comment

The supplementation of the provisions of the Act by the principles of law and equity in
Section 2-1104(a) is important because the Act is not a complete statement of the law relating to
disclaimers. For example, Section 2-1105(b) permits a trustee to disclaim, yet the disclaiming
trustee must still adhere to all applicable fiduciary duties. See Restatement (Third) of Trusts §
86 Reporter’s Notes to cmt. f. Similarly, the provisions of Section 2-1113 on bars to disclaiming
are subject to supplementation by equitable principles. See Badouh v. Hale, 22 S.W.3d 392
(Tex. 2000) (invalidating a disclaimer of an expectancy as contrary to equity, on the ground that
the putative disclaimant had earlier pledged it to a third party).

Not only are the provisions of the Act supplemented by the principles of law and equity,
but under Section 2-1104(b) the provisions of the Act do not preempt other law that creates the
right to reject an interest in or power over property. The growth of the law would be unduly
restricted were the provisions of the Act completely to displace other law.

Historical Note. This Comment was added in 2010.

SECTION 2-1105. POWER TO DISCLAIM; GENERAL REQUIREMENTS;

WHEN IRREVOCABLE.

(a) A person may disclaim, in whole or part, any interest in or power over property,

including a power of appointment. A person may disclaim the interest or power even if its

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creator imposed a spendthrift provision or similar restriction on transfer or a restriction or

limitation on the right to disclaim.

(b) Except to the extent a fiduciary’s right to disclaim is expressly restricted or limited by

another statute of this state or by the instrument creating the fiduciary relationship, a fiduciary

may disclaim, in whole or part, any interest in or power over property, including a power of

appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim

the interest or power even if its creator imposed a spendthrift provision or similar restriction on

transfer or a restriction or limitation on the right to disclaim or an instrument other than the

instrument that created the fiduciary relationship imposed a restriction or limitation on the right

to disclaim.

(c) To be effective, a disclaimer must be in a writing or other record, declare the

disclaimer, describe the interest or power disclaimed, be signed by the person making the

disclaimer, and be delivered or filed in the manner provided in Section 2-1112. In this

subsection:

(1) “record” means information that is inscribed on a tangible medium or that is

stored in an electronic or other medium and is retrievable in perceivable form; and

(2) “signed” means, with present intent to authenticate or adopt a record, to;

(A) execute or adopt a tangible symbol; or

(B) attach to or logically associate with the record an electronic sound,

symbol, or process.

(d) A partial disclaimer may be expressed as a fraction, percentage, monetary amount,

term of years, limitation of a power, or any other interest or estate in the property.

(e) A disclaimer becomes irrevocable when it is delivered or filed pursuant to Section 2-

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1112 or when it becomes effective as provided in Sections 2-1106 through 2-1111, whichever

occurs later.

(f) A disclaimer made under this [part] is not a transfer, assignment, or release.

Comment

Subsections (a) and (b) give both persons (as defined in Section 2-1102(6)) and
fiduciaries (as defined in Section 2-1102(4)) a broad power to disclaim both interests in and
powers over property. In both instances, the ability to disclaim interests is comprehensive; it
does not matter whether the disclaimed interest is vested, either in interest or in possession. For
example, Father’s will creates a testamentary trust which is to pay income to his descendants and
after the running of the traditional perpetuities period is to terminate and be distributed to his
descendants then living by representation. If at any time there are no descendants, the trust is to
terminate and be distributed to collateral relatives. At the time of Father’s death he has many
descendants and the possibility of his line dying out and the collateral relatives taking under the
trust is remote in the extreme. Nevertheless, under the Act the collateral relatives may disclaim
their contingent remainders. (In order to make a qualified disclaimer for tax purposes, however,
they must disclaim them within 9 months of Father’s death.) Every sort of power may also be
disclaimed.

Subsection (a) continues the provisions of current law by making ineffective any attempt
to limit the right to disclaim which the creator of an interest or non-fiduciary power seeks to
impose on a person. This provision follows from the principle behind all disclaimers-no one can
be forced to accept property-and extends that principle to powers over property.

This Act also gives fiduciaries broad powers to disclaim both interests and powers. A
fiduciary who may also be a beneficiary of the fiduciary arrangement may disclaim in either
capacity. For example, a trustee who is also one of several beneficiaries of a trust may have the
power to invade trust principal for the beneficiaries. The trustee may disclaim the power as
trustee under Section 2-1111 or may disclaim as a holder of a power of appointment under
Section 2-1109. Subsection (b) also gives fiduciaries the right to disclaim in spite of spendthrift
or similar restrictions given, but subjects that right to a restriction applicable only to fiduciaries.
As a policy matter, the creator of a trust or other arrangement creating a fiduciary relationship
should be able to prevent a fiduciary accepting office under the arrangement from altering the
parameters of the relationship. This reasoning also applies to fiduciary relationships created by
statute such as those governing conservatorships and guardianships. Subsection (b) therefore
does not override express restrictions on disclaimers contained in the instrument creating the
fiduciary relationship or in other statutes of the state.

Subsection (c) sets forth the formal requirements for a disclaimer. The definitions of
“record” and “signed” in this subsection are derived from the Uniform Electronic Transactions
Act § 102. The definitions recognize that a disclaimer may be prepared in forms other than
typewritten pages with a signature in pen. Because of the novelty of a disclaimer executed in
electronic form and the ease with which the term “record” can be confused with recording of

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documents, the Act does not use the term “record” in isolation but refers to “writing or other
record.” The delivery requirement is set forth in Section 2-1112.

Subsection (d) specifically allows a partial disclaimer of an interest in property or of a

power over property, and gives the disclaimant wide latitude in describing the portion
disclaimed. For example, a residuary beneficiary of an estate may disclaim a fraction or
percentage of the residue or may disclaim specific property included in the residue (all the shares
of X corporation or a specific number of shares). A devisee or donee may disclaim specific
acreage or an undivided fraction or carve out a life estate or remainder from a larger interest in
real or personal property. (It must be noted, however, that a disclaimer by a devisee or donee
which seeks to “carve out” a remainder or life estate is not a “qualified disclaimer” for tax
purposes, Treas. Reg. § 25.2518-3(b).)

Subsection (e) makes the disclaimer irrevocable on the later to occur of (i) delivery or
filing or (ii) its becoming effective under the section governing the disclaimer of the particular
power or interest. A disclaimer must be “irrevocable” in order to be a qualified disclaimer for
tax purposes. Since a disclaimer under this Act becomes effective at the time significant for tax
purposes, a disclaimer under this Act will always meet the irrevocability requirement for tax
qualification. The interaction of the Act and the requirements for a tax qualified disclaimer can
be illustrated by analyzing a disclaimer of an interest in a revocable lifetime trust.

Example 1. G creates a revocable lifetime trust which will terminate on G’s death and
distribute the trust property to G’s surviving descendants by representation. G’s son, S,
determines that he would prefer his share of G’s estate to pass to his descendants and executes a
disclaimer of his interest in the revocable trust. The disclaimer is then delivered to G (see
Section 2-1112(e)(3)). The disclaimer is not irrevocable at that time, however, because it will
not become effective until G’s death when the trust becomes irrevocable (see Section 2-
1106(b)(1)). Because the disclaimer will not become irrevocable until it becomes effective at
G’s death, S may recall the disclaimer before G’s death and, if he does so, the disclaimer will
have no effect.

Subsection (f) restates the long standing rule that a disclaimer is a true refusal to accept
and not an act by which the disclaimant transfers, assigns, or releases the disclaimed interest.
This subsection states the effect and meaning of the traditional “relation back” doctrine of prior
Acts. It also makes it clear that the disclaimed interest passes without direction by the
disclaimant, a requirement of tax qualification.

SECTION 2-1106. DISCLAIMER OF INTEREST IN PROPERTY.

(a) In this section:

(1) “Future interest” means an interest that takes effect in possession or

enjoyment, if at all, later than the time of its creation.

(2) “Time of Distribution” means the time when a disclaimed interest would have

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taken effect in possession or enjoyment.

(b) Except for a disclaimer governed by Section 2-1107 or 2-1108, the following rules

apply to a disclaimer of an interest in property:

(1) The disclaimer takes effect as of the time the instrument creating the interest

becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the time

of the intestate’s death.

(2) The disclaimed interest passes according to any provision in the instrument

creating the interest providing for the disposition of the interest, should it be disclaimed, or of

disclaimed interests in general.

(3) If the instrument does not contain a provision described in paragraph (2), the

following rules apply:

(A) If the disclaimant is not an individual, the disclaimed interest passes as

if the disclaimant did not exist.

(B) If the disclaimant is an individual, except as otherwise provided in

subparagraphs (C) and (D), the disclaimed interest passes as if the disclaimant had died

immediately before the time of distribution.

(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 interest passes only to the descendants of the

disclaimant who survive the time of distribution.

(D) If the disclaimed interest would pass to the disclaimant’s estate had

the disclaimant died before the time of distribution, the disclaimed interest instead passes by

representation to the descendants of the disclaimant who survive the time of distribution. If no

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descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to

those persons, including the state but excluding the disclaimant, and in such shares as would

succeed to the transferor’s intestate estate under the intestate succession law of the transferor’s

domicile had the transferor died at the time of distribution. However, if the transferor’s

surviving spouse is living but is remarried at the time of distribution, the transferor is deemed to

have died unmarried at the time of distribution.

(4) Upon the disclaimer of a preceding interest, a future interest held by a person

other than the disclaimant takes effect as if the disclaimant had died or ceased to exist

immediately before the time of distribution, but a future interest held by the disclaimant is not

accelerated in possession or enjoyment.

Comment

Subsection (a) defines two terms that are used only in Section 2-1106. The first, “future
interest,” is used in Section 2-1106(b)(4) in connection with the acceleration rule.

The second defined term, “time of distribution” is used in determining to whom the
disclaimed interest passes (see below). Possession or enjoyment is a term of art and means that
time at which it is certain to whom the property belongs. It does not mean that the person
actually has the property in hand. For example, the time of distribution of present interests
created by will and all interests arising under the law of intestate succession is the death of the
decedent. At that moment the heir or devisee is entitled to his or her devise or share, and it is
irrelevant that time will pass before the will is admitted to probate and that actual receipt of the
gift may not occur until the administration of the estate is complete. The time of distribution of
present interests created by non-testamentary instruments generally depends on when the
instrument becomes irrevocable. Because the recipient of a present interest is entitled to the
property as soon as the gift is made, the time of distribution occurs when the creator of the
interest can no longer take it back. The time of distribution of a future interest is the time when
it comes into possession and the owner of the future interest becomes the owner of a present
interest. For example, if B is the owner of the remainder interest in a trust which is to pay
income to A for life, the time of distribution of B’s remainder is A’s death. At that time the trust
terminated and B’s ownership of the remainder becomes outright ownership of the trust property.

Section 2-1106(b)(1) makes a disclaimer of an interest in property effective as of the time

the instrument creating the interest becomes irrevocable or at the decedent’s death if the interest
is created by intestate succession. A will and a revocable trust are irrevocable at the testator’s or
settlor’s death. Inter vivos trusts may also be irrevocable at their creation or may become

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irrevocable before the settlor’s death. A beneficiary designation is also irrevocable at death,
unless it is made irrevocable at an earlier time. This provision continues the provision of
Uniform Acts on this subject, but with different wording. Previous Acts have stated that the
disclaimer “relates back” to some time before the disclaimed interest was created. The relation
back doctrine gives effect to the special nature of the disclaimer as a refusal to accept. Because
the disclaimer “relates back,” the disclaimant is regarded as never having had an interest in the
disclaimed property. A disclaimer by a devisee against whom there is an outstanding judgment
will prevent the creditor from reaching the property the debtor would otherwise inherit.

This Act continues the effect of the relation back doctrine, not by using the specific
words, but by directly stating what the relation back doctrine has been interpreted to mean.
Sections 2-1102(3) and 2-1105(f) taken together define a disclaimer as a refusal to accept which
is not a transfer or release, and subsection (b)(1) of this section makes the disclaimer effective as
of the time the creator cannot revoke the interest. Nothing in the statute, however, prevents the
legislatures or the courts from limiting the effect of the disclaimer as refusal doctrine in specific
situations or generally. See the Comments to Section 2-1113 below.

Section 2-1106(b)(2) allows the creator of the instrument to control the disposition of the
disclaimed interest by express provision in the instrument. The provision may apply to a
particular interest. “I give to my cousin A the sum of ten thousand dollars ($10,000) and should
he disclaim any part of this gift, I give the part disclaimed to my cousin B.” The provision may
also apply to all disclaimed interests. A residuary clause beginning “I give my residuary estate,
including all disclaimed interests to....” is such a provision.

Sections 2-1106(b)(3)(B), (C), and (D) apply if Section 2-1106(b)(2) does not and if the
disclaimant is an individual. Because “disclaimant” is defined as the person to whom the
disclaimed interest would have passed had the disclaimer not been made (Section 2-1102(1)),
these paragraphs would apply to disclaimers by fiduciaries on behalf of individuals. The general
rule is that the disclaimed interest passes as if the disclaimant had died immediately before the
time of distribution defined in Section 2-1106(a)(2). The application of this general rule to
present interests given to named individuals is illustrated by the following examples:

Example 1(a). T’s will devised “ten thousand dollars ($10,000) to my brother, B.” B
disclaims the entire devise. B is deemed to have predeceased T, and, therefore B’s gift has
lapsed. If the state’s antilapse statute applies, it will direct the passing of the disclaimed interest.
Under Section 2-603(b)(1), for example, B’s descendants who survive T by 120 hours will take
the devise by representation.

Example 1(b). T’s will devised “ten thousand dollars ($10,000) to my friend, F.” F
disclaims the entire devise. F is deemed to predecease T and the gift has lapsed. Few antilapse
statutes apply to devises to non-family members. Under Section 2-603(b), which saves from
lapse only gifts made to certain relatives, the devise would lapse and pass through the residuary
clause of the will.

Example 1(c). T’s will devised “ten thousand dollars ($10,000) to my brother, B, but if B
does not survive me, to my children.” If B disclaims the devise, he will be deemed to have

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predeceased T and the alternative gift to T’s children will dispose of the devise.

Present interests are also given to the surviving members of a class or group of persons.
Perhaps the most common example of this gift is a devise of the testator’s residuary estate “to
my descendants who survive me by representation.” Under the system of distribution among
multi-generational classes used in Section 2-709, division of the property to be distributed begins
in the eldest generation in which there are living people. The following example illustrates a
problem that can arise.

Example 2(a). T’s will devised “the residue of my estate to my descendants who survive
me by representation.” T is survived by son S and daughter D. Son has two living children and
D has one. S disclaims his interest. The disclaimed interest is one-half of the residuary estate,
the interest S would have received had he not disclaimed. Section 2-1106(b)(3)(B) provides that
the disclaimed interest passes as if S had predeceased T. If Section 2-1106(b)(3) stopped there,
S’s children would take one-half of the disclaimed interest and D would take the other half under
Section 2-709. S’s disclaimer should not have that effect, however, but should pass what he
would have taken to his children. Section 2-1106(b)(3)(C) solves the problem. It provides that
the entire disclaimed interest passes only to S’s descendants because they would share in the
interest had S truly predeceased T.

This provision also solves a problem that exists when the disclaimant is the only
representative of an older generation.

Example 2(b). Assume the same facts as Example 2(a), but D has predeceased T. T is
survived, therefore, by S, S’s two children, and D’s child. S disclaims. Again, the disclaimed
interest is one-half of the residuary estate and it passes as if S had predeceased T. Had S actually
predeceased T, the three grandchildren of T would have shared equally in T’s residuary estate
because they are all in the same generation. Were the three grandchildren to share equally in the
disclaimed interest, S’s two children would each receive one-third of the one-half while D’s
child would receive one-third of the one-half in addition to the one-half of the residuary estate
received as the representative of his or her late parent. Section 2-1106(b)(3)(C) again applies to
insure that S’s children receive one-half of the residue, exactly the interest S would have
received but for the disclaimer.

The disclaimer of future interests created by will leads to a different problem. The
effective date of the disclaimer of the future interest, the testator’s death, is earlier in time than
the distribution date. This in turn leads to a possible anomaly illustrated by the following
example.

Example 3. Father’s will creates a testamentary trust for Mother who is to receive all the
income for life. At her death, the trust is to be distributed to Father and Mother’s surviving
descendants by representation. Mother is survived by son S and daughter D. Son has two living
children and D has one. Son decides that he would prefer his share of the trust to pass to his
children and disclaims. The disclaimer must be made within nine months of Father’s death if it
is to be a qualified disclaimer for tax purposes. Under prior Acts and former Section 2-801, the
interest would have passed as if Son had predeceased Father. A problem could arise if at

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Mother’s death, one or more of S’s children living at that time were born after Father’s death. It
would be possible to argue that had S predeceased Father the afterborn children would not exist
and that D and S’s two children living at the time of Father’s death are entitled to all of the trust
property.

The problem illustrated in Example 3 is solved by Section 2-1106(b)(3)(B). The

disclaimed interest would have taken effect in possession or enjoyment, that is, Son would be
entitled to receive one-half of the trust property, at Mother’s death. Under paragraph (3)(B) Son
is deemed to have died immediately before Mother’s death even though under Section 2-
1106(b)(1) the disclaimer is effective as of Father’s death. There is no doubt, therefore, that S’s
children living at the distribution date, whenever born, are entitled to the share of the trust
property S would have received and, as Examples 2(a) and 2(b) show, they will take exactly
what S would have received but for the disclaimer. Had S actually died before Mother, he would
have received nothing at Mother’s death whether or not the disclaimer had been made. There is
nothing to pass to S’s children and they take as representatives of S under the representational
scheme in effect.

Future interests may or may not be conditioned on survivorship. The following examples
illustrate disclaimers of future interests not expressly conditioned on survival.

Example 4(a). G’s revocable trust directs the trustee to pay “ten thousand dollars
($10,000) to the grantor’s brother, B” at the termination of the trust on G’s death. B disclaims
the entire gift immediately after G’s death. B is deemed to have predeceased G because it is at
G’s death that the interest given B will come into possession and enjoyment. Had B not
disclaimed he would have received $10,000 at that time. The recipient of the disclaimed interest
will be determined by the law that applies to gifts of future interests to persons who die before
the interest comes into possession and enjoyment. Traditional analysis would regard the gift to B
as a vested interest subject to divestment by G’s power to revoke the trust. So long as G has not
revoked the gift, the interest would pass through B’s estate to B’s successors in interest. Yet If
B’s successors in interest are selected by B’s will, the disclaimer cannot be a qualified disclaimer
for tax purposes. This problem does not arise in a jurisdiction with Section 2-707(b), because the
interest passes not through B’s estate but rather to B’s descendants who survive G by 120 hours
by representation. Because the antilapse mechanism of Section 2-707 is not limited to gifts to
relatives, a disclaimer by a friend rather than a brother would have the same result. For
jurisdictions without Section 2-707, however, Section 2-1106(b)(3)(D) provides an equivalent
solution: a disclaimed interest that would otherwise pass through B’s estate instead passes to B’s
descendants who survive G by representation.

Example 4(b). G’s revocable trust directed that on his death the trust property is to be
distributed to his three children, A, B, and C. A disclaims immediately after G’s death and is
deemed to predecease the distribution date, which is G’s death. The traditional analysis applies
exactly as it does in Example 4(a). The only condition on A’s gift would be G’s not revoking the
trust. A is not explicitly required to survive G. (See First National Bank of Bar Harbor v.
Anthony, 557 A.2d 957 (Me. 1989).) The interest would pass to A’s successors in interest. If
those successors are selected by A’s will, the disclaimer cannot be a qualified disclaimer for tax
purposes. Section 2-707(b) provides that A’s interest passes by representation to A’s

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descendants who survive G by 120 hours. For jurisdictions without Section 2-707, Section 2-
1106(b)(3)(D) reaches the same result.

Example 4(c). G conveys land “to A for life, remainder to B.” B disclaims immediately
after the conveyance. Traditional analysis regards B’s remainder as vested; it is not contingent
on surviving A. This classification is unaffected by whether or not the jurisdiction has adopted
Section 2-707, because that section only applies to future interests in trust; it does not apply to
future interests not in trust, such as the one in this example created directly in land. To the extent
that B’s remainder is transmissible through B’s estate, B’s disclaimer cannot be a qualified
disclaimer for tax purposes. Section 2-1106(b)(3)(D) resolves the problem: a disclaimed interest
that would otherwise pass through B’s estate instead passes as if it were controlled by Sections 2-
707 and 2-711. Because Section 2-707 only applies to future interests in trust, jurisdictions
enacting Section 2-1106 should enact Section 2-1106(b)(3)(D) whether or not they have enacted
Section 2-707.

Section 2-1106(b)(3)(A) provides a rule for the passing of property interests disclaimed
by persons other than individuals. Because Section 2-1108 applies to disclaimers by trustees of
property that would otherwise pass to the trust, Section 2-1106(b)(3)(A) principally applies to
disclaimers by corporations, partnerships, and the other entities listed in the definition of
“person” in Section 2-1102(6). A charity, for example, might wish to disclaim property the
acceptance of which would be incompatible with its purposes.

Section 2-1106(b)(4) continues the provision of prior Uniform Acts and former Section
2-801 on this subject providing for the acceleration of future interests on the making of the
disclaimer, except that future interests in the disclaimant do not accelerate. The workings of
Section 2-1106(b)(4) are illustrated by the following examples.

Example 5(a). Father’s will creates a testamentary trust to pay income to his son S for his
life, and on his death to pay the remainder to S’s descendants then living, by representation. If S
disclaims his life income interest in the trust, he will be deemed to have died immediately before
Father’s death. The disclaimed interest, S’s income interest, came into possession and
enjoyment at Father’s death as would any present interest created by will (see Examples 1(a),
(b), and (c)), and, therefore, the time of distribution is Father’s death. If the income beneficiary
of a testamentary trust does not survive the testator, the income interest is not created and the
next interest in the trust takes effect. Since the next interest in Father’s trust is the remainder in
S’s descendants, the trust property will pass to S’s descendants who survive Father by
representation. It is immaterial under the statute that the actual situation at S’s death might be
different with different descendants entitled to the remainder.

Example 5(b). Mother’s will creates a testamentary trust to pay the income to her
daughter D until she reaches age 35 at which time the trust is to terminate and the trust property
distributed in equal shares to D and her three siblings. D disclaims her income interest. The
remainder interests in her three siblings accelerate and they each receive one-fourth of the trust
property. D’s remainder interest does not accelerate, however, and she must wait until she is 35
to receive her fourth of the trust property.

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2006 Technical Amendment. By technical amendment, subsection (b)(3)(D) was added
to resolve the problem of future interests transmissible through the disclaimant’s estate. The
Comment was correspondingly amended. For the prior version, see 8 U.L.A. 65-69 (Supp.
2005).

Legislative Note: Because Section 2-707 only applies to future interests in trust, and
does not apply to legal future interests, states that have enacted Section 2-1106 should enact the
2006 technical amendments whether or not they have enacted Section 2-707.

SECTION 2-1107. DISCLAIMER OF RIGHTS OF SURVIVORSHIP IN

JOINTLY HELD PROPERTY.

(a) Upon the death of a holder of jointly held property, a surviving holder may disclaim,

in whole or part, the greater of:

(1) a fractional share of the property determined by dividing the number one by

the number of joint holders alive immediately before the death of the holder to whose death the

disclaimer relates; or

(2) all of the property except that part of the value of the entire interest

attributable to the contribution furnished by the disclaimant.

(b) A disclaimer under subsection (a) takes effect as of the death of the holder of jointly

held property to whose death the disclaimer relates.

(c) An interest in jointly held property disclaimed by a surviving holder of the property

passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.

Comment

The various forms of ownership in which “joint property,” as defined in Section 2-

1102(5), can be held include common law joint tenancies and any statutory variation that
preserves the right of survivorship. The common law was unsettled whether a surviving joint
tenant had any right to renounce his interest in jointly-owned property and if so to what extent.
See Casner, Estate Planning, 5th ed. § 10.7. Specifically, if A and B owned real estate or
securities as joint tenants with right of survivorship and A died, the problem was whether B
might disclaim what was given to him originally upon creation of the estate, or, if not, whether
he could nevertheless reject the incremental portion derived through the right of survivorship.
There was also a question of whether a joint bank account should be treated differently from

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jointly-owned securities or real estate for the purpose of disclaimer.

This common law of disclaimers of jointly held property must be set against the rapid
developments in the law of tax qualified disclaimers of jointly held property. Since the previous
Uniform Acts were drafted, the law regarding tax qualified disclaimers of joint property interests
has been clarified. Courts have repeatedly held that a surviving joint tenant may disclaim that
portion of the jointly held property to which the survivor succeeds by operation of law on the
death of the other joint tenant so long as the joint tenancy was severable during the life of the
joint tenants (Kennedy v. Commissioner, 804 F.2d 1332 (7th Cir 1986), McDonald v.
Commissioner, 853 F.2d 1494 (9th Cir 1988), Dancy v. Commissioner, 872 F.2d 84 (4th Cir
1989).) On December 30, 1997 the Service published T.D. 8744 making final proposed
amendments of the Regulations under IRC § 2518 to reflect the decisions regarding disclaimers
of joint property interests.

The amended final Regulations, § 25.2518-2(c)(4)(i) allow a surviving joint tenant or

tenant by the entireties to disclaim that portion of the tenancy to which he or she succeeds upon
the death of the first joint tenant (1/2 where there are two joint tenants) whether or not the
tenancy could have been unilaterally severed under local law and regardless of the proportion of
consideration furnished by the disclaimant. The Regulations also create a special rule for joint
tenancies between spouses created after July 14, 1988 where the spouse of the donor is not a
United States citizen. In that case, the donee spouse may disclaim any portion of the joint
tenancy includible in the donor spouse’s gross estate under IRC § 2040, which creates a
contribution rule. Thus the surviving non-citizen spouse may disclaim all of the joint tenancy
property if the deceased spouse provided all the consideration for the tenancy’s creation.

The amended final Regulations, § 25.2518-2(c)(4)(iii) also recognize the unique features
of joint bank accounts, and allow the disclaimer by a survivor of that part of the account
contributed by the decedent, so long as the decedent could have regained that portion during life
by unilateral action, bar the disclaimer of that part of the account attributable to the survivor’s
contributions, and explicitly extend the rule governing joint bank accounts to brokerage and
other investment accounts, such as mutual fund accounts, held in joint name.

These developments in the tax law of disclaimers are reflected in subsection (a). The
subsection allows a surviving holder of jointly held property to disclaim the greater of the
accretive share, the part of the jointly held property which augments the survivor’s interest in the
property, and all of the property that is not attributable to the disclaimant’s contribution to the
jointly held property. In the usual joint tenancy or tenancy by the entireties between husband
and wife, the survivor will always be able to disclaim one-half of the property. If the disclaimer
conforms to the requirements of IRC § 2518, it will be a qualified disclaimer. In addition the
surviving spouse can disclaim all of the property attributable to the decedent’s contribution, a
provision which will allow the non-citizen spouse to take advantage of the contribution rule of
the final Regulations. The contribution rule of subsection (a)(2) will also allow surviving
holders of joint property arrangements other than joint tenancies to make a tax qualified
disclaimer under the rules applicable to those joint arrangements. For example, if A contributes
60% and B contributes 40% to a joint bank account and they allow the interest on the funds to
accumulate, on B’s death A can disclaim 40% of the account; on A’s death B can disclaim 60%

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of the account. (Note that under subsection (a)(1) A can disclaim up to 50% of the account on
B’s death because there are two joint account holders, but the disclaimer would not be fully tax-
qualified. As previously noted, a tax-qualified disclaimer is limited to 40% of the account.) If
the account belonged to the parties during their joint lives in proportion to their contributions, the
disclaimers in this example can be tax qualified disclaimers if all the requirements of IRC § 2518
are met.

Subsection (b) provides that the disclaimer is effective as of the death of the joint holder
which triggers the survivorship feature of the joint property arrangement. The disclaimant,
therefore, has no interest in and has not transferred the disclaimed interest.

Subsection (c) provides that the disclaimed interest passes as if the disclaimant had
predeceased the holder to whose death the disclaimer relates. Where there are two joint holders,
a disclaimer by the survivor results in the disclaimed property passing as part of the deceased
joint holder’s estate because under this subsection, the deceased joint holder is the survivor as to
the portion disclaimed. If a married couple owns the family home in joint tenancy, therefore, a
disclaimer by the survivor under subsection (a)(1) results in one-half of the home passing
through the decedent’s estate. The surviving spouse and whoever receives the interest through
the decedent’s estate are tenants in common in the house. In the proper circumstances, the
disclaimed one-half could help to use up the decedent’s unified credit. Without the disclaimer,
the interest would automatically qualify for the marital deduction, perhaps wasting part of the
decedent’s applicable exclusion amount.

In a multiple holder joint property arrangement, the disclaimed interest will belong to the
other joint holder or holders.

Example 1. A, B, and C make equal contributions to the purchase of Blackacre, to which

they take title as joint tenants with right of survivorship. On partition each would receive 1/3 of
Blackacre and any of them could convert his or her interest to a 1/3 tenancy in common by
unilateral severance (which, of course, would have to be accomplished in accordance with state
law). On A’s death, B and C may each, if they wish, disclaim up to 1/3 of the property under
subsection (a)(1). Should one of them disclaim the full 1/3, the disclaimant will be deemed to
predecease A.

Assume that B so disclaims. With respect to the 1/3 undivided interest that now no
longer belongs to A the only surviving joint holder is C. C therefore owns that 1/3 as tenant in
common with the joint tenancy. Should C predecease B, the 1/3 tenancy in common interest will
pass through C’s estate and B will be the sole owner of an undivided 2/3 interest in Blackacre as
the survivor of the joint tenancy. Should B predecease C, C will be the sole owner of Blackacre
in fee simple absolute.

Alternatively, assume that both B and C make valid disclaimers after A’s death. They are
both deemed to predeceased A, A is the sole survivor of the joint tenancy and Blackacre passes
through A’s estate.

Finally, assume that A provided all the consideration for the purchase of Blackacre. On

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A’s death, B and C can each disclaim the entire property under subsection (a)(2). If they both do
so, Blackacre will pass through A’s estate. If only one of B or C disclaims the entire property,
the one who does not will be the sole owner of Blackacre as the only surviving joint tenant.
Such a disclaimer would not be completely tax qualified, however. The Regulations limit a tax
qualified disclaimer to no more than 1/3 of the property. If, however, B or C were the first to
die, A could still disclaim the 1/3 interest that no longer belongs to the decedent under subsection
(a)(1), the disclaimer would be a qualified disclaimer for tax purposes under the Regulations, and
the result is that the other surviving joint tenant owns 1/3 of Blackacre as tenant in common with
the joint tenancy.

2004 Amendment. This comment was amended in 2004 to correct an error in the joint
bank account example and to provide a more complete explanation for the result in Example 1.

SECTION 2-1108. DISCLAIMER OF INTEREST BY TRUSTEE. If a trustee

disclaims an interest in property that otherwise would have become trust property, the interest

does not become trust property.

Comment

Section 2-1108 deals with disclaimer of a right to receive property into a trust, and thus
applies only to trustees. (A disclaimer of a right to receive property by a fiduciary acting on
behalf of an individual, such as a personal representative, conservator, guardian, or agent is
governed by the section of the statute applicable to the type of interest being disclaimed.) The
instrument under which the right to receive the property was created may govern the disposition
of the property in the event of a disclaimer by providing for a disposition when the trust does not
exist. When the instrument does not make such a provision, the doctrine of resulting trust will
carry the property back to the donor. The effect of the actions of co-trustees will depend on the
state law governing the action of multiple trustees. Every disclaimer by a trustee must be
compatible with the trustee’s fiduciary obligations.

SECTION 2-1109. DISCLAIMER OF POWER OF APPOINTMENT OR OTHER

POWER NOT HELD IN FIDUCIARY CAPACITY. If a holder disclaims a power of

appointment or other power not held in a fiduciary capacity, the following rules apply:

(1) If the holder has not exercised the power, the disclaimer takes effect as of the time the

instrument creating the power becomes irrevocable.

(2) If the holder has exercised the power and the disclaimer is of a power other than a

presently exercisable general power of appointment, the disclaimer takes effect immediately after

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the last exercise of the power.

(3) The instrument creating the power is construed as if the power expired when the

disclaimer became effective.

Comment

Section 2-1105(a) authorizes a person to disclaim an interest in or power over property.

Section 2-1109 provides rules for disclaimers of powers which are not held in a fiduciary
capacity. The most common non-fiduciary power is a power of appointment. Section 2-1105(a)
also authorizes the partial disclaimer of a power as well as of an interest. For example, the
disclaimer could be of a portion of the power to appoint one’s self, while retaining the right to
appoint to others. The effect of a disclaimer of a power under Section 2-1109 depends on
whether or not the holder has exercised the power and on what sort of power is held. If a holder
disclaims a power before exercising it, the power expires and can never be exercised. If the
power has been exercised, the power is construed as having expired immediately after its last
exercise by the holder. The disclaimer affects only the holder of the power and will not affect
other aspects of the power.

Example 1. T creates a testamentary trust to pay the income to A for life, remainder as A
shall appoint by will among her descendants living at A’s death and four named charities. If A
does not exercise her power, the remainder passes to her descendants living at her death by
representation. A disclaims the power. The power can no longer be exercised and on A’s death
the remainder will pass to the takers in default.

SECTION 2-1110. DISCLAIMER BY APPOINTEE, OBJECT, OR TAKER IN

DEFAULT OF EXERCISE OF POWER OF APPOINTMENT.

(a) A disclaimer of an interest in property by an appointee of a power of appointment

takes effect as of the time the instrument by which the holder exercises the power becomes

irrevocable.

(b) A disclaimer of an interest in property by an object or taker in default of an exercise

of a power of appointment takes effect as of the time the instrument creating the power becomes

irrevocable.

Comment

This section governs disclaimers by those who may or do receive an interest in property
through the exercise of a power of appointment. At the time of the creation of a power of

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appointment, the creator of the power, besides giving the power to the holder of the power, can
also limit the objects of the power (the permissible appointees of the property subject to the
power) and also name those who are to take if the power is not exercised, persons referred to as
takers in default.

This section provides rules for disclaimers by all of these persons: subsection (a) is
concerned with a disclaimer by a person who actually receives an interest in property through the
exercise of a power of appointment, and subsection (b) recognizes a disclaimer by a taker in
default or permissible appointee before the power is exercised. These two situations are quite
different. An appointee is in the same position as any devisee or beneficiary of a trust. He or she
may receive a present or future interest depending on how the holder of the power exercises it.
Subsection (a), therefore, makes the disclaimer effective as of the time the instrument exercising
the power--giving the interest to the disclaimant--becomes irrevocable. If the holder of the
power created an interest in the appointee, the effect of the disclaimer is governed by Section 2-
1106. If the holder created another power in the appointee, the effect of the disclaimer is
governed by Section 2-1109.

Example 1. Mother’s will creates a testamentary trust for daughter D. The trustees are to
pay all income to D for her life and have discretion to invade principal for D’s maintenance. On
D’s death she may appoint the trust property by will among her then living descendants. In
default of appointment the property is to be distributed by representation to D’s descendants who
survive her. D is the donee, her descendants are the permissible appointees and the takers in
default. D exercises her power by appointing the trust property in three equal shares to her
children A, B, and C. The three children are the appointees. A disclaims. Under subsection (a)
A’s disclaimer is effective as of D’s death (the time at which the will exercising the power
became irrevocable). Because A disclaimed an interest in property, the effect of the disclaimer is
governed by Section 2-1106(b). If D’s will makes no provisions for the disposition of the
interest should it be disclaimed or of disclaimed interests in general (Section 2-1106(b)(2)), the
interest passes as if A predeceased the time of distribution which is D’s death. An appointment
to a person who is dead at the time of the appointment is ineffective except as provided by an
antilapse statute. See Restatement, Second, Property (Donative Transfers) § 18.5. The
Restatement, Second, Property (Donative Transfers), § 18.6 suggests that any requirement of the
antilapse statute that the deceased devisee be related in some way to the testator be applied as if
the appointive property were owned either by the donor or the holder of the power. (See also
Restatement, Third, Property (Wills and Other Donative Transfers) § 5.5, Comment l.) That is
the position taken by Section 2-603. Since antilapse statutes usually apply to devises to children
and grandchildren, the disclaimed interest would pass to A’s descendants by representation.

A taker in default or a permissible object of appointment is traditionally regarded as

having a type of future interest. See Restatement, Second, Property (Donative Transfers) § 11.2,
Comments c and d. The future interest will come into possession and enjoyment when the
question of whether or not the power is to be exercised is resolved. For testamentary powers that
time is the death of the holder.

Subsection (b) provides that a disclaimer by an object or taker in default takes effect as of
the time the instrument creating the power becomes effective. Because the disclaimant is

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disclaiming an interest in property, albeit a future interest, the effect of the disclaimer is
governed by Section 2-1106. The effect of these rules is illustrated by the following examples.

Example 2(a). The facts are the same as Example 1, except A disclaims before D’s death
and D’s will does not exercise the power. Under subsection (b) A’s disclaimer is effective as of
Mother’s death which is the time when the instrument creating the power, Mother’s will, became
irrevocable. Because A disclaimed an interest in property, the effect of the disclaimer is
governed by Section 2-1106(b). If Mother’s will makes no provision for the disposition of the
interest should it be disclaimed or of disclaimed interests in general (Section 2-1106(b)(2)), the
interest passes under Section 2-1106(b)(3) as if the disclaimant had died immediately before the
time of distribution. Thus, A is deemed to have died immediately before D’s death, which is the
time of distribution. If A actually survives D, the disclaimed interest is one-third of the trust
property; it will pass as if A predeceased D, and the result is the same as in Example 1. If A does
predecease D he would have received nothing and there is no disclaimed interest. The disclaimer
has no effect on the passing of the trust property.

Example 2(b). The facts are the same as in Example 2(a) except D does exercise her
power of appointment to give one-third of the trust property to each of her three children, A, B,
and C. A’s disclaimer means the disclaimed interest will pass as if he predeceased D and the
result is the same as in Example 1.

In addition, if all the objects and takers in default disclaim before the power is exercised
the power of appointment is destroyed. See Restatement, Second, Property (Donative Transfers)
§ 12.1, Comment g.

SECTION 2-1111. DISCLAIMER OF POWER HELD IN FIDUCIARY

CAPACITY.

(a) If a fiduciary disclaims a power held in a fiduciary capacity which has not been

exercised, the disclaimer takes effect as of the time the instrument creating the power becomes

irrevocable.

(b) If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised,

the disclaimer takes effect immediately after the last exercise of the power.

(c) A disclaimer under this section is effective as to another fiduciary if the disclaimer so

provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person

for whom the fiduciary is acting.

Comment

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This section governs disclaimers by fiduciaries of powers held in their fiduciary capacity.
Examples include a right to remove and replace a trustee or a trustee’s power to make
distributions of income or principal. Such disclaimers have not been specifically dealt with in
prior Uniform Acts although they could prove useful in several situations. A trustee who is also
a beneficiary may want to disclaim a power to invade principal for himself for tax purposes. A
trustee of a trust for the benefit for a surviving spouse who also has the power to invade principal
for the decedent’s descendants may wish to disclaim the power in order to qualify the trust for
the marital deduction. (The use of a disclaimer in just that situation was approved in Cleaveland
v. U.S., 62 A.F.T.R.2d 88-5992, 88-1 USTC ¶ 13,766 (C.D. Ill. 1988).)

The section refers to fiduciary in the singular. It is possible, of course, for a trust to have
two or more co-trustees and an estate to have two or more co-personal representatives. This Act
leaves the effect of actions of multiple fiduciaries to the general rules in effect in each state
relating to multiple fiduciaries. For example, if the general rule is that a majority of trustees can
make binding decisions, a disclaimer by two of three co-trustees of a power is effective. A
dissenting co-trustee could follow whatever procedure state law prescribes for disassociating him
or herself from the action of the majority. A sole trustee burdened with a power to invade
principal for a group of beneficiaries including him or herself who wishes to disclaim the power
but yet preserve the possibility of another trustee exercising the power would seek the
appointment of a disinterested co-trustee to exercise the power and then disclaim the power for
him or herself. The subsection thus makes the disclaimer effective only as to the disclaiming
fiduciary unless the disclaimer states otherwise. If the disclaimer does attempt to bind other
fiduciaries, be they co-fiduciaries or successor fiduciaries, the effect of the disclaimer will
depend on local law.

As with any action by a fiduciary, a disclaimer of fiduciary powers must be compatible

with the fiduciary’s duties.

SECTION 2-1112. DELIVERY OR FILING.

(a) In this section, “beneficiary designation” means an instrument, other than an

instrument creating a trust, naming the beneficiary of:

(1) an annuity or insurance policy;

(2) an account with a designation for payment on death;

(3) a security registered in beneficiary form;

(4) a pension, profit-sharing, retirement, or other employment-related benefit

plan; or

(5) any other nonprobate transfer at death.

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(b) Subject to subsections (c) through (l), delivery of a disclaimer may be effected by

personal delivery, first-class mail, or any other method likely to result in its receipt.

(c) In the case of an interest created under the law of intestate succession or an interest

created by will, other than an interest in a testamentary trust:

(1) a disclaimer must be delivered to the personal representative of the decedent’s

estate; or

(2) if no personal representative is then serving, it must be filed with a court

having jurisdiction to appoint the personal representative.

(d) In the case of an interest in a testamentary trust:

(1) a disclaimer must be delivered to the trustee then serving, or if no trustee is

then serving, to the personal representative of the decedent’s estate; or

(2) if no personal representative is then serving, it must be filed with a court

having jurisdiction to enforce the trust.

(e) In the case of an interest in an inter vivos trust:

(1) a disclaimer must be delivered to the trustee then serving;

(2) if no trustee is then serving, it must be filed with a court having jurisdiction to

enforce the trust; or

(3) if the disclaimer is made before the time the instrument creating the trust

becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of

the interest.

(f) In the case of an interest created by a beneficiary designation which is disclaimed

before the designation becomes irrevocable, the disclaimer must be delivered to the person

making the beneficiary designation.

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(g) In the case of an interest created by a beneficiary designation which is disclaimed

after the designation becomes irrevocable:

(1) the disclaimer of an interest in personal property must be delivered to the

person obligated to distribute the interest; and

(2) the disclaimer of an interest in real property must be recorded in [the office of

the county recorder of deeds] of the [county] where the real property that is the subject of the

disclaimer is located.

(h) In the case of a disclaimer by a surviving holder of jointly held property, the

disclaimer must be delivered to the person to whom the disclaimed interest passes.

(i) In the case of a disclaimer by an object or taker in default of exercise of a power of

appointment at any time after the power was created:

(1) the disclaimer must be delivered to the holder of the power or to the fiduciary

acting under the instrument that created the power; or

(2) if no fiduciary is then serving, it must be filed with a court having authority to

appoint the fiduciary.

(j) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:

(1) the disclaimer must be delivered to the holder, the personal representative of

the holder’s estate or to the fiduciary under the instrument that created the power; or

(2) if no fiduciary is then serving, it must be filed with a court having authority to

appoint the fiduciary.

(k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the

disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed

were an interest in property.

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(l) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to

the principal or the principal’s representative.

Comment

The rules set forth in this section are designed to provide notice of the disclaimer. For
example, a disclaimer of an interest in a decedent’s estate must be delivered to the personal
representative of the estate. A disclaimer is required to be filed in court only in very limited
circumstances.

Historical Note: This Comment was revised in 2010 to account for the amendment of
subsections (f) and (g)(1) and the addition of subsection (g)(2), amendments that were
necessitated by the approval of the Uniform Real Property Transfer on Death Act (2009), which
is codified in this Code at Article VI, Part 4.

SECTION 2-1113. WHEN DISCLAIMER BARRED OR LIMITED.

(a) A disclaimer is barred by a written waiver of the right to disclaim.

(b) A disclaimer of an interest in property is barred if any of the following events occur

before the disclaimer becomes effective:

(1) the disclaimant accepts the interest sought to be disclaimed;

(2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers

the interest sought to be disclaimed or contracts to do so; or

(3) a judicial sale of the interest sought to be disclaimed occurs.

(c) A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary

capacity is not barred by its previous exercise.

(d) A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary

capacity is not barred by its previous exercise unless the power is exercisable in favor of the

disclaimant.

(e) A disclaimer is barred or limited if so provided by law other than this [part].

(f) A disclaimer of a power over property which is barred by this section is ineffective. A

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disclaimer of an interest in property which is barred by this section takes effect as a transfer of

the interest disclaimed to the persons who would have taken the interest under this [part] had the

disclaimer not been barred.

Comment

The 1978 Act required that an effective disclaimer be made within nine months of the
event giving rise to the right to disclaim (e.g., nine months from the death of the decedent or
donee of a power or the vesting of a future interest). The nine month period corresponded in
some situations with the Internal Revenue Code provisions governing qualified tax disclaimers.
Under the common law an effective disclaimer had to be made only within a “reasonable” time.

This Act specifically rejects a time requirement for making a disclaimer. Recognizing
that disclaimers are used for purposes other than tax planning, a disclaimer can be made
effectively under the Act so long as the disclaimant is not barred from disclaiming the property
or interest or has not waived the right to disclaim. Persons seeking to make tax qualified
disclaimers will continue to have to conform to the requirements of the Internal Revenue Code.

The events resulting in a bar to the right to disclaim set forth in this section are similar to
those found in the 1978 Acts and former Section 2-801. Subsection (a) provides that a written
waiver of the right to disclaim is effective to bar a disclaimer. Such a waiver might be sought,
for example, by a creditor who wishes to make sure that property acquired in the future will be
available to satisfy the debt.

Whether particular actions by the disclaimant amount to accepting the interest sought to
be disclaimed within the meaning of subsection (b)(1) will necessarily be determined by the
courts based upon the particular facts. (See Leipham v. Adams, 77 Wash. App. 827, 894 P.2d
576 (1995); Matter of Will of Hall, 318 S.C. 188, 456 S.E.2d 439 (Ct. App. 1995); Jordan v.
Trower, 208 Ga. App. 552, 431 S.E.2d 160 (1993); Matter of Gates, 189 A.D.2d 427, 595
N.Y.S.2d 194 (3d Dept. 1993); “What Constitutes or Establishes Beneficiary’s Acceptance or
Renunciation of Devise or Bequest,” 93 ALR 2d 8).

The addition in this Act of the word “voluntary” to the list of actions barring a disclaimer
which also appears in the earlier Acts reflects the numerous cases holding that only actions by
the disclaimant taken after the right to disclaim has arisen will act as a bar. (See Troy v. Hart,
116 Md. App. 468, 697 A.2d 113 (1997), Estate of Opatz, 554 N.W.2d 813 (N.D. 1996), Frances
Slocum Bank v. Martin, 666 N.E.2d 411 (Ind. App. 1996), Brown v. Momar, Inc., 201 Ga. App.
542, 411 S.E.2d 718 (1991), Tompkins State Bank v. Niles, 127 Ill.2d 209, 130 Ill. Dec. 207, 537
N.E.2d 274 (1989).) An existing lien, therefore, will not prevent a disclaimer, although the
disclaimant’s actions before the right to disclaim arises may work an estoppel. See Hale v.
Bardouh, 975 S.W.2d 419 (Tex. Ct. App. 1998). With regard to joint property, the event giving
rise to the right to disclaim is the death of a joint holder, not the creation of the joint interest and
any benefit received during the deceased joint tenant’s life is ignored.

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The reference to judicial sale in subsection (b)(3) continues a provision from the earlier
Acts and ensures that title gained from a judicial sale by a personal representative will not be
clouded by a possible disclaimer.

Subsection (c) rephrases the rules of Section 2-1111 governing the effect of disclaimers
of powers.

Subsection (d) is applicable to powers which can be disclaimed under Section 2-1109. It
bars the disclaimer of a general power of appointment once it has been exercised. A general
power of appointment allows the holder to take the property subject to the power for him or
herself, whether outright or by using it to pay his or her creditors (for estate and gift tax
purposes, a general power is one that allows the holder to appoint to himself, his estate, his
creditors, or the creditors of his estate). The power is presently exercisable if the holder need not
wait to some time or for some event to occur before exercising the power. If the holder has
exercised such a power, it can no longer be disclaimed.

Subsection (e), unlike the 1978 Act, specifies that “other law” may bar the right to
disclaim. Some states, including Minnesota (M.S.A. § 525.532 (c)(6)), Massachusetts (Mass.
Gen. Law c. 191A, § 8), and Florida (Fla. Stat. § 732.801(6)), bar a disclaimer by an insolvent
disclaimant. In others a disclaimer by an insolvent debtor is treated as a fraudulent “transfer”.
See Stein v. Brown, 18 Ohio St.3d 305 (1985); Pennington v. Bigham, 512 So.2d 1344 (Ala.
1987). A number of states refuse to recognize a disclaimer used to qualify the disclaimant for
Medicaid or other public assistance. These decisions often rely on the definition of “transfer” in
the federal Medical Assistance Handbook which includes a “waiver” of the right to receive an
inheritance (see 42 U.S.C.A. § 1396p(e)(1)). See Hinschberger v. Griggs County Social
Services, 499 N.W.2d 876 (N.D. 1993); Department of Income Maintenance v. Watts, 211 Conn.
323 (1989), Matter of Keuning, 190 A.D.2d 1033, 593 N.Y.S.2d 653 (4th Dept. 1993), and
Matter of Molloy, 214 A.D.2d 171, 631 N.Y.S.2d 910 (2nd Dept. 1995), Troy v. Hart, 116 Md.
App. 468, 697 A.2d 113 (1997), Tannler v. Wisconsin Dept. of Health & Social Services, 211
Wis. 2d 179, 564 N.W.2d 735 (1997); but see, Estate of Kirk, 591 N.W.2d 630 (Iowa,
1999)(valid disclaimer by executor of surviving spouse who was Medicaid beneficiary prevents
recovery by Medicaid authorities). It is also likely that state policies will begin to address the
question of disclaimers of real property on which an environmental hazard is located in order to
avoid saddling the state, as title holder of last resort, with the resulting liability, although the
need for fiduciaries to disclaim property subject to environmental liability has probably been
diminished by the 1996 amendments to CERCLA by the Asset Conservation Act of 1996 (PL
104-208). These larger policy issues are not addressed in this Act and must, therefore, continue
to be addressed by the states. On the federal level, the United States Supreme Court has held that
a valid disclaimer does not defeat a federal tax lien levied under IRC § 6321, Dyre, Jr. v. United
States, 528 U.S. 49, 120 S.Ct. 474 (1999).

Subsection (f) provides a rule stating what happens if an attempt is made to disclaim a
power or property interest whose disclaimer is barred by this section. A disclaimer of a power is
ineffective, but the attempted disclaimer of the property interest, although invalid as a disclaimer,
will operate as a transfer of the disclaimed property interest to the person or persons who would
have taken the interest had the disclaimer not been barred. This provision removes the ambiguity

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that would otherwise be caused by an ineffective refusal to accept property. Whoever has
control of the property will know to whom to deliver it and the person attempting the disclaimer
will bear any transfer tax consequences.

SECTION 2-1114. TAX QUALIFIED DISCLAIMER. Notwithstanding any other

provision of this [part], if as a result of a disclaimer or transfer the disclaimed or transferred

interest is treated pursuant to the provisions of Title 26 of the United States Code, as now or

hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder,

as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as

a disclaimer under this [part].

Legislative Note: States with constitutions that prohibit a dynamic reference to federal
law (“as now or hereafter amended, or any successor statute thereto”) may wish to refer instead
to Title 26 of the United States Code as it exists on a specified date. See, e.g., Ariz. Rev. Stat.
sec. 14-10014; Or. Rev. Stat. sec. 105.645.”
Comment

This section coordinates the Act with the requirements of a qualified disclaimer for
transfer tax purposes under IRC § 2518. Any disclaimer which is qualified for estate and gift tax
purposes is a valid disclaimer under this Act even if it does not otherwise meet the Act’s more
specific requirements.

SECTION 2-1115. RECORDING OF DISCLAIMER. If an instrument transferring

an interest in or power over property subject to a disclaimer is required or permitted by law to be

filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Except as

otherwise provided in Section 2-1112(g)(2), failure to file, record, or register the disclaimer does

not affect its validity as between the disclaimant and persons to whom the property interest or

power passes by reason of the disclaimer.

Comment

This section permits the recordation of a disclaimer of an interest in property ownership

of or title to which is the subject of a recording system. This section expands on the
corresponding provision of previous Uniform Acts which referred to permissive recording of a
disclaimer of an interest in real property. While local practice may vary, disclaimants should
realize that in order to establish the chain of title to real property, and to ward off creditors and

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bona fide purchasers, the disclaimer may have to be recorded. This section does not change the
law of the state governing notice. The reference to Section 2-1112(g)(2) concerns the disclaimer
of an interest in real property created by a “beneficiary designation” as that term is defined in
Section 2-1112(a). Such a disclaimer must be recorded.

2010 Technical Amendment: The cross-reference to Section 2-1112 was added in

2010. This addition was necessitated by the approval of the Uniform Real Property Transfer on
Death Act (2009), which is codified in this Code at Article VI, Part 4.

SECTION 2-1116. APPLICATION TO EXISTING RELATIONSHIPS. Except as

otherwise provided in Section 2-1113, an interest in or power over property existing on the

effective date of this [part] as to which the time for delivering or filing a disclaimer under law

superseded by this [part] has not expired may be disclaimed after the effective date of this [part].

Comment

This section deals with the application of the Act to existing interests and powers. It
insures that disclaimers barred by the running of a time period under prior law will not be
revived by the Act. For example, assume prior law, like the prior Acts and former Section 2-
801, allows the disclaimer of present interests within nine months of their creation and the
disclaimer of future interests nine months after they are indefeasibly vested. Under T’s will, X
receives an outright devise of a sum of money and also has a contingent remainder in a trust
created under the will. The Act is effective in the jurisdiction governing the administration of
T’s estate 10 months after T’s death. X cannot disclaim the general devise, irrespective of the
application of Section 2-1113 of the Act, because the nine months allowed under prior law have
run. The contingent remainder, however, may be disclaimed so long as it is not barred under
Section 2-1113 without regard to the nine month period of prior law.

SECTION 2-1117. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL

AND NATIONAL COMMERCE ACT. This [part] modifies, limits, and supersedes the

federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001, et

seq.) but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. Section

7001(c)) or authorize electronic delivery of any of the notices described in Section 103(b) of that

act (15 U.S.C. Section 7003(b)).

Comment

This Section adopts standard language approved by the Uniform Law Conference that is

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intended to preempt application of the federal Electronic Signatures in Global and National
Commerce Act of 2000 (E-Sign). Section 102(a)(2)(B) of that Act provides that the federal law
can be preempted by a later statute of the state that specifically refers to the federal law. Not
subject to preemption by the states are E-Sign’s consumer consent provisions (Section 101(c))
and its notice provisions (Section 103(b)), neither of which have substantive impact on the
Disclaimers Act. The effect of this section is to reaffirm state authority over the formal
requirements for the making of a disclaimer. For these requirements, see Section 2-1105, and,
specifically, Section 2-1105(c), which allow a disclaimer to be made by means of a signed
record.

ARTICLE III

PROBATE OF WILLS AND ADMINISTRATION

The following free-standing Act is associated with Article III:

Revised Uniform Estate Tax Apportionment Act

Article III, Part 9A has also been adopted as the free-standing Revised Uniform Estate
Tax Apportionment Act (2003).

GENERAL COMMENT

The provisions of this article describe the Flexible System of Administration of

Decedents’ Estates. Designed to be applicable to both intestate and testate estates and to provide
persons interested in decedents’ estates with as little or as much by way of procedural and
adjudicative safeguards as may be suitable under varying circumstances, this system is the heart
of the Uniform Probate Code.

The organization and detail of the system here described may be expressed in varying
ways and some states may see fit to reframe parts of this article to better accommodate local
institutions. Variations in language from state to state can be tolerated without loss of the
essential purposes of procedural uniformity and flexibility, if the following essential
characteristics are carefully protected in the redrafting process:

(1) Post-mortem probate of a will must occur to make a will effective and appointment of
a personal representative by a public official after the decedent’s death is required in order to
create the duties and powers attending the office of personal representative. Neither are
compelled, however, but are left to be obtained by persons having an interest in the consequence
of probate or appointment. Estates descend at death to successors identified by any probated
will, or to heirs if no will is probated, subject to rights which may be implemented through
administration.

(2) Two methods of securing probate of wills which include a non-adjudicative

determination (informal probate) on the one hand, and a judicial determination after notice to all
interested persons (formal probate) on the other, are provided.

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(3) Two methods of securing appointment of a personal representative which include
appointment without notice and without final adjudication of matters relevant to priority for
appointment (informal appointment), on the one hand, and appointment by judicial order after
notice to interested persons (formal appointment) on the other, are provided.

(4) A five day waiting period from death preventing informal probate or informal
appointment of any but a special administrator is required.

(5) Probate of a will by informal or formal proceedings or an adjudication of intestacy

may occur without any attendant requirement of appointment of a personal representative.

(6) One judicial, in rem, proceeding encompassing formal probate of any wills (or a
determination after notice that the decedent left no will), appointment of a personal
representative and complete settlement of an estate under continuing supervision of the court
(supervised administration) is provided for testators and persons interested in a decedent’s estate,
whether testate or intestate, who desire to use it.

(7) Unless supervised administration is sought and ordered, persons interested in estates
(including personal representatives, whether appointed informally or after notice) may use an “in
and out” relationship to the court so that any question or assumption relating to the estate,
including the status of an estate as testate or intestate, matters relating to one or more claims,
disputed titles, accounts of personal representatives, and distribution, may be resolved or
established by adjudication after notice without necessarily subjecting the estate to the necessity
of judicial orders in regard to other or further questions or assumptions.

(8) The status of a decedent in regard to whether he left a valid will or died intestate must
be resolved by adjudication after notice in proceedings commenced within three years after his
death. If not so resolved, any will probated informally becomes final, and if there is no such
probate, the status of the decedent as intestate is finally determined, by a statute of limitations
which bars probate and appointment unless requested within three years after death.

(9) Personal representatives appointed informally or after notice, and whether supervised
or not, have statutory powers enabling them to collect, protect, sell, distribute and otherwise
handle all steps in administration without further order of the court, except that supervised
personal representatives may be subjected to special restrictions on power as endorsed on their
letters.

(10) Purchasers from personal representatives and from distributees of personal

representatives are protected so that adjudications regarding the testacy status of a decedent or
any other question going to the propriety of a sale are not required in order to protect purchasers.

(11) Provisions protecting a personal representative who distributes without adjudication

are included to make nonadjudicated settlements feasible.

(12) Statutes of limitation bar creditors of the decedent who fail to present claims within
four months after legal advertising of the administration and unsecured claims not previously

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barred by non-claim statutes are barred after three years from the decedent’s death.

Overall, the system accepts the premise that the court’s role in regard to probate and
administration, and its relationship to personal representatives who derive their power from
public appointment, is wholly passive until some interested person invokes its power to secure
resolution of a matter. The state, through the court, should provide remedies which are suitable
and efficient to protect any and all rights regarding succession, but should refrain from intruding
into family affairs unless relief is requested, and limit its relief to that sought.

PART 1. GENERAL PROVISIONS

SECTION 3-101. DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS.

The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to

the property are subject to the restrictions and limitations contained in this Code to facilitate the

prompt settlement of estates. Upon the death of a person, the person’s real and personal property

devolves to the persons to whom it is devised by the person’s last will or to those indicated as

substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the

devolution of testate estate, or in the absence of testamentary disposition, to the person’s heirs, or

to those indicated as substitutes for them in cases involving renunciation or other circumstances

affecting devolution of intestate estates, subject to homestead allowance, exempt property and

family allowance, to rights of creditors, elective share of the surviving spouse, and to

administration.

[ALTERNATIVE SECTION FOR COMMUNITY PROPERTY STATES]

[SECTION 3-101A. DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS. The

power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the

person’s property are subject to the restrictions and limitations contained in this [code] to

facilitate the prompt settlement of estates. Upon the death of a person, the person’s separate

property devolves to the persons to whom it is devised by the person’s will, or to those indicated

as substitutes for them in cases involving lapse, renunciation or other circumstances affecting the

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devolution of testate estates, or in the absence of testamentary disposition to the person’s heirs,

or to those indicated as substitutes for them in cases involving renunciation or other

circumstances affecting the devolution of intestate estates. Upon the death of a married

individual, the decedent’s share of the community property devolves to the persons to whom it is

devised by the decedent’s will or, in the absence of testamentary disposition, to the decedent’s

heirs, but the community property which is under the management and control of the decedent is

subject to the decedent’s debts and administration, and that portion of the community property

which is not under the management and control of the decedent but which is necessary to carry

out the provisions of the decedent’s will is subject to administration; but the devolution of all the

above described property is subject to rights to homestead allowance, exempt property and

family allowances, to renunciation, to rights of creditors, [to the elective share of the surviving

spouse] and to administration.]

Comment

In its present form, this section will not fit existing concepts concerning community
property in all states recognizing community ownership. States differ in respect to how much
testamentary power a decedent has over the community. Also, some changes of language may be
necessary to reflect differing views concerning what estate is subject to “separate” and
“community” debts. The reference to certain family rights is not intended to suggest that such
rights relate to the survivor’s interest in any community property. Rather, the assumption is that
such rights relate only to property passing from the decedent at death; e.g., the decedent’s
separate property and half of the community property.

Historical Note. Technical amendments to this Section and Comment were made in 2017
to incorporate gender-neutral language.

SECTION 3-102. NECESSITY OF ORDER OF PROBATE FOR WILL. Except as

provided in Section 3-1201, to be effective to prove the transfer of any property or to nominate

an executor, a will must be declared to be valid by an order of informal probate by the Registrar,

or an adjudication of probate by the court.

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Comment

The basic idea of this section follows Section 85 of the Model Probate Code (1946). The
exception referring to Section 3-1201 relates to affidavit procedures which are authorized for
collection of estates worth less than $5,000.

Section 3-107 and various sections in Parts 3 and 4 of this article make it clear that a will
may be probated without appointment of a personal representative, including any nominated by
the will.

The requirement of probate stated here and the limitations on probate provided in Section
3-108 mean that questions as to testacy may be eliminated simply by the running of time. Under
these sections, an informally probated will cannot be questioned after the later of three years
from the decedent’s death or one year from the probate whether or not an executor was
appointed, or, if an executor was appointed, without regard to whether the estate has been
distributed. If the decedent is believed to have died without a will, the running of three years
from death bars probate of a late-discovered will and so makes the assumption of intestacy
conclusive.

The exceptions to the section (other than the exception relevant to small estates) are not
intended to accommodate cases of late-discovered wills. Rather, they are designed to make the
probate requirement inapplicable where circumstances led survivors of a decedent to believe that
there was no point to probating a will of which they may have had knowledge. If any will was
probated within three years of death, or if letters of administration were issued in this period, the
exceptions to the section are inapplicable. If there has been no proceeding in probate, persons
seeking to establish title by an unprobated will must show, with reference to the estate they
claim, either that it has been possessed by those to whom it was devised or that it has been
unknown to the decedent’s heirs or devisees and not possessed by any.

It is to be noted, also, that devisees who are able to claim under one of the exceptions to
this section may not obtain probate of the will or administration of the estate to assist them in
their efforts to obtain the estate in question. The exceptions are to a rule which bars admission of
a will into evidence, rather than to the section barring late probate and late appointment of
personal representatives. Still, the exceptions should serve to prevent two “hard” cases which
can be imagined readily. In one, a surviving spouse fails to seek probate of a will giving her the
entire estate of the decedent because she is informed or believes that all of her husband’s
property was held by them jointly, with right of survivorship. Later, it is discovered that she was
mistaken as to the nature of her husband’s title. The other case involves a devisee who sees no
point to securing probate of a will in his favor because he is unaware of any estate.
Subsequently, valuable rights of the decedent are discovered.

In 1993, a technical amendment removed a two-pronged exception formerly occupying

about 8 lines of text in the official text. The removed language permitted unprobated wills to be
admitted in evidence in two limited categories of cases in which failure to probate a will within
three years of the testator’s death were deemed to be justified. The 1993 technical amendment to
Section 3-108 so limits the three year time bar on probate and appointment proceedings as to

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make the Section 3-102 exception unnecessary.

SECTION 3-103. NECESSITY OF APPOINTMENT FOR ADMINISTRATION.

Except as otherwise provided in [Article] IV, to acquire the powers and undertake the duties and

liabilities of a personal representative of a decedent, a person must be appointed by order of the

court or Registrar, qualify and be issued letters. Administration of an estate is commenced by

the issuance of letters.

Comment

This section makes it clear that appointment by a public official is required before one
can acquire the status of personal representative. “Qualification” is dealt with in Section 3-601.
“Letters” are the subject of Section 1-305. Section 3-701 is also related, since it deals with the
time of accrual of duties and powers of personal representatives.

See Section 3-108 for the time limit on requests for appointment of personal
representatives.

In Article IV, Sections 4-204 and 4-205 permit a personal representative from another
state to obtain the powers of one appointed locally by filing evidence of his authority with a local
court.

SECTION 3-104. CLAIMS AGAINST DECEDENT; NECESSITY OF

ADMINISTRATION. No proceeding to enforce a claim against the estate of a decedent or the

decedent’s successors may be revived or commenced before the appointment of a personal

representative. After the appointment and until distribution, all proceedings and actions to

enforce a claim against the estate are governed by the procedure prescribed by this Article. After

distribution a creditor whose claim has not been barred may recover from the distributees as

provided in Section 3-1004 or from a former personal representative individually liable as

provided in Section 3-1005. This section has no application to a proceeding by a secured creditor

of the decedent to enforce the creditor’s right to the security except as to any deficiency

judgment which might be sought therein.

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Comment

This and sections of Part 8, Article III, are designed to force creditors of decedents to
assert their claims against duly appointed personal representatives. Creditors of a decedent are
interested persons who may seek the appointment of a personal representative (Section 3-301).
If no appointment is granted to another within 45 days after the decedent’s death, a creditor may
be eligible to be appointed if other persons with priority decline to serve or are ineligible
(Section 3-203). But, if a personal representative has been appointed and has closed the estate
under circumstances which leave a creditor’s claim unbarred, the creditor is permitted to enforce
his claims against distributees, as well as against the personal representative if any duty owed to
creditors under Section 3-807 or Section 3-1003 has been breached. The methods for closing
estates are outlined in Sections 3-1001 through 3-1003. Termination of appointment under
Sections 3-608 et seq. may occur though the estate is not closed and so may be irrelevant to the
question of whether creditors may pursue distributees.

SECTION 3-105. PROCEEDINGS AFFECTING DEVOLUTION AND

ADMINISTRATION; JURISDICTION OF SUBJECT MATTER. Persons interested in

decedents’ estates may apply to the Registrar for determination in the informal proceedings

provided in this [article], and may petition the court for orders in formal proceedings within the

court’s jurisdiction including but not limited to those described in this [article]. The court has

exclusive jurisdiction of formal proceedings to determine how decedents’ estates subject to the

laws of this state are to be administered, expended and distributed. The court has concurrent

jurisdiction of any other action or proceeding concerning a succession or to which an estate,

through a personal representative, may be a party, including actions to determine title to property

alleged to belong to the estate, and of any action or proceeding in which property distributed by a

personal representative or its value is sought to be subjected to rights of creditors or successors

of the decedent.

Comment

This and other sections of Article III contemplate a non-judicial officer who will act on
informal application and a judge who will hear and decide formal petitions. See Section 1-307
which permits the judge to perform or delegate the functions of the Registrar. However, the
primary purpose of Article III is to describe functions to be performed by various public officials,
rather than to prescribe how these responsibilities should be assigned within a given state or

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county. Hence, any of several alternatives to the organizational scheme assumed for purposes of
this draft would be acceptable.

For example, a state might assign responsibility for maintenance of probate files and
records, and for receiving and acting upon informal applications, to existing, limited power
probate offices. Responsibility for hearing and deciding formal petitions would then be assigned
to the court of general jurisdiction of each county or district.

If separate courts or offices are not feasible, it may be preferable to concentrate authority
for allocating responsibility respecting formal and informal proceedings in the judge. To do so
helps fix responsibility for the total operation of the office. This is the assumption of this draft.

It will be up to each adopting state to select the organizational arrangement which best
meets its needs.

If the office with jurisdiction to hear and decide formal petitions is the county or district
court of general jurisdiction, there will be little basis for objection to the broad statement of
concurrent jurisdiction of this section. However, if a more specialized “estates” court is used,
there may be pressure to prevent it from hearing negligence and other actions involving jury
trials, even though it may be given unlimited power to decide other cases to which a personal
representative is a party. A system for certifying matters involving jury trials to the general trial
court could be provided, although the alternative of permitting the estates court to empanel juries
where necessary might not be unworkable. In any event, the jurisdiction of the “estates” or
“probate” court in regard to negligence litigation would only be concurrent with that of the
general trial court. The important point is that the estates court, whatever it is called, should
have unlimited power to hear and finally dispose of all matters relevant to determination of the
extent of the decedent’s estate and of the claims against it. The jury trial question is peripheral.
See the comment to the next section regarding adjustments which might be made in the
Code by a state with a single court of general jurisdiction for each county or district.

SECTION 3-106. PROCEEDINGS WITHIN THE EXCLUSIVE JURISDICTION

OF COURT; SERVICE; JURISDICTION OVER PERSONS. In proceedings within the

exclusive jurisdiction of the court where notice is required by this [code] or by rule, and in

proceedings to construe probated wills or determine heirs which concern estates that have not

been and cannot now be opened for administration, interested persons may be bound by the

orders of the court in respect to property in or subject to the laws of this state by notice in

conformity with Section 1-401. An order is binding as to all who are given notice of the

proceeding though less than all interested persons are notified.

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Comment

The language in this and the preceding section which divides matters coming before the
probate court between those within the court’s “exclusive” jurisdiction and those within its
“concurrent” jurisdiction would be inappropriate if probate matters were assigned to a branch of
a single court of general jurisdiction. The Code could be adjusted to an assumption of a single
court in various ways. Any adjusted version should contain a provision permitting the court to
hear and settle certain kinds of matters after notice as provided in Section 1-401. It might be
suitable to combine the second sentence of Section 3-105 and Section 3-106 into a single section
as follows:

“The court may hear and determine formal proceedings involving administration and
distribution of decedents’ estates after notice to interested persons in conformity with Section 1-
401. Persons notified are bound though less than all interested persons may have been given
notice.”

An adjusted version also might provide:

“Subject to general rules concerning the proper location of civil litigation and jurisdiction
of persons, the court (meaning the probate division) may hear and determine any other
controversy concerning a succession or to which an estate, through a personal representative,
may be a party.”

The propriety of this sort of statement would depend upon whether questions of
docketing and assignment, including the division of matters between coordinate branches of the
court, should be dealt with by legislation.

The Joint Editorial Board, in 1975, recommended the addition after “rule”, of the
language “and in proceedings to construe probated wills or determine heirs which concern
estates that have not been and cannot now be opened for administration.” This addition, coupled
with the exceptions to the limitations provisions in Section 3-108 that permit proceedings to
construe wills and to determine heirs of intestates to be commenced more than three years after
death, clarifies the purpose of the draftsmen to offer a probate proceeding to aid the
determination of rights of inheritance of estates that were not opened for administration within
the time permitted by Section 3-108.

SECTION 3-107. SCOPE OF PROCEEDINGS; PROCEEDINGS

INDEPENDENT; EXCEPTION. Unless supervised administration as described in [Part] 5 is

involved,

(1) each proceeding before the court or Registrar is independent of any other proceeding

involving the same estate;

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(2) petitions for formal orders of the court may combine various requests for relief in a

single proceeding if the orders sought may be finally granted without delay. Except as required

for proceedings which are particularly described by other sections of this [article], no petition is

defective because it fails to embrace all matters which might then be the subject of a final order;

(3) proceedings for probate of wills or adjudications of no will may be combined with

proceedings for appointment of personal representatives; and

(4) a proceeding for appointment of a personal representative is concluded by an order

making or declining the appointment.

Comment

This section and others in Article III describe a system of administration of decedents’
estates which gives interested persons control of whether matters relating to estates will become
occasions for judicial orders. Sections 3-501 through 3-505 describe supervised administration,
a judicial proceeding which is continuous throughout administration. It corresponds with the
theory of administration of decedents’ estates which prevails in many states. See, Section 62,
Model Probate Code (1946). If supervised administration is not requested, persons interested in
an estate may use combinations of the formal proceedings (order by judge after notice to persons
concerned with the relief sought), informal proceedings (request for the limited response that
nonjudicial personnel of the probate court are authorized to make in response to verified
application) and filings provided in the remaining Parts of Article III to secure authority and
protection needed to administer the estate. Nothing except self-interest will compel resort to the
judge. When resort to the judge is necessary or desirable to resolve a dispute or to gain
protection, the scope of the proceeding if not otherwise prescribed by the Code is framed by the
petition. The securing of necessary jurisdiction over interested persons in a formal proceeding is
facilitated by Sections 3-106 and 3-602. Section 3-201 locates venue for all proceedings at the
place where the first proceeding occurred.

SECTION 3-108. PROBATE, TESTACY AND APPOINTMENT PROCEEDINGS;

ULTIMATE TIME LIMIT.

(a) No informal probate or appointment proceeding or formal testacy or appointment

proceeding, other than a proceeding to probate a will previously probated at the testator’s

domicile and appointment proceedings relating to an estate in which there has been a prior

appointment, may be commenced more than three years after the decedent’s death, except:

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(1) if a previous proceeding was dismissed because of doubt about the fact of the

decedent’s death, appropriate probate, appointment or testacy proceedings may be maintained at

any time thereafter upon a finding that the decedent’s death occurred before the initiation of the

previous proceeding and the applicant or petitioner has not delayed unduly in initiating the

subsequent proceeding;

(2) appropriate probate, appointment or testacy proceedings may be maintained in

relation to the estate of an absent, disappeared or missing person for whose estate a conservator

has been appointed, at any time within three years after the conservator becomes able to establish

the death of the protected person;

(3) a proceeding to contest an informally probated will and to secure appointment

of the person with legal priority for appointment in the event the contest is successful, may be

commenced within the later of twelve months from the informal probate or three years from the

decedent’s death;

(4) an informal appointment or a formal testacy or appointment proceeding may

be commenced thereafter if no proceedings concerning the succession or estate administration

has occurred within the three year period after decedent’s death, but the personal representative

has no right to possess estate assets as provided in Section 3-709 beyond that necessary to

confirm title thereto in the successors to the estate and claims other than expenses of

administration may not be presented against the estate; and

(5) a formal testacy proceeding may be commenced at any time after three years

from the decedent’s death for the purpose of establishing an instrument to direct or control the

ownership of property passing or distributable after the decedent’s death from one other than the

decedent when the property is to be appointed by the terms of the decedent’s will or is to pass or

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be distributed as a part of the decedent’s estate or its transfer is otherwise to be controlled by the

terms of the decedent’s will.

(b) These limitations do not apply to proceedings to construe probated wills or determine

heirs of an intestate.

(c) In cases under subsection (a)(1) or (2), the date on which a testacy or appointment

proceeding is properly commenced shall be deemed to be the date of the decedent’s death for

purposes of other limitations provisions of this [code] which relate to the date of death.

Comment

As originally approved and read with Section 3-102’s requirement that wills be probated
before being admissible in evidence, this section created a three-year-from death time period
within which proceedings concerning a succession (other than a determination of heirs, or will
interpretation or construction) must be commenced. Unless certain limited exceptions were met,
an estate became conclusively intestate if no formal or informal estate proceeding was
commenced within the three year period, and no administration could be opened in order to
generate a deed of distribution for purposes of proving a succession.

Several of the original UPC states rejected the three year bar against late-offered wills
and the correlated notion that formal proceedings to determine heirs in previously
unadministered estates were necessary to generate title muniments locating inherited land in
lawful successors. Critics preferred continued availability of the UPC’s procedures for
appointing personal representatives whose distributive instruments gave protection to purchasers.
The 1987 technical amendment to Section 3-108 reduced, but failed to eliminate, instances in
which original probate and appointment proceedings were barred by the three year limitation
period.

SECTION 3-109. STATUTES OF LIMITATION ON DECEDENT’S CAUSE OF

ACTION. No statute of limitation running on a cause of action belonging to a decedent which

had not been barred as of the date of death, shall apply to bar a cause of action surviving the

decedent’s death sooner than four months after death. A cause of action which, but for this

section, would have been barred less than four months after death, is barred after four months

unless tolled.

PART 2. VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO

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ADMINISTER; DEMAND FOR NOTICE

SECTION 3-201. VENUE FOR FIRST AND SUBSEQUENT ESTATE

PROCEEDINGS; LOCATION OF PROPERTY.

(a) Venue for the first informal or formal testacy or appointment proceedings after a

decedent’s death is:

(1) in the [county] where the decedent was domiciled at the time of death; or

(2) if the decedent was not domiciled in this state, in any [county] where property

of the decedent was located at the time of death.

(b) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is

in the place where the initial proceeding occurred, unless the initial proceeding has been

transferred as provided in Section 1-303 or subsection (c) .

(c) If the first proceeding was informal, on application of an interested person and after

notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere,

may transfer the proceeding and the file to the other court.

(d) For the purpose of aiding determinations concerning location of assets which may be

relevant in cases involving non-domiciliaries, a debt, other than one evidenced by investment or

commercial paper or other instrument in favor of a non-domiciliary is located where the debtor

resides or, if the debtor is a person other than an individual, at the place where it has its principal

office. Commercial paper, investment paper and other instruments are located where the

instrument is. An interest in property held in trust is located where the trustee may be sued.

Comment

Sections 1-303 and 3-201 cover the subject of venue for estate proceedings. Sections 3-
202, 3-301, 3-303 and 3-309 also may be relevant.

The provisions for transfer of venue appear in Section 1-303.

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The interplay of these several sections may be illustrated best by examples.

Example 1. A formal probate or appointment proceeding is initiated in A County.

Interested persons who believe that venue is in B County rather than A County must raise their
question about venue in A County, because Section 1-303 gives the court in which the
proceeding is first commenced authority to resolve disputes over venue. If the court in A County
erroneously determines that it has venue, the remedy is by appeal.

Example 2. An informal probate or appointment application is filed and granted without

notice in A County. If interested persons wish to challenge the Registrar’s determination of
venue, they may not simply file a formal proceeding in the county of their choice and thus force
the proponent in the prior proceeding to debate the question of venue in their county. Section 3-
201(b) locates the venue of any subsequent proceeding where the first proceeding occurred. The
function of subsection (b) is obvious when one thinks of subsequent proceedings as those which
relate to claims, or accounts, or to efforts to control a personal representative. It is less obvious
when it seems to locate the forum for squabbles over venue at the place accepting the first
informal application. Still, the applicant seeking an informal order must be careful about the
statements he makes in his application because he may be charged with perjury under Section 1-
310 if he is deliberately inaccurate. Moreover, the Registrar must be satisfied that the allegations
in the application support a finding of venue. Section 3-201(c) provides a remedy for one who is
upset about the venue-locating impact of a prior order in an informal proceeding and who does
not wish to engage in full litigation about venue in the forum chosen by the other interested
person unless he is forced to do so. Using it, he may succeed in getting the A County Court to
transfer the proceedings to the county of his choice. He would be well advised to initiate formal
proceedings if he gets the chance, for if he relies on informal proceedings, he, too, may be
“bumped” if the judge in B County agrees with some movant that venue was not in B County.

Example 3. If the decedent’s domicile was not in the state, venue is proper under
Sections 3-201 and 1-303 in any county where he had assets.

One contemplating starting administration because of the presence of local assets should
have several other sections of the Code in mind. First, by use of the recognition provisions in
Article IV, it may be possible to avoid administration in any state other than that in which the
decedent was domiciled. Second, Section 3-203 may apply to give priority for local appointment
to the representative appointed at domicile. Third, under Section 3-309, informal appointment
proceedings in this state will be dismissed if it is known that a personal representative has been
previously appointed at domicile.

SECTION 3-202. APPOINTMENT OR TESTACY PROCEEDINGS;

CONFLICTING CLAIM OF DOMICILE IN ANOTHER STATE. If conflicting claims as

to the domicile of a decedent are made in a formal testacy or appointment proceeding

commenced in this state, and in a testacy or appointment proceeding after notice pending at the

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same time in another state, the court of this state must stay, dismiss, or permit suitable

amendment in, the proceeding here unless it is determined that the local proceeding was

commenced before the proceeding elsewhere. The determination of domicile in the proceeding

first commenced must be accepted as determinative in the proceeding in this state.

Comment

This section is designed to reduce the possibility that conflicting findings of domicile in
two or more states may result in inconsistent administration and distribution of parts of the same
estate. Section 3-408 dealing with the effect of adjudications in other states concerning testacy
supports the same general purpose to use domiciliary law to unify succession of property located
in different states.

Whether testate or intestate, succession should follow the presumed wishes of the
decedent whenever possible. Unless a decedent leaves a separate will for the portion of his
estate located in each different state, it is highly unlikely that he would want different portions of
his estate subject to different rules simply because courts reach conflicting conclusions
concerning his domicile. It is pointless to debate whether he would prefer one or the other of the
conflicting rules, when the paramount inference is that the decedent would prefer that his estate
be unified under either rule rather than wasted in litigation.

The section adds very little to existing law. If a previous estate proceeding in State A has
determined that the decedent was a domiciliary of A, persons who were personally before the
court in A would be precluded by the principles of res judicata or collateral estoppel (and full
faith and credit) from relitigating the issue of domicile in a later proceeding in State B.
Probably, it would not matter in this setting that domicile was a jurisdictional fact. Stoll v.
Gottlieb, 59 S.Ct. 134, 305 U.S. 165, 83 L. Ed. 104 (1938). Even if the parties to a present
proceeding were not personally before the court in an earlier proceeding in State A involving the
same decedent, the prior judgment would be binding as to property subject to the power of the
courts in A, on persons to whom due notice of the proceeding was given. Riley v. New York
Trust Co., 62 S.Ct. 608, 315 U.S. 343, 86 L. Ed. 885 (1942); Mullane v. Central Hanover Bank
and Trust Co., 70 S.Ct. 652, 339 U.S. 306, 94 L. Ed. 865 (1950).

Where a court learns that parties before it are also parties to previously initiated litigation
involving a common question, traditional judicial reluctance to deciding unnecessary questions,
as well as considerations of comity, are likely to lead it to delay the local proceedings to await
the result in the other court. A somewhat more troublesome question is involved when one of
the parties before the local court manifests a determination not to appear personally in the prior
initiated proceedings so that he can preserve his ability to litigate contested points in a more
friendly, or convenient, forum. But, the need to preserve all possible advantages available to
particular litigants should be subordinated to the decedent’s probable wish that his estate not be
wasted in unnecessary litigation. Thus, the section requires that the local claimant either initiate
litigation in the forum of his choice before litigation is started somewhere else, or accept the

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necessity of contesting unwanted views concerning the decedent’s domicile offered in litigation
pending elsewhere.

It is to be noted, in this connection, that the local suitor always will have a chance to
contest the question of domicile in the other state. His locally initiated proceedings may proceed
to a valid judgment accepting his theory of the case unless parties who would oppose him appear
and defend on the theory that the domicile question is currently being litigated elsewhere. If the
litigation in the other state has proceeded to judgment, Section 3-408 rather than the instant
section will govern. If this section applies, it will mean that the foreign proceedings are still
pending, so that the local person’s contention concerning domicile can be made therein even
though until the defense of litigation elsewhere is offered in the local proceedings, he may not
have been notified of the foreign proceeding.

SECTION 3-203. PRIORITY AMONG PERSONS SEEKING APPOINTMENT AS

PERSONAL REPRESENTATIVE.

(a) Whether the proceedings are formal or informal, persons who are not disqualified

have priority for appointment in the following order:

(1) the person with priority as determined by a probated will including a person

nominated by a power conferred in a will;

(2) the surviving spouse of the decedent who is a devisee of the decedent;

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent;

(6) 45 days after the death of the decedent, any creditor.

(b) An objection to an appointment can be made only in formal proceedings. In case of

objection the priorities stated in (a) apply except that:

(1) if the estate appears to be more than adequate to meet exemptions and costs of

administration but inadequate to discharge anticipated unsecured claims, the court, on petition

of creditors, may appoint any qualified person;

(2) in case of objection to appointment of a person other than one whose priority

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is determined by will by an heir or devisee appearing to have a substantial interest in the estate,

the court may appoint a person who is acceptable to heirs and devisees whose interests in the

estate appear to be worth in total more than half of the probable distributable value, or, in

default of this accord any suitable person.

(c) A person entitled to letters under subsection (a)(2) through (5), and a person aged [18]

and over who would be entitled to letters but for the person’s age, may nominate a qualified

person to act as personal representative. Any person aged [18] and over may renounce the right

to nominate or to an appointment by appropriate writing filed with the court. When two or more

persons share a priority, those of them who do not renounce must concur in nominating another

to act for them, or in applying for appointment.

(d) Conservators of the estates of protected persons, or if there is no conservator, any

guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same

right to nominate, to object to another’s appointment, or to participate in determining the

preference of a majority in interest of the heirs and devisees that the protected person or ward

would have if qualified for appointment.

(e) Appointment of one who does not have priority, including priority resulting from

renunciation or nomination determined pursuant to this section, may be made only in formal

proceedings. Before appointing one without priority, the court must determine that those having

priority, although given notice of the proceedings, have failed to request appointment or to

nominate another for appointment, and that administration is necessary.

(f) No person is qualified to serve as a personal representative who is:

(1) under the age of [21];

(2) a person whom the court finds unsuitable in formal proceedings.

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(g) A personal representative appointed by a court of the decedent’s domicile haspriority

over all other persons except where the decedent’s will nominates different persons to be

personal representative in this state and in the state of domicile. The domiciliary personal

representative may nominate another, who shall have the same priority as the domiciliary

personal representative.

(h) This section governs priority for appointment of a successor personal representative

but does not apply to the selection of a special administrator.

Comment

The priorities applicable to informal proceedings are applicable to formal proceedings.

However, if the proceedings are formal, a person with a substantial interest may object to the
selection of one having priority other than because of will provisions. The provision for majority
approval which is triggered by such a protest can be handled in a formal proceeding since all
interested persons will be before the court, and a judge capable of handling discretionary matters,
will be involved.

In considering this section as it relates to a devise to a trustee for various beneficiaries, it

is to be noted that “interested persons” is defined by Section 1-201 to include fiduciaries. Also,
Sections 1-403(2) and 3-912 show a purpose to make trustees serve as representatives of all
beneficiaries. The provision in subsection (d) is consistent.

If a state’s statutes recognize a public administrator or public trustee as the appropriate

agency to seek administration of estates in which the state may have an interest, it would be
appropriate to indicate in this section the circumstances under which such an officer may seek
administration. If no officer is recognized locally, the state could claim as heir by virtue of
Section 2-105.

Subsection (g) was inserted in connection with the decision to abandon the effort to
describe ancillary administration in Article IV. Other provisions in Article III which are relevant
to administration of assets in a state other than that of the decedent’s domicile are Section 1-301
(territorial effect), Section 3-201 (venue), Section 3-308 (informal appointment for non-resident
decedent delayed 30 days), Section 3-309 (no informal appointment here if a representative has
been appointed at domicile), Section 3-815 (duty of personal representative where administration
is more than one state) and Sections 4-201 to 4-205 (local recognition of foreign personal
representatives).

The meaning of “spouse” is determined by Section 2-802.

SECTION 3-204. DEMAND FOR NOTICE OF ORDER OR FILING

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CONCERNING DECEDENT’S ESTATE. Any person desiring notice of any order or filing

pertaining to a decedent’s estate in which the person has a financial or property interest, may file

a demand for notice with the court at any time after the death of the decedent stating the name of

the decedent, the nature of the person’s interest in the estate, and the person’s address or that of

the person’s attorney. The clerk shall mail a copy of the demand to the personal representative if

one has been appointed. After filing of a demand, no order or filing to which the demand relates

shall be made or accepted without notice as prescribed in Section 1-401 to the person making the

demand or the person’s attorney. The validity of an order which is issued or filing which is

accepted without compliance with this requirement shall not be affected by the error, but the

petitioner receiving the order or the person making the filing may be liable for any damage

caused by the absence of notice. The requirement of notice arising from a demand under this

provision may be waived in writing by the person who made the demand and shall cease upon

the termination of the person’s interest in the estate.

Comment

The notice required as the result of demand under this section is regulated as far as time
and manner requirements are concerned by Section 1-401.

This section would apply to any order which might be made in a supervised
administration proceeding.

PART 3. INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS;

SUCCESSION WITHOUT ADMINISTRATION

Subpart 1. Informal Probate and Appointment Proceedings

SECTION 3-301. INFORMAL PROBATE OR APPOINTMENT PRCEEDINGS;

APPLICATION; CONTENTS.

(a) Applications for informal probate or informal appointment shall be directed to the

Registrar, and verified by the applicant to be accurate and complete to the best of the applicant’s

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knowledge and belief as to the following information:

(1) Every application for informal probate of a will or for informal appointment of

a personal representative, other than a special or successor representative, shall contain the

following:

(A) a statement of the interest of the applicant;

(B) the name and age of the decedent, the decedent’s date of death, the

[county] and state of the decedent’s domicile at the time of death, and the names and addresses of

the spouse, children, heirs and devisees and the ages of any who are minors so far as known or

ascertainable with reasonable diligence by the applicant;

(C) if the decedent was not domiciled in the state at the time of death, a

statement showing venue;

(D) a statement identifying and indicating the address of any personal

representative of the decedent appointed in this state or elsewhere whose appointment has not

been terminated;

(E) a statement indicating whether the applicant has received a demand for

notice, or is aware of any demand for notice of any probate or appointment proceeding

concerning the decedent that may have been filed in this state or elsewhere; and

(F) that the time limit for informal probate or appointment as provided in

this Article has not expired either because three years or less have passed since the decedent’s

death, or, if more than three years from death have passed, circumstances as described by Section

3-108 authorizing tardy probate or appointment have occurred.

(2) An application for informal probate of a will shall state the following in

addition to the statements required by (1):

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(A) that the original of the decedent’s last will is in the possession of the

court, or accompanies the application, or that an authenticated copy of a will probated in another

jurisdiction accompanies the application;

(B) that the applicant, to the best of the applicant’s knowledge, believes

the will to have been validly executed;

(C) that after the exercise of reasonable diligence, the applicant is unaware

of any instrument revoking the will, and that the applicant believes that the instrument which is

the subject of the application is the decedent’s last will.

(3) An application for informal appointment of a personal representative to

administer an estate under a will shall describe the will by date of execution and state the time

and place of probate or the pending application or petition for probate. The application for

appointment shall adopt the statements in the application or petition for probate and state the

name, address and priority for appointment of the person whose appointment is sought.

(4) An application for informal appointment of an administrator in intestacy shall

state in addition to the statements required by paragraph (1):

(A) that after the exercise of reasonable diligence, the applicant is unaware

of any unrevoked testamentary instrument relating to property having a situs in this state under

Section 1-301, or, a statement why any such instrument of which the applicant may be aware is

not being probated;

(B) the priority of the person whose appointment is sought and the names

of any other persons having a prior or equal right to the appointment under Section 3-203.

(5) An application for appointment of a personal representative to succeed a

personal representative appointed under a different testacy status shall refer to the order in the

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most recent testacy proceeding, state the name and address of the person whose appointment is

sought and of the person whose appointment will be terminated if the application is granted, and

describe the priority of the applicant.

(6) An application for appointment of a personal representative to succeed a

personal representative who has tendered a resignation as provided in Section 3-610(c), or whose

appointment has been terminated by death or removal, shall adopt the statements in the

application or petition which led to the appointment of the person being succeeded except as

specifically changed or corrected, state the name and address of the person who seeks

appointment as successor, and describe the priority of the applicant.

(b) By verifying an application for informal probate, or informal appointment, the

applicant submits personally to the jurisdiction of the court in any proceeding for relief from

fraud relating to the application, or for perjury, that may be instituted against the applicant .

Comment

Forcing one who seeks informal probate or informal appointment to make oath before a
public official concerning the details required of applications should deter persons who might
otherwise misuse the no-notice feature of informal proceedings. The application is available as a
part of the public record. If deliberately false representation is made, remedies for fraud will be
available to injured persons without specified time limit (see Article I). The section is believed
to provide important safeguards that may extend well beyond those presently available under
supervised administration for persons damaged by deliberate wrongdoing.

Section 1-310 deals with verification.

In 1975, the Joint Editorial Board recommended the addition of subsection (b) to reflect
an improvement accomplished in the first enactment in Idaho. The addition, which is a form of
long-arm provision that affects everyone who acts as an applicant in informal proceedings, in
conjunction with Section 1-106 provides a remedy in the court of probate against anyone who
might make known misstatements in an application. The addition is not needed in the case of an
applicant who becomes a personal representative as a result of his application, for the implied
consent provided in Section 3-602 would cover the matter. Also, the requirement that the
applicant state that time limits on informal probate and appointment have not run, formerly
appearing as (D) under paragraph (2) was expanded to refer to informal appointment and moved
into paragraph (1). Correcting an oversight in the original text, this change coordinates the

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statements required in an application with the limitations provisions of Section 3-108.

SECTION 3-302. INFORMAL PROBATE; DUTY OF REGISTRAR; EFFECT OF

INFORMAL PROBATE. Upon receipt of an application requesting informal probate of a will,

the Registrar, upon making the findings required by Section 3-303 shall issue a written statement

of informal probate if at least 120 hours have elapsed since the decedent’s death. Informal

probate is conclusive as to all persons until superseded by an order in a formal testacy

proceeding. No defect in the application or procedure relating thereto which leads to informal

probate of a will renders the probate void.

Comment

Sections 68 and 70 of the Model Probate Code (1946) contemplate probate by judicial
order as the only method of validating a will. This “umbrella” section and the sections it refers
to describe an alternative procedure called “informal probate”. It is a statement of probate by the
Registrar. A succeeding section describes cases in which informal probate is to be denied.
“Informal probate” is subjected to safeguards which seem appropriate to a transaction which has
the effect of making a will operative and which may be the only official reaction concerning its
validity. “Informal probate”, it is hoped, will serve to keep the simple will which generates no
controversy from becoming involved in truly judicial proceedings. The procedure is very much
like “probate in common form” as it is known in England and some states.

SECTION 3-303. INFORMAL PROBATE; PROOF AND FINDINGS

REQUIRED.

(a) In an informal proceeding for original probate of a will, the Registrar shall determine

whether:

(1) the application is complete;

(2) the applicant has made oath or affirmation that the statements contained in the

application are true to the best of the applicant’s knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined

in Section 1-201(23);

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(4) on the basis of the statements in the application, venue is proper;

(5) an original, duly executed and apparently unrevoked will is in the Registrar’s

possession;

(6) any notice required by Section 3-204 has been given and that the application is

not within Section 3-304; and

(7) it appears from the application that the time limit for original probate has not

expired.

(b) The application shall be denied if it indicates that a personal representative has been

appointed in another [county] of this state or except as provided in subsection (d), if it appears

that this or another will of the decedent has been the subject of a previous probate order.

(c) A will which appears to have the required signatures and which contains an attestation

clause showing that requirements of execution under Section 2-502, 2-503, or 2-506 have been

met shall be probated without further proof. In other cases, the Registrar may assume execution if

the will appears to have been properly executed, or the Registrar may accept a sworn statement

or affidavit of any person having knowledge of the circumstances of execution, whether or not

the person was a witness to the will.

(d) Informal probate of a will which has been previously probated elsewhere may be

granted at any time upon written application by any interested person, together with deposit of an

authenticated copy of the will and of the statement probating it from the office or court where it

was first probated.

(e) A will from a place which does not provide for probate of a will after death and which

is not eligible for probate under subsection (a), may be probated in this state upon receipt by the

Registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal

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custodian that the copy filed is a true copy and that the will has become operative under the law

of the other place.

Comment

The purpose of this section is to permit informal probate of a will which, from a simple
attestation clause, appears to have been executed properly. It is not necessary that the will be
notarized as is the case with “pre-proved” wills in some states. If a will is “pre-proved” as
provided in Article II, it will, of course, “appear” to be well executed and include the recital
necessary for easy probate here. If the instrument does not contain a proper recital by attesting
witnesses, it may be probated informally on the strength of an affidavit by a person who can say
what occurred at the time of execution.

Except where probate or its equivalent has occurred previously in another state, informal
probate is available only where an original will exists and is available to be filed. Lost or
destroyed wills must be established in formal proceedings. See Section 3-402. Under Section 3-
401, pendency of formal testacy proceedings blocks informal probate or appointment
proceedings.

SECTION 3-304. INFORMAL PROBATE; UNAVAILABLE IN CERTAIN

CASES. Applications for informal probate which relate to one or more of a known series of

testamentary instruments (other than a will and one or more codicils thereto) the latest of which

does not expressly revoke the earlier, shall be declined.

Comment

The Registrar handles the informal proceeding, but is required to decline applications in
certain cases where circumstances suggest that formal probate would provide desirable
safeguards.

SECTION 3-305. Informal Probate; Registrar Not Satisfied. If the Registrar is not

satisfied that a will is entitled to be probated in informal proceedings because of failure to meet

the requirements of Sections 3-303 and 3-304 or any other reason, the Registrar may decline the

application. A declination of informal probate is not an adjudication and does not preclude

formal probate proceedings.

Comment

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The purpose of this section is to recognize that the Registrar should have some authority
to deny probate to an instrument even though all stated statutory requirements may be said to
have been met. Denial of an application for informal probate cannot be appealed. Rather, the
proponent may initiate a formal proceeding so that the matter may be brought before the judge in
the normal way for contested matters.

SECTION 3-306. INFORMAL PROBATE; NOTICE REQUIREMENTS.

[(a)]* The moving party must give notice as described by Section 1-401 of the party’s

application for informal probate to any person demanding it pursuant to Section 3-204, and to

any personal representative of the decedent whose appointment has not been terminated. No

other notice of informal probate is required.

[(b) If an informal probate is granted, within 30 days thereafter the applicant shall give

written information of the probate to the heirs and devisees. The information shall include the

name and address of the applicant, the name and location of the court granting the informal

probate and the date of the probate. The information shall be delivered or sent by ordinary mail

to each of the heirs and devisees whose address is reasonably available to the applicant. No duty

to give information is incurred if a personal representative is appointed who is required to give

the written information required by Section 3-705. An applicant’s failure to give information as

required by this section is a breach of duty to the heirs and devisees but does not affect the

validity of the probate.]

*This paragraph becomes (a) if optional subsection (b) is accepted.

Comment

This provision assumes that there will be a single office within each county or other area
of jurisdiction of the probate court which can be checked for demands for notice relating to
estates in that area. If there are or may be several registrars within a given area, provision would
need to be made so that information concerning demands for notice might be obtained from the
chief registrar’s place of business.

In 1975, the Joint Editorial Board recommended the addition, as a bracketed, optional
provision, of subsection (b). The recommendation was derived from a provision added to the

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Code in Idaho at the time of original enactment. The Board viewed the addition as interesting,
possibly worthwhile, and worth being brought to the attention of enacting states as an optional
addition. The Board views the informational notice required by Section 3-705 to be of more
importance in preventing injustices under the Code, because the opening of an estate via
appointment of a personal representative instantly gives the estate representative powers over
estate assets that can be used wrongfully and to the possible detriment of interested persons.
Hence, the Section 3-705 duty is a part of the recommended Code, rather than a bracketed,
optional provision. By contrast, the informal probate of a will that is not accompanied or
followed by appointment of a personal representative only serves to shift the burden of making
the next move to disinterested heirs who, inter alia, may initiate a Section 3-401 formal testacy
proceeding to contest the will at any time within the limitations prescribed by Section 3-108.

SECTION 3-307. INFORMAL APPOINTMENT PROCEEDINGS; DELAY IN

ORDER; DUTY OF REGISTRAR; EFFECT OF APPOINTMENT.

(a) Upon receipt of an application for informal appointment of a personal representative

other than a special administrator as provided in Section 3-614, if at least 120 hours have elapsed

since the decedent’s death, the Registrar, after making the findings required by Section 3-308,

shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent

was a non-resident, the Registrar shall delay the order of appointment until 30 days have elapsed

since death unless the personal representative appointed at the decedent’s domicile is the

applicant, or unless the decedent’s will directs that the estate be subject to the laws of this state.

(b) The status of personal representative and the powers and duties pertaining to the

office are fully established by informal appointment. An appointment, and the office ofpersonal

representative created thereby, is subject to termination as provided in Sections 3-608 through 3-

612, but is not subject to retroactive vacation.

Comment

Section 3-703 describes the duty of a personal representative and the protection available
to one who acts under letters issued in informal proceedings. The provision requiring a delay of
30 days from death before appointment of a personal representative for a non-resident decedent
is new. It is designed to permit the first appointment to be at the decedent’s domicile. See
Section 3-203.

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SECTION 3-308. INFORMAL APPOINTMENT PROCEEDINGS; PROOF AND

FINDINGS REQUIRED.

(a) In informal appointment proceedings, the Registrar must determine whether:

(1) the application for informal appointment of a personal representative is

complete;

(2) the applicant has made oath or affirmation that the statements contained in the

application are true to the best of the applicant’s knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined

in Section 1-201(23);

(4) on the basis of the statements in the application, venue is proper;

(5) any will to which the requested appointment relates has been formally or

informally probated; but this requirement does not apply to the appointment of a special

administrator;

(6) any notice required by Section 3-204 has been given; and

(7) from the statements in the application, the person whose appointment is sought

has priority entitling the person to the appointment.

(b) Unless Section 3-612 controls, the application must be denied if it indicates that a

personal representative who has not filed a written statement of resignation as provided in

Section 3-610(c) has been appointed in this or another [county] of this state, that (unless the

applicant is the domiciliary personal representative or that personal representative’s nominee) the

decedent was not domiciled in this state and that a personal representative whose appointment

has not been terminated has been appointed by a court in the state of domicile, or that other

requirements of this section have not been met.

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Comment

Sections 3-614 and 3-615 make it clear that a special administrator may be appointed to
conserve the estate during any period of delay in probate of a will. Even though the will has not
been approved, Section 3-614 gives priority for appointment as special administrator to the
person nominated by the will which has been offered for probate. Section 3-203 governs
priorities for appointment. Under it, one or more of the same class may receive priority through
agreement of the others.

The last sentence of the section is designed to prevent informal appointment of a personal
representative in this state when a personal representative has been previously appointed at the
decedent’s domicile. Sections 4-204 and 4-205 may make local appointment unnecessary.
Appointment in formal proceedings is possible, however.

SECTION 3-309. INFORMAL APPOINTMENT PROCEEDINGS; REGISTRAR

NOT SATISFIED. If the Registrar is not satisfied that a requested informal appointment of a

personal representative should be made because of failure to meet the requirements of Sections

3-307 and 3-308, or for any other reason, the Registrar may decline the application. A

declination of informal appointment is not an adjudication and does not preclude appointment in

formal proceedings.

Comment

Authority to decline an application for appointment is conferred on the Registrar.

Appointment of a personal representative confers broad powers over the assets of a decedent’s
estate. The process of declining a requested appointment for unclassified reasons should be one
which a registrar can use quickly and informally.

SECTION 3-310. INFORMAL APPOINTMENT PROCEEDINGS; NOTICE

REQUIREMENTS. The moving party must give notice as described by Section 1-401 of an

intention to seek an appointment informally: (1) to any person demanding it pursuant to

3-204; and (2) to any person having a prior or equal right to appointment not waived in writing

and filed with the court. No other notice of an informal appointment proceeding is required.

SECTION 3-311. INFORMAL APPOINTMENT UNAVAILABLE IN CERTAIN

CASES. If an application for informal appointment indicates the existence of a possible

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unrevoked testamentary instrument which may relate to property subject to the laws of this state,

and which is not filed for probate in this court, the Registrar shall decline the application.

Subpart 2. Succession Without Administration

PREFATORY NOTE

This subpart to the Uniform Probate Code is an alternative to other methods of

administering a decedent’s estate. The Uniform Probate Code otherwise provides procedures for
informal administration, formal administration and supervised administration. This subpart adds
another alternative to the system of flexible administration provided by the Uniform Probate
Code and permits the heirs of an intestate or residuary devisees of a testator to accept the estate
assets without administration by assuming responsibility for discharging those obligations that
normally would be discharged by the personal representative.

The concept of succession without administration is drawn from the civil law and is a
variation of the method which is followed largely on the Continent in Europe, in Louisiana and
in Quebec.

This subpart contains cross-references to the procedures in the Uniform Probate Code and
particularly implements the policies and concepts reflected in Sections 1-102, 3-101 and 3-901.
These sections of the Uniform Probate Code provide in part:

SECTION 1-102. PURPOSES; RULE OF CONSTRUCTION.

(a) This Code shall be liberally construed and applied to promote its underlying purposes
and policies.

(b) The underlying purposes and policies of this Code are:

(1) to simplify and clarify the law concerning the affairs of decedents, missing persons,
protected persons, minors and incapacitated persons;

(2) to discover and make effective the intent of a decedent in the distribution of his
property;

(3) to promote a speedy and efficient system for liquidating the estate of the decedent and
making distribution to his successors;

SECTION 3-101. DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS.

The power of a person to leave property by will, and the rights of creditors, devisees, and
heirs to his property are subject to the restrictions and limitations contained in this Code to
facilitate the prompt settlement of estates. Upon the death of a person, his real and personal
property devolves to the persons to whom it is devised by his last will or to those indicated as

354
substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the
devolution of testate estate, or in the absence of testamentary disposition, to his heirs, or to those
indicated as substitutes for them in cases involving renunciation or other circumstances affecting
devolution of intestate estates, subject to homestead allowance, exempt property and family
allowance, to rights of creditors, elective share of the surviving spouse, and to administration.

SECTION 3-901. SUCCESSORS’ RIGHTS IF NO ADMINISTRATION.

In the absence of administration, the heirs and devisees are entitled to the estate in
accordance with the terms of a probated will or the laws of intestate succession. Devisees may
establish title by the probated will to devised property. Persons entitled to property by
homestead allowance, exemption or intestacy may establish title thereto by proof of the
decedent’s ownership, his death, and their relationship to the decedent. Successors take subject
to all charges incident to administration, including the claims of creditors and allowances of
surviving spouse and dependent children, and subject to the rights of others resulting from
abatement, retainer, advancement, and ademption.

SECTION 3-312. UNIVERSAL SUCCESSION; IN GENERAL. The heirs of an

intestate or the residuary devisees under a will, excluding minors and incapacitated, protected, or

unascertained persons, may become universal successors to the decedent’s estate by assuming

personal liability for (i) taxes, (ii) debts of the decedent, (iii) claims against the decedent or the

estate, and (iv) distributions due other heirs, devisees, and persons entitled to property of the

decedent as provided in Sections 3-313 through 3-322.

Comment

This section states the general policy of the subpart to permit heirs or residuary legatees
to take possession, control and title to a decedent’s estate by assuming a personal obligation to
pay taxes, debts, claims and distributions due to others entitled to share in the decedent’s
property by qualifying under the statute. Although the surviving spouse most often will be an
heir or residuary devisee, he or she may also be a person otherwise entitled to property of the
decedent as when a forced share is claimed.

This subpart does not contemplate that assignees of heirs or residuary devisees will have
standing to apply for universal succession since this involves undertaking responsibility for
obligations of the decedent. Of course, after the statement of universal succession has been
issued, persons may assign their beneficial interests as any other asset.

The subpart excludes incapacitated and unascertained persons as universal successors

because of the need for successors to deal with the property for various purposes. The procedure
permits competent heirs and residuary devisees to proceed even where there are some others

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incompetent or unascertained. If any unascertained or incompetent heir or devisee wishes, they
may require bonding or if unprotected they may force the estate into administration. Subsequent
sections permit the conservator, guardian ad litem or other fiduciary of unascertained or
incompetent heirs or devisees to object. The universal successors’ obligations may be enforced
by appropriate remedy. In Louisiana the procedure is available even though there are
incompetent heirs for whom a tutor or guardian is appointed to act.

In restricting universal succession to competent heirs and residuary legatees, the subpart
makes them responsible to incompetent heirs and legatees. This restriction is deemed
appropriate to avoid the problems in dealing with the estate assets vested in an incompetent.
This is a variation from the Louisiana practice. The procedure also contemplates that all
competent heirs and residuary devisees join and does not permit only part of the heirs to petition
for succession without administration. This position means that succession without
administration is essentially a consent procedure available when family members are in
agreement.

This subpart contemplates that known competent successors may proceed under it.
Although all competent heirs are required to join in the informal process, the possibility of an
unknown heir is not treated as jurisdictional. An unknown heir who appeared would be able to
establish his or her rights as in administration unless barred by adjudication, estoppel or lapse of
time.

SECTION 3-313. UNIVERSAL SUCCESSION; APPLICATION; CONTENTS.

(a) An application to become universal successors by the heirs of an intestate or the

residuary devisees under a will must be directed to the Registrar, signed by each applicant, and

verified to be accurate and complete to the best of the applicant’s knowledge and belief as

follows:

(1) An application by heirs of an intestate must contain the statements required by

Section 3-301(a)(1) and (4)(A) and state that the applicants constitute all the heirs other than

minors and incapacitated, protected, or unascertained persons.

(2) An application by residuary devisees under a will must be combined with a

petition for informal probate if the will has not been admitted to probate in this state and must

contain the statements required by Section 3-301(a)(1) and (2). If the will has been probated in

this state, an application by residuary devisees must contain the statements required by Section

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3-301(a)(2)(C). An application by residuary devisees must state that the applicants constitute the

residuary devisees of the decedent other than any minors and incapacitated, protected, or

unascertained persons. If the estate is partially intestate, all of the heirs other than minors and

incapacitated, protected, or unascertained persons must join as applicants.

(b) The application must state whether letters of administration are outstanding, whether

a petition for appointment of a personal representative of the decedent is pending in any court of

this state, and that the applicants waive their right to seek appointment of a personal

representative.

(c) The application may describe in general terms the assets of the estate and must state

that the applicants accept responsibility for the estate and assume personal liability for (i)

taxes,(ii) debts of the decedent, (iii) claims against the decedent or the estate and (iv)

distributions due other heirs, devisees, and persons entitled to property of the decedent as

provided in Sections 3-316 through 3-322.

Comment

This section spells out in detail the form and requirements for application to the Registrar
to become universal successors. The section requires the applicants to inform the Registrar
whether the appointment of a personal representative has occurred or is pending in order to
assure any administration is terminated before the application can be granted. The section
requires applicants to waive their right to seek the appointment of a personal representative. The
appointment of an executor would preclude or postpone universal succession by application for
appointment unless the executor’s appointment is avoided because of lack of interest in the
estate. See Sections 3-611, 3-912.

The statements in the application are verified by signing and filing and deemed to be
under oath as provided in Section 1-310. Like other informal proceedings under the UPC, false
statements constitute fraud (UPC Section 1-106).

Even though the presence of residuary devisees would seem to preclude partial intestacy
(UPC Sections 2-605, 2-606), the last sentence of Section 3-313(a) regarding partial intestacy
warns all parties that if there is a partial intestacy, the heirs must join. It avoids problems of
determining whether the residuary takers are in all instances true residuary legatees, e.g., if a
testator provides: “Lastly, I give 1/2 and only 1/2 of the rest of my estate to A.” (cf. UPC

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Section 2-603).

Section 3-313(c) provides that a general description of the assets may be included
appropriate to the assets in the estate and adequate to inform the parties and the Registrar of the
nature of the estate involved.

In the event an heir or residuary devisee were to disclaim prior to acceptance of the
succession, those who would take in place of the disclaimant would be the successors who could
apply to become universal successors. The disclaimant could not become a universal successor
as to the disclaimed interest and would not be subject to liability as a universal successor.

Trustees of testamentary trusts have standing as devisees. If the trustee is a pecuniary

devisee or a specific devisee other than a residuary devisee, he would administer the trust upon
receipt of the assets from the universal successors and as a devisee could enforce distribution
from the universal successors.

The trustee who is a residuary legatee has standing to qualify as a universal successor by
acceptance of the decedent’s assets, then to discharge the obligations of the universal successor,
and finally to administer the residue under the trust without appointment of a personal
representative. The will would be probated in any event. The residuary trustee could choose to
insist on appointment of a personal representative and not seek universal succession. Neither
alternative could alter the provisions of the residuary trust.

SECTION 3-314. UNIVERSAL SUCCESSION; PROOF AND FINDINGS

REQUIRED.

(a) The Registrar shall grant the application if:

(1) the application is complete in accordance with Section 3-313;

(2) all necessary persons have joined and have verified that the statements

contained therein are true, to the best knowledge and belief of each;

(3) venue is proper;

(4) any notice required by Section 3-204 has been given or waived;

(5) the time limit for original probate or appointment proceedings has not expired

and the applicants claim under a will;

(6) the application requests informal probate of a will, the application and

findings conform with Sections 3-301(a)(2) and 3-303(a), (c), (d), and (e) so the will is admitted

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to probate; and

(7) none of the applicants is a minor or an incapacitated or protected person.

(b) The Registrar shall deny the application if letters of administration are outstanding.

(c) Except as provided in Section 3-322, the Registrar shall deny the application if any

creditor, heir, or devisee who is qualified by Section 3-605 to demand bond files an objection.

Comment

This section outlines the substantive requirements for universal succession and is the
guideline to the Registrar for approval of the application. As in UPC Section 3-303, review of
the filed documents is all that is required, with the Registrar expected to determine whether to
approve on the basis of information available to the Registrar. There is very little discretion in
the Registrar except that if something appears lacking in the application, the Registrar would be
able to request additional information. The analogy to UPC Section 3-303 is rather direct and
the authority of the Registrar is somewhat more limited because there is no parallel section to
UPC Section 3-305 as there is in probate. (See also UPC Section 3-309.)

Section 3-314(a)(5) requires that the application for universal succession under a will be
made before the time limit for original probate has expired. Against the background of UPC
Section 3-108 which limits administration proceedings after three years except for proof of
heirship or will construction, the heirs could take possession of property and prove their title
without the universal succession provisions.

The review of the application by the Registrar essentially is a clerical matter to determine
if the application exhibits the appropriate circumstance for succession without administration.
Hence, if there are letters of administration outstanding, the application must be denied under
Section 3-314(b). Even though a disinterested executor under a will should not be able to
preclude those interested in the estate from settling the estate without administration,
coordination of the Registrar’s action with the process of the probate court is imperative to
protect the parties and the public. Consequently, any outstanding letters must be terminated
before succession without administration is approved. Under the Uniform Probate Code, those
with property interests in the estate are viewed as “interested persons” (UPC Section 1-201(23))
and may initiate either informal (UPC Section 3-105) or formal proceedings (UPC Section 3-
401); also the agreement of those interested in the estate is binding on the personal representative
(UPC Sections 3-912, 3-1101). These provisions appear adequate to preclude the personal
representative who has no other interest in the estate from frustrating those interested from
utilizing succession without administration.

There is need for coordination with other process within the probate court when a petition
for letters is pending (i.e., not withdrawn) as when letters were outstanding. The appropriateness
of the appointment of the personal representative, i.e., whether administration was necessary,
could be determined on an objection to the appointment under UPC Section 3-414(b); cf.,

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Sections 3-608 to 3-612. If the appointment of a personal representative is denied, then the
application for universal succession without administration could be approved in appropriate
cases.

Section 3-314 does not require prior notice unless requested under UPC Section 3-204.
Information to other heirs and devisees is provided after approval of the application. See Section
3-319.

If, after universal succession is approved, a creditor or devisee were not paid or secured,
in addition to suing the successor directly, the creditor or devisee could move for appointment of
a personal representative to administer the estate properly. This pressure on the universal
successors to perform seems desirable. In view of the availability of informal administration and
other flexible alternatives under the UPC, if any person properly moves for appointment of a
personal representative, succession without administration should be foreclosed or terminated.

SECTION 3-315. UNIVERSAL SUCCESSION; DUTY OF REGISTRAR;

EFFECT OF STATEMENT OF UNIVERSAL SUCCESSION. Upon receipt of an

application under Section 3-313, if at least 120 hours have elapsed since the decedent’s death,

the Registrar, upon granting the application, shall issue a written statement of universal

succession describing the estate as set forth in the application and stating that the applicants (i)

are the universal successors to the assets of the estate as provided in Section 3-312, (ii) have

assumed liability for the obligations of the decedent, and (iii) have acquired the powers and

liabilities of universal successors. The statement of universal succession is evidence of the

universal successors’ title to the assets of the estate. Upon its issuance, the powers and liabilities

of universal successors provided in Sections 3-316 through 3-322 attach and are assumed by the

applicants.

Comment

This section provides for a written statement issued by the Registrar evidencing the right
and power of the universal successors to deal with the property of the decedent and serves as an
instrument of distribution to them. Although the application for universal succession may be
filed anytime after death, within the time limit for original probate, the Registrar may not act
before 120 hours have elapsed since the testator’s death. This period parallels provisions for
other informal proceedings under the UPC, e.g., Sections 2-601, 3-302, 3-307.

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SECTION 3-316. UNIVERSAL SUCCESSION; UNIVERSAL SUCCESSORS’

POWERS. Upon the [Registrar’s] issuance of a statement of universal succession:

(1) Universal successors have full power of ownership to deal with the assets of the estate

subject to the limitations and liabilities in this [subpart]. The universal successors shall proceed

expeditiously to settle and distribute the estate without adjudication but if necessary may invoke

the jurisdiction of the court to resolve questions concerning the estate.

(2) Universal successors have the same powers as distributees from a personal

representative under Sections 3-908 and 3-909 and third persons with whom they deal are

protected as provided in Section 3-910.

(3) For purposes of collecting assets in another state whose law does not provide for

universal succession, universal successors have the same standing and power as personal

representatives or distributees in this state.

Comment

This section is the substantive provision (1) declaring the successors to be distributees
and (2) to have the powers of owners so far as dealing with the estate assets subject to the
obligations to others.

Details concerning the status of distributees under UPC Section 3-908 and the power to
deal with property are provided in UPC Section 3-910.

Although one state cannot control the law of another, the universal successor should be
recognized in other states as having the standing of either a foreign personal representative or a
distributee of the claim to local assets. Paragraph (3) attempts to remove any limitation of this
state in such a case.

SECTION 3-317. UNIVERSAL SUCCESSION; UNIVERSAL SUCCESSORS’

LIABILITY TO CREDITORS, OTHER HEIRS, DEVISEES AND PERSONS ENTITLED

TO DECEDENT’S PROPERTY; LIABILITY OF OTHER PERSONS ENTITLED TO

PROPERTY.

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(a) In the proportions and subject to the limits expressed in Section 3-321, universal

successors assume all liabilities of the decedent that were not discharged by reason of death and

liability for all taxes, claims against the decedent or the estate, and charges properly incurred

after death for the preservation of the estate, to the extent those items, if duly presented, would

be valid claims against the decedent’s estate.

(b) In the proportions and subject to the limits expressed in Section 3-321, universal

successors are personally liable to other heirs, devisees, and persons entitled to property of the

decedent for the assets or amounts that would be due those heirs, were the estate administered,

but no allowance having priority over devisees may be claimed for attorney’s fees or charges for

preservation of the estate in excess of reasonable amounts properly incurred.

(c) Universal successors are entitled to their interests in the estate as heirs or devisees

subject to priority and abatement pursuant to Section 3-902 and to agreement pursuant to Section

3-912.

(d) Other heirs, devisees, and persons to whom assets have been distributed have the

same powers and liabilities as distributees under Sections 3-908, 3-909, and 3-910.

(e) Absent breach of fiduciary obligations or express undertaking, a fiduciary’s liability is

limited to the assets received by the fiduciary.

Comment

The purpose of succession without administration is not to alter the relative property
interests of the parties but only to facilitate the family’s expeditious settlement of the estate.
Consistent with this, the liability arising from the assumption of obligations is stated explicitly
here to assist in understanding the coupling of power and liability. Subsection (b) includes an
abatement reference that recognizes the possible adjustment that may be necessary by reason of
excess claims under UPC Section 3-902.

In succession without administration, there being no personal representative’s notice to

creditors, the short non-claim period under UPC Section 3-803(a)(1) does not apply and creditors
are subject to the statutes of limitations and the limitation of three years on decedent’s creditors

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when no notice is published under UPC Section 3-803(a)(2). The general statutes of limitation
are suspended for four months following the decedent’s death but resume thereafter under UPC
Section 3-802. The assumption of liability by the universal successors upon the issuance of the
Statement of Universal Succession is deemed to be by operation of law and does not operate to
extend or renew any statute of limitations that had begun to run against the decedent. The result
is that creditors are barred by the general statutes of limitation or 3 years whichever is the
shorter.

The obligation of the universal successors to other heirs, devisees and distributees is
based on the promise to perform in return for the direct distribution of property and any
limitation or laches begins to run on issuance of the statement of universal succession unless
otherwise extended by action or assurance of the universal successor.

It should be noted that this statute does not deal with the consequences or obligations that
arise under either federal or state tax laws. The universal successors will be subject to
obligations for the return and payment of both income and estate taxes in many situations
depending upon the tax law and the circumstances of the decedent and the estate. These tax
consequences should be determined before electing to utilize succession without administration.

SECTION 3-318. UNIVERSAL SUCCESSION; UNIVERSAL SUCCESSORS’

SUBMISSION TO JURISDICTION; WHEN HEIRS OR DEVISEES MAY NOT SEEK

ADMINISTRATION.

(a) Upon issuance of the statement of universal succession, the universal successors

become subject to the personal jurisdiction of the courts of this state in any proceeding that may

be instituted relating to the estate or to any liability assumed by them.

(b) Any heir or devisee who voluntarily joins in an application under Section 3-313 may

not subsequently seek appointment of a personal representative.

Comment

This section imposes jurisdiction over the universal successors and bars them from
seeking appointment as personal representative.

SECTION 3-319. UNIVERSAL SUCCESSION; DUTY OF UNIVERSAL

SUCCESSORS; INFORMATION TO HEIRS AND DEVISEES. Not later than 30 days after

issuance of the statement of universal succession, each universal successor shall inform the heirs

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and devisees who did not join in the application of the succession without administration. The

information must be delivered or be sent by ordinary mail to each of the heirs and devisees

whose address is reasonably available to the universal successors. The information must include

the names and addresses of the universal successors, indicate that it is being sent to persons who

have or may have some interest in the estate, and describe the court where the application and

statement of universal succession has been filed. The failure of a universal successor to give this

information is a breach of duty to the persons concerned but does not affect the validity of the

approval of succession without administration or the powers or liabilities of the universal

successors. A universal successor may inform other persons of the succession without

administration by delivery or by ordinary first class mail.

Comment

The problem of residuary legatees or some of the heirs moving for universal succession
without the knowledge of others interested in the estate is similar to that of informal
administration. By this provision those devisees and heirs who do not participate in the
application are informed of the application and its approval and may move to protect any interest
that they perceive. The provision parallels UPC Section 3-705.

SECTION 3-320. UNIVERSAL SUCCESSION; UNIVERSAL SUCCESSORS’

LIABILITY FOR RESTITUTION TO ESTATE. If a personal representative is subsequently

appointed, universal successors are personally liable for restitution of any property of the estate

to which they are not entitled as heirs or devisees of the decedent and their liability is the same as

a distributee under Section 3-909, subject to the provisions of Sections 3-317 and 3-321 and the

limitations of Section 3-1006.

Comment

The liability of universal successors for restitution in the event a personal representative
is appointed is spelled out in this section and keyed to the parallel sections in the UPC.

SECTION 3-321. UNIVERSAL SUCCESSION; LIABILITY OF UNIVERSAL

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SUCCESSORS FOR CLAIMS, EXPENSES, INTESTATE SHARES AND DEVISES. The

liability of universal successors is subject to any defenses that would have been available to the

decedent. Other than liability arising from fraud, conversion, or other wrongful conduct of a

universal successor, the personal liability of each universal successor to any creditor, claimant,

other heir, devisee, or person entitled to decedent’s property may not exceed the proportion of

the claim that the universal successor’s share bears to the share of all heirs and residuary

devisees.

Comment

This is the primary provision for the successor’s liability to creditors and others. The
theory is that the universal successors as a group are liable in full to the creditors but that none
have a greater liability than in proportion to the share of the estate received. Under the UPC,
since informal administration is available with limited liability for the personal representative,
the analogy to the Louisiana system would be to accept full responsibility for debts and claims if
succession without administration is desired but to choose informal administration if protection
of the inventory is desired.

This definition of liability assumes, first, that the devisees and heirs are subject to the
usual priorities for creditors and devisees and abatement for them in Sections 3-316 and 3-317.
Second, it is assumed that if a creditor or a subsequently appointed personal representative were
to proceed against the successors, having jurisdiction by submission, Section 3-318, the liability
would be on a theory of contribution by the successors with the burden on each universal
successor to prove his or her own share of the estate and liability against that share.

Third, it is also assumed that, a creditor who is unprotected or unsecured under Section 3-
322, can object to universal succession under Section 3-314(c) and if the creditor does not object,
payments by the successors, like those by the decedent when alive, will be recognized as good
without any theory of preferring creditors. Thus, until a creditor takes action to require
administration; that creditor should be bound by the successors’ non-fraudulent prior payment to
other creditors. If a creditor suspects insolvency, he can put the estate into administration and
after the appointment of a personal representative would have the usual priority as to remaining
assets. This would be subject to the theory of fraud, i.e., a knowing and conscious design on the
part of the successors to ignore the priority of the decedent’s creditors to the harm of a creditor.
This would constitute fraud that would defeat the limits on successor’s liability otherwise
available under the statute.

SECTION 3-322. UNIVERSAL SUCCESSION; REMEDIES OF CREDITORS,

OTHER HEIRS, DEVISEES OR PERSONS ENTITLED TO DECEDENT’S PROPERTY.

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In addition to remedies otherwise provided by law, any creditor, heir, devisee, or person entitled

to decedent’s property qualified under Section 3-605, may demand bond of universal successors.

If the demand for bond precedes the granting of an application for universal succession, it must

be treated as an objection under Section 3-314(c) unless it is withdrawn, the claim satisfied, or

the applicants post bond in an amount sufficient to protect the demandant. If the demand for

bond follows the granting of an application for universal succession, the universal successors,

within 10 days after notice of the demand, upon satisfying the claim or posting bond sufficient to

protect the demandant, may disqualify the demandant from seeking administration of the estate.

Comment

This section provides necessary protection to creditors and other heirs, devisees or
persons entitled to distribution. Any person to whom a universal successor is obligated could
pursue any available remedy, e.g., a proceeding to collect a debt or to secure specific
performance. By this section, any creditor or other heir, devisee or person entitled to distribution
may also demand protection and, if it is not forthcoming, put the estate into administration. This
seems adequate to coerce performance from universal successors while assuring creditors their
historical preference and other beneficiaries of the estate their rights.

PART 4. FORMAL TESTACY AND APPOINTMENT PROCEEDINGS

SECTION 3-401. FORMAL TESTACY PROCEEDINGS; NATURE; WHEN

COMMENCED. A formal testacy proceeding is litigation to determine whether a decedent left

a valid will. A formal testacy proceeding may be commenced by an interested person filing a

petition as described in Section 3-402(a) in which the person requests that the court, after notice

and hearing, enter an order probating a will, or a petition to set aside an informal probate of a

will or to prevent informal probate of a will which is the subject of a pending application, or a

petition in accordance with Section 3-402(b) for an order that the decedent died intestate.

A petition may seek formal probate of a will without regard to whether the same or a

conflicting will has been informally probated. A formal testacy proceeding may, but need not,

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involve a request for appointment of a personal representative.

During the pendency of a formal testacy proceeding, the Registrar shall not act upon any

application for informal probate of any will of the decedent or any application for informal

appointment of a personal representative of the decedent.

Unless a petition in a formal testacy proceeding also requests confirmation of the

previous informal appointment, a previously appointed personal representative, after receipt of

notice of the commencement of a formal probate proceeding, must refrain from exercising the

power to make any further distribution of the estate during the pendency of the formal

proceeding. A petitioner who seeks the appointment of a different personal representative in a

formal proceeding also may request an order restraining the acting personal representative from

exercising any of the powers of office and requesting the appointment of a special administrator.

In the absence of a request, or if the request is denied, the commencement of a formal proceeding

has no effect on the powers and duties of a previously appointed personal representative other

than those relating to distribution.

Comment

The word “testacy” is used to refer to the general status of a decedent in regard to wills.
Thus, it embraces the possibility that he left no will, any question of which of several instruments
is his valid will, and the possibility that he died intestate as to a part of his estate, and testate as to
the balance. See Section 1-201(52).

The formal proceedings described by this section may be: (1) an original proceeding to
secure “solemn form” probate of a will; (2) a proceeding to secure “solemn form” probate to
corroborate a previous informal probate; (3) a proceeding to block a pending application for
informal probate, or to prevent an informal application from occurring thereafter; (4) a
proceeding to contradict a previous order of informal probate; (5) a proceeding to secure a
declaratory judgment of intestacy and a determination of heirs in a case where no will has been
offered. If a pending informal application for probate is blocked by a formal proceeding, the
applicant may withdraw his application and avoid the obligation of going forward with prima
facie proof of due execution. See Section 3-407. The petitioner in the formal proceedings may
be content to let matters stop there, or he can frame his petition, or amend, so that he may secure
an adjudication of intestacy which would prevent further activity concerning the will.

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If a personal representative has been appointed prior to the commencement of a formal
testacy proceeding, the petitioner must request confirmation of the appointment to indicate that
he does not want the testacy proceeding to have any effect on the duties of the personal
representative, or refrain from seeking confirmation, in which case, the proceeding suspends the
distributive power of the previously appointed representative. If nothing else is requested or
decided in respect to the personal representative, his distributive powers are restored at the
completion of the proceeding, with Section 3-703 directing him to abide by the will.
“Distribute” and “distribution” do not include payment of claims. See Sections 1-201(12), 3-807
and 3-902.

SECTION 3-402. FORMAL TESTACY OR APPOINTMENT PROCEEDINGS;

PETITION; CONTENTS.

(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without

request for appointment of a personal representative, must be directed to the court, request a

judicial order after notice and hearing and contain further statements as indicated in this section.

A petition for formal probate of a will

(1) requests an order as to the testacy of the decedent in relation to a particular

instrument which may or may not have been informally probated and determining the heirs,

(2) contains the statements required for informal applications as stated in the six

subparagraphs under Section 3-301(a)(1), the statements required by subparagraphs (B) and (C)

of Section 3-301(a)(2), and

(3) states whether the original of the last will of the decedent is in the possession

of the court or accompanies the petition.

If the original will is neither in the possession of the court nor accompanies the petition

and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the

petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise

unavailable.

(b) A petition for adjudication of intestacy and appointment of an administrator in

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intestacy must request a judicial finding and order that the decedent left no will and determining

the heirs, contain the statements required by paragraphs (1) and (4) of Section 3-301(a) and

indicate whether supervised administration is sought. A petition may request an order

determining intestacy and heirs without requesting the appointment of an administrator, in which

case, the statements required by subparagraph (B) of Section 3-301(a)(4) above may be omitted.

Comment

If a petitioner seeks an adjudication that a decedent died intestate, he is required also to

obtain a finding of heirship. A formal proceeding which is to be effective on all interested
persons must follow reasonable notice to such persons. It seems desirable to force the
proceedings through a formal determination of heirship because the finding will bolster the
order, as well as preclude later questions that might arise at the time of distribution.

Unless an order of supervised administration is sought, there will be little occasion for a
formal order concerning appointment of a personal representative which does not also adjudicate
the testacy status of the decedent. If a formal order of appointment is sought because of
disagreement over who should serve, Section 3-414 describes the appropriate procedure.

The words “otherwise unavailable” in the last paragraph of subsection (a) are not
intended to be read restrictively.

Section 1-310 expresses the verification requirement which applies to all documents filed
with the courts.

SECTION 3-403. FORMAL TESTACY PROCEEDINGS; NOTICE OF

HEARING ON PETITION.

(a) Upon commencement of a formal testacy proceeding, the court shall fix a time and

place of hearing. Notice shall be given in the manner prescribed by Section 1-401 by the

petitioner to the persons herein enumerated and to any additional person who has filed a demand

for notice under Section 3-204 of this [code].

Notice shall be given to the following persons: the surviving spouse, children, and other

heirs of the decedent, the devisees and executors named in any will that is being, or has been,

probated, or offered for informal or formal probate in the [county], or that is known by the

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petitioner to have been probated, or offered for informal or formal probate elsewhere, and any

personal representative of the decedent whose appointment has not been terminated. Notice may

be given to other persons.

In addition, the petitioner shall give notice by publication to all unknown persons and to

all known persons whose addresses are unknown who have any interest in the matters being

litigated.

(b) If it appears by the petition or otherwise that the fact of the death of the alleged

decedent may be in doubt, or on the written demand of any interested person, a copy of the

notice of the hearing on said petition shall be sent by registered mail to the alleged decedent at

the alleged decedent’s last known address. The court shall direct the petitioner to report the

results of, or make and report back concerning, a reasonably diligent search for the alleged

decedent in any manner that may seem advisable, including any or all of the following methods:

(1) by inserting in one or more suitable periodicals a notice requesting

information from any person having knowledge of the whereabouts of the alleged decedent;

(2) by notifying law enforcement officials and public welfare agencies in

appropriate locations of the disappearance of the alleged decedent;

(3) by engaging the services of an investigator.

The costs of any search so directed shall be paid by the petitioner if there is no

administration or by the estate of the decedent in case there is administration.

Comment

Provisions governing the time and manner of notice required by this section and other
sections in the Code are contained in Section 1-401.

The provisions concerning search for the alleged decedent are derived from Model
Probate Code (1946), Section 71.

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Testacy proceedings involve adjudications that no will exists. Unknown wills as well as
any which are brought to the attention of the court are affected. Persons with potential interests
under unknown wills have the notice afforded by death and by publication. Notice requirements
extend also to persons named in a will that is known to the petitioners to exist, irrespective of
whether it has been probated or offered for formal or informal probate, if their position may be
affected adversely by granting of the petition. But, a rigid statutory requirement relating to such
persons might cause undue difficulty. Hence, the statute merely provides that the petitioner may
notify other persons.

It would not be inconsistent with this section for the court to adopt rules designed to
make petitioners exercise reasonable diligence in searching for as yet undiscovered wills.

Section 3-106 provides that an order is valid as to those given notice, though less than all
interested persons were given notice. Section 3-1001(b) provides a means of extending a testacy
order to previously unnotified persons in connection with a formal closing.

SECTION 3-404. FORMAL TESTACY PROCEEDINGS; WRITTEN

OBJECTIONS TO PROBATE. Any party to a formal proceeding who opposes the probate of

a will for any reason shall state in the party’s pleadings the party’s objections to probate of the

will.

Comment

Model Probate Code (1946) Section 72 requires a contestant to file written objections to
any will he would oppose. The provision prevents potential confusion as to who must file what
pleading that can arise from the notion that the probate of a will is in rem. The petition for
probate of a revoking will is sufficient warning to proponents of the revoked will.

SECTION 3-405. FORMAL TESTACY PROCEEDINGS; UNCONTESTED

CASES; HEARINGS AND PROOF. If a petition in a testacy proceeding is unopposed, the

court may order probate or intestacy on the strength of the pleadings if satisfied that the

conditions of Section 3-409 have been met, or conduct a hearing in open court and require proof

of the matters necessary to support the order sought. If evidence concerning execution of the

will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument is

sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the

will may be proved by other evidence or affidavit.

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Comment

For various reasons, attorneys handling estates may want interested persons to be
gathered for a hearing before the court on the formal allowance of the will. The court is not
required to conduct a hearing, however.

If no hearing is required, uncontested formal probates can be completed on the strength

of the pleadings. There is no good reason for summoning attestors when no interested person
wants to force the production of evidence on a formal probate. Moreover, there seems to be no
valid distinction between litigation to establish a will, and other civil litigation, in respect to
whether the court may enter judgment on the pleadings.

SECTION 3-406. FORMAL TESTACY PROCEEDINGS; CONTESTED CASES.

In a contested case in which the proper execution of a will is at issue, the following rules apply:

(1) If the will is self-proved pursuant to Section 2-504, the will satisfies the requirements

for execution without the testimony of any attesting witness, upon filing the will and the

acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or

forgery affecting the acknowledgment or affidavit.

(2) If the will is notarized pursuant to Section 2-502(a)(3)(B), but not self-proved, there is

a rebuttable presumption that the will satisfies the requirements for execution upon filing the

will.

(3) If the will is witnessed pursuant to Section 2-502(a)(3)(A), but not notarized or self-

proved, the testimony of at least one of the attesting witnesses is required to establish proper

execution if the witness is within this state, competent, and able to testify. Proper execution may

be established by other evidence, including an affidavit of an attesting witness. An attestation

clause that is signed by the attesting witnesses raises a rebuttable presumption that the events

recited in the clause occurred.

Comment

2008 Revisions. This section, which applies in a contested case in which the proper
execution of a will is at issue, was substantially revised and clarified in 2008.

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Self-Proved Wills: Paragraph (1) provides that a will that is self-proved pursuant to
Section 2-504 satisfies the requirements for execution without the testimony of any attesting
witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it,
unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit.
Paragraph (1) does not preclude evidence of undue influence, lack of testamentary capacity,
revocation or any relevant evidence that the testator was unaware of the contents of the
document.

Notarized Wills: Paragraph (2) provides that if the will is notarized pursuant to Section
2-502(a)(3)(B), but not self-proved, there is a rebuttable presumption that the will satisfies the
requirements for execution upon filing the will.

Witnessed Wills: Paragraph (3) provides that if the will is witnessed pursuant to Section
2-502(a)(3)(A), but not notarized or self-proved, the testimony of at least one of the attesting
witnesses is required to establish proper execution if the witness is within this state, competent,
and able to testify. Proper execution may be established by other evidence, including an
affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses
raises a rebuttable presumption that the events recited in the clause occurred. For further
explanation of the effect of an attestation clause, see Restatement (Third) of Property: Wills and
Other Donative Transfers § 3.1 cmt. q (1999).

Historical Note. This Comment was revised in 2008.

SECTION 3-407. FORMAL TESTACY PROCEEDINGS; BURDENS IN

CONTESTED CASES. In contested cases, petitioners who seek to establish intestacy have the

burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have

the burden of establishing prima facie proof of due execution in all cases, and, if they are also

petitioners, prima facie proof of death and venue. Contestants of a will have the burden of

establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or

revocation. Parties have the ultimate burden of persuasion as to matters with respect to which

they have the initial burden of proof. If a will is opposed by the petition for probate of a later

will revoking the former, it shall be determined first whether the later will is entitled to probate,

and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first

whether the will is entitled to probate.

Comment

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This section is designed to clarify the law by stating what is believed to be a fairly
standard approach to questions concerning burdens of going forward with evidence in will
contest cases.

SECTION 3-408. FORMAL TESTACY PROCEEDINGS; WILL

CONSTRUCTION; EFFECT OF FINAL ORDER IN ANOTHER JURISDICTION. A

final order of a court of another state determining testacy, the validity or construction of a will,

made in a proceeding involving notice to and an opportunity for contest by all interested persons

must be accepted as determinative by the courts of this state if it includes, or is based upon, a

finding that the decedent was domiciled at death in the state where the order was made.

Comment

This section is designed to extend the effect of final orders of another jurisdiction of the
United States. It should not be read to restrict the obligation of the local court to respect the
judgment of another court when parties who were personally before the other court also are
personally before the local court. An “authenticated copy” includes copies properly certified
under the full faith and credit statute. If conflicting claims of domicile are made in proceedings
which are commenced in different jurisdictions, Section 3-202 applies. This section is framed to
apply where a formal proceeding elsewhere has been previously concluded. Hence, if a local
proceeding is concluded before formal proceedings at domicile are concluded, local law will
control.

Informal proceedings by which a will is probated or a personal representative is

appointed are not proceedings which must be respected by a local court under either Section 3-
202 or this section.

Nothing in this section bears on questions of what assets are included in a decedent’s
estate.

This section adds nothing to existing law as applied to cases where the parties before the
local court were also personally before the foreign court, or where the property involved was
subject to the power of the foreign court. It extends present law so that, for some purposes, the
law of another state may become binding in regard to due execution or revocation of wills
controlling local land, and to questions concerning the meaning of ambiguous words in wills
involving local land. But, choice of law rules frequently produce a similar result. See § 240
Restatement of the Law, Second: Conflict of Laws, p. 73, Proposed Official Draft III, 1969.

This section may be easier to justify than familiar choice of law rules, for its application
is limited to instances where the protesting party has had notice of, and an opportunity to
participate in, previous litigation resolving the question he now seeks to raise.

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SECTION 3-409. FORMAL TESTACY PROCEEDINGS; ORDER; FOREIGN

WILL. After the time required for any notice has expired, upon proof of notice, and after any

hearing that may be necessary, if the court finds that the testator is dead, venue is proper and that

the proceeding was commenced within the limitation prescribed by Section 3-108, it shall

determine the decedent’s domicile at death, the decedent’s heirs, and the state of the decedent’s

testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of

any previous informal appointment of a personal representative, which may be appropriate in

view of the relief requested and findings, is governed by Section 3-612. The petition shall be

dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent

is dead. A will from a place which does not provide for probate of a will after death, may be

proved for probate in this state by a duly authenticated certificate of its legal custodian that the

copy introduced is a true copy and that the will has become effective under the law of the other

place.

Comment

Model Probate Code (1946) Section 80(a), slightly changed. If the court is not satisfied
that the alleged decedent is dead, it may permit amendment of the proceeding so that it would
become a proceeding to protect the estate of a missing and therefore “disabled” person. See
Article V of this Code.

SECTION 3-410. FORMAL TESTACY PROCEEDINGS; PROBATE OF MORE

THAN ONE INSTRUMENT. If two or more instruments are offered for probate before a final

order is entered in a formal testacy proceeding, more than one instrument may be probated if

neither expressly revokes the other or contains provisions which work a total revocation by

implication. If more than one instrument is probated, the order shall indicate what provisions

control in respect to the nomination of an executor, if any. The order may, but need not, indicate

how many provisions of a particular instrument are affected by the other instrument. After a

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final order in a testacy proceeding has been entered, no petition for probate of any other

instrument of the decedent may be entertained, except incident to a petition to vacate or modify a

previous probate order and subject to the time limits of Section 3-412.

Comment

Except as otherwise provided in Section 3-412, an order in a formal testacy proceeding

serves to end the time within which it is possible to probate after-discovered wills, or to give
effect to late-discovered facts concerning heirship. Determination of heirs is not barred by the
three year limitation but a judicial determination of heirs is conclusive unless the order may be
vacated.

This section authorizes a court to engage in some construction of wills incident to

determining whether a will is entitled to probate. It seems desirable to leave the extent of this
power to the sound discretion of the court. If wills are not construed in connection with a
judicial probate, they may be subject to construction at any time. See Section 3-108.

SECTION 3-411. FORMAL TESTACY PROCEEDINGS; PARTIAL

INTESTACY. If it becomes evident in the course of a formal testacy proceeding that, though

one or more instruments are entitled to be probated, the decedent’s estate is or may be partially

intestate, the court shall enter an order to that effect.

SECTION 3-412. FORMAL TESTACY PROCEEDINGS; EFFECT OF ORDER;

VACATION. Subject to appeal and subject to vacation as provided herein and in Section 3-413,

a formal testacy order under Sections 3-409 to 3-411, including an order that the decedent left no

valid will and determining heirs, is final as to all persons with respect to all issues concerning the

decedent’s estate that the court considered or might have considered incident to its rendition

relevant to the question of whether the decedent left a valid will, and to the determination of

heirs, except that:

(1) The court shall entertain a petition for modification or vacation of its order and

probate of another will of the decedent if it is shown that the proponents of the later-offered will

were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier

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proceeding and were given no notice thereof, except by publication.

(2) If intestacy of all or part of the estate has been ordered, the determination of heirs of

the decedent may be reconsidered if it is shown that one or more persons were omitted from the

determination and it is also shown that the persons were unaware of their relationship to the

decedent, were unaware of the decedent’s death or were given no notice of any proceeding

concerning the estate, except by publication.

(3) A petition for vacation under either paragraph (1) or (2) must be filed prior to the

earlier of the following time limits:

(A) If a personal representative has been appointed for the estate, the time of entry

of any order approving final distribution of the estate, or, if the estate is closed by statement, 6

months after the filing of the closing statement.

(B) Whether or not a personal representative has been appointed for the estate of

the decedent, the time prescribed by Section 3-108 when it is no longer possible to initiate an

original proceeding to probate a will of the decedent.

(C) 12 months after the entry of the order sought to be vacated.

(4) The order originally rendered in the testacy proceeding may be modified or vacated, if

appropriate under the circumstances, by the order of probate of the later-offered will or the order

redetermining heirs.

(5) The finding of the fact of death is conclusive as to the alleged decedent only if notice

of the hearing on the petition in the formal testacy proceeding was sent by registered or certified

mail addressed to the alleged decedent at the alleged decedent’s last known address and the court

finds that a search under Section 3-403(b) was made.

If the alleged decedent is not dead, even if notice was sent and search was made, the

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alleged decedent may recover estate assets in the hands of the personal representative. In addition

to any remedies available to the alleged decedent by reason of any fraud or intentional

wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is

in their hands, or the value of distributions received by them, to the extent that any recovery from

distributees is equitable in view of all of the circumstances.

Comment

The provisions barring proof of late-discovered wills is derived in part from Section 81 of
Model Probate Code (1946). The same section is the source of the provisions of paragraph (5)
above. The provisions permitting vacation of an order determining heirs on certain conditions
reflect the effort to offer parallel possibilities for adjudications in testate and intestate estates.
See Section 3-401. An objective is to make it possible to handle an intestate estate exactly as a
testate estate may be handled. If this is achieved, some of the pressure on persons to make wills
may be relieved.

If an alleged decedent turns out to have been alive, heirs and distributees are liable to
restore the “estate or its proceeds”. If neither can be identified through the normal process of
tracing assets, their liability depends upon the circumstances. The liability of distributees to
claimants whose claims have not been barred, or to persons shown to be entitled to distribution
when a formal proceeding changes a previous assumption informally established which guided
an earlier distribution, is different. See Sections 3-909 and 3-1004.

1993 technical amendments clarified the conditions intended in paragraphs (1) and (2).

SECTION 3-413. FORMAL TESTACY PROCEEDINGS; VACATION OF

ORDER FOR OTHER CAUSE. For good cause shown, an order in a formal testacy

proceeding may be modified or vacated within the time allowed for appeal.

Comment

See Sections 1-304 and 1-308.

SECTION 3-414. FORMAL PROCEEDINGS CONCERNING APPOINTMENT

OF PERSONAL REPRESENTATIVE.

(a) A formal proceeding for adjudication regarding the priority or qualification of one

who is an applicant for appointment as personal representative, or of one who previously has

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been appointed personal representative in informal proceedings, if an issue concerning the

testacy of the decedent is or may be involved, is governed by Section 3-402, as well as by this

section. In other cases, the petition shall contain or adopt the statements required by Section 3-

301(1) and describe the question relating to priority or qualification of the personal

representative which is to be resolved. If the proceeding precedes any appointment of a personal

representative, it shall stay any pending informal appointment proceedings as well as any

commenced thereafter. If the proceeding is commenced after appointment, the previously

appointed personal representative, after receipt of notice thereof, shall refrain from exercising

any power of administration except as necessary to preserve the estate or unless the court orders

otherwise.

(b) After notice to interested persons, including all persons interested in the

administration of the estate as successors under the applicable assumption concerning testacy,

any previously appointed personal representative and any person having or claiming priority for

appointment as personal representative, the court shall determine who is entitled to appointment

under Section 3-203, make a proper appointment and, if appropriate, terminate any prior

appointment found to have been improper as provided in cases of removal under Section 3-611.

Comment

A petition raising a controversy concerning the priority or qualifications of a personal

representative may be combined with a petition in a formal testacy proceeding. However, it is
not necessary to petition formally for the appointment of a personal representative as a part of a
formal testacy proceeding. A personal representative may be appointed on informal application
either before or after formal proceedings which establish whether the decedent died testate or
intestate or no appointment may be desired. See Sections 3-107, 3-301(a)(3)-(4) and 3-307.
Furthermore, procedures for securing the appointment of a new personal representative after a
previous assumption as to testacy has been changed are provided by Section 3-612. These may
be informal, or related to pending formal proceedings concerning testacy. A formal order
relating to appointment may be desired when there is a dispute concerning priority or
qualification to serve but no dispute concerning testacy. It is important to distinguish formal
proceedings concerning appointment from “supervised administration”. The former includes any

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proceeding after notice involving a request for an appointment. The latter originates in a “formal
proceeding” and may be requested in addition to a ruling concerning testacy or priority or
qualifications of a personal representative, but is descriptive of a special proceeding with a
different scope and purpose than those concerned merely with establishing the bases for an
administration. In other words, a personal representative appointed in a “formal” proceeding
may or may not be “supervised”.

Another point should be noted. The court may not immediately issue letters even though
a formal proceeding seeking appointment is involved and results in an order authorizing
appointment. Rather, Section 3-601 et seq. control the subject of qualification. Section 1-305
deals with letters.

PART 5. SUPERVISED ADMINISTRATION

SECTION 3-501. SUPERVISED ADMINISTRATION; NATURE OF

PROCEEDING. Supervised administration is a single in rem proceeding to secure complete

administration and settlement of a decedent’s estate under the continuing authority of the court

which extends until entry of an order approving distribution of the estate and discharging the

personal representative, or other order terminating the proceeding. A supervised personal

representative is responsible to the court, as well as to the interested parties, and is subject to

directions concerning the estate made by the court on its own motion or on the motion of any

interested party. Except as otherwise provided in this [part], or as otherwise ordered by the

court, a supervised personal representative has the same duties and powers as a personal

representative who is not supervised.

Comment

This and the following sections of this part describe an optional procedure for settling an
estate in one continuous proceeding in the court. The proceeding is characterized as “in rem” to
align it with the concepts described by the Model Probate Code (1946). See Model Probate
Code Section 62. In cases where supervised administration is not requested or ordered, no
compulsion other than self-interest exists to compel use of a formal testacy proceeding to secure
an adjudication of a will or no will, because informal probate or appointment of an administrator
in intestacy may be used. Similarly, unless administration is supervised, there is no compulsion
other than self-interest to use a formal closing proceeding. Thus, even though an estate
administration may be begun by use of a formal testacy proceeding which may involve an order
concerning who is to be appointed personal representative, the proceeding is over when the order

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concerning testacy and appointment is entered. See Section 3-107. Supervised administration,
therefore, is appropriate when an interested person desires assurance that the essential steps
regarding opening and closing of an estate will be adjudicated. See the Comment following the
next section.

SECTION 3-502. SUPERVISED ADMINISTRATION; PETITION; ORDER. A

petition for supervised administration may be filed by any interested person or by a personal

representative at any time or the prayer for supervised administration may be joined with a

petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority

and qualification of any personal representative have not been adjudicated previously, the

petition for supervised administration shall include the matters required of a petition in a formal

testacy proceeding and the notice requirements and procedures applicable to a formal testacy

proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the

decedent and questions relating to the priority and qualifications of the personal representative in

any case involving a request for supervised administration, even though the request for

supervised administration may be denied. After notice to interested persons, the court shall order

supervised administration of a decedent’s estate:

(1) if the decedent’s will directs supervised administration, it shall be ordered unless the

court finds that circumstances bearing on the need for supervised administration have changed

since the execution of the will and that there is no necessity for supervised administration;

(2) if the decedent’s will directs unsupervised administration, supervised administration

shall be ordered only upon a finding that it is necessary for protection of persons interested in the

estate; or

(3) in other cases if the court finds that supervised administration is necessary under the

circumstances.

Comment

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The expressed wishes of a testator regarding supervised administration should bear upon,
but not control, the question of whether supervised administration will be ordered. This section
is designed to achieve a fair balance between the wishes of the decedent, and the interests of
successors in regard to supervised administration.

Since supervised administration normally will result in an adjudicated distribution of the

estate, the issue of will or no will must be adjudicated. This section achieves this by forcing a
petition for supervised administration to include matters necessary to put the issue of testacy
before the court. It is possible, however, that supervised administration will be requested
because administrative complexities warranting it develop after the issue of will or no will has
been resolved in a previously concluded formal testacy proceeding.

It should be noted that supervised administration, though it compels a judicial settlement

of an estate, is not the only route to obtaining judicial review and settlement at the close of an
administration. The procedures described in Sections 3-1101 and 3-1102 are available for use by
or against personal representatives who are not supervised. Also efficient remedies for breach of
duty by a personal representative who is not supervised are available under Part 6 of this article.
Finally, each personal representative consents to jurisdiction of the court as invoked by mailed
notice of any proceeding relating to the estate which may be initiated by an interested person.
Also, persons interested in the estate may be subjected to orders of the court following mailed
notices made in proceedings initiated by the personal representative. In combination, these
possibilities mean that supervised administration will be valuable principally to persons who see
some advantage in a single judicial proceeding which will produce adjudications on all major
points involved in an estate settlement.

SECTION 3-503. SUPERVISED ADMINISTRATION; EFFECT ON OTHER

PROCEEDINGS.

(a) The pendency of a proceeding for supervised administration of a decedent’s estate

stays action on any informal application then pending or thereafter filed.

(b) If a will has been previously probated in informal proceedings, the effect of the filing

of a petition for supervised administration is as provided for formal testacy proceedings by

Section 3-401.

(c) After a personal representative has received notice of the filing of a petition for

supervised administration, the personal representative who has been appointed previously shall

not exercise the power to distribute any estate. The filing of the petition does not affect other

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powers and duties unless the court restricts the exercise of any of them pending full hearing on

the petition.

Comment

The duties and powers of personal representative are described in Part 7 of this article.
The ability of a personal representative to create a good title in a purchaser of estate assets is not
hampered by the fact that the personal representative may breach a duty created by statute, court
order or other circumstances in making the sale. See Section 3-715. However, formal
proceedings against a personal representative may involve requests for qualification of the power
normally possessed by personal representatives which, if granted, would subject the personal
representative to the penalties for contempt of court if he disregarded the restriction. See Section
3-607. If a proceeding also involved a demand that particular real estate be kept in the estate
pending determination of a petitioner’s claim thereto, notice of the pendency of the proceeding
could be recorded as is usual under the jurisdiction’s system for the lis pendens concept.

The word “restricts” in the last sentence is intended to negate the idea that a judicial order
specially qualifying the powers and duties of a personal representative is a restraining order in
the usual sense. The section means simply that some supervised personal representatives may
receive the same powers and duties as ordinary personal representatives, except that they must
obtain a court order before paying claimants or distributing, while others may receive a more
restricted set of powers. Section 3-607 governs petitions which seek to limit the power of a
personal representative.

SECTION 3-504. SUPERVISED ADMINISTRATION; POWERS OF PERSONAL

REPRESENTATIVE. Unless restricted by the court, a supervised personal representative has,

without interim orders approving exercise of a power, all powers of personal representatives

under this Code, but a supervised personal representative shall not exercise the power to make

any distribution of the estate without prior order of the court. Any other restriction on the power

of a personal representative which may be ordered by the court must be endorsed on the letters of

appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the

personal representative.

Comment

This section provides authority to issue letters showing restrictions of power of

supervised administrators. In general, persons dealing with personal representatives are not
bound to inquire concerning the authority of a personal representative, and are not affected by

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provisions in a will or judicial order unless they know of it. But, it is expected that persons
dealing with personal representatives will want to see the personal representative’s letters, and
this section has the practical effect of requiring them to do so. No provision is made for noting
restrictions in letters except in the case of supervised representatives. See Section 3-715.

SECTION 3-505. SUPERVISED ADMINISTRATION; INTERIM ORDERS;

DISTRIBUTION AND CLOSING ORDERS. Unless otherwise ordered by the court,

supervised administration is terminated by order in accordance with time restrictions, notices and

contents of orders prescribed for proceedings under Section 3-1001. Interim orders approving or

directing partial distributions or granting other relief may be issued by the court at any time

during the pendency of a supervised administration on the application of the personal

representative or any interested person.

Comment

Since supervised administration is a single proceeding, the notice requirement contained

in Section 3-106 relates to the notice of institution of the proceedings which is described with
particularity by Section 3-502. The above section makes it clear that an additional notice is
required for a closing order. It was discussed whether provision for notice of interim orders
should be included. It was decided to leave the point to be covered by court order or rule. There
was a suggestion for a rule as follows: “Unless otherwise required by order, notice of interim
orders in supervised administration need be given only to interested persons who request notice
of all orders entered in the proceeding.” Section 1-402 permits any person to waive notice by a
writing filed in the proceeding.

A demand for notice under Section 3-204 would entitle any interested person to notice of
any interim order which might be made in the course of supervised administration.

PART 6. PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL AND

TERMINATION OF AUTHORITY

SECTION 3-601. QUALIFICATION. Prior to receiving letters, a personal

representative shall qualify by filing with the appointing court any required bond and a statement

of acceptance of the duties of the office.

Comment

This and related sections of this part describe details and conditions of appointment

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which apply to all personal representatives without regard to whether the appointment
proceeding involved is formal or informal, or whether the personal representative is supervised.
Section 1-305 authorizes issuance of copies of letters and prescribes their content. The section
should be read with Section 3-504 which directs endorsement on letters of any restrictions of
power of a supervised administrator.

SECTION 3-602. ACCEPTANCE OF APPOINTMENT; CONSENT TO

JURISDICTION. By accepting appointment, a personal representative submits personally to

the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any

interested person. Notice of any proceeding shall be delivered to the personal representative, or

mailed to the personal representative by ordinary first class mail at the personal representative’s

address as listed in the application or petition for appointment or as thereafter reported to the

court and to the personal representative’s address as then known to the petitioner.

Comment

Except for personal representatives appointed pursuant to Section 3-502, appointees are
not deemed to be “officers” of the appointing court or to be parties in one continuous judicial
proceeding that extends until final settlement. See Section 3-107. Yet, it is desirable to continue
present patterns which prevent a personal representative who might make himself unavailable to
service within the state from affecting the power of the appointing court to enter valid orders
affecting him. See Michigan Trust Co. v. Ferry, 33 S.Ct. 550, 228 U.S. 346, 57 L. Ed. 867
(1912). The concept employed to accomplish this is that of requiring each appointee to consent
in advance to the personal jurisdiction of the court in any proceeding relating to the estate that
may be instituted against him. The section requires that he be given notice of any such
proceeding, which, when considered in the light of the responsibility he has undertaken, should
make the procedure sufficient to meet the requirements of due process.

SECTION 3-603. BOND NOT REQUIRED WITHOUT COURT ORDER,

EXCEPTIONS. No bond is required of a personal representative appointed in informal

proceedings, except (1) upon the appointment of a special administrator; (2) when an executor or

other personal representative is appointed to administer an estate under a will containing an

express requirement of bond or (3) when bond is required under Section 3-605. Bond may be

required by court order at the time of appointment of a personal representative appointed in any

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formal proceeding except that bond is not required of a personal representative appointed in

formal proceedings if the will relieves the personal representative of bond, unless bond has been

requested by an interested party and the court is satisfied that it is desirable. Bond required by

any will may be dispensed with in formal proceedings upon determination by the court that it is

not necessary. No bond is required of any personal representative who, pursuant to statute, has

deposited cash or collateral with an agency of this state to secure performance of the personal

representative’s duties.

Comment

This section must be read with the next three sections. The purpose of these provisions is
to move away from the idea that bond always should be required of a probate fiduciary, or
required unless a will excuses it. Also, it is designed to keep the Registrar acting pursuant to
applications in informal proceedings, from passing judgment in each case on the need for bond.
The point is that the court and Registrar are not responsible for seeing that personal
representatives perform as they are supposed to perform. Rather, performance is coerced by the
remedies available to interested persons. Interested persons are protected by their ability to
demand prior notice of informal proceedings (Section 3-204), to contest a requested appointment
by use of a formal testacy proceeding or by use of a formal proceeding seeking the appointment
of another person. Section 3-105 gives general authority to the court in a formal proceeding to
make appropriate orders as “desirable incident to estate administration”. This should be
sufficient to make it clear that an informal application may be blocked by a formal petition which
disputes the matters stated in the petition. Furthermore, an interested person has the remedies
provided in Sections 3-605 and 3-607. Finally, interested persons have assurance under this
Code that their rights in respect to the values of a decedent’s estate cannot be terminated without
a judicial order after notice or before the passage of three years from the decedent’s death.

It is believed that the total package of protection thus afforded may represent more real
protection than a blanket requirement of bond. Surely, it permits a reduction in the procedures
which must occur in uncomplicated estates where interested persons are perfectly willing to trust
each other and the fiduciary.

SECTION 3-604. BOND AMOUNT; SECURITY; PROCEDURE; REDUCTION.

If bond is required and the provisions of the will or order do not specify the amount, unless

stated in the application or petition, the person qualifying shall file a statement under oath with

the Registrar indicating the best estimate of the value of the personal estate of the decedent and

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of the income expected from the personal and real estate during the next year, and the person

qualifying shall execute and file a bond with the Registrar, or give other suitable security, in an

amount not less than the estimate. The Registrar shall determine that the bond is duly executed

by a corporate surety, or one or more individual sureties whose performance is secured by pledge

of personal property, mortgage on real property or other adequate security. The Registrar may

permit the amount of the bond to be reduced by the value of assets of the estate deposited with a

domestic financial institution (as defined in Section 6-101) in a manner that prevents their

unauthorized disposition. On petition of the personal representative or another interested person

the court may excuse a requirement of bond, increase or reduce the amount of the bond, release

sureties, or permit the substitution of another bond with the same or different sureties.

Comment

This section permits estimates of value needed to fix the amount of required bond to be
filed when it becomes necessary. A consequence of this procedure is that estimates of value of
estates no longer need appear in the petitions and applications which will attend every
administered estate. Hence, a measure of privacy that is not possible under most existing
procedures may be achieved. A co-signature arrangement might constitute adequate security
within the meaning of this section.

SECTION 3-605. DEMAND FOR BOND BY INTERESTED PERSON. Any person

apparently having an interest in the estate worth in excess of [$5,000], or any creditor having a

claim in excess of [$5,000], may make a written demand that a personal representative give

bond. The demand must be filed with the Registrar and a copy mailed to the personal

representative, if appointment and qualification have occurred. Thereupon, bond is required, but

the requirement ceases if the person demanding bond ceases to be interested in the estate, or if

bond is excused as provided in Section 3-603 or 3-604. After receiving notice and until the filing

of the bond or cessation of the requirement of bond, the personal representative shall refrain from

exercising any powers of the personal representative’s office except as necessary to preserve the

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estate. Failure of the personal representative to meet a requirement of bond by giving suitable

bond within 30 days after receipt of notice is cause for the representative’s removal and

appointment of a successor personal representative.

Comment

The demand for bond described in this section may be made in a petition or application
for appointment of a personal representative, or may be made after a personal representative has
been appointed. The mechanism for compelling bond is designed to function without
unnecessary judicial involvement. If demand for bond is made in a formal proceeding, the judge
can determine the amount of bond to be required with due consideration for all circumstances. If
demand is not made in formal proceedings, methods for computing the amount of bond are
provided by statute so that the demand can be complied with without resort to judicial
proceedings. The information which a personal representative is required by Section 3-705 to
give each beneficiary includes a statement concerning whether bond has been required.

2010 Amendment: This section was amended in 2010 to increase the amount from
$1,000 to $5,000 on account of inflation that has occurred since the original 1969 approval of the
Uniform Probate Code.

SECTION 3-606. TERMS AND CONDITIONS OF BONDS.

(a) The following requirements and provisions apply to any bond required by this Part:

(1) Bonds shall name the [state] as obligee for the benefit of the persons interested

in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties

according to law.

(2) Unless otherwise provided by the terms of the approved bond, sureties are

jointly and severally liable with the personal representative and with each other. The address of

sureties shall be stated in the bond.

(3) By executing an approved bond of a personal representative, the surety

consents to the jurisdiction of the probate court which issued letters to the primary obligor in any

proceedings pertaining to the fiduciary duties of the personal representative and naming the

surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to the surety

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by registered or certified mail at the surety’s address as listed with the court where the bond is

filed and to the surety’s address as then known to the petitioner.

(4) On petition of a successor personal representative, any other personal

representative of the same decedent, or any interested person, a proceeding in the court may be

initiated against a surety for breach of the obligation of the bond of the personal representative.

(5) The bond of the personal representative is not void after the first recovery but

may be proceeded against from time to time until the whole penalty is exhausted.

(b) No action or proceeding may be commenced against the surety on any matter as to

which an action or proceeding against the primary obligor is barred by adjudication or limitation.

Comment

Paragraph (2) is based, in part, on Section 109 of the Model Probate Code (1946).
Paragraph (3) is derived from Section 118 of the Model Probate Code (1946).

SECTION 3-607. ORDER RESTRAINING PERSONAL REPRESENTATIVE.

(a) On petition of any person who appears to have an interest in the estate, the court by

temporary order may restrain a personal representative from performing specified acts of

administration, disbursement, or distribution, or exercise of any powers or discharge of any

duties of the personal representative’s office, or make any other order to secure proper

performance of the personal representative’s duty, if it appears to the court that the personal

representative otherwise may take some action which would jeopardize unreasonably the interest

of the applicant or of some other interested person. Persons with whom the personal

representative may transact business may be made parties.

(b) The matter shall be set for hearing within 10 days unless the parties otherwise agree.

Notice as the court directs shall be given to the personal representative and the personal

representative’s attorney of record, if any, and to any other parties named defendant in the

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petition.

Comment

Cf. Section 3-401 which provides for a restraining order against a previously appointed
personal representative incident to a formal testacy proceeding. The above section describes a
remedy which is available for any cause against a previously appointed personal representative,
whether appointed formally or informally.

This remedy, in combination with the safeguards relating to the process for appointment
of a personal representative, permit “control” of a personal representative that is believed to be
equal, if not superior to that presently available with respect to “supervised” personal
representatives appointed by inferior courts. The request for a restraining order may mark the
beginning of a new proceeding but the personal representative, by the consent provided in
Section 3-602, is practically in the position of one who, on motion, may be cited to appear before
a judge.

SECTION 3-608. TERMINATION OF APPOINTMENT; GENERAL.

Termination of appointment of a personal representative occurs as indicated in Sections 3-609 to

3-612, inclusive. Termination ends the right and power pertaining to the office of personal

representative as conferred by this Code or any will, except that a personal representative, at any

time prior to distribution or until restrained or enjoined by court order, may perform acts

necessary to protect the estate and may deliver the assets to a successor representative.

Termination does not discharge a personal representative from liability for transactions or

omissions occurring before termination, or relieve the personal representative of the duty to

preserve assets subject to the personal representative’s control, to account therefor and to deliver

the assets. Termination does not affect the jurisdiction of the court over the personal

representative, but terminates the personal representative’s authority to represent the estate in

any pending or future proceeding.

Comment

“Termination”, as defined by this and succeeding provisions, provides definiteness

respecting when the powers of a personal representative (who may or may not be discharged by
court order) terminate.

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It is to be noted that this section does not relate to jurisdiction over the estate in
proceedings which may have been commenced against the personal representative prior to
termination. In such cases, a substitution of successor or special representative should occur if
the plaintiff desires to maintain his action against the estate.

It is important to note that “termination” is not “discharge”. However, an order of the

court entered under 3-1001 or 3-1002 both terminates the appointment of, and discharges, a
personal representative.

SECTION 3-609. TERMINATION OF APPOINTMENT; DEATH OR

DISABILITY. The death of a personal representative or the appointment of a conservator for

the estate of a personal representative, terminates the personal representative’s appointment.

Until appointment and qualification of a successor or special representative to replace the

deceased or protected representative, the representative of the estate of the deceased or protected

personal representative, if any, has the duty to protect the estate possessed and being

administered by the decedent or ward at the time the appointment terminates, has the power to

perform acts necessary for protection and shall account for and deliver the estate assets to a

successor or special personal representative upon appointment and qualification.

Comment

See Section 3-718, which establishes the rule that a surviving co-executor may exercise
all powers incident to the office unless the will provides otherwise. Read together, this section
and Section 3-718 mean that the representative of a deceased co-representative would not have
any duty or authority in relation to the office held by his decedent.

SECTION 3-610. TERMINATION OF APPOINTMENT; VOLUNTARY.

(a) An appointment of a personal representative terminates as provided in Section 3-

1003, one year after the filing of a closing statement.

(b) An order closing an estate as provided in Section 3-1001 or 3-1002 terminates an

appointment of a personal representative.

(c) A personal representative may resign the position by filing a written statement of

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resignation with the Registrar after the personal representative has given at least 15 days written

notice to the persons known to be interested in the estate. If no one applies or petitions for

appointment of a successor representative within the time indicated in the notice, the filed

statement of resignation is ineffective as a termination of appointment and in any event is

effective only upon the appointment and qualification of a successor representative and delivery

of the assets to the successor.

Comment

Subsection (c) above provides a procedure for resignation by a personal representative

which may occur without judicial assistance.

SECTION 3-611. TERMINATION OF APPOINTMENT BY REMOVAL;

CAUSE; PROCEDURE.

(a) A person interested in the estate may petition for removal of a personal representative

for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing.

Notice shall be given by the petitioner to the personal representative, and to other persons as the

court may order. Except as otherwise ordered as provided in Section 3-607, after receipt of

notice of removal proceedings, the personal representative shall not act except to account, to

correct maladministration or preserve the estate. If removal is ordered, the court also shall direct

by order the disposition of the assets remaining in the name of, or under the control of, the

personal representative being removed.

(b) Cause for removal exists when removal would be in the best interests of the estate, or

if it is shown that a personal representative or the person seeking the personal representative’s

appointment intentionally misrepresented material facts in the proceedings leading to the

appointment, or that the personal representative has disregarded an order of the court, has

become incapable of discharging the duties of the office, or has mismanaged the estate or failed

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to perform any duty pertaining to the office. Unless the decedent’s will directs otherwise, a

personal representative appointed at the decedent’s domicile, incident to securing appointment

either personally or for a nominee as ancillary personal representative, mayobtain removal of

another who was appointed personal representative in this state to administer local assets.

Comment

Thought was given to qualifying subsection (a) above so that no formal removal
proceedings could be commenced until after a set period from entry of any previous order
reflecting judicial consideration of the qualifications of the personal representative. It was
decided, however, that the matter should be left to the judgment of interested persons and the
court.

SECTION 3-612. TERMINATION OF APPOINTMENT; CHANGE OF

TESTACY STATUS. Except as otherwise ordered in formal proceedings, the probate of a will

subsequent to the appointment of a personal representative in intestacy or under a will which is

superseded by formal probate of another will, or the vacation of an informal probate of a will

subsequent to the appointment of the personal representative thereunder, does not terminate the

appointment of the personal representative although the personal representative’s powers may be

reduced as provided in Section 3-401. Termination occurs upon appointment in informal or

formal appointment proceedings of a person entitled to appointment under the later assumption

concerning testacy. If no request for new appointment is made within 30 days after expiration of

time for appeal from the order in formal testacy proceedings, or from the informal probate,

changing the assumption concerning testacy, the previously appointed personal representative

upon request may be appointed personal representative under the subsequently probated will, or

as in intestacy as the case may be.

Comment

This section and Section 3-401 describe the relationship between formal or informal
proceedings which change a previous assumption concerning the testacy of the decedent, and a

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previously appointed personal representative. The basic assumption of both sections is that an
appointment, with attendant powers of management, is separable from the basis of appointment;
i.e., intestate or testate?; what will is the last will? Hence, a previously appointed personal
representative continues to serve in spite of formal or informal proceedings that may give
another a prior right to serve as personal representative. But, if the testacy status is changed in
formal proceedings, the petitioner also may request appointment of the person who would be
entitled to serve if his assumption concerning the decedent’s will prevails. Provision is made for
a situation where all interested persons are content to allow a previously appointed personal
representative to continue to serve even though another has a prior right because of a change
relating to the decedent’s will. It is not necessary for the continuing representative to seek
reappointment under the new assumption for Section 3-703 is broad enough to require him to
administer the estate as intestate, or under a later probated will, if either status is established after
he was appointed. Under Section 3-403, notice of a formal testacy proceeding is required to be
given to any previously appointed personal representative. Hence, the testacy status cannot be
changed without notice to a previously appointed personal representative.

SECTION 3-613. SUCCESSOR PERSONAL REPRESENTATIVE. Parts 3 and 4 of

this [article] govern proceedings for appointment of a personal representative to succeed one

whose appointment has been terminated. After appointment and qualification, a successor

personal representative may be substituted in all actions and proceedings to which the former

personal representative was a party, and no notice, process or claim which was given or served

upon the former personal representative need be given to or served upon the successor in order to

preserve any position or right the person giving the notice or filing the claim may thereby have

obtained or preserved with reference to the former personal representative. Except as otherwise

ordered by the court, the successor personal representative has the powers and duties in respect

to the continued administration which the former personal representative would have had if the

appointment had not been terminated.

SECTION 3-614. SPECIAL ADMINISTRATOR; APPOINTMENT. A special

administrator may be appointed:

(1) informally by the Registrar on the application of any interested person when

necessary to protect the estate of a decedent prior to the appointment of a general personal

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representative, or if a prior appointment has been terminated as provided in Section 3-609;

(2) in a formal proceeding by order of the court on the petition of any interested person

and finding, after notice and hearing, that appointment is necessary to preserve the estate or to

secure its proper administration including its administration in circumstances where a general

personal representative cannot or should not act. If it appears to the court that an emergency

exists, appointment may be ordered without notice.

Comment

The appointment of a special administrator other than one appointed pending original
appointment of a general personal representative must be handled by the court. Appointment of
a special administrator would enable the estate to participate in a transaction which the general
personal representative could not, or should not, handle because of conflict of interest. If a need
arises because of temporary absence or anticipated incapacity for delegation of the authority of a
personal representative, the problem may be handled without judicial intervention by use of the
delegation powers granted to personal representatives by Section 3-715(21).

SECTION 3-615. SPECIAL ADMINISTRATOR; WHO MAY BE APPOINTED.

(a) If a special administrator is to be appointed pending the probate of a will which is the

subject of a pending application or petition for probate, the person named executor in the will

shall be appointed if available, and qualified.

(b) In other cases, any proper person may be appointed special administrator.

Comment

In some areas of the country, particularly where wills cannot be probated without full
notice and hearing, appointment of special administrators pending probate is sought almost
routinely. The provisions of this Code concerning informal probate should reduce the number of
cases in which a fiduciary will need to be appointed pending probate of a will. Nonetheless,
there will be instances where contests begin before probate and where it may be necessary to
appoint a special administrator. The objective of this section is to reduce the likelihood that
contestants will be encouraged to file contests as early as possible simply to gain some advantage
via having a person who is sympathetic to their cause appointed special administrator. Most will
contests are not successful. Hence, it seems reasonable to prefer the named executor as special
administrator where he is otherwise qualified.

SECTION 3-616. SPECIAL ADMINISTRATOR; APPOINTED INFORMALLY;

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POWERS AND DUTIES. A special administrator appointed by the Registrar in informal

proceedings pursuant to Section 3-614(1) has the duty to collect and manage the assets of the

estate, to preserve them, to account therefor and to deliver them to the general personal

representative upon the representative’s qualification. The special administrator has the power of

a personal representative under the Code necessary to perform the special administrator’s duties.

SECTION 3-617. SPECIAL ADMINISTRATOR; FORMAL PROCEEDINGS;

POWER AND DUTIES. A special administrator appointed by order of the court in any formal

proceeding has the power of a general personal representative except as limited in the

appointment and duties as prescribed in the order. The appointment may be for a specified time,

to perform particular acts or on other terms as the court may direct.

SECTION 3-618. TERMINATION OF APPOINTMENT; SPECIAL

ADMINISTRATOR. The appointment of a special administrator terminates in accordance with

the provisions of the order of appointment, or on the appointment of a general personal

representative. In other cases, the appointment of a special administrator is subject to

termination as provided in Sections 3-608 through 3-611.

PART 7. DUTIES AND POWERS OF PERSONAL REPRESENTATIVE

SECTION 3-701. TIME OF ACCRUAL OF DUTIES AND POWERS. The duties

and powers of a personal representative commence upon appointment. The powers of a personal

representative relate back in time to give acts by the person appointed which are beneficial to the

estate occurring prior to appointment the same effect as those occurring thereafter. Prior to

appointment, a person named executor in a will may carry out written instructions of the

decedent relating to the decedent’s body, funeral, and burial arrangements. A personal

representative may ratify and accept acts on behalf of the estate done by others where the acts

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would have been proper for a personal representative.

Comment

This section codifies the doctrine that the authority of a personal representative relates
back to death from the moment it arises. It also makes it clear that authority of a personal
representative stems from his appointment. The sentence concerning ratification is designed to
eliminate technical questions that might arise concerning the validity of acts done by others prior
to appointment. Section 3-715(21) relates to delegation of authority after appointment. The
third sentence accepts an idea found in the Illinois Probate Act, § 79 [S.H.A. ch. 3, § 79].

SECTION 3-702. PRIORITY AMONG DIFFERENT LETTERS. A person to

whom general letters are issued first has exclusive authority under the letters until the person’s

appointment is terminated or modified. If, through error, general letters are afterwards issued to

another, the first appointed representative may recover any property of the estate in the hands of

the representative subsequently appointed, but the acts of the latter done in good faith before

notice of the first letters are not void for want of validity of appointment.

Comment

The qualification relating to “modification” of an appointment is intended to refer to the

change that may occur in respect to the exclusive authority of one with letters upon later
appointment of a co-representative or of a special administrator. The sentence concerning
erroneous dual appointment is derived from recent New York legislation. See Section 704,
Surrogate’s Court Procedure Act [McKinney’s SCPA 704].

Erroneous appointment of a second personal representative is possible if formal

proceedings after notice are employed. It might be desirable for a state to promulgate a system
whereby a notation of letters issued by each county probate office would be relayed to a central
record keeping office which, in turn could indicate to any other office whether letters for a
particular decedent, perhaps identified by social security number, had been issued previously.
The problem can arise even though notice to known interested persons and by publication is
involved.

SECTION 3-703. GENERAL DUTIES; RELATION AND LIABILITY TO

PERSONS INTERESTED IN ESTATE; STANDING TO SUE.

(a) A personal representative is a fiduciary who shall observe the standards of care

applicable to trustees. A personal representative is under a duty to settle and distribute the estate

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of the decedent in accordance with the terms of any probated and effective will and this [code],

and as expeditiously and efficiently as is consistent with the best interests of the estate. The

personal representative shall use the authority conferred by this [code], the terms of the will, if

any, and any order in proceedings to which the personal representative is party for the best

interests of successors to the estate.

(b) A personal representative may not be surcharged for acts of administration or

distribution if the conduct in question was authorized at the time. Subject to other obligations of

administration, an informally probated will is authority to administer and distribute the estate

according to its terms. An order of appointment of a personal representative, whether issued in

informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs

of the decedent if, at the time of distribution, the personal representative is not aware of a

pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy

proceeding, a formal proceeding questioning the personal representative’s appointment or fitness

to continue, or a supervised administration proceeding. This section does not affect the duty of

the personal representative to administer and distribute the estate in accordance with the rights of

claimants whose claims have been allowed, the surviving spouse, any minor and dependent

children and any pretermitted child of the decedent as described elsewhere in this [code].

(c) Except as to proceedings which do not survive the death of the decedent, a personal

representative of a decedent domiciled in this state at death has the same standing to sue and be

sued in the courts of this state and the courts of any other jurisdiction as the decedent had

immediately prior to death.

(d) A personal representative may not be surcharged for a distribution that does not take

into consideration the possibility of posthumous pregnancy unless the personal representative[,

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not later than [6] months after the decedent’s death,] received notice or had actual knowledge of

an intent to use genetic material in assisted reproduction.

Legislative Note to Subsection (d): The bracketed language is provided if a state wishes to
impose a time-limit on the receipt of notice.

Comment

This and the next section are especially important sections for they state the basic theory
underlying the duties and powers of personal representatives. Whether or not a personal
representative is supervised, this section applies to describe the relationship he bears to interested
parties. If a supervised representative is appointed, or if supervision of a previously appointed
personal representative is ordered, an additional obligation to the court is created. See Section 3-
501.

The fundamental responsibility of a personal representative is that of a trustee. Unlike

many trustees, a personal representative’s authority is derived from appointment by the public
agency known as the court. But, the Code also makes it clear that the personal representative, in
spite of the source of his authority, is to proceed with the administration, settlement and
distribution of the estate by use of statutory powers and in accordance with statutory directions.
See Sections 3-107 and 3-704. Subsection (b) is particularly important, for it ties the question of
personal liability for administrative or distributive acts to the question of whether the act was
“authorized at the time”. Thus, a personal representative may rely upon and be protected by a
will which has been probated without adjudication or an order appointing him to administer
which is issued in no-notice proceedings even though proceedings occurring later may change
the assumption as to whether the decedent died testate or intestate. See Section 3-302 concerning
the status of a will probated without notice and Section 3-102 concerning the ineffectiveness of
an unprobated will. However, it does not follow from the fact that the personal representative
distributed under authority that the distributees may not be liable to restore the property or values
received if the assumption concerning testacy is later changed. See Sections 3-909 and 3-1004.
Thus, a distribution may be “authorized at the time” within the meaning of this section, but be
“improper” under the latter section.

Subsection (c) is designed to reduce or eliminate differences in the amenability to suit of

personal representatives appointed under this Code and under traditional assumptions. Also, the
subsection states that so far as the law of the appointing forum is concerned, personal
representatives are subject to suit in other jurisdictions. It, together with various provisions of
Article IV, are designed to eliminate many of the present reasons for ancillary administrations.

1997 Technical Amendment. By technical amendment, the final sentence of Section 3-

703(b) was modified to clarify the originally intended meaning that a personal representative of a
decedent’s estate does not owe fiduciary duties to a person having claims against the estate until
the claim has been allowed. This added language is not intended to affect any duty to give notice
to prospective claimants under Section 3-801 or Tulsa Professional Collection Services v. Pope,
485 U.S. 478 (1988).

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2010 Technical Amendment. By technical amendment, a cross-reference in subsection
(a) to Section 7-302 was deleted. Article VII, which addressed selected issues of trust law,
including the standard of care for trustees, was withdrawn due to the approval of and widespread
enactment of the Uniform Trust Code .

2019 Amendment. Subsection (d) was added in 2019 as part of a package of

amendments to the Uniform Probate Code in light of the Uniform Parentage Act (2017). The
subsection is a modified version of Colo. Stat. § 15-12-703(3.5). A bracketed 6-month notice
provision is provided here and in Sections 2-104(b)(3) and 2-705(e)(2).

Historical Note. This Comment was revised in 1997, 2010, and 2019.

SECTION 3-704. PERSONAL REPRESENTATIVE TO PROCEED WITHOUT

COURT ORDER; EXCEPTION. A personal representative shall proceed expeditiously with

the settlement and distribution of a decedent’s estate and, except as otherwise specified or

ordered in regard to a supervised personal representative, do so without adjudication, order, or

direction of the court, but the personal representative may invoke the jurisdiction of the court, in

proceedings authorized by this Code, to resolve questions concerning the estate or its

administration.

Comment

This section is intended to confer authority on the personal representative to initiate a

proceeding at any time when it is necessary to resolve a question relating to administration.
Section 3-105 grants broad subject matter jurisdiction to the probate court which covers a
proceeding initiated for any purpose other than those covered by more explicit provisions dealing
with testacy proceedings, proceedings for supervised administration, proceedings concerning
disputed claims and proceedings to close estates.

SECTION 3-705. DUTY OF PERSONAL REPRESENTATIVE; INFORMATION

TO HEIRS AND DEVISEES. Not later than 30 days after appointment every personal

representative, except any special administrator, shall give information of the appointment to the

heirs and devisees, including, if there has been no formal testacy proceeding and if the personal

representative was appointed on the assumption that the decedent died intestate, the devisees in

any will mentioned in the application for appointment of a personal representative. The

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information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose

address is reasonably available to the personal representative. The duty does not extend to

require information to persons who have been adjudicated in a prior formal testacy proceeding to

have no interest in the estate. The information shall include the name and address of the personal

representative, indicate that it is being sent to persons who have or may have some interest in the

estate being administered, indicate whether bond has been filed, and describe the court where

papers relating to the estate are on file. The information shall state that the estate is being

administered by the personal representative under the [State] Probate Code without supervision

by the court but that recipients are entitled to information regarding the administration from the

personal representative and can petition the court in any matter relating to the estate, including

distribution of assets and expenses of administration. The personal representative’s failure to

give this information is a breach of duty to the persons concerned but does not affect the validity

of the appointment or the personal representative’s powers or other duties. A personal

representative may inform other persons of the appointment by delivery or ordinary first class

mail.

Comment

This section requires the personal representative to inform persons who appear to have an
interest in the estate as it is being administered, of his appointment. Also, it requires the personal
representative to give notice to persons who appear to be disinherited by the assumption
concerning testacy under which the personal representative was appointed. The communication
involved is not to be confused with the notice requirements relating to litigation. The duty
applies even though there may have been a prior testacy proceeding after notice, except that
persons who have been adjudicated to be without interest in the estate are excluded. The rights,
if any, of persons in regard to estates cannot be cut off completely except by the running of the
three year statute of limitations provided in Section 3-108, or by a formal judicial proceeding
which will include full notice to all interested persons. The interests of some persons may be
shifted from rights to specific property of the decedent to the proceeds from sale thereof, or to
rights to values received by distributees. However, such a shift of protected interest from one
thing to another, or to funds or obligations, is not new in relation to trust beneficiaries. A
personal representative may initiate formal proceedings to determine whether persons, other than

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those appearing to have interests, may be interested in the estate, under Section 3-401 or, in
connection with a formal closing, as provided by Section 3-1001.

No information or notice is required by this section if no personal representative is

appointed. Nor does this section require that information be given to beneficiaries not born
within 30 days of the personal representative’s appointment, including children born by
posthumous conception.

In any circumstance in which a fiduciary accounting is to be prepared, preparation of an

accounting in conformity with the Uniform Principles and Model Account Formats promulgated
by the National Fiduciary Accounting Project shall be considered as an appropriate manner of
presenting a fiduciary account. See English and Whitman, Fiduciary Accounting and Trust
Administration Guide (ALI-ABA 2d ed. 2008).

Historical Note: This Comment was revised in 2010. The sentence “Nor does this
section require that information be given to beneficiaries not born within 30 days of the personal
representative’s appointment, including children born by posthumous conception,” was added on
account of the approval in 2008 of provisions relating to children born of assisted reproductive
technology.

SECTION 3-706. DUTY OF PERSONAL REPRESENTATIVE; INVENTORY

AND APPRAISEMENT. Within three months after appointment, a personal representative,

who is not a special administrator or a successor to another representative who has previously

discharged this duty, shall prepare and file or mail an inventory of property owned by the

decedent at the time of death, listing it with reasonable detail, and indicating as to each listed

item, its fair market value as of the date of the decedent’s death, and the type and amount of any

encumbrance that may exist with reference to any item.

The personal representative shall send a copy of the inventory to interested persons who

request it. The personal representative may also file the original of the inventory with the court.

Comment

This and the following sections eliminate the practice now required by many probate
statutes under which the judge is involved in the selection of appraisers. If the personal
representative breaches his duty concerning the inventory, he may be removed. Section 3-611.
Or, an interested person seeking to surcharge a personal representative for losses incurred as a
result of his administration might be able to take advantage of any breach of duty concerning
inventory. The section provides two ways in which a personal representative may handle an

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inventory. If the personal representative elects to send copies to all interested persons who
request it, information concerning the assets of the estate need not become a part of the records
of the court. The alternative procedure is to file the inventory with the court. This procedure
would be indicated in estates with large numbers of interested persons, where the burden of
sending copies to all would be substantial. The court’s role in respect to the second alternative is
simply to receive and file the inventory with the file relating to the estate. See Section 3-204,
which permits any interested person to demand notice of any document relating to an estate
which may be filed with the court.

In 1975, the Joint Editorial Board recommended elimination of the word “or” that
separated the language dealing with the duty to send a copy of the inventory to interested persons
requesting it, from the final part of the paragraph dealing with filing of the original. The purpose
of the change was to prevent a literal interpretation of the original text that would have permitted
a personal representative who filed the original inventory with the court to avoid compliance
with requests for copies from interested persons.

SECTION 3-707. EMPLOYMENT OF APPRAISERS. The personal representative

may employ a qualified and disinterested appraiser to assist in ascertaining the fair market value

as of the date of the decedent’s death of any asset the value of which may be subject to

reasonable doubt. Different persons may be employed to appraise different kinds of assets

included in the estate. The names and addresses of any appraiser shall be indicated on the

inventory with the item or items appraised.

SECTION 3-708. DUTY OF PERSONAL REPRESENTATIVE;

SUPPLEMENTARY INVENTORY. If any property not included in the original inventory

comes to the knowledge of a personal representative or if the personal representative learns that

the value or description indicated in the original inventory for any item is erroneous or

misleading, the personal representative shall make a supplementary inventory or appraisement

showing the market value as of the date of the decedent’s death of the new item or the revised

market value or descriptions, and the appraisers or other data relied upon, if any, and file it with

the court if the original inventory was filed, or furnish copies thereof or information thereof to

persons interested in the new information.

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SECTION 3-709. DUTY OF PERSONAL REPRESENTATIVE; POSSESSION OF

ESTATE. Except as otherwise provided by a decedent’s will, every personal representative has

a right to, and shall take possession or control of, the decedent’s property, except that any real

property or tangible personal property may be left with or surrendered to the person

presumptively entitled thereto unless or until, in the judgment of the personal representative,

possession of the property by the personal representative will be necessary for purposes of

administration. The request by a personal representative for delivery of any property possessed

by an heir or devisee is conclusive evidence, in any action against the heir or devisee for

possession thereof, that the possession of the property by the personal representative is necessary

for purposes of administration. The personal representative shall pay taxes on, and take all steps

reasonably necessary for the management, protection, and preservation of, the estate in the

personal representative’s possession. The personal representative may maintain an action to

recover possession of property or to determine the title thereto.

Comment

Section 3-101 provides for the devolution of title on death. Section 3-711 defines the
status of the personal representative with reference to “title” and “power” in a way that should
make it unnecessary to discuss the “title” to decedent’s assets which his personal representative
acquires. This section deals with the personal representative’s duty and right to possess assets.
It proceeds from the assumption that it is desirable whenever possible to avoid disruption of
possession of the decedent’s assets by his devisees or heirs. But, if the personal representative
decides that possession of an asset is necessary or desirable for purposes of administration, his
judgment is made conclusive in any action for possession that he may need to institute against an
heir or devisee. It may be possible for an heir or devisee to question the judgment of the
personal representative in later action for surcharge for breach of fiduciary duty, but this
possibility should not interfere with the personal representative’s administrative authority as it
relates to possession of the estate.

This Code follows the Model Probate Code (1946) in regard to partnership interests. In
the introduction to the Model Probate Code, the following appears at p. 22:

“No provisions for the administration of partnership estates when a partner dies have
been included. Several states have statutes providing that unless the surviving partner files a

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bond with the probate court, the personal representative of the deceased partner may administer
the partnership estate upon giving an additional bond. Kan. Gen. Stat. (Supp. 1943) §§ 59-1001
to 59-1005; Mo. Rev. Stat. Ann. (1942) §§ 81 to 93 [V.A.M.S. §§ 473.220 to 473.230]. In these
states the administration of partnership estates upon the death of a partner is brought more or less
completely under the jurisdiction of the probate court. While the provisions afford security to
parties in interest, they have caused complications in the settlement of partnership estates and
have produced much litigation. Woerner, Administration (3rd ed., 1923) §§ 128 to 130;
annotation, 121 A.L.R. 860. These statutes have been held to be inconsistent with Section 37 of
the Uniform Partnership Act providing for winding up by the surviving partner. Davis v.
Hutchinson (C.C.A. 9th, 1929) 36 F.(2d) 309. Hence the Model Probate Code contains no
provision regarding partnership property except for inclusion in the inventory of the decedent’s
proportionate share of any partnership. See Model Probate Code (1946) Section 120. However,
it is suggested that the Uniform Partnership Act should be included in the statutes of the states
which have not already enacted it.”

SECTION 3-710. POWER TO AVOID TRANSFERS. The property liable for the

payment of unsecured debts of a decedent includes all property transferred by the decedent by

any means which is in law void or voidable as against creditors, and subject to prior liens, the

right to recover this property, so far as necessary for the payment of unsecured debts of the

decedent, is exclusively in the personal representative.

Comment

Model Probate Code (1946) Section 125, with additions. See, also, UPC Section 6-102,
which specifies creditors’ rights in regard to non-testamentary transfers effective at death.

SECTION 3-711. POWERS OF PERSONAL REPRESENTATIVES; IN

GENERAL.

[(a)] Until termination of the appointment a personal representative has the same power

over the title to property of the estate that an absolute owner would have, in trust however, for

the benefit of the creditors and others interested in the estate. This power may be exercised

without notice, hearing, or order of court.

[(b) A personal representative has access to and authority over a digital asset of the

decedent to the extent provided by [the Revised Uniform Fiduciary Access to Digital Assets Act]

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or by order of court.]

Comment

Historical Note. This section was amended in 2016 to add bracketed subsection (b) in order
to conform this section to the Revised Uniform Fiduciary Access to Digital Access Act and to clarify
that the court may grant authority over digital assets to a personal representative.

The personal representative is given the broadest possible “power over title”. He receives
a “power”, rather than title, because the power concept eases the succession of assets which are
not possessed by the personal representative. Thus, if the power is unexercised prior to its
termination, its lapse clears the title of devisees and heirs. Purchasers from devisees or heirs who
are “distributees” may be protected also by Section 3-910. The power over title of an absolute
owner is conceived to embrace all possible transactions which might result in a conveyance or
encumbrance of assets, or in a change of rights of possession. The relationship of the personal
representative to the estate is that of a trustee. Hence, personal creditors or successors of a
personal representative cannot avail themselves of his title to any greater extent than is true
generally of creditors and successors of trustees. Interested persons who are apprehensive of
possible misuse of power by a personal representative may secure themselves by use of the
devices implicit in the several sections of Parts 1 and 3 of this article. See especially Sections 3-
501, 3-605, 3-607 and 3-611.

SECTION 3-712. IMPROPER EXERCISE OF POWER; BREACH OF

FIDUCIARY DUTY. If the exercise of power concerning the estate is improper, the personal

representative is liable to interested persons for damage or loss resulting from breach of the

representative’s fiduciary duty to the same extent as a trustee of an express trust. The rights of

purchasers and others dealing with a personal representative shall be determined as provided in

Sections 3-713 and 3-714.

Comment

An interested person has two principal remedies to forestall a personal representative

from committing a breach of fiduciary duty.

(1) Under Section 3-607 he may apply to the court for an order restraining the personal
representative from performing any specified act or from exercising any power in the course of
administration.

(2) Under Section 3-611 he may petition the court for an order removing the personal
representative.

Evidence of a proceeding, or order, restraining a personal representative from selling,

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leasing, encumbering or otherwise affecting title to real property subject to administration, if
properly recorded under the laws of this state, would be effective to prevent a purchaser from
acquiring a marketable title under the usual rules relating to recordation of real property titles.

In addition Sections 1-302 and 3-105 authorize joinder of third persons who may be
involved in contemplated transactions with a personal representative in proceedings to restrain a
personal representative under Section 3-607.

SECTION 3-713. SALE, ENCUMBRANCE OR TRANSACTION INVOLVING

CONFLICT OF INTEREST; VOIDABLE; EXCEPTIONS. Any sale or encumbrance to the

personal representative, the personal representative’s spouse, agent, or attorney, or any

corporation or trust in which the personal representative has a substantial beneficial interest, or

any transaction which is affected by a substantial conflict of interest on the part of the personal

representative, is voidable by any person interested in the estate except one who has consented

after fair disclosure, unless:

(1) the will or a contract entered into by the decedent expressly authorized the transaction;

or

(2) the transaction is approved by the court after notice to interested persons.

Comment

If a personal representative violates the duty against self-dealing described by this

section, a voidable title to assets sold results. Other breaches of duty relating to sales of assets
will not cloud titles except as to purchasers with actual knowledge of the breach. See Section 3-
714. The principles of bona fide purchase would protect a purchaser for value without notice of
defect in the seller’s title arising from conflict of interest.

SECTION 3-714. PERSONS DEALING WITH PERSONAL REPRESENTATIVE;

PROTECTION. A person who in good faith either assists a personal representative or deals

with the personal representative for value is protected as if the personal representative properly

exercised the personal representative’s power. The fact that a person knowingly deals with a

personal representative does not alone require the person to inquire into the existence of a power

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or the propriety of its exercise. Except for restrictions on powers of supervised personal

representatives which are endorsed on letters as provided in Section 3-504, no provision in any

will or order of court purporting to limit the power of a personal representative is effective

except as to persons with actual knowledge thereof. A person is not bound to see to the proper

application of estate assets paid or delivered to a personal representative. The protection here

expressed extends to instances in which some procedural irregularity or jurisdictional defect

occurred in proceedings leading to the issuance of letters, including a case in which the alleged

decedent is found to be alive. The protection here expressed is not by substitution for that

provided by comparable provisions of the laws relating to commercial transactions and laws

simplifying transfers of securities by fiduciaries.

Comment

This section qualifies the effect of a provision in a will which purports to prohibit sale of
property by a personal representative. The provisions of a will may prescribe the duties of a
personal representative and subject him to surcharge or other remedies of interested persons if he
disregards them. See Section 3-703. But, the will’s prohibition is not relevant to the rights of a
purchaser unless he had actual knowledge of its terms. Interested persons who want to prevent a
personal representative from having the power described here must use the procedures described
in Sections 3-501 to 3-505. Each state will need to identify the relation between this section and
other statutory provisions creating liens on estate assets for inheritance and other taxes. The
section cannot control whether a purchaser takes free of the lien of unpaid federal estate taxes.
Hence, purchasers from personal representatives appointed pursuant to this Code will have to
satisfy themselves concerning whether estate taxes are paid, and if not paid, whether the tax lien
follows the property they are acquiring. See Section 6234, Internal Revenue Code [26 U.S.C.A.
§ 6324].

The impact of formal recording systems beyond the usual probate procedure depends
upon the particular statute. In states in which the recording system provides for recording wills
as muniments of title, statutory adaptation should be made to provide that recording of wills
should be postponed until the validity has been established by probate or limitation. Statutory
limitation to this effect should be added to statutes which do not so provide to avoid conflict with
power of the personal representative during administration. The purpose of the Code is to make
the deed or instrument of distribution the usual muniment of title. See Sections 3-907, 3-908,
and 3-910. However, this is not available when no administration has occurred and in that event
reliance upon general recording statutes must be had.

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If a state continues to permit wills to be recorded as muniments of title, the above section
would need to be qualified to give effect to the notice from recording.

SECTION 3-715. TRANSACTIONS AUTHORIZED FOR PERSONAL

REPRESENTATIVES; EXCEPTIONS. Except as restricted or otherwise provided by the will

or by an order in a formal proceeding and subject to the priorities stated in Section 3-902, a

personal representative, acting reasonably for the benefit of the interested persons, may properly:

(1) retain assets owned by the decedent pending distribution or liquidation including

those in which the representative is personally interested or which are otherwise improper for

trust investment;

(2) receive assets from fiduciaries, or other sources;

(3) perform, compromise, or refuse performance of the decedent’s contracts that continue

as obligations of the estate, as the personal representative may determine under the

circumstances. In performing enforceable contracts by the decedent to convey or lease land, the

personal representative, among other possible courses of action, may:

(A) execute and deliver a deed of conveyance for cash payment of all sums

remaining due or the purchaser’s note for the sum remaining due secured by a mortgage ordeed

of trust on the land; or

(B) deliver a deed in escrow with directions that the proceeds, when paid in

accordance with the escrow agreement, be paid to the successors of the decedent, as designated in

the escrow agreement;

(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges

constituted binding obligations of the decedent or were properly presented as claims, if in the

judgment of the personal representative the decedent would have wanted the pledges completed

under the circumstances;

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(5) if funds are not needed to meet debts and expenses currently payable and are not

immediately distributable, deposit or invest liquid assets of the estate, including moneys received

from the sale of other assets, in federally insured interest-bearing accounts, readily marketable

secured loan arrangements or other prudent investments which would be reasonable for use by

trustees generally;

(6) acquire or dispose of an asset, including land in this or another state, for cash or on

credit, at public or private sale; and manage, develop, improve, exchange, partition, change the

character of, or abandon an estate asset;

(7) make ordinary or extraordinaryrepairs or alterations in buildings or other structures,

demolish any improvements, raze existing or erect new party walls or buildings;

(8) subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats

and adjust boundaries; or adjust differences in valuation on exchange or partition by giving or

receiving considerations; or dedicate easements to public use without consideration;

(9) enter for any purpose into a lease as lessor or lessee, with or without option to

purchase or renew, for a term within or extending beyond the period of administration;

(10) enter into a lease or arrangement for exploration and removal of minerals or other

natural resources or enter into a pooling or unitization agreement;

(11) abandon property when, in the opinion of the personal representative, it is valueless,

or is so encumbered, or is in condition that it is of no benefit to the estate;

(12) vote stocks or other securities in person or by general or limited proxy;

(13) pay calls, assessments, and other sums chargeable or accruing against or on account

of securities, unless barred by the provisions relating to claims;

(14) hold a security in the name of a nominee or in other form without disclosure of the

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interest of the estate but the personal representative is liable for any act of the nominee in

connection with the security so held;

(15) insure the assets of the estate against damage, loss, and liability and the personal

representative against liability as to third persons;

(16) borrow money with or without security to be repaid from the estate assets or

otherwise; and advance money for the protection of the estate;

(17) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew

or in any manner modify the terms of any obligation owing to the estate. If the personal

representative holds a mortgage, pledge or other lien upon property of another person, the

personal representative may, in lieu of foreclosure, accept a conveyance or transfer of

encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;

(18) pay taxes, assessments, compensation of the personal representative, and other

expenses incident to the administration of the estate;

(19) sell or exercise stock subscription or conversion rights; consent, directly or through a

committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation

of a corporation or other business enterprise;

(20) allocate items of income or expense to either estate income or principal, as permitted

or provided by law;

(21) employ persons, including attorneys, auditors, investment advisors, or agents, even if

they are associated with the personal representative, to advise or assist the personal

representative in the performance of administrative duties; act without independent investigation

upon their recommendations; and instead of acting personally, employ one or more agents to

perform any act of administration, whether or not discretionary;

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(22) prosecute or defend claims, or proceedings in any jurisdiction for the protection of

the estate and of the personal representative in the performance of the personal representative’s

duties;

(23) sell, mortgage, or lease any real or personal property of the estate or any interest

therein for cash, credit, or for part cash and part credit, and with or without security for unpaid

balances;

(24) continue any unincorporated business or venture in which the decedent was engaged

at the time of death (i) in the same business form for a period of not more than 4 months from the

date of appointment of a general personal representative if continuation is a reasonable means of

preserving the value of the business including good will, (ii) in the same business form for any

additional period of time that may be approved by order of the court in a formal proceeding to

which the persons interested in the estate are parties; or (iii) throughout the period of

administration if the business is incorporated by the personal representative and if none of the

probable distributees of the business who are competent adults object to its incorporation and

retention in the estate;

(25) incorporate any business or venture in which the decedent was engaged at the time of

death;

(26) provide for exoneration of the personal representative from personal liability in any

contract entered into on behalf of the estate; and

(27) satisfy and settle claims and distribute the estate as provided in this Code.

Comment

This section accepts the assumption of the Uniform Trustee’s Powers Act that it is
desirable to equip fiduciaries with the authority required for the prudent handling of assets and
extends it to personal representatives. The section requires that a personal representative act
reasonably and for the benefit of the interested person. Subject to this and to the other

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qualifications described by the preliminary statement, the enumerated transactions are made
authorized transactions for personal representatives. Paragraphs (27) and (18) support the other
provisions of the Code, particularly Section 3-704, which contemplates that personal
representatives will proceed with all of the business of administration without court orders.

In part, paragraph (4) involves a substantive question of whether noncontractual

charitable pledges of a decedent can be honored by his personal representative. It is believed,
however, that it is not desirable from a practical standpoint to make much turn on whether a
charitable pledge is, or is not, contractual. Pledges are rarely made the subject of claims. The
effect of paragraph (4) is to permit the personal representative to discharge pledges where he
believes the decedent would have wanted him to do so without exposing himself to surcharge.
The holder of a contractual pledge may, of course, pursue the remedies of a creditor. If a pledge
provides that the obligation ceases on the death of the pledgor, no personal representative would
be safe in assuming that the decedent would want the pledge completed under the circumstances.

Paragraph (3) is not intended to affect the right to performance or to damages of any
person who contracted with the decedent. To do so would constitute an unreasonable
interference with private rights. The intention of the subsection is simply to give a personal
representative who is obligated to carry out a decedent’s contracts the same alternatives in regard
to the contractual duties which the decedent had prior to his death.

SECTION 3-716. POWERS AND DUTIES OF SUCCESSOR PERSONAL

REPRESENTATIVE. A successor personal representative has the same power and duty as the

original personal representative to complete the administration and distribution of the estate, as

expeditiously as possible, but the successor shall not exercise any power expressly made

personal to the executor named in the will.

SECTION 3-717. CO-REPRESENTATIVES; WHEN JOINT ACTION

REQUIRED. If two or more persons are appointed co-representatives and unless the will

provides otherwise, the concurrence of all is required on all acts connected with the

administration and distribution of the estate. This restriction does not apply when any co-

representative receives and receipts for property due the estate, when the concurrence of all

cannot readily be obtained in the time reasonably available for emergency action necessary to

preserve the estate, or when a co-representative has been delegated to act for the others. Persons

dealing with a co-representative if actually unaware that another has been appointed to serve or if

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advised by the personal representative with whom they deal that the personal representative has

authority to act alone for any of the reasons mentioned herein, are as fully protected as if the

person with whom they dealt had been the sole personal representative.

Comment

With certain qualifications, this section is designed to compel co-representatives to agree

on all matters relating to administration when circumstances permit. Delegation by one to
another representative is a form of concurrence in acts that may result from the delegation. A co-
representative who abdicates his responsibility to co-administer the estate by a blanket delegation
breaches his duty to interested persons as described by Section 3-703. Section 3-715(21)
authorizes some limited delegations, which are reasonable and for the benefit of interested
persons.

SECTION 3-718. POWERS OF SURVIVING PERSONAL REPRESENTATIVE.

Unless the terms of the will otherwise provide, every power exercisable by personal co-

representatives may be exercised by the one or more remaining after the appointment of one or

more is terminated, and if one of two or more nominated as co-executors is not appointed, those

appointed may exercise all the powers incident to the office.

Comment

Source, Model Probate Code (1946) Section 102. This section applies where one of two
or more co-representatives dies, becomes disabled or is removed. In regard to co-executors, it is
based on the assumption that the decedent would not consider the powers of his fiduciaries to be
personal, or to be suspended if one or more could not function. In regard to co-administrators in
intestacy, it is based on the idea that the reason for appointing more than one ceases on the death
or disability of either of them.

SECTION 3-719. COMPENSATION OF PERSONAL REPRESENTATIVE. A

personal representative is entitled to reasonable compensation for services. If a will provides for

compensation of the personal representative and there is no contract with the decedent regarding

compensation, the personal representative may renounce the provision before qualifying and be

entitled to reasonable compensation. A personal representative also may renounce the right to all

or any part of the compensation. A written renunciation of fee may be filed with the court.

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Comment

This section has no bearing on the question of whether a personal representative who also
serves as attorney for the estate, may receive compensation in both capacities. If a will provision
concerning a fee is framed as a condition on the nomination as personal representative, it could
not be renounced.

SECTION 3-720. EXPENSES IN ESTATE LITIGATION. If any personal

representative or person nominated as personal representative defends or prosecutes any

proceeding in good faith, whether successful or not, the personal representative or nominee is

entitled to receive from the estate necessary expenses and disbursements including reasonable

attorneys’ fees incurred.

Comment

Litigation prosecuted by a personal representative for the primary purpose of enhancing

his prospects for compensation would not be in good faith.

A personal representative is a fiduciary for successors of the estate (Section 3-703).

Though the will naming him may not yet be probated, the priority for appointment conferred by
Section 3-203 on one named executor in a probated will means that the person named has an
interest, as a fiduciary, in seeking the probate of the will. Hence, he is an interested person
within the meaning of Sections 3-301 and 3-401. Section 3-912 gives the successors of an estate
control over the executor, provided all are competent adults. So, if all persons possibly
interested in the probate of a will, including trustees of any trusts created thereby, concur in
directing the named executor to refrain from efforts to probate the instrument, he would lose
standing to proceed. All of these observations apply with equal force to the case where the
named executor of one instrument seeks to contest the probate of another instrument. Thus, the
Code changes the idea followed in some jurisdictions that an executor lacks standing to contest
other wills which, if valid, would supersede the will naming him, and standing to oppose other
contests that may be mounted against the instrument nominating him.

SECTION 3-721. PROCEEDINGS FOR REVIEW OF EMPLOYMENT OF

AGENTS AND COMPENSATION OF PERSONAL REPRESENTATIVES AND

EMPLOYEES OF ESTATE. After notice to all interested persons or on petition of an

interested person or on appropriate motion if administration is supervised, the propriety of

employment of any person by a personal representative including any attorney, auditor,

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investment advisor or other specialized agent or assistant, the reasonableness of the

compensation of any person so employed, or the reasonableness of compensation for the

personal representative’s services, may be reviewed by the court. Any person who has received

excessive compensation from an estate for services rendered may be ordered to make appropriate

refunds.

Comment

In view of the broad jurisdiction conferred on the probate court by Section 3-105,
description of the special proceeding authorized by this section might be unnecessary. But, the
Code’s theory that personal representatives may fix their own fees and those of estate attorneys
marks an important departure from much existing practice under which fees are determined by
the court in the first instance. Hence, it seemed wise to emphasize that any interested person can
get judicial review of fees if he desires it. Also, if excessive fees have been paid, this section
provides a quick and efficient remedy.

PART 8. CREDITOR’S CLAIMS

GENERAL COMMENT

The need for uniformity of law regarding creditors’ claims against estates is especially
strong. Commercial and consumer credit depends upon efficient collection procedures. The cost
of credit is pushed up by the cost of credit life insurance which becomes a practical necessity for
lenders unwilling to bear the expense of understanding or using the cumbersome and provincial
collection procedures found in 50 codes of probate.

The sections which follow facilitate collection of claims against decedents in several
ways. First, a simple written statement mailed to the personal representative is a sufficient
“claim.” Allowance of claims is handled by the personal representative and is assumed if a
claimant is not advised of disallowance. Also, a personal representative may pay any just claims
without presentation and at any time, if he is willing to assume risks which will be minimal in
many cases. The period of uncertainty regarding possible claims is only four months from first
publication. This should expedite settlement and distribution of estates.

SECTION 3-801. NOTICE TO CREDITORS.

(a) Unless notice has already been given under this section, a personal representative

upon appointment [may] [shall] publish a notice to creditors once a week for three successive

weeks in a newspaper of general circulation in the [county] announcing the appointment and the

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personal representative’s address and notifying creditors of the estate to present their claims

within four months after the date of the first publication of the notice or be forever barred.

(b) A personal representative may give written notice by mail or other delivery to a

creditor, notifying the creditor to present his [or her] claim within four months after the

published notice, if given as provided in subsection (a), or within 60 days after the mailing or

other delivery of the notice, whichever is later, or be forever barred. Written notice must be the

notice described in subsection (a) above or a similar notice.

(c) The personal representative is not liable to a creditor or to a successor of the decedent

for giving or failing to give notice under this section.

Comment

Section 3-1203, relating to small estates, contains an important qualification on the duty
created by this section.

In 1989, the Joint Editorial Board recommended replacement of the word “shall” with
“[may] [shall]” in (a) to signal its approval of a choice between mandatory publication and
optional publication of notice to creditors to be made by the legislature in an enacting state.
Publication of notice to creditors is quite expensive in some populous areas of the country and, if
Tulsa Professional Collection Services v. Pope, 108 S.Ct. 1340, 485 U.S. 478 (1988) applies to
this code, is useless except to bar unknown creditors. Even if Pope does not apply, personal
representatives for estates involving successors willing to assume the risk of unbarred claims
should have (and have had under the code as a practical consequence of absence of court
supervision and mandatory closings) the option of failing to publish.

Additional discussion of the impact of Pope on the Code appears in the Comment to
Section 3-803, infra.

If a state elects to make publication of notice to creditors a duty for personal

representatives, failure to advertise for claims would involve a breach of duty on the part of the
personal representative. If, as a result of such breach, a claim is later asserted against a
distributee under Section 3-1004, the personal representative may be liable to the distributee for
costs related to discharge of the claim and the recovery of contribution from other distributees.
The protection afforded personal representatives under Section 3-1003 would not be available,
for that section applies only if the personal representative truthfully recites that the time limit for
presentation of claims has expired.

Putting aside Pope case concerns regarding state action under this code, it might be

417
appropriate, by legislation, to channel publications through the personnel of the probate court.
See Section 1-401. If notices are controlled by a centralized authority, some assurance could be
gained against publication in newspapers of small circulation. Also, the form of notices could be
made uniform and certain efficiencies could be achieved. For example, it would be compatible
with this section for the court to publish a single notice each day or each week listing the names
of personal representatives appointed since the last publication, with addresses and dates of non-
claim.

SECTION 3-802. STATUTES OF LIMITATIONS.

(a) Unless an estate is insolvent, the personal representative, with the consent of all

successors whose interests would be affected, may waive any defense of limitations available to

the estate. If the defense is not waived, no claim barred by a statute of limitations at the time of

the decedent’s death may be allowed or paid.

(b) The running of a statute of limitations measured from an event other than death or the

giving of notice to creditors is suspended for four months after the decedent’s death, but resumes

thereafter as to claims not barred by other sections.

(c) For purposes of a statute of limitations, the presentation of a claim pursuant to Section

3-804 is equivalent to commencement of a proceeding on the claim.

Comment

This section means that four months is added to the normal period of limitations by
reason of a debtor’s death before a debt is barred. It implies also that after the expiration of four
months from death, the normal statute of limitations may run and bar a claim even though the
non-claim provisions of Section 3-803 have not been triggered. Hence, the non-claim and
limitation provisions of Section 3-803 are not mutually exclusive.

It should be noted that under Sections 3-803 and 3-804 it is possible for a claim to be
barred by the process of claim, disallowance and failure by the creditor to commence a
proceeding to enforce his claim prior to the end of the four month suspension period. Thus, the
regular statute of limitations applicable during the debtor’s lifetime, the non-claim provisions of
Sections 3-803 and 3-804, and the three-year limitation of Section 3-803 all have potential
application to a claim. The first of the three to accomplish a bar controls.

In 1975, the Joint Editorial Board recommended a change that makes it clear that only
those successors who would be affected thereby, must agree to a waiver of a defense of
limitations available to an estate. As the original text stood, the section appeared to require the

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consent of “all successors,” even though this would include some who, under the rules of
abatement, could not possibly be affected by allowance and payment of the claim in question.

In 1989, in connection with other amendments recommended in sequel to Tulsa

Professional Collection Services v. Pope, 108 S.Ct. 1340, 485 U.S. 478 (1988), the Joint
Editorial Board recommended the splitting out, into subsections (b) and (c), of the last two
sentences of what formerly was a four-sentence section. The first two sentences now appear as
subsection (a). The rearrangement aids understanding that the section deals with three separable
ideas. No other change in language is involved, and the timing of the changes to coincide with
Pope case amendments is purely coincidental.

SECTION 3-803. LIMITATIONS OF PRESENTATIONS OF CLAIMS.

(a) All claims against a decedent’s estate which arose before the death of the decedent,

including claims of the state and any subdivision thereof, whether due or to become due,

absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis,

if not barred earlier by another statute of limitations or non-claim statute, are barred against the

estate, the personal representative, and the heirs and devisees and nonprobate transferees of the

decedent, unless presented within the earlier of the following:

(1) one year after the decedent’s death; or

(2) the time provided by Section 3-801(b) for creditors who are given actual

notice, and within the time provided in 3-801(a) for all creditors barred by publication.

(b) A claim described in subsection (a) which is barred by the non-claim statute of the

decedent’s domicile before the giving of notice to creditors in this State is barred in this State.

(c) All claims against a decedent’s estate which arise at or after the death of the decedent,

including claims of the state and any subdivision thereof, whether due or to become due,

absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis,

are barred against the estate, the personal representative, and the heirs and devisees of the

decedent, unless presented as follows:

(1) a claim based on a contract with the personal representative, within four

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months after performance by the personal representative is due; or

(2) any other claim, within the later of four months after it arises, or the time

specified in subsection (a)(1).

(d) Nothing in this section affects or prevents:

(1) any proceeding to enforce any mortgage, pledge, or other lien upon property

of the estate;

(2) to the limits of the insurance protection only, any proceeding to establish

liability of the decedent or the personal representative for which there is protection through

liability insurance; or

(3) collection of compensation for services rendered and reimbursement for

expenses advanced by the personal representative or by the attorney or accountant for the

personal representative of the estate.

Comment

There was some disagreement among the Reporters over whether a short period of
limitations, or of non-claim, should be provided for claims arising at or after death. Subsection
(c) was finally inserted because most felt it was desirable to accelerate the time when
unadjudicated distributions would be final. The time limits stated would not, of course, affect
any personal liability in contract, tort, or by statute, of the personal representative. Under
Section 3-808 a personal representative is not liable on transactions entered into on behalf of the
estate unless he agrees to be personally liable or unless he breaches a duty by making the
contract. Creditors of the estate and not of the personal representative thus face a special
limitation that runs four months after performance is due from the personal representative. Tort
claims normally will involve casualty insurance of the decedent or of the personal representative,
and so will fall within the exception of subsection (d). If a personal representative is personally
at fault in respect to a tort claim arising after the decedent’s death, his personal liability would
not be affected by the running of the special short period provided here.

In 1989, the Joint Editorial Board recommended amendments to subsection (a). The
change in paragraph (1) shortens the ultimate limitations period on claims against a decedent
from three years after death to one year after death. Corresponding amendments were
recommended for Sections 3-1003(a)(1) and 3-1006. The new one-year from death limitation
(which applies without regard to whether or when an estate is opened for administration) is
designed to prevent concerns stemming from the possible applicability to this Code of Tulsa

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Professional Collection Services v. Pope, 108 S.Ct. 1340, 485 U.S. 478 (1988) from unduly
prolonging estate settlements and closings.

Subsection (a)(2), by reference to Sections 3-801(a) and 3-801(b), adds an additional

method of barring a prospective claimant of whom the personal representative is aware. The
new bar is available when it is appropriate, under all of the circumstances, to send a mailed
warning to one or more known claimants who have not presented claims that the recipient’s
claim will be barred if not presented within 60 days from the notice. This optional, mailed
notice, described in accompanying new text in Section 3-801(b), is designed to enhance the
ability of personal representatives to protect distributees against pass-through liability (under
Section 3-1004) to possibly unbarred claimants. Personal representatives acting in the best
interests of successors to the estate (see Section 3-703(a) and the definition of “successors” in
Section 1-201(49)) may determine that successors are willing to assume risks (i) that Pope,
supra, will be held to apply to this Code in spite of absence of any significant contact between an
agency of the state and the acts of a personal representative operating independently of court
supervision; and (ii) that a possibly unbarred claim is valid and will be pursued by its owner
against estate distributees in time to avoid bar via the earliest to run of its own limitation period
(which, under Section 3-802(b), resumes running four months after death), or the one-year from
death limitation now provided by Section 3-803(a)(1). If publication of notice as provided in
Section 3-801 has occurred and if Pope either is inapplicable to this Code or is applicable but the
late-arising claim in question is judged to have been unknown to the personal representative and
unlikely to have been discovered by reasonable effort, an earlier, four months from first
publication bar will apply.

The Joint Editorial Board recognized that the new bar running one year after death may
be used by some sets of successors to avoid payment of claims against their decedents of which
they are aware. Successors who are willing to delay receipt and enjoyment of inheritances may
consider waiting out the non-claim period running from death simply to avoid any public record
of an administration that might alert known and unknown creditors to pursue their claims. The
scenario was deemed to be unlikely, however, for unpaid creditors of a decedent are interested
persons (Section 1-201(23)) who are qualified to force the opening of an estate for purposes of
presenting and enforcing claims. Further, successors who delay opening an administration will
suffer from lack of proof of title to estate assets and attendant inability to enjoy their
inheritances. Finally, the odds that holders of important claims against the decedent will need
help in learning of the death and proper place of administration is rather small. Any benefit to
such claimants of additional procedures designed to compel administrations and to locate and
warn claimants of an impending non-claim bar, is quite likely to be heavily outweighed by the
costs such procedures would impose on all estates, the vast majority of which are routinely
applied to quick payment of the decedents’ bills and distributed without any creditor controversy.

Note that the new bar described by Section 3-801(b) and Section 3-803(a)(2) is the earlier
of one year from death or the period described by reference to Sections 3-801(b) and 3-801(a) in
Section 3-803(a)(2). If publication of notice is made under Section 3-801(a), and the personal
representative thereafter gives actual notice to a known creditor, when is the creditor barred? If
the actual notice is given less than 60 days prior to the expiration of the four months from first
publication period, the claim will not be barred four months after first publication because the

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actual notice given by Section 3-801(b) advises the creditor that it has no less than 60 days to
present the claim. It is as if the personal representative gave the claimant a written waiver of any
benefit the estate may have had by reason of the four month bar following published notice.
(c.f., the ability of a personal representative, under Section 3-802 to change claims from allowed
to disallowed, and vice versa, and the 60 day period given by Section 3-806(a) within which a
claimant may contest a disallowance). The period ending with the running of 60 days from
actual notice replaces the four month from publication period as the “time for original
presentation” referred to in Section 3-806(a).

Note, too, that if there is no publication of notice as provided in Section 3-801(a), the
giving of actual notice to known creditors establishes separate, 60 days from time of notice, non-
claim periods for those so notified. The failure to publish also means that no general non-claim
period, other than the one year period running from death, will be working for the estate. If an
actual notice to a creditor is given before notice by publication is given, a question arises as to
whether the 60 day period from actual notice, or the longer, four-month from publication applies.
Sections 3-801(a) and (b), which are pulled into Section 3-803(a)(2) by reference, make no
distinction between actual notices given before publication and those given after publication.
Hence, it would seem that the later time bar would control in either case. This reading also fits
more satisfactorily with Section 3-806(a) and other code language referring in various contexts
to “the time limit prescribed in Section 3-803.”

The proviso, formerly appended to Section 3-803(a)(1), regarding the effect in this state
of the prior running of a non-claim statute of the decedent’s domicile, has been restated as
Section 3-803(b), and former subsections (b) and (c) have been redesignated as (c) and (d). The
relocation of the proviso was made to improve the style of the section. No change of meaning is
intended.

The second paragraph of the original comment has been deleted because of inconsistency
with amended Section 3-803(a).

The 1989 changes recommended by the Joint Editorial Board relating to former Section
3-803(b) now designated as Section 3-803(c) are unrelated to the Pope case problem. The
original text failed to describe a satisfactory non-claim period for claims arising at or after the
decedent’s death other than claims based on contract. The four months “after [any other claim]
arises” period worked unjustly as to tort claims stemming from accidents causing the decedent’s
death by snuffing out claims too quickly, sometimes before an estate had been opened. The
language added by the 1989 amendment assures such claimants against any bar working prior to
the later of one year after death or four months from the time the claim arises.

The other change affecting what is now Section 3-803(d) is the addition of a third class of
items which are not barred by any time bar running from death, publication of notice to creditors,
or any actual notice given to an estate creditor. The addition resembles a modification to the
Code as enacted in Arizona.

1997 Technical Amendment. By technical amendment effective July 31, 1997, the
words “and nonprobate transferees” were added to subsection (a) to clarify that the Code’s non-

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claim bar protects probate as well as nonprobate successors against claims of unsatisfied
creditors of the decedent. Section 6-101(b) of the original Code, which was replaced by Section
6-102 in 1998, implied that unsatisfied creditors of the decedent had rights to reach nonprobate
transferees in payment of allowed claims but imposed no time bar.

SECTION 3-804. MANNER OF PRESENTATION OF CLAIMS. Claims against a

decedent’s estate may be presented as follows:

(1) The claimant may deliver or mail to the personal representative a written statement of

the claim indicating its basis, the name and address of the claimant, and the amount claimed, or

may file a written statement of the claim, in the form prescribed by rule, with the clerk of the

court. The claim is deemed presented on the first to occur of receipt of the written statement of

claim by the personal representative, or the filing of the claim with the court. If a claim is not yet

due, the date when it will become due shall be stated. If the claim is contingent or unliquidated,

the nature of the uncertainty shall be stated. If the claim is secured, the security shall be

described. Failure to describe correctly the security, the nature of any uncertainty, and the due

date of a claim not yet due does not invalidate the presentation made.

(2) The claimant may commence a proceeding against the personal representative in any

court where the personal representative may be subjected to jurisdiction, to obtain payment of a

claim against the estate, but the commencement of the proceeding must occur within the time

limited for presenting the claim. No presentation of claim is required in regard to matters claimed

in proceedings against the decedent which were pending at the time of death.

(3) If a claim is presented under paragraph (1), no proceeding thereon may be

commenced more than 60 days after the personal representative has mailed a notice of

disallowance; but, in the case of a claim which is not presently due or which is contingent or

unliquidated, the personal representative may consent to an extension of the 60-day period, or to

avoid injustice the court, on petition, may order an extension of the 60-day period, but in no

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event shall the extension run beyond the applicable statute of limitations.

Comment

The filing of a claim with the probate court under (a) of this section does not serve to
initiate a proceeding concerning the claim. Rather, it serves merely to protect the claimant who
may anticipate some need for evidence to show that his claim is not barred. The probate court
acts simply as a depository of the statement of claim, as is true of its responsibility for an
inventory filed with it under Section 3-706.

In reading this section it is important to remember that a regular statute of limitation may
run to bar a claim before the non-claim provisions run. See Section 3-802.

SECTION 3-805. CLASSIFICATION OF CLAIMS.

(a) If the applicable assets of the estate are insufficient to pay all claims in full, the

personal representative shall make payment in the following order:

(1) costs and expenses of administration;

(2) reasonable funeral expenses;

(3) debts and taxes with preference under federal law;

(4) reasonable and necessary medical and hospital expenses of the last illness of

the decedent, including compensation of persons attending the decedent;

(5) debts and taxes with preference under other laws of this state; and

(6) all other claims.

(b) No preference shall be given in the payment of any claim over any other claim of the

same class, and a claim due and payable shall not be entitled to a preference over claims not due.

Comment

In 1975, the Joint Editorial Board recommended the separation of funeral expenses from
the items now accorded fourth priority. Under federal law, funeral expenses, but not debts
incurred by the decedent can be given priority over claims of the United States.

SECTION 3-806. ALLOWANCE OF CLAIMS.

(a) As to claims presented in the manner described in Section 3-804 within the time limit

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prescribed in 3-803, the personal representative may mail a notice to any claimant stating that the

claim has been disallowed. If, after allowing or disallowing a claim, the personal representative

changes a decision concerning the claim, the personal representative shall notify the claimant.

The personal representative may not change a disallowance of a claim after the time for the

claimant to file a petition for allowance or to commence a proceeding on the claim has run and

the claim has been barred. Every claim which is disallowed in whole or in part by the personal

representative is barred so far as not allowed unless the claimant files a petition for allowance in

the court or commences a proceeding against the personal representative not later than 60 days

after the mailing of the notice of disallowance or partial allowance if the notice warns the

claimant of the impending bar. Failure of the personal representative to mail notice to a claimant

of action on a claim for 60 days after the time for original presentation of the claim has expired

has the effect of a notice of allowance.

(b) After allowing or disallowing a claim the personal representative may change the

allowance or disallowance as hereafter provided. The personal representative may prior to

payment change the allowance to a disallowance in whole or in part, but not after allowance by a

court order or judgment or an order directing payment of the claim. The personal representative

shall notify the claimant of the change to disallowance, and the disallowed claim is then subject

to bar as provided in subsection (a). The personal representative may change a disallowance to

an allowance, in whole or in part, until it is barred under subsection (a); after it is barred, it may

be allowed and paid only if the estate is solvent and all successors whose interests would be

affected consent.

(c) Upon the petition of the personal representative or of a claimant in a proceeding for

the purpose, the court may allow in whole or in part any claim or claims presented to the

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personal representative or filed with the clerk of the court in due time and not barred by

subsection (a). Notice in this proceeding shall be given to the claimant, the personal

representative and those other persons interested in the estate as the court may direct by order

entered at the time the proceeding is commenced.

(d) A judgment in a proceeding in another court against a personal representative to

enforce a claim against a decedent’s estate is an allowance of the claim.

(e) Unless otherwise provided in any judgment in another court entered against the

personal representative, allowed claims bear interest at the legal rate for the period commencing

60 days after the time for original presentation of the claim has expired unless based on a

contract making a provision for interest, in which case they bear interest in accordance with that

provision.

SECTION 3-807. PAYMENT OF CLAIMS.

(a) Upon the expiration of the earlier of the time limitations provided in Section 3-803 for

the presentation of claims, the personal representative shall proceed to pay the claims allowed

against the estate in the order of priority prescribed, after making provision for homestead,

family and support allowances, for claims already presented that have not yet been allowed or

whose allowance has been appealed, and for unbarred claims that may yet be presented,

including costs and expenses of administration. By petition to the court in a proceeding for the

purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has

been allowed but not paid may secure an order directing the personal representative to pay the

claim to the extent funds of the estate are available to pay it.

(b) The personal representative at any time may pay any just claim that has not been

barred, with or without formal presentation, but is personally liable to any other claimant whose

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claim is allowed and who is injured by its payment if:

(1) payment was made before the expiration of the time limit stated in subsection

(a) and the personal representative failed to require the payee to give adequate security for the

refund of any of the payment necessary to pay other claimants; or

(2) payment was made, due to negligence or willful fault of the personal

representative, in such manner as to deprive the injured claimant of priority.

Comment

As recommended for amendment in 1989 by the Joint Editorial Board, the section directs
the personal representative to pay allowed claims at the earlier of one year from death or the
expiration of four months from first publication. This interpretation reflects that distribution
need not be delayed further on account of creditors’ claims once a time bar running from death
or publication has run, for known creditors who have failed to present claims by such time may
have received an actual notice leading to a bar 60 days thereafter and in any event can and should
be the occasion for withholding or the making of other provision by the personal representative
to cover the possibility of later presentation and allowance of such claims. Distribution would
also be appropriate whenever competent and solvent distributees expressly agree to indemnify
the estate for any claims remaining unbarred and undischarged after the distribution.

SECTION 3-808. INDIVIDUAL LIABILITY OF PERSONAL

REPRESENTATIVE.

(a) Unless otherwise provided in the contract, a personal representative is not individually

liable on a contract properly entered into in a fiduciary capacity in the courseof administration of

the estate unless the personal representative fails to reveal the representative capacity and

identify the estate in the contract.

(b) A personal representative is individually liable for obligations arising from ownership

or control of the estate or for torts committed in the course of administration of the estate only if

personally at fault.

(c) Claims based on contracts entered into by a personal representative in a fiduciary

capacity, on obligations arising from ownership or control of the estate or on torts committed in

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the course of estate administration may be asserted against the estate by proceeding against the

personal representative in a fiduciarycapacity, whether or not the personal representative is

individually liable therefor.

(d) Issues of liability as between the estate and the personal representative individually

may be determined in a proceeding for accounting, surcharge or indemnification or other

appropriate proceeding.

Comment

In the absence of statute an executor, administrator or a trustee is personally liable on

contracts entered into in his fiduciary capacity unless he expressly excludes personal liability in
the contract. He is commonly personally liable for obligations stemming from ownership or
possession of the property (e.g., taxes) and for torts committed by servants employed in the
management of the property. The claimant ordinarily can reach the estate only after exhausting
his remedies against the fiduciary as an individual and then only to the extent that the fiduciary is
entitled to indemnity from the property. This and the following sections are designed to make
the estate a quasi-corporation for purposes of such liabilities. The personal representative would
be personally liable only if an agent for a corporation would be under the same circumstances,
and the claimant has a direct remedy against the quasi-corporate property.

SECTION 3-809. SECURED CLAIMS. Payment of a secured claim is upon the basis

of the amount allowed if the creditor surrenders the security; otherwise payment is upon the basis

of one of the following:

(1) if the creditor exhausts the security before receiving payment, [unless precluded by

other law] upon the amount of the claim allowed less the fair value of the security; or

(2) if the creditor does not have the right to exhaust the security or has not done so, upon

the amount of the claim allowed less the value of the security determined by converting it into

money according to the terms of the agreement pursuant to which the security was delivered to

the creditor, or by the creditor and personal representative by agreement, arbitration,

compromise, or litigation.

SECTION 3-810. CLAIMS NOT DUE AND CONTINGENT OR

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UNLIQUIDATED CLAIMS.

(a) If a claim which will become due at a future time or a contingent or unliquidated claim

becomes due or certain before the distribution of the estate, and if the claim has been allowed or

established by a proceeding, it is paid in the same manner as presently due and absolute claims of

the same class.

(b) In other cases the personal representative or, on petition of the personal representative

or the claimant in a special proceeding for the purpose, the court may provide for payment as

follows:

(1) if the claimant consents, the claimant may be paid the present or agreed value

of the claim, taking any uncertainty into account;

(2) arrangement for future payment, or possible payment, on the happening of the

contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a

bond or security from a distributee, or otherwise.

SECTION 3-811. COUNTERCLAIMS. In allowing a claim the personal

representative may deduct any counterclaim which the estate has against the claimant. In

determining a claim against an estate a court shall reduce the amount allowed by the amount of

any counterclaims and, if the counterclaims exceed the claim, render a judgment against the

claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from

a transaction other than that upon which the claim is based. A counterclaim may give rise to

relief exceeding in amount or different in kind from that sought in the claim.

SECTION 3-812. EXECUTION AND LEVIES PROHIBITED. No execution may

issue upon nor may any levy be made against any property of the estate under any judgment

against a decedent or a personal representative, but this section shall not be construed to prevent

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the enforcement of mortgages, pledges or liens upon real or personal property in an appropriate

proceeding.

SECTION 3-813. COMPROMISE OF CLAIMS. When a claim against the estate has

been presented in any manner, the personal representative may, if it appears for the best interest

of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or

unliquidated.

SECTION 3-814. ENCUMBERED ASSETS. If any assets of the estate are

encumbered by mortgage, pledge, lien, or other security interest, the personal representative may

pay the encumbrance or any part thereof, renew or extend any obligation secured by the

encumbrance or convey or transfer the assets to the creditor in satisfaction of the lien, in whole

or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be

for the best interest of the estate. Payment of an encumbrance does not increase the share of the

distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

Comment

Section 2-609 establishes a rule of construction against exoneration. Thus, unless the
will indicates to the contrary, a specific devisee of mortgaged property takes subject to the lien
without right to have other assets applied to discharge the secured obligation.

In 1975, the Joint Editorial Board recommended substitution of the word “presented”, in
the first sentence, for the word “filed” in the original text. The change aligns this section with
Section 3-804, which describes several methods, including mailing or delivery to the personal
representative, as methods of protecting a claim against non-claim provisions of the Code.

SECTION 3-815. ADMINISTRATION IN MORE THAN ONE STATE; DUTY OF

PERSONAL REPRESENTATIVE.

(a) All assets of estates being administered in this state are subject to all claims,

allowances and charges existing or established against the personal representative wherever

appointed.

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(b) If the estate either in this state or as a whole is insufficient to cover all family

exemptions and allowances determined by the law of the decedent’s domicile, prior charges and

claims, after satisfaction of the exemptions, allowances and charges, each claimant whose claim

has been allowed either in this state or elsewhere in administrations of which the personal

representative is aware, is entitled to receive payment of an equal proportion of the claim. If a

preference or security in regard to a claim is allowed in another jurisdiction but not in this state,

the creditor so benefited is to receive dividends from local assets only upon the balance of the

claim after deducting the amount of the benefit.

(c) In case the family exemptions and allowances, prior charges and claims of the entire

estate exceed the total value of the portions of the estate being administered separately and this

state is not the state of the decedent’s last domicile, the claims allowed in this state shall be paid

their proportion if local assets are adequate for the purpose, and the balance of local assets shall

be transferred to the domiciliary personal representative. If local assets are not sufficient to pay

all claims allowed in this state the amount to which they are entitled, local assets shall be

marshalled so that each claim allowed in this state is paid its proportion as far as possible, after

taking into account all dividends on claims allowed in this state from assets in other jurisdictions.

Comment

Under Section 3-803(a)(1), if a local (property only) administration is commenced and

proceeds to advertisement for claims before non-claim statutes have run at domicile, claimants
may prove claims in the local administration at any time before the local non-claim period
expires. Section 3-815 has the effect of subjecting all assets of the decedent, wherever they may
be located and administered, to claims properly presented in any local administration. It is
necessary, however, that the personal representative of any portion of the estate be aware of
other administrations in order for him to become responsible for claims and charges established
against other administrations.

SECTION 3-816. FINAL DISTRIBUTION TO DOMICILIARY

REPRESENTATIVE. The estate of a non-resident decedent being administered by a personal

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representative appointed in this state shall, if there is a personal representative of the decedent’s

domicile willing to receive it, be distributed to the domiciliary personal representative for the

benefit of the successors of the decedent unless (i) by virtue of the decedent’s will, if any, and

applicable choice of law rules, the successors are identified pursuant to the local law of this state

without reference to the local law of the decedent’s domicile; (ii) the personal representative of

this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary

personal representative; or (iii) the court orders otherwise in a proceeding for a closing order

under Section 3-1001 or incident to the closing of a supervised administration. In other cases,

distribution of the estate of a decedent shall be made in accordance with the other [parts] of this

[article].

PART 9. SPECIAL PROVISIONS RELATING TO DISTRIBUTION

SECTION 3-901. SUCCESSORS’ RIGHTS IF NO ADMINISTRATION. In the

absence of administration, the heirs and devisees are entitled to the estate in accordance with the

terms of a probated will or the laws of intestate succession. Devisees may establish title by the

probated will to devised property. Persons entitled to property by homestead allowance,

exemption or intestacy may establish title thereto by proof of the decedent’s ownership, death,

and their relationship to the decedent. Successors take subject to all charges incident to

administration, including the claims of creditors and allowances of surviving spouse and

dependent children, and subject to the rights of others resulting from abatement, retainer,

advancement, and ademption.

Comment

Title to a decedent’s property passes to his heirs and devisees at the time of his death.
See Section 3-101. This section adds little to Section 3-101 except to indicate how successors
may establish record title in the absence of administration.

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SECTION 3-902. DISTRIBUTION; ORDER IN WHICH ASSETS

APPROPRIATED; ABATEMENT.

(a) Except as provided in subsection (b) and except as provided in connection with the

share of the surviving spouse who elects to take an elective share, shares of distributees abate,

without any preference or priority as between real and personal property, in the following

order:(i) property not disposed of by the will; (ii) residuary devises; (iii) general devises; (iv)

specific devises. For purposes of abatement, a general devise charged on any specific property

or fund is a specific devise to the extent of the value of the property on which it is charged, and

upon the failure or insufficiency of the property on which it is charged, a general devise to the

extent of the failure or insufficiency. Abatement within each classification is in proportion to the

amounts of property each of the beneficiaries would have received, if full distribution of the

property had been made in accordance with the terms of the will.

(b) If the will expresses an order of abatement, or if the testamentary plan or the express

or implied purpose of the devise would be defeated by the order of abatement stated in

subsection (a), the shares of the distributees abate as may be found necessary to give effect to the

intention of the testator.

Alternative A

(c) If the subject of a preferred devise is sold or used incident to administration,

abatement shall be achieved by appropriate adjustments in, or contribution from, other interests

in the remaining assets.

Alternative B

(c) If an estate of a decedent consists partly of separate property and partly of community

property, the debts and expenses of administration shall be apportioned and charged against the

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different kinds of property in proportion to the relative value thereof.

(d) If the subject of a preferred devise is sold or used incident to administration,

abatement shall be achieved by appropriate adjustments in, or contribution from, other interests

in the remaining assets.

End of Alternatives

Comment

Alternative A is for common law states. Alternative B is for community property states.

A testator may determine the order in which the assets of his estate are applied to the
payment of his debts. If he does not, then the provisions of this section express rules which may
be regarded as approximating what testators generally want. The statutory order of abatement is
designed to aid in resolving doubts concerning the intention of a particular testator, rather than to
defeat his purpose. Hence, subsection (b) directs that consideration be given to the purpose of a
testator. This may be revealed in many ways. Thus, it is commonly held that, even in the
absence of statute, general legacies to a wife, or to persons with respect to which the testator is in
loco parentis, are to be preferred to other legacies in the same class because this accords with the
probable purpose of the legacies.

In Alternative B, Subsection (c) is suggested for inclusion in a community property state.

Its inclusion causes subsection (c) as drafted for common law states to be redesignated
subsection (d). As is the case with other insertions suggested in the Code for community
property states, the specific language of this draft is to be taken as illustrative.

SECTION 3-903. RIGHT OF RETAINER. The amount of a non-contingent

indebtedness of a successor to the estate if due, or its present value if not due, shall be offset

against the successor’s interest; but the successor has the benefit of any defense which would be

available to the successor in a direct proceeding for recovery of the debt.

SECTION 3-904. INTEREST ON GENERAL PECUNIARY DEVISE. General

pecuniary devises bear interest at the legal rate beginning one year after the first appointment of

a personal representative until payment, unless a contrary intent is indicated by the will.

Comment

Unlike the common law, this section provides that a general pecuniary devisee’s right to

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interest begins one year from the time when administration was commenced, rather than one year
from death. The rule provided here is similar to the common law rule in that the right to interest
for delayed payment does not depend on whether the estate in fact realized income during the
period of delay. The section is consistent with Section 202 of the Revised Uniform Principal and
Income Act (1997/2008) which allocates realized net income of an estate between various
categories of successors.

SECTION 3-905. PENALTY CLAUSE FOR CONTEST. A provision in a will

purporting to penalize any interested person for contesting the will or instituting other

proceedings relating to the estate is unenforceable if probable cause exists for instituting

proceedings.

SECTION 3-906. DISTRIBUTION IN KIND; VALUATION; METHOD.

(a) Unless a contrary intention is indicated by the will, the distributable assets of a

decedent’s estate shall be distributed in kind to the extent possible through application of the

following provisions:

(1) A specific devisee is entitled to distribution of the thing devised to the devisee,

and a spouse or child who has selected particular assets of an estate as provided in Section 2-403

shall receive the items selected.

(2) Any homestead or family allowance or devise of a stated sum of money may

be satisfied in kind provided

(A) the person entitled to the payment has not demanded payment in cash;

(B) the property distributed in kind is valued at fair market value as of the

date of its distribution; and

(C) no residuary devisee has requested that the asset in question remain a

part of the residue of the estate.

(3) For the purpose of valuation under paragraph (2), securities regularly traded on

recognized exchanges, if distributed in kind, are valued at the price for the last sale of like

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securities traded on the business day prior to distribution, or if there was no sale on that day, at

the median between amounts bid and offered at the close of that day. Assets consisting of sums

owed the decedent or the estate by solvent debtors as to which there is no known dispute or

defense are valued at the sum due with accrued interest or discounted to the date of distribution.

For assets which do not have readily ascertainable values, a valuation as of a date not more than

30 days prior to the date of distribution, if otherwise reasonable, controls. For purposes of

facilitating distribution, the personal representative may ascertain the value of the assets as of the

time of the proposed distribution in any reasonable way, including the employment of qualified

appraisers, even if the assets may have been previously appraised.

(4) The residuary estate shall be distributed in any equitable manner.

(b) After the probable charges against the estate are known, the personal representative

may mail or deliver a proposal for distribution to all persons who have a right to object to the

proposed distribution. The right of any distributee to object to the proposed distribution on the

basis of the kind or value of asset the distributee is to receive, if not waived earlier in writing,

terminates if the distributee fails to object in writing received by the personal representative

within 30 days after mailing or delivery of the proposal.

Comment

This section establishes a preference for distribution in kind. It directs a personal

representative to make distribution in kind whenever feasible and to convert assets to cash only
where there is a special reason for doing so. It provides a reasonable means for determining
value of assets distributed in kind.

SECTION 3-907. DISTRIBUTION IN KIND; EVIDENCE. If distribution in kind is

made, the personal representative shall execute an instrument or deed of distribution assigning,

transferring or releasing the assets to the distributee as evidence of the distributee’s title to the

property.

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Comment

This and sections following should be read with Section 3-709 which permits the
personal representative to leave certain assets of a decedent’s estate in the possession of the
person presumptively entitled thereto. The “release” contemplated by this section would be used
as evidence that the personal representative had determined that he would not need to disturb the
possession of an heir or devisee for purposes of administration.

Under Section 3-711, a personal representative’s relationship to assets of the estate is

described as the “same power over the title to property of the estate as an absolute owner would
have.” A personal representative may, however, acquire a full title to estate assets, as in the case
where particular items are conveyed to the personal representative by sellers, transfer agents or
others. The language of Section 3-907 is designed to cover instances where the instrument of
distribution operates as a transfer, as well as those in which its operation is more like a release.

SECTION 3-908. DISTRIBUTION; RIGHT OR TITLE OF DISTRIBUTEE. Proof

that a distributee has received an instrument or deed of distribution of assets in kind, or payment

in distribution, from a personal representative, is conclusive evidence that the distributee has

succeeded to the interest of the estate in the distributed assets, as against all persons interested in

the estate, except that the personal representative may recover the assets or their value if the

distribution was improper.

Comment

The purpose of this section is to channel controversies which may arise among successors
of a decedent because of improper distributions through the personal representative who made
the distribution, or a successor personal representative. Section 3-108 does not bar appointment
proceedings initiated to secure appointment of a personal representative to correct an erroneous
distribution made by a prior representative. But see Section 3-1006.

SECTION 3-909. IMPROPER DISTRIBUTION; LIABILITY OF DISTRIBUTEE.

Unless the distribution or payment no longer can be questioned because of adjudication,

estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who

was improperly paid, is liable to return the property improperly received and its income since

distribution if the distributee or claimant has the property. If the distributee or claimant does not

have the property, the distributee or claimant is liable to return the value as of the date of

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disposition of the property improperly received and income and gain on the property.

Comment

The term “improperly” as used in this section must be read in light of Section 3-703 and
the manifest purpose of this and other sections of the Code to shift questions concerning the
propriety of various distributions from the fiduciary to the distributees in order to prevent every
administration from becoming an adjudicated matter. Thus, a distribution may be “authorized at
the time” as contemplated by Section 3-703, and still be “improper” under this section. Section
3-703 is designed to permit a personal representative to distribute without risk in some cases,
even though there has been no adjudication. When an unadjudicated distribution has occurred,
the rights of persons to show that the basis for the distribution (e.g., an informally probated will,
or informally issued letters of administration) is incorrect, or that the basis was improperly
applied (erroneous interpretation, for example) is preserved against distributees by this section.

The definition of “distributee” to include the trustee and beneficiary of a testamentary

trust in Section 1-201(12) is important in allocating liabilities that may arise under Sections 3-
909 and 3-910 on improper distribution by the personal representative under an informally
probated will. The provisions of Sections 3-909 and 3-910 are based on the theory that liability
follows the property and the fiduciary is absolved from liability by reliance upon the informally
probated will.

SECTION 3-910. PURCHASERS FROM DISTRIBUTEES PROTECTED. If

property distributed in kind or a security interest therein is acquired for value by a purchaser

from or lender to a distributee who has received an instrument or deed of distribution from the

personal representative, or is so acquired by a purchaser from or lender to a transferee from such

distributee, the purchaser or lender takes title free of rights of any interested person in the estate

and incurs no personal liability to the estate, or to any interested person, whether or not the

distribution was proper or supported by court order or the authority of the personal representative

was terminated before execution of the instrument or deed. This section protects a purchaser

from or lender to a distributee who, as personal representative, has executed a deed of

distribution to the distrbutee, as well as a purchaser from or lender to any other distributee or the

distributee’s transferee. To be protected under this provision, a purchaser or lender need not

inquire whether a personal representative acted properly in making the distribution in kind, even

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if the personal representative and the distributee are the same person, or whether the authority of

the personal representative had terminated before the distribution. Any recorded instrument

described in this section on which a state documentary fee is noted pursuant to [insert

appropriate reference] shall be prima facie evidence that such transfer was made for value.

Comment

The words “instrument or deed of distribution” are explained in Section 3-907. The
effect of this section may be to make an instrument or deed of distribution a very desirable link
in a chain of title involving succession of land. Cf. Section 3-901.

In 1975, the Joint Editorial Board recommended additions that strengthen the protection
extended by this section to bona fide purchasers from distributees. The additional language was
derived from recommendations evolved with respect to the Colorado version of the Code by
probate and title authorities who agreed on language to relieve title assurers of doubts they had
identified in relation to some cases.

SECTION 3-911. PARTITION FOR PURPOSE OF DISTRIBUTION. When two

or more heirs or devisees are entitled to distribution of undivided interests in any real or personal

property of the estate, the personal representative or one or more of the heirs or devisees may

petition the court prior to the formal or informal closing of the estate, to make partition. After

notice to the interested heirs or devisees, the court shall partition the property in the same manner

as provided by the law for civil actions of partition. The court may direct the personal

representative to sell any property which cannot be partitioned without prejudice to the owners

and which cannot conveniently be allotted to any one party.

Comment

Ordinarily heirs or devisees desiring partition of a decedent’s property will resolve the
issue by agreement without resort to the courts. (See Section 3-912.) If court determination is
necessary, the court with jurisdiction to administer the estate has jurisdiction to partition the
property.

SECTION 3-912. PRIVATE AGREEMENTS AMONG SUCCESSORS TO

DECEDENT BINDING ON PERSONAL REPRESENTATIVE. Subject to the rights of

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creditors and taxing authorities, competent successors may agree among themselves to alter the

interests, shares, or amounts to which they are entitled under the will of the decedent, or under

the laws of intestacy, in any way that they provide in a written contract executed by all who are

affected by its provisions. The personal representative shall abide by the terms of the agreement

subject to the obligation to administer the estate for the benefit of creditors, to pay all taxes and

costs of administration, and to carry out the responsibilities of the office for the benefit of any

successors of the decedent who are not parties. Personal representatives of decedents’ estates are

not required to see to the performance of trusts if the trustee thereof is another person who is

willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the

purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of

trusts.

Comment

It may be asserted that this section is only a restatement of the obvious and should be
omitted. Its purpose, however, is to make it clear that the successors to an estate have residual
control over the way it is to be distributed. Hence, they may compel a personal representative to
administer and distribute as they may agree and direct. Successors should compare the
consequences and possible advantages of careful use of the power to renounce as described by
Section 2-801 with the effect of agreement under this section. The most obvious difference is
that an agreement among successors under this section would involve transfers by some
participants to the extent it changed the pattern of distribution from that otherwise applicable.

Differing from a pattern that is familiar in many states, this Code does not subject
testamentary trusts and trustees to special statutory provisions, or supervisory jurisdiction. A
testamentary trustee is treated as a devisee with special duties which are of no particular concern
to the personal representative.

Historical Note. This Comment was revised in 2010 to delete a cross-reference to

Article VII, which dealt with selected issues of trust law and which was withdrawn due to the
approval and widespread enactment of the Uniform Trust Code (2000/2005).

SECTION 3-913. DISTRIBUTIONS TO TRUSTEE.

(a) Before distributing to a trustee, the personal representative may require that the trust

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be registered if the state in which it is to be administered provides for registration and that the

trustee inform the beneficiaries as provided in [Section 813 of the Uniform Trust Code].

(b) If the trust instrument does not excuse the trustee from giving bond, the personal

representative may petition the appropriate court to require that the trustee post bond if the

personal representative apprehends that distribution might jeopardize the interests of persons

who are not able to protect themselves, and the personal representative may withhold distribution

until the court has acted.

(c) No inference of negligence on the part of the personal representative shall be drawn

from the failure to exercise the authority conferred by subsections (a) and (b).

Comment

This section is concerned with the fiduciary responsibility of the executor to beneficiaries
of trusts to which he may deliver. Normally, the trustee represents beneficiaries in matters
involving third persons, including prior fiduciaries. Yet, the executor may apprehend that
delivery to the trustee may involve risks for the safety of the fund and for him. For example, he
may be anxious to see that there is no equivocation about the devisee’s willingness to accept the
trust, and no problem of preserving evidence of the acceptance. He may have doubts about the
integrity of the trustee, or about his ability to function satisfactorily. The testator’s selection of
the trustee may have been based on facts which are still current, or which are of doubtful
relevance at the time of distribution. If the risks relate to the question of the trustee’s intention to
handle the fund without profit for himself, a conflict of interest problem is involved. If the risk
relates to the ability of the trustee to manage prudently, a more troublesome question is posed for
the executor. Is he, as executor, not bound to act in the best interests of the beneficiaries?

In many instances involving doubts of this sort, the executor probably will want the
protection of a court order. Sections 3-1001 and 3-1002 provide ample authority for an
appropriate proceeding in the court which issued the executor’s letters. Absent a court order, the
personal representative should consider demanding that the trustee notify the trust beneficiaries
of the distribution as authorized by subsection (a). States that have not enacted the Uniform
Trust Code should substitute a reference to their local statute on a trustee’s duty to keep the
beneficiaries informed.

In other cases, however, the executor may believe that he may be adequately protected if
the acceptance of the trust by the devisee is unequivocal, or if the trustee is bonded. The purpose
of this section is to make it clear that it is proper for the executor to require the trustee to register
the trust and to notify beneficiaries before receiving distribution. Also, the section complements
Section 702 of the Uniform Trust Code by providing that the personal representative may

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petition an appropriate court to require that the trustee be bonded.

Status of testamentary trustees under the Uniform Probate Code. Under the Uniform
Probate Code, the testamentary trustee by construction would be considered a devisee,
distributee, and successor to whom title passes at time of the testator’s death even though the will
must be probated to prove the transfer. The informally probated will is conclusive until set aside
and the personal representative may distribute to the trustee under the informally probated will or
settlement agreement and the title of the trustee as distributee represented by the instrument or
deed of distribution is conclusive until set aside on showing that it is improper. Should the
informally probated will be set aside or the distribution to the trustee be shown to be improper,
the trustee as distributee would be liable for value received but purchasers for value from the
trustee as distributee under an instrument of distribution would be protected. Section 1-201’s
definition of “distributee” limits the distributee liability of the trustee and substitutes that of the
trust beneficiaries to the extent of distributions by the trustee.

As a distributee as defined by Section 1-201, the testamentary trustee or beneficiary of a

testamentary trust is liable to claimants like other distributees, would have the right of
contribution from other distributees of the decedent’s estate and would be protected by the same
time limitations as other distributees (Section 3-1006).

Incident to his standing as a distributee of the decedent’s estate, the testamentary trustee
would be an interested party who could petition for an order of complete settlement by the
personal representative or for an order terminating testate administration. He also could
appropriately receive the personal representative’s account and distribution under a closing
statement. As distributee he could represent his beneficiaries in compromise settlements in the
decedent’s estate which would be binding upon him and his beneficiaries. See Section 3-912.

The general fiduciary responsibilities of the testamentary trustee are not altered by the
Uniform Probate Code and the trustee continues to have the duty to collect and reduce to
possession within a reasonable time the assets of the trust estate including the enforcement of
any claims on behalf of the trust against prior fiduciaries, including the personal representative,
and third parties.

2010 Technical Amendment: By technical amendment, cross-references in this section

to Article VII of this Code were replaced by references to comparable provisions of the Uniform
Trust Code (2000/2005) and the Comment was revised accordingly.

[SECTION 3-914. DISPOSITION OF UNCLAIMED ASSETS.

(a) If an heir, devisee or claimant cannot be found, the personal representative shall

distribute the share of the missing person to the person’s conservator, if any, otherwise to the

[state treasurer] to become a part of the [state escheat fund].

(b) The money received by [state treasurer] shall be paid to the person entitled on proof

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of the person’s right thereto or, if the [state treasurer] refuses or fails to pay, the person may

petition the court which appointed the personal representative, whereupon the court upon notice

to the [state treasurer] may determine the person entitled to the money and order the [treasurer] to

pay it to the person. No interest is allowed thereon and the heir, devisee or claimant shall pay all

costs and expenses incident to the proceeding. If no petition is made to the [court] within eight

years after payment to the [state treasurer], the right of recovery is barred.]

Comment

The foregoing section is bracketed to indicate that the National Conference does not urge
the specific content as set forth above over recent comprehensive legislation on the subject which
may have been enacted in an adopting state.

This section applies when it is believed that a claimant, heir or distributee exists but he
cannot be located. See Section 2-105.

SECTION 3-915. DISTRIBUTION TO PERSON UNDER DISABILITY.

(a) A personal representative may discharge the obligation to distribute to any person

under legal disability by distributing in a manner expressly provided in the will.

(b) Unless contrary to an express provision in the will, the personal representative may

discharge the obligation to distribute to a minor or person under other disability as authorized by

Section 5-104 or any other statute. If the personal representative knows that a conservator has

been appointed or that a proceeding for appointment of a conservator is pending, the personal

representative is authorized to distribute only to the conservator.

(c) If the heir or devisee is under disability other than minority, the personal

representative is authorized to distribute to:

(1) an attorney in fact who has authority under a power of attorney to receive

property for that person; or

(2) the spouse, parent or other close relative with whom the person under

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disability resides if the distribution is of amounts not exceeding [$10,000] a year, or property not

exceeding [$50,000] in value, unless the court authorizes a larger amount or greater value.

Persons receiving money or property for the disabled person are obligated to apply the money or

property to the support of that person, but may not pay themselves except by way of

reimbursement for out-of-pocket expenses for goods and services necessary for the support of

the disabled person. Excess sums must be preserved for future support of the disabled person.

The personal representative is not responsible for the proper application of money or property

distributed pursuant to this subsection.

Comment

Section 5-104, which is referred to in subsection (b), is especially important as a possible

source of authority for a valid discharge for payment or distribution made on behalf of a minor.

2010 Amendment: The value of property that can be distributed under subsection (c)(2)
to the spouse, parent or other close relative with whom the person under disability resides was
increased from $10,000 to $50,000 to account for inflation that has occurred since the Uniform
Probate Code was originally approved in 1969. The amount that can be distributed per year
under subsection (c)(1) to the spouse, parent or other close relative with whom the person under
disability resides was not increased so that the $10,000 limit in subsection (c)(1) conforms to the
comparable limit in Section 5-104.

SECTION 3-916. [RESERVED.]

PART 9A. UNIFORM ESTATE TAX APPORTIONMENT ACT (2003)

GENERAL COMMENT

Part 9A incorporates into the Uniform Probate Code the Uniform Estate Tax
Apportionment Act as revised in 2003 (UETAA or new UETAA). The new UETAA replaces
the Code’s former estate tax apportionment provision (Section 3-916), which incorporated into
the Code the former UETAA.

The Internal Revenue Code (IRC) places the primary responsibility for paying federal
estate taxes on the decedent’s executor and empowers, but does not direct, the executor to collect
from recipients of certain nonprobate transfers included in the taxable estate a prorated portion of
the estate tax attributable to those types of property. In the absence of specific contrary
directions of the decedent, the IRC generally provides as to other transfers that taxes are to be
borne by the persons who would bear that cost if the taxes were paid by the executor prior to

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distributing the estate. The determination of who should bear the ultimate burden of the estate
taxes is left to state law.

If a state does not have a statutory apportionment law, the burden of the estate taxes
generally will fall on residuary beneficiaries of the probate estate. This means that recipients of
many types of nonprobate assets (such as beneficiaries of revocable trusts and surviving joint
tenants) may be exonerated from paying a portion of the tax. Also, it generates a risk that
residual gifts to the spouse or a charity may result in a smaller deduction and a larger tax. A
number of states have adopted legislation apportioning the burden of estate taxes among the
beneficiaries.

The new UETAA replaces the former UETAA, which was promulgated in 1958 and
revised in 1964 and 1982.

The new UETAA continues to advance the principle of the former UETAA that the
decedent’s expressed intentions govern apportionment of an estate tax. Statutory apportionment
applies only to the extent there is no clear and effective decedent’s tax burden direction to the
contrary. Under the statutory scheme, marital and charitable beneficiaries generally are insulated
from bearing any of the estate tax, and a decedent’s direction that estate tax be paid from a gift to
be shared by a spouse or charity with another is construed to locate the tax burden only on the
taxable portion of the gift. The new UETAA provides relief for persons forced to pay estate tax
on values passing to others whose interests, though contributing to the tax, are unreachable by
the fiduciary. The new UETAA also addresses the allocation of the burden incurred because of
several federal transfer tax provisions that did not exist when the former UETAA was adopted.

SECTION 3-9A-101. SHORT TITLE. This [part] may be cited as the Uniform Estate

Tax Apportionment Act.

SECTION 3-9A-102. DEFINITIONS. In this [part]:

(1) “Apportionable estate” means the value of the gross estate as finally determined for

purposes of the estate tax to be apportioned reduced by:

(A) any claim or expense allowable as a deduction for purposes of the tax;

(B) the value of any interest in property that, for purposes of the tax, qualifies for

a marital or charitable deduction or otherwise is deductible or is exempt; and

(C) any amount added to the decedent’s gross estate because of a gift tax on

transfers made before death.

(2) “Estate tax” means a federal, state, or foreign tax imposed because of the death of an

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individual and interest and penalties associated with the tax. The term does not include an

inheritance tax, income tax, or generation-skipping transfer tax other than a generation-skipping

transfer tax incurred on a direct skip taking effect at death.

(3) “Gross estate” means, with respect to an estate tax, all interests in property subject to

the tax.

(4) “Person” means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, public corporation, government,

governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(5) “Ratable” means apportioned or allocated pro rata according to the relative values of

interests to which the term is to be applied. “Ratably” has a corresponding meaning.

(6) “Time-limited interest” means an interest in property which terminates on a lapse of

time or on the occurrence or nonoccurrence of an event or which is subject to the exercise of

discretion that could transfer a beneficial interest to another person. The term does not include a

cotenancy unless the cotenancy itself is a time-limited interest.

(7) “Value” means, with respect to an interest in property, fair market value as finally

determined for purposes of the estate tax that is to be apportioned, reduced by any outstanding

debt secured by the interest without reduction for taxes paid or required to be paid or for any

special valuation adjustment.

Comment

The starting point for calculating the apportionable estate is the value of the gross estate.
Since the properties included and deductions allowed for determining different taxes can differ,
the apportionable estate figure may not be the same for different taxes.

Property not included in the apportionable estate for an estate tax typically will not bear
any of that tax. However, the donee recipients of such property will bear part of an estate tax to
the extent that the available assets of the apportionable estate are insufficient to pay the tax. See
Sections 3-9A-106(c) and 3-9A-109(b). Since deductible transfers will not generate any estate

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tax, it is appropriate to insulate those transfers from the allocation of that tax to the extent that
properties of the apportionable estate are sufficient.

A gift tax paid by the decedent on a gift that was made by the decedent or the decedent’s
spouse within three years of the decedent’s death is added back to the decedent’s gross estate for
federal estate tax purposes by Internal Revenue Code § 2035(b). A state or foreign estate tax
may have a similar provision or effect. Paragraph (1)(C) excludes any such gift tax from the
apportionable estate.

The value of the apportionable estate is reduced by claims and expenditures that are
allowable estate tax deductions whether or not allowed. For example, administrative expenses
that could have been claimed as estate tax deductions, but instead are taken as income tax
deductions, will reduce the apportionable estate. When a decedent’s estate includes property in
more than one state, the apportionable estate for each state’s estate tax will be reduced by the
expenses and claims that are deductible for purposes of that tax. Where an expenditure cannot
be identified as pertaining to property in the gross estate of only one state tax, the expenditure is
to be apportioned ratably among the taxes of the states in which the relevant properties are
located, in accordance with the values of those properties.

A spouse’s elective share under Article II, Part 2, or a spouse’s share under Section 2-
301, is excluded from the apportionable estate to the extent that the spouse’s share qualifies for
an estate tax deduction. Other statutory claims against a decedent’s estate that do not qualify for
an estate tax deduction (for example, the claim of an omitted child under Section 2-302) do not
reduce the apportionable estate.

The term “estate tax” is defined in the UETAA to include all estate taxes and certain
generation-skipping taxes arising because of an individual’s death. The term estate tax does not
include any inheritance taxes, income taxes, gift taxes, or generation-skipping taxes incurred
because of a taxable termination, a taxable distribution, or an inter vivos direct skip. A
generation-skipping tax that is incurred because of a direct skip that takes place because of the
decedent’s death is included in the term “estate tax.”

No United States income tax is imposed on the unrealized appreciation of a decedent’s

assets at the time of death. While Canada and some other foreign countries impose an income
tax at death, those income taxes are not apportioned by the UETAA.

Some states impose an inheritance tax on recipients of property from a decedent. The
UETAA does not apportion those taxes.

The UETAA does not provide for the apportionment of the income tax payable on the
receipt of Income in Respect of a Decedent (IRD). If a decedent held an installment obligation
the payment on which is accelerated by the decedent’s death, the income tax incurred thereby is
not apportioned by the UETAA.

If a donor pays a gift tax during the donor’s life, the amount paid will not be part of the
donor’s assets when the donor dies; and so the gift tax will not be subject to apportionment

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among the persons interested in the donor’s gross estate. This consequence is consistent with the
typical donor’s wish that the gifts made during life pass to the donee free of any transfer tax. If
all or part of a gift tax was not paid at the time of the donor’s death and is subsequently paid by
the donor’s personal representative, the burden of the gift tax should lie with the same persons
who would have borne it if the donor had paid it during life, typically, the residuary
beneficiaries. A gift tax liability is not apportioned by the UETAA, but is treated the same as
any other debt of the estate. A gift tax deficiency that becomes due after the decedent’s death
also is treated as a debt of the decedent’s estate.

The kinds of death benefits included in a gross estate depend upon the particular estate
tax to be apportioned and may not be the same for each tax. For example, some state death taxes
will have an exemption for a homestead; some will exclude life insurance proceeds and pensions.
In determining the gross estate for such taxes, the property excluded from the tax will also be
excluded from the gross estate for that tax. Property that is deductible under an estate tax, such
as property that qualifies for a marital or charitable deduction, is nevertheless “subject to” that
tax and included in the gross estate. Once the value of the gross estate for an estate tax is
determined, the reductions described in Paragraph (1) are applied to ascertain the apportionable
estate.

A “time-limited interest” includes a term of years, a life interest, a life income interest, an
annuity interest, an interest that is subject to a power of transfer, a unitrust interest, and similar
interests, whether present or future, and whether held alone or in cotenancy. The fact that an
interest that otherwise is not a time-limited interest is held in cotenancy does not make it a time-
limited interest.

If a debt is secured by more than one interest in property, the value of each such interest
is the fair market value of that interest less a ratable portion of the debt that it secures.

If the beneficiary of an interest in property is required by the terms of the transfer to

make a payment to a third party or to pay a liability of the transferor, that obligation constitutes
an encumbrance on the property, but does not necessarily reduce the value of the apportionable
estate. If the obligation is to make a transfer or payment to a third party, other than an obligation
to satisfy a debt of the decedent based on money or money worth’s consideration, the right of the
third person constitutes an interest in the apportionable estate and so is subject to apportionment.

A decedent’s direction by will or other dispositive instrument that property controlled by

that instrument is to be used to pay a debt secured by an interest in property is an additional
bequest to the person who is to receive the interest securing the debt.

Taxes imposed on the transfer or receipt of property, regardless of whether a lien on the
property or payable by the recipient of the property, do not reduce the value of the property for
purposes of apportioning estate taxes by the UETAA.

The date on which gross estate property is to be valued for federal estate tax purposes
(and for some other estate tax purposes) is either the date of the decedent’s death or an alternate
valuation date elected by the decedent’s personal representative pursuant to the estate tax law.

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An estate tax value that is determined on the alternate valuation date is not, as such, a “special
valuation adjustment.” A “special valuation adjustment” refers to a reduction of the valuation of
an item included in the gross estate pursuant to a provision of the estate tax law. See the
Comment to Section 3-9A-107.

If a person has a right by contract or by the decedent’s will or other dispositive

instrument to purchase gross estate property at a price below its estate tax value, the estate tax
value of the property is the amount included in the value of the decedent’s gross estate. The
difference or discount between the purchase price and the estate tax value of the property can be
viewed as an interest which the decedent passed to that person. If the right to purchase is
exercised, the amount of the discount is the value of that person’s interest in the apportionable
estate.

The value of a person’s interest in the apportionable estate can depend upon the value of
the apportionable estate. So, the value of a residuary interest in a decedent’s estate will reflect
the amount of allowable deductions which, under the UETAA, reduce the apportionable estate,
but will not be reduced by expenditures that are not allowable deductions for that estate tax. The
formula for allocating estate taxes in Section 3-9A-104(1) utilizes a fraction of which the
numerator is the value of a person’s interest in the apportionable estate rather than the value of
the person’s interest in the net estate or in the taxable estate. Since the denominator of the
fraction is the value of the apportionable estate, the sum of the numerators of all persons having
an interest in the apportionable estate will equal the denominator, and so 100% of the estate taxes
will be apportioned. Consider the following example.

Example. D died leaving a gross estate with a value of $10,150,000 and made no
provision for apportionment of taxes. D’s will made pecuniary devises totaling $1,000,000, and
gave the residue to A and B equally. There are no claims against the estate and no marital or
charitable deductions are allowable. The funeral expenses are $10,000, and the estate incurred
administrative expenses of $240,000 of which, while all were allowed as administrative expenses
by the state probate court, $100,000 was disallowed by the Service for a federal estate tax
deduction on the ground that $100,000 of the expenses was not necessary for the administration
of the estate. See Rev. Rul. 77-461 and TAM 7912006. The personal representative elected to
deduct the remaining $140,000 of administrative expenses as a federal estate tax deduction. For
federal estate tax purposes, the apportionable estate is equal to the difference between the gross
estate ($10,150,000) and the allowable deductions of $150,000 ($140,000 deductible
administrative expenses and $10,000 deductible funeral expenses); and so the apportionable
estate is $10,000,000. The value of the two residuary beneficiaries’ interests in the apportionable
estate is equal to the difference between the entire apportionable estate of $10,000,000 and the
$1,000,000 that was devised to the pecuniary beneficiaries. While the residuary beneficiaries
will not receive any part of the $100,000 of administrative expenses for which no federal estate
tax deduction is allowable, that expense does not reduce the gross estate in determining the
apportionable estate, and so does not affect the value of their residuary interests for the purpose
of apportioning the federal estate tax. So, for purposes of apportioning the federal estate taxes,
each residuary beneficiary has an interest in the apportionable estate valued at $4,500,000, which
constitutes 45% of the apportionable estate of $10,000,000. Forty-five percent of the federal
estate taxes is apportioned each to A and B, and 10% of the federal estate taxes is apportioned to

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the pecuniary beneficiaries.

SECTION 3-9A-103. APPORTIONMENT BY WILL OR OTHER DISPOSITIVE

INSTRUMENT.

(a) Except as otherwise provided in subsection (c), the following rules apply:

(1) To the extent that a provision of a decedent’s will expressly and

unambiguously directs the apportionment of an estate tax, the tax must be apportioned

accordingly.

(2) Any portion of an estate tax not apportioned pursuant to paragraph (1) must be

apportioned in accordance with any provision of a revocable trust of which the decedent was the

settlor which expressly and unambiguously directs the apportionment of an estate tax. If

conflicting apportionment provisions appear in two or more revocable trust instruments, the

provision in the most recently dated instrument prevails. For purposes of this paragraph:

(A) a trust is revocable if it was revocable immediately after the trust

instrument was executed, even if the trust subsequently becomes irrevocable; and

(B) the date of an amendment to a revocable trust instrument is the date of

the amended instrument only if the amendment contains an apportionment provision.

(3) If any portion of an estate tax is not apportioned pursuant to paragraph (1) or

(2), and a provision in any other dispositive instrument expressly and unambiguously directs that

any interest in the property disposed of by the instrument is or is not to be applied to the payment

of the estate tax attributable to the interest disposed of by the instrument, the provision controls

the apportionment of the tax to that interest.

(b) Subject to subsection (c), and unless the decedent expressly and unambiguously

directs the contrary, the following rules apply:

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(1) If an apportionment provision directs that a person receiving an interest in

property under an instrument is to be exonerated from the responsibility to pay an estate tax that

would otherwise be apportioned to the interest,

(A) the tax attributable to the exonerated interest must be apportioned

among the other persons receiving interests passing under the instrument, or

(B) if the values of the other interests are less than the tax attributable to

the exonerated interest, the deficiency must be apportioned ratably among the other persons

receiving interests in the apportionable estate that are not exonerated from apportionment of the

tax.

(2) If an apportionment provision directs that an estate tax is to be apportioned to

an interest in property a portion of which qualifies for a marital or charitable deduction, the

estate tax must first be apportioned ratably among the holders of the portion that does not qualify

for a marital or charitable deduction and then apportioned ratably among the holders of the

deductible portion to the extent that the value of the nondeductible portion is insufficient.

(3) Except as otherwise provided in paragraph (4), if an apportionment provision

directs that an estate tax be apportioned to property in which one or more time-limited interests

exist, other than interests in specified property under Section 3-9A-107, the tax must be

apportioned to the principal of that property, regardless of the deductibility of some of the

interests in that property.

(4) If an apportionment provision directs that an estate tax is to be apportioned to

the holders of interests in property in which one or more time-limited interests exist and a charity

has an interest that otherwise qualifies for an estate tax charitable deduction, the tax must first be

apportioned, to the extent feasible, to interests in property that have not been distributed to the

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persons entitled to receive the interests.

(c) A provision that apportions an estate tax is ineffective to the extent that it increases

the tax apportioned to a person having an interest in the gross estate over which the decedent had

no power to transfer immediately before the decedent executed the instrument in which the

apportionment direction was made. For purposes of this subsection, a testamentary power of

appointment is a power to transfer the property that is subject to the power.

Comment

A decedent’s direction will not control the apportionment of taxes unless it explicitly
refers to the payment of an estate tax and is specific and unambiguous as to the direction it
makes for that payment. For example, a testamentary direction that “all debts and expenses of
and claims against me or my estate are to be paid out of the residuary of my probate estate” is not
an express direction for the payment of estate taxes and will not control apportionment. While
an estate tax is a claim against the estate, a will’s direction for payment of claims that does not
explicitly mention estate taxes is likely to be a boiler plate that was written with no intention of
controlling tax apportionment. To protect against an inadvertent inclusion of estate tax payment
in a general provision of that nature, the UETAA requires that the direction explicitly mention
estate taxes.

On the other hand, a direction in a will that “all taxes arising as a result of my death,
whether attributable to assets passing under this will or otherwise, be paid out of the residue of
my probate estate” satisfies the UETAA’s requirement for an explicit mention of estate taxes and
is specific and unambiguous as to what properties are to bear the payment of those taxes.

Whether other directions of a decedent that explicitly mention estate taxes comply with
the UETAA’s requirement that they be specific and unambiguous is a matter for judicial
construction. For example, there is a split among judicial decisions as to whether a direction
such as “all estate taxes be paid out of the residue of my estate” is ambiguous because it is
unclear whether it is intended to apply to taxes attributable to nonprobate assets. To the extent
that it is determined that a decedent failed to apportion an estate tax, then the UETAA will apply
to apportion that amount of the tax.

If an amendment is made to a revocable trust instrument, and if the amendment itself

contains an express and unambiguous provision apportioning an estate tax, the date of the
amendment is the date of the revocable trust instrument. However, if an amendment to a
revocable trust instrument does not contain an express and unambiguous provision apportioning
an estate tax, the date of the revocable trust instrument is the date on which it was executed or
the date of the most recent amendment containing an express and unambiguous provision
apportioning an estate tax. An express and unambiguous provision apportioning an estate tax
includes a provision directing that payment of an estate tax be made from specified property.

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The statutory apportionment rules of the UETAA are default rules applicable to the
extent that the decedent does not make a valid provision as to how estate taxes are to be
apportioned. The decedent has the power to determine which recipients of decedent’s property
will bear the estate taxes and in what proportion. If provisions conflict, it is necessary to
determine which prevails. A possible choice would permit the directions in each of decedent’s
instruments determine the extent to which property controlled by that instrument bears a share of
estate taxes, but having the provisions for an allocation scheme scattered among a number of
documents would make decedent’s personal representative search multiple instruments to
ascertain the decedent’s directions. Instead, the UETAA provides an order of priority for a
decedent’s provisions for estate tax allocations. To the extent that a decedent makes an express
and unambiguous provision by will, that provision will trump any competing provision in
another instrument. To the extent that the will does not expressly and unambiguously provide
for the allocation of some estate taxes, an express and unambiguous provision in a revocable
trust instrument will control. If the decedent executed more than one revocable trust instrument,
the express provisions in the instrument that was executed most recently will control. In
determining which revocable trust instrument was executed most recently, the date of any
amendment containing an express and unambiguous apportionment provision will be taken into
account. In the event that the allocation of estate taxes is not fully provided for by the decedent’s
will or revocable trust instrument, an express and unambiguous provision in other instruments
executed by the decedent controls to the extent that the provision applies to the property disposed
of in that instrument. An example of a provision in an instrument disposing of property, other
than a will or revocable trust instrument, is a provision in a designation of a beneficiary of life
insurance proceeds either that the proceeds will or will not be used to pay a portion of estate
taxes. A designation of that form will be honored if there is no conflicting valid provision in a
will or revocable trust instrument.

A provision in decedent’s will, revocable trust, or other instrument will not be honored to
the extent that it would contravene subsection (c).

The exclusivity of the provisions of this section apply only to apportionment rules; they
do not prevent a dispositive instrument from making additional gifts; nor do they prevent a
governing instrument of an entity from rearranging the internal division of the assets of that
entity.

Example 1. On D’s death, her will apportioned $100,000 of estate taxes to the holders of
interests in the D Family Trust, an irrevocable trust created by D during her life. The D Family
Trust is divided into two separate shares: the William Share, and the Franklin Share, each of
which is for a different child of D. The William Share is for the benefit of William, and the
Franklin Share is for the benefit of Franklin. The trust instrument provides that any taxes
apportioned to the holders of interests in the trust or to any share of the trust are to be paid from
the William Share. The effect of that trust provision is to require that taxes reduce the size of the
William Share and do not reduce the Franklin Share. The apportionment provision in D’s will
established the amount of estate tax that the trust must bear; the amount apportioned to the D
Family Trust makes all of the assets of that trust liable for that amount. Since the decedent’s will
did not direct how the trust’s burden should be allocated between the two shares of the trust, the
direction in the trust instrument is not inconsistent with the will provision and so can control the

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allocation of taxes between properties disposed of in the trust instrument under subsection (c).
Even if the direction in the trust instrument were deemed not to be permitted by subsection (c),
the direction would be effective as a disposition of trust assets as explained in Example (2).

Example 2. The same facts as those stated in Example (1) except that D’s will
apportioned the $100,000 of estate taxes to the Franklin Share of the D Family Trust. The trust
provision placing the burden of the tax on the William Share cannot qualify as an apportionment
direction since it is in conflict with the will provision allocating all of the trust’s share of the
estate tax to the Franklin Share. But the settlor has the power to direct trust assets to whomever
the settlor pleases. The direction in the trust instrument that assets of the William Share are to be
used to pay any taxes apportioned to the Franklin Share is a gift to Franklin of assets from the
William Share. The direction is valid as a provision shifting trust assets from the William Share
to the Franklin Share, which is a permissible disposition of a trust instrument.

The federal estate tax laws enable a decedent’s personal representative to collect a
portion of the decedent’s federal estate tax from the recipients of certain nonprobate property that
is included in the decedent’s gross estate. See e.g., §§ 2206 to 2207B of the Internal Revenue
Code. There is a conflict among the courts as to whether those federal provisions preempt a state
law apportionment provision. Choosing the position that there is no federal preemption, the
UETAA apportions taxes without regard to the federal provisions. The federal provisions are not
apportionment statutes; rather, they simply empower the personal representative to collect a
portion of the estate tax that is attributable to the property included in the decedent’s gross estate
and do not direct use of the collected amounts by the personal representative. The rights granted
to the personal representative by federal law for the collection of assets from nonprobate
beneficiaries do not conflict either with the apportionment of taxes by state law or with other
rights of collection granted by state law. Since there is no conflict, the UETAA does not include
a direction as to whether federal or state law takes priority.

The UETAA does not permit anyone other than the decedent to override the allocation
provisions of the UETAA. For example, if X created a QTIP trust for Y, the value of the trust
assets will be included in Y’s gross estate for federal estate tax purposes on Y’s death. See §
2044 of the Internal Revenue Code of 1986. If X’s QTIP trust provided that the trust is not to
bear any of the estate taxes imposed at Y’s death, the direction would be ineffective under the
UETAA because only Y can direct apportionment of taxes on Y’s estate. In this regard, it is
noteworthy that the right granted to a decedent’s estate by § 2207A of the Internal Revenue Code
to collect a share of the federal estate tax from a QTIP included in the decedent’s gross estate can
be waived only by direction of the decedent in a will or revocable trust instrument. Y is in the
best position to determine the optimum allocation of Y’s estate taxes among the various assets
that comprise Y’s gross estate. If Y fails to make an allocation, the default provisions of the
UETAA are more likely to reflect Y’s intentions than would a direction of a third person.

If an instrument transferring property that may be included in the taxable estate of

someone other than the transferor directs payment from the transferred property of any part of
the estate taxes of the other person, the direction affects the size of the gift, and so is a
dispositive rather than an apportionment provision, and is not subject to the UETAA.

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If a decedent makes a valid direction that a person receiving property under a particular
disposition is exonerated from payment of an estate tax, the tax that would have been borne by
that person will, instead, be borne by other persons receiving interests under the instrument
directing the exoneration. Thus, if several assets are disposed of by a governing instrument,
which exonerates one or more of those assets from bearing an estate tax, the exoneration will not
reduce the amount of estate tax to be allocated to all of the assets disposed of by that instrument,
including the exonerated assets. For example, if decedent’s will directs that all federal estate
taxes attributable to decedent’s probate estate be paid from the residuary of his estate, the
exoneration of the pre-residuary devises will not affect the total amount of federal estate tax
apportioned to the beneficiaries of the probate estate, all of which tax will be borne by the
residuary beneficiaries if the residuary is sufficient. If the value of the other interests is
insufficient to pay the estate taxes, the difference will be payable by other persons receiving
interests in the apportionable estate that are not exonerated from apportionment of the tax.

If a decedent directs that estate taxes be paid from properties, some of which qualify for a
marital or charitable deduction, the provision making that direction may designate the extent to
which the charitable or marital interests will or will not bear a portion of the tax. If the decedent
makes no provision as to whether the marital or charitable interests bear a portion of the tax, the
UETAA provides a default rule that exempts the marital or charitable interests from payment of
the tax to the extent that it is feasible to do so. An example of when this circumstance arises is
when the decedent’s will makes a residuary devise, a portion of which qualifies for a marital or
charitable deduction and a portion of which does not. If the decedent provides that estate taxes
are to be paid from the residuary, unless directed otherwise, the default provision of the UETAA
will require the payment to be made first from the nondeductible interests in the residuary. The
default rule does not apply to an allocation of tax to a holder of an interest in property in which
there is a time-limited interest; the tax allocated to any interest in that property is to be paid from
the principal of the property unless the decedent expressly directed otherwise or unless Section
3-9A-107 applies to the property.

If a decedent created a trust during life the value of which is included in the decedent’s
gross estate at death, if immediately after decedent’s death, there were one or more time-limited
interests in the trust that did not qualify for an estate tax deduction, and if one or more charities
held a remainder interest in the trust that otherwise qualified for an estate tax charitable
deduction, the charitable deduction for the remainder interests may be lost if the estate taxes
generated by the nondeductible time-limited interests are to be paid from assets in the trust. See
Rev. Rul. 82-128, Rev. Proc. 90-30 (§§ 4 and 5), and Rev. Proc. 90-31 (§§ 5 and 6). It is
possible that if the payment of an estate tax is made from funds that, while directed to be added
to the trust’s assets, had not been distributed to the trust before payment of the estate tax, the
payment will not disqualify the charitable deduction. There are numerous instances in which
estate taxes are required to be paid from a charitable remainder trust that was created inter vivos.
Subsection (b)(4) is an attempt to protect the deduction in such cases by establishing a rule of
construction requiring that funds directed to be added to the trust be used to pay any required
estate tax before assets already in the trust itself are used. It seems unlikely that a decedent
would wish to negate this construction of decedent’s direction, but the decedent has the power to
do so by including an express statement to that effect in a will or revocable trust instrument.

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If a decedent had made an irrevocable transfer during his life, over which the decedent
did not retain a power to make a subsequent transfer, and if that transfer is included in the
decedent’s gross estate for estate tax purposes, a portion of the estate tax will be apportioned to
the transferee unless the decedent effectively provides otherwise in a will, revocable trust or
other instrument. While, by an express provision in the appropriate instrument, a decedent can
reduce the amount of tax apportioned to such inter vivos transfers, the decedent is not permitted
to increase the amount of tax apportioned to such a transferee. If a decedent attempts to do so,
whether directly by apportioning more estate tax to the inter vivos transfer or indirectly by
insulating some person interested in the gross estate from all or part of that person’s share of the
estate tax, the amount of estate tax that is apportioned to the transferee of an irrevocable inter
vivos transfer will not be greater than the amount that would have been apportioned to that
transferee if the decedent had made no provision for apportionment in another instrument.

Subsection (c) does not apply to a decedent’s provision that no estate tax be apportioned
to the recipient of an interest who would be excluded from apportionment by the UETAA in the
absence of a contrary direction by the decedent. For example, a decedent’s provision that no
estate tax be apportioned to the recipient of property that qualifies for a marital or charitable
deduction is not subject to subsection (c).

If a decedent transferred property to a revocable trust prior to executing a will that directs
the apportionment of taxes to that trust, the apportionment direction will be valid even if the
decedent subsequently released the power of revocation so that the trust became irrevocable prior
to the decedent’s death. In such a case, subsection (c) does not invalidate the will’s direction.

If, immediately before the decedent’s death, the decedent had a power of appointment,
whether inter vivos or testamentary, the decedent had the power to transfer the property interest
within the meaning of this provision.

SECTION 3-9A-104. STATUTORY APPORTIONMENT OF ESTATE TAXES.

To the extent that apportionment of an estate tax is not controlled by an instrument described in

Section 3-9A-103 and except as otherwise provided in Sections 3-9A-106 and 3-9A-107, the

following rules apply:

(1) Subject to paragraphs (2), (3), and (4), the estate tax is apportioned ratably to each

person that has an interest in the apportionable estate.

(2) A generation-skipping transfer tax incurred on a direct skip taking effect at death is

charged to the person to which the interest in property is transferred.

(3) If property is included in the decedent’s gross estate because of Section 2044 of the

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Internal Revenue Code of 1986 or any similar estate tax provision, the difference between the

total estate tax for which the decedent’s estate is liable and the amount of estate tax for which the

decedent’s estate would have been liable if the property had not been included in the decedent’s

gross estate is apportioned ratably among the holders of interests in the property. The balance of

the tax, if any, is apportioned ratably to each other person having an interest in the apportionable

estate.

(4) Except as otherwise provided in Section 3-9A-103(b)(4) and except as to property to

which Section 3-9A-107 applies, an estate tax apportioned to persons holding interests in

property subject to a time-limited interest must be apportioned, without further apportionment, to

the principal of that property.

Comment

The value of an interest in the apportionable estate is determined in accordance with

Section 3-9A-102(7) of this part.

Property values subtracted from the decedent’s gross estate in determining the
apportionable estate under Section 3-9A-102(1) are excluded from the apportionable estate, and
beneficiaries of those properties do not have any estate tax apportioned to them because of their
interest in those properties. This treatment is consistent with the Restatement (Third) of
Property: Wills and Other Donative Transfers § 1.1, comment g (1998). The UETAA adopts a
method of equitable apportionment of estate taxes, but does not follow the Restatement method
which allocates taxes apportioned to probate assets first to the residuary beneficiaries and invites
preferential treatment for beneficiaries of specific and pecuniary gifts by will over beneficiaries
of gifts by various non-probate transfer methods.

A “direct skip” is defined in §§ 2612(c) and 2613 of the Internal Revenue Code. Section
2603(b) of the Internal Revenue Code states that, unless directed otherwise in the governing
instrument, the tax on a generation-skipping transfer is charged to the property constituting the
transfer. Section 2603(a)(3) of the Internal Revenue Code imposes the duty of paying the tax on
a direct skip on the transferor of the property. Under paragraph (2), the decedent’s personal
representative will pay the generation-skipping tax on a direct skip out of the transferred property
(or the proceeds from a sale of all or some of that property). To the extent that it is not feasible
or practical to pay the tax from the transferred property, the transferees are to pay their
proportionate share of the shortfall. Paragraph (2) is consistent with the treatment provided by
federal law.

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The property to which paragraph (3) applies is sometimes referred to as “QTIP property”
since § 2044 of the Internal Revenue Code of 1986 deals with “qualified terminable interest
property.” See §§ 2044(b)(1), 2056(b)(7), and 2523(f) of the Internal Revenue Code of 1986.
Although the general rule of apportionment in the UETAA is to apportion estate taxes on the
basis of the average rate of tax, the tax apportioned to the holders of interests in QTIP property
by the UETAA is based on the marginal rate of tax. Note that federal estate tax law grants the
decedent’s fiduciary the power to collect from the holders of the QTIP property the estate tax
generated by that property at the marginal estate tax rate of the decedent’s estate. The UETAA
tracks the federal law in this respect.

It would be harsh to collect the estate tax from persons holding discretionary or
contingent interests in property since they may not obtain possession for many years, if at all.
Hence, when the tax is apportioned to persons holding interests in property in which there are
time-limited interests, paragraph (4) requires the tax to be paid from principal. This provision
does not apply to property for which a special elective benefit (as described in Section 3-9A-107)
has been elected.

An estate tax that is apportioned to an interest in property that cannot be reached because
of legal or practical obstacles but is not subject to a time-limited interest is to be collected from
the interest holder to the extent feasible. In that circumstance, since there is no time-limited
interest, the tax will not be apportioned to a person who may not receive property for many years
if at all.

When some of the interests in property qualify for a charitable or marital deduction and
some do not, requiring the tax to be paid from the principal of the property may reduce the
amount of marital or charitable deduction that is allowable. Although the likely intent of a
decedent would be to maximize the marital and charitable deductions available for the estate,
paragraph (4) provides that the estate tax is to be paid from the principal of the property, a choice
that avoids administrative complexity.

SECTION 3-9A-105. CREDITS AND DEFERRALS. Except as otherwise provided

in Sections 3-9A-106 and 3-9A-107, the following rules apply to credits and deferrals of estate

taxes:

(1) A credit resulting from the payment of gift taxes or from estate taxes paid on property

previously taxed inures ratably to the benefit of all persons to which the estate tax is apportioned.

(2) A credit for state or foreign estate taxes inures ratably to the benefit of all persons to

which the estate tax is apportioned, except that the amount of a credit for a state or foreign tax

paid by a beneficiary of the property on which the state or foreign tax was imposed, directly or

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by a charge against the property, inures to the benefit of the beneficiary.

(3) If payment of a portion of an estate tax is deferred because of the inclusion in the

gross estate of a particular interest in property, the benefit of the deferral inures ratably to the

persons to which the estate tax attributable to the interest is apportioned. The burden of any

interest charges incurred on a deferral of taxes and the benefit of any tax deduction associated

with the accrual or payment of the interest charge is allocated ratably among the persons

receiving an interest in the property.

Comment

Section 2013 of the Internal Revenue Code of 1986 allows a credit for federal estate taxes
paid on certain properties that were included in the taxable estate of a person who died within a
relatively short time of the decedent’s death. This credit often is referred to as a credit for
property previously taxed.

A beneficiary of property attracting a foreign or state death tax may have paid that tax
directly or may have paid it indirectly by virtue of the tax’s being paid out of the property
passing to that person. If that occurs, while the beneficiary’s payment of the foreign or state tax
reduces the amount that the beneficiary will receive, it will not reduce the value of the
beneficiary’s interest in the apportionable estate according to the definition of “value” in the
UETAA. See Section 3-9A-102(7). The UETAA mitigates the beneficiary’s burden by giving
the beneficiary the benefit of any estate tax credit allowed for the foreign or state tax and paid by
the beneficiary.

The benefits and burdens described in paragraph (3) are to be allocated ratably among
persons in accordance with the amount of deferral or extension attributable to their interests in
the apportionable estate.

SECTION 3-9A-106. INSULATED PROPERTY: ADVANCEMENT OF TAX.

(a) In this section:

(1) “Advanced fraction” means a fraction that has as its numerator the amount of

the advanced tax and as its denominator the value of the interests in insulated property to which

that tax is attributable.

(2) “Advanced tax” means the aggregate amount of estate tax attributable to

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interests in insulated property which is required to be advanced by uninsulated holders under

subsection (c).

(3) “Insulated property” means property subject to a time-limited interest which is

included in the apportionable estate but is unavailable for payment of an estate tax because of

impossibility or impracticability.

(4) “Uninsulated holder” means a person who has an interest in uninsulated

property.

(5) “Uninsulated property” means property included in the apportionable estate

other than insulated property.

(b) If an estate tax is to be advanced pursuant to subsection (c) by persons holding

interests in uninsulated property subject to a time-limited interest other than property to which

Section 3-9A-107 applies, the tax must be advanced, without further apportionment, from the

principal of the uninsulated property.

(c) Subject to Section 3-9A-109(b) and (d), an estate tax attributable to interests in

insulated property must be advanced ratably by uninsulated holders. If the value of an interest in

uninsulated property is less than the amount of estate taxes otherwise required to be advanced by

the holder of that interest, the deficiency must be advanced ratably by the persons holding

interests in properties that are excluded from the apportionable estate under Section 3-9A-

102(1)(B) as if those interests were in uninsulated property.

(d) A court having jurisdiction to determine the apportionment of an estate tax may

require a beneficiary of an interest in insulated property to pay all or part of the estate tax

otherwise apportioned to the interest if the court finds that it would be substantially more

equitable for that beneficiary to bear the tax liability personally than for that part of the tax to be

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advanced by uninsulated holders.

(e) When a distribution of insulated property is made, each uninsulated holder may

recover from the distributee a ratable portion of the advanced fraction of the property distributed.

To the extent that undistributed insulated property ceases to be insulated, each uninsulated holder

may recover from the property a ratable portion of the advanced fraction of the total

undistributed property.

(f) Upon a distribution of insulated property for which, pursuant to subsection (d), the

distributee becomes obligated to make a payment to uninsulated holders, a court may award an

uninsulated holder a recordable lien on the distributee’s property to secure the distributee’s

obligation to that uninsulated holder.

Comment

The term “time-limited interest” is defined in Section 3-9A-102(6).

Subsection (b) applies to property in which at least one person has a time-limited interest
and which property can be reached by the personal representative of the decedent. In such cases,
an estate tax that is payable as an advanced tax under subsection (c), is charged against the
principal of the property, and is not apportioned among the several interests in that property.
While there is no express apportionment of the advanced tax to the time-limited interests in the
property, the holders of the time-limited interests will bear a share of the tax burden in that the
resulting reduction of the value of the principal will reduce the value of the time-limited
interests, except that it will not reduce the value of a dollar annuity interest. So, the holder of a
dollar annuity interest will be exonerated from sharing in the burden of estate taxes.

Since the estate tax apportioned to the owners of insulated property cannot be collected
from the property, the tax is to be paid (as an advancement) by persons having interests in other
assets of the estate (uninsulated holders), provided however that the total tax attributed to and
advanced by an uninsulated holder cannot exceed the value of that person’s interest in the
uninsulated property. See Section 3-9A-109(d). If the amount of the aggregate tax apportioned
to and to be advanced by an uninsulated holder exceeds the value of that holder’s interest in the
uninsulated property, then the deficiency shall be apportioned to the holders of interests in
properties that otherwise qualify for charitable or marital deductions. In such cases, those
charitable and marital properties are reclassified as uninsulated properties, and so the
beneficiaries of those properties will be uninsulated holders who will have a right of recovery
from the distributees of insulated properties for which they paid a portion of the estate tax.

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It would be harsh to make persons holding future interests in insulated property pay tax
on properties that they will not receive until years later and may never receive. If they were
required to pay the tax at the time of decedent’s death, that could give rise to widespread
disclaimers of interests. Also, it would be difficult to value the interests of discretionary
beneficiaries. For that reason, with one exception set forth in subsection (d), the tax attributable
to insulated properties is reallocated to uninsulated holders who are required to advance the
funds to pay the tax.

The tax attributable to the insulated property that is required to be paid by the uninsulated
holders is referred to as an “advanced tax.” To permit the uninsulated holders who bear the
advanced tax to be reimbursed, the UETAA effectively provides the uninsulated holders with a
phantom percentage interest in the property whose transfer is the source of the advanced tax.
While the phantom percentage interest of the uninsulated holder remains constant, its value will
increase or decrease as the value of the property changes. The phantom percentage interest is
determined by dividing the advanced tax by the aggregate value of insulated properties as
determined for purposes of the estate tax. When a distribution of insulated property is made, a
percentage of that distribution must be paid over to the uninsulated holders; and this is a personal
obligation of the distributee. If it were not for this section, the uninsulated holders would have
had a right of reimbursement under Section 3-9A-110 for the amount of their outlay from the
distributees; but instead, subsection (e) gives them a right to a fraction of the distributed amount
rather than to a fixed dollar amount. The amount collected from a distributee is divided among
the uninsulated holders according to the percentage of the advanced tax that they paid.

It is important to note that the uninsulated holders do not have an actual interest in the
insulated property and have no lien or security interest in that property while it is in the
possession of the trust or fund. The uninsulated holders only have a claim against the persons
who receive distributions from the trust or fund which holds the insulated property. The only
exception is where previously insulated property loses its insulation so that it can be reached by
the uninsulated holders without violating any prohibition against alienation of interests. Once
insulated property is in the hands of a distributee, subsection (f) permits the uninsulated holders
to seek a lien on the distributee’s property for the amount owed to them; but there is no lien or
other encumbrance on the insulated property while it is in the possession of the trust or fund.

The operation of this section is illustrated in the following examples.

Example 1. X dies having a gross estate and an apportionable estate of $10M and devises
his probate property (with a value of $8M) to A, B and C, with A and B each receiving 40% of
the probate estate, and C receiving 20%. In addition to the probate property, X had an interest in
a nonqualified pension plan at his death which interest had a value of $2M. X’s contract with the
plan provides that an annuity of $120,000 per year is to be paid to G for life, and upon G’s death
the remainder of the corpus is to be paid to L. The only estate tax to which X’s estate is subject
is the federal estate tax. The federal estate tax on X’s $10M gross estate is $4M. So, the average
rate of the estate tax is 40%. Under Section 3-9A-104(1), the estate tax that is attributable to the
$2M pension fund is $800,000--the value of the property interests that G and L hold in the fund
($2M) is 20% of the $10M value of the entire apportionable estate, and so 20% of the $4M estate
tax is attributable to the pension fund. Assume that under local law, the assets of the pension

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fund cannot be reached by creditors or by the personal representative of X’s estate in order to use
those funds to pay estate taxes. Under subsection (c), the personal representative will collect
40% of the $800,000 (i.e., $320,000) from A and a like amount from B; and the personal
representative will collect $160,000 from C.

The advanced fraction for the pension fund is $800,000 (the amount of the estate tax that
was advanced by A, B, and C) divided by the $2M value of the fund (the insulated property),
which division results in a percentage of 40%. Putting it differently, the $800,000 estate tax
attributable to the fund but not paid by those interested in the fund constitutes 40% of the $2M
value of the fund. To compensate A, B and C for paying the advanced tax, they obtain what
amounts to a 40% phantom interest in the fund. Their actual interest arises only when
distributions are made from the fund or, in the event that the fund loses its insulation from
creditors, when that occurs.

In Year One, the fund pays $120,000 to G pursuant to the terms of the contract. Forty
percent of that distribution ($48,000) must be paid by G to A, B and C – 40% or $19,200 payable
to A and another $19,200 payable to B, and 20% or $9,600 payable to C, since that is the
proportion in which they bore the advanced tax. The next year, the fund distributes another
$120,000 to G, and the same payments must be made to A, B and C. In the third year, G dies,
and the fund distributes the remaining principal of $2,400,000 to L; the value of the principal had
increased because of an increase in the value of the investments the fund held. A, B, and C are
entitled to 40% of that $2,400,000, and so L must pay them $960,000, to be divided among them.
A and B will each receive $384,000 (40% of the $960,000), and C will receive $192,000 (20% of
$960,000).

Example 2. X dies leaving a taxable estate of $10,000,000 on which a federal estate tax of
$5,000,000 is payable (for convenience of computation, we treat all of X’s estate as subject to a
tax at a 50% marginal rate). X’s estate has no marital or charitable deductions. X left
$4,000,000 of assets in an offshore trust that cannot be reached by X’s personal representative
and so constitutes insulated property. The federal estate tax attributable to that property is
$2,000,000. X had other nonprobate assets having an aggregate value of $2,000,000 and a
residuary estate of $4,000,000. The holders of the nonprobate assets will have $1,000,000 in
federal estate taxes apportioned to them, and the holders of the residuary interests will have
$2,000,000 of federal estate taxes attributed to them. But, the personal representative must also
pay the $2,000,000 of federal estate taxes attributable to the offshore assets. If the holders of
interests in those assets cannot be reached, and if the UETAA did not apply, the personal
representative would have to pay the $2,000,000 from the residuary of the estate, thereby wiping
it out completely. Under the UETAA, 1/3 of the $2,000,000 of federal estate tax attributable to
the offshore assets ($666,667) will be paid by the holders of the other nonprobate assets, and the
remaining $1,333,333 of that tax will be paid by the beneficiaries of the residuary estate. Under
the UETAA, the holders of the other nonprobate assets will have to bear their proportionate share
of the tax on the offshore assets. When distributions are made of the offshore assets, the
distributees will be personally liable to pay a portion of their distribution to the persons who paid
the estate tax on the offshore fund.

If undistributed insulated property loses its insulation from claims, the uninsulated

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holders can collect the balance of their interest from the property at that time.

In certain circumstances, it would be more equitable to require the beneficiary of an

interest in insulated property to bear the tax on that interest than to reapportion it to others. For
example, if the beneficiary’s interest is one that will become possessory in a short period of time,
so that the beneficiary will soon have possession of assets from the fund or trust, it would be
more equitable to place personal liability on that beneficiary; and the court has discretion to do
so. In determining whether a beneficiary is likely to obtain possession of all or a significant part
of the beneficiary’s interest in the insulated property, the court can consider not only
distributions that are required to be made to the beneficiary, but also distributions that, based on
an examination of the history of the administration of the fund or trust, are likely to be made in
the near future. Subsection (d) provides the court with the discretion to make that determination.
While a beneficiary’s receipt of a distribution from the trust or fund would make that beneficiary
liable to uninsulated holders who paid the advanced tax, that places a burden of collection on the
uninsulated holders; and so, when the distribution is likely to be made to a beneficiary within a
short period of time, it would be more equitable to have that beneficiary bear the tax.

SECTION 3-9A-107. APPORTIONMENT AND RECAPTURE OF SPECIAL

ELECTIVE BENEFITS.

(a) In this section:

(1) “Special elective benefit” means a reduction in an estate tax obtained by an

election for:

(A) a reduced valuation of specified property that is included in the gross

estate;

(B) a deduction from the gross estate, other than a marital or charitable

deduction, allowed for specified property; or

(C) an exclusion from the gross estate of specified property.

(2) “Specified property” means property for which an election has been made for

a special elective benefit.

(b) If an election is made for one or more special elective benefits, an initial

apportionment of a hypothetical estate tax must be computed as if no election for any of those

benefits had been made. The aggregate reduction in estate tax resulting from all elections made

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must be allocated among holders of interests in the specified property in the proportion that the

amount of deduction, reduced valuation, or exclusion attributable to each holder’s interest bears

to the aggregate amount of deductions, reduced valuations, and exclusions obtained by the

decedent’s estate from the elections. If the estate tax initially apportioned to the holder of an

interest in specified property is reduced to zero, any excess amount of reduction reduces ratably

the estate tax apportioned to other persons that receive interests in the apportionable estate.

(c) An additional estate tax imposed to recapture all or part of a special elective benefit

must be charged to the persons that are liable for the additional tax under the law providing for

the recapture.

Comment

As of the 2003 approval of this Act, the types of special elective benefits at which this
provision was aimed were set forth in §§ 2031(c), 2032A, and 2057 of the Internal Revenue
Code of 1986. Section 2032A provides an election whereby “qualified real property” (real
property that is used for a specified purpose and is held by certain parties related to the decedent)
will be given a lower valuation for federal estate tax purposes than otherwise would have been
true. Under § 2032A(c), if within 10 years after the decedent’s death the qualified heir disposes
of an interest in the qualified realty or ceases to use it for its required purpose, an additional
estate tax will be imposed to recapture some of the estate tax reduction that was obtained through
the election. The purpose of this section is to define how the benefit of an estate tax reduction of
this or a similar type will be allocated and how any additional estate tax imposed to recapture
some of that tax benefit will be allocated.

Another federal estate tax provision to which this section applies is § 2057 of the Internal
Revenue Code of 1986. That provision grants an election to receive a special estate tax
deduction for a “qualified family-owned business interest.” Under § 2057(f), if, within 10 years
after the decedent’s death, one of four listed events occurs, an additional federal estate tax will be
imposed in order to recapture some of the tax reduction obtained by electing to take the
deduction. This Section defines how the benefits of the election and the burden of an additional
tax will be apportioned. The Economic Growth and Tax Relief Reconciliation Act of 2001
repealed § 2057 for the estates of decedent’s dying after the year 2003. However, the 2001 Act
retains the 10-year recapture provision, and the sunset provision will reinstate § 2057 in the year
2011 unless the repeal is made permanent.

Section 2031(c) of the Internal Revenue Code of 1986 provides an election whereby a
portion of the value of land that is subject to a qualified conservation easement, as defined in §
2031(c)(8), is excluded from the gross estate. The exclusion does not apply to the value of a

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retained development right; but if, prior to the date for filing the estate tax return, all the persons
who have an interest in the land execute an agreement to extinguish some or all of the
development rights, an additional estate tax deduction will be allowed by § 2031(c)(5). A failure
to implement that agreement within a specified time will cause the imposition of an additional
estate tax to recapture that deduction. The allocation of the benefits of the exclusion and of the
deduction for making the agreement, and the allocation of any additional estate tax, is
determined by this section.

The allocation of the aggregate tax reduction obtained from all special elective benefits is
made among the holders of interests in the specified properties in accordance with the reduction
of the decedent’s taxable estate that is attributable to each holder’s interest. Since the
determination of the amount of estate tax benefit is made by applying the marginal rate of estate
tax to the reduced value of the gross estate, it is necessary to aggregate the tax reduction obtained
from all of the special election benefits so that the greater tax reduction obtained from using a
marginal rate is not duplicated by applying that rate to several distinct reductions.

Once the amount of estate tax that is apportioned to the holder of an interest in specified
property is determined, it will have to be paid. The holders of interests in a specified property
may have difficulty paying that tax. To pay the tax, the holders will have to sell the property,
borrow against it, use other funds to pay the tax, or defer the payment of the tax under tax
deferral provisions and pay the tax in installments with income produced by the property. If they
were to sell the property, the special elective benefit would be lost; so a sale is not a viable
option. Accordingly, the requirement of Sections 3-9A-103(b)(3), 3-9A-104(4), and 3-9A-
106(b) that the estate tax or an advanced tax be paid from the principal of property subject to a
time-limited interest does not apply to properties for which an election for a special elective
benefit is made. The solution chosen in Section 3-9A-106(c) and (e) of having other persons
interested in the apportionable estate pay the tax and then collect reimbursement from
distributees of the property is not practical here because there would be difficulty in determining
what income was derived from the property itself, and there would be no trustee or other
fiduciary to see that the amounts were turned over to the persons who paid the tax. So, that
approach was not adopted. Instead, Sections 3-9A-104(1) and this section apportion the estate
tax to the holders of the interests in the properties who, facing the obligation to pay, can
determine the best method for obtaining the funds to make that payment.

If additional estate taxes are imposed to recapture some or all of a special elective benefit,
Section 3-9A-107 follows the allocation of liability imposed by the estate tax law that generated
the additional tax. The burden of the additional estate tax will be borne by the persons who hold
interests in the specified property at the time that the additional tax payment is made, and those
persons may not be the same ones who held the specified property when the special elective
benefit was allowed and so derived the benefit of that election.

SECTION 3-9A-108. SECURING PAYMENT OF ESTATE TAX FROM

PROPERTY IN POSSESSION OF FIDUCIARY.

(a) A fiduciary may defer a distribution of property until the fiduciary is satisfied that

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adequate provision for payment of the estate tax has been made.

(b) A fiduciary may withhold from a distributee an amount equal to the amount of estate

tax apportioned to an interest of the distributee.

(c) As a condition to a distribution, a fiduciary may require the distributee to provide a

bond or other security for the portion of the estate tax apportioned to the distributee.

Comment

Section 3-9A-108 grants a fiduciary discretion either to retain funds or to require a

distributee to provide security for payment of that distributee’s share of the estate tax. The
fiduciary’s exercise of that discretion and use of retained properties are subject to the fiduciary’s
duty to treat the parties fairly.

SECTION 3-9A-109. COLLECTION OF ESTATE TAX BY FIDUCIARY.

(a) A fiduciary responsible for payment of an estate tax may collect from any person the

tax apportioned to and the tax required to be advanced by the person.

(b) Except as otherwise provided in Section 3-9A-106, any estate tax due from a person

that cannot be collected from the person may be collected by the fiduciary from other persons in

the following order of priority:

(1) any person having an interest in the apportionable estate which is not

exonerated from the tax;

(2) any other person having an interest in the apportionable estate;

(3) any person having an interest in the gross estate.

(c) A domiciliary fiduciary may recover from an ancillary personal representative the

estate tax apportioned to the property controlled by the ancillary personal representative.

(d) The total tax collected from a person pursuant to this [part] may not exceed the value

of the person’s interest.

Comment

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If a fiduciary is unable to collect from a person the estate tax apportioned to that person
or to be advanced by that person, the fiduciary is authorized to collect the deficiency from any
person interested in the apportionable estate whose interest is not exonerated from tax
apportionment. The fiduciary is not obliged to collect the deficiency ratably from such persons.
At the fiduciary’s discretion, the fiduciary is authorized to collect all of the deficiency from one
person or from several persons in any proportion that the fiduciary chooses. The reason that the
fiduciary is not required to collect a deficiency ratably is that the payment of the estate tax
should not be delayed because of difficulties in collecting from a number of persons.

If the amount collected from persons whose interests in the apportionable estate is not
exonerated from tax apportionment is insufficient to make up the deficiency, the fiduciary can
then collect any remaining deficiency from persons interested in the apportionable estate whose
interests are exonerated from tax apportionment. This class excludes persons holding interests in
property that qualified for a marital or charitable deduction since those interests are excluded
from the apportionable estate. Again, the fiduciary is not required to collect the remaining
deficiency ratably from the persons holding exonerated interests.

Finally, if the amount collected from persons holding exonerated interests is insufficient,
the fiduciary can collect the balance from persons holding interests that qualify for a marital or
charitable deduction. The fiduciary is not required to make that collection ratably.

Anyone who pays more than his share of an estate tax or an advanced tax has a ratable
right of reimbursement from those who did not pay their share. If requested, the fiduciary may
assist in collecting that reimbursement.

SECTION 3-9A-110. RIGHT OF REIMBURSEMENT.

(a) A person required under Section 3-9A-109 to pay an estate tax greater than the

amount due from the person under Section 3-9A-103 or 3-9A-104 has a right to reimbursement

from another person to the extent that the other person has not paid the tax required by Section 3-

9A-103 or 3-9A-104 and a right to reimbursement ratably from other persons to the extent that

each has not contributed a portion of the amount collected under Section 3-9A-109(b).

(b) A fiduciary may enforce the right of reimbursement under subsection (a) on behalf of

the person that is entitled to the reimbursement and shall take reasonable steps to do so if

requested by the person.

Comment

The UETAA does not include a provision for interest on the collection of a

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reimbursement, and the question of whether interest will be payable is left to the courts to decide.

SECTION 3-9A-111. ACTION TO DETERMINE OR ENFORCE PART. A

fiduciary, transferee, or beneficiary of the gross estate may maintain an action for declaratory

judgment to have a court determine and enforce this [part].

SECTION 3-9A-112. [RESERVED.]

SECTION 3-9A-113. [RESERVED.]

SECTION 3-9A-114. DELAYED APPLICATION.

(a) Sections 3-9A-103 through 3-9A-107 do not apply to the estate of a decedent who

dies on or within [three] years after [the effective date of this [part]], nor to the estate of a

decedent who dies more than [three] years after [the effective date of this [part]] if the decedent

continuously lacked testamentary capacity from the expiration of the [three-year] period until the

date of death.

(b) For the estate of a decedent who dies on or after [the effective date of this [part]] to

which Sections 3-9A-103 through 3-9A-107 do not apply, estate taxes must be apportioned

pursuant to the law in effect immediately before [the effective date of this [part]].

Comment

Testamentary capacity was chosen as the standard for determining whether the preclusion
for applying the UETAA’s apportionment rules is extended beyond the statutory period despite
the fact that a different standard is employed to determine whether a person has the capacity to
execute non-testamentary instruments. Testamentary capacity is employed in the UETAA
because it has a well established meaning and will provide a uniform standard. See Restatement
(Third) of Property: Wills and Other Donative Transfers, Section 8.1 (2003).

SECTION 3-9A-115. EFFECTIVE DATE. This [part] takes effect _______.

PART 10. CLOSING ESTATES

SECTION 3-1001. FORMAL PROCEEDINGS TERMINATING

ADMINISTRATION; TESTATE OR INTESTATE; ORDER OF GENERAL

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PROTECTION.

(a) A personal representative or any interested person may petition for an order of

complete settlement of the estate. The personal representative may petition at any time, and any

other interested person may petition after one year from the appointment of the original personal

representative except that no petition under this section may be entertained until the time for

presenting claims which arose prior to the death of the decedent has expired. The petition may

request the court to determine testacy, if not previously determined, to consider the final account

or compel or approve an accounting and distribution, to construe any will or determine heirs and

adjudicate the final settlement and distribution of the estate. After notice to all interested persons

and hearing the court may enter an order or orders, on appropriate conditions, determining the

persons entitled to distribution of the estate, and, as circumstances require, approving settlement

and directing or approving distribution of the estate and discharging the personal representative

from further claim or demand of any interested person.

(b) If one or more heirs or devisees were omitted as parties in, or were not given notice

of, a previous formal testacy proceeding, the court, on proper petition for an order of complete

settlement of the estate under this section, and after notice to the omitted or unnotified persons

and other interested parties determined to be interested on the assumption that the previous order

concerning testacy is conclusive as to those given notice of the earlier proceeding, may

determine testacy as it affects the omitted persons and confirm or alter the previous order of

testacy as it affects all interested persons as appropriate in the light of the new proofs. In the

absence of objection by an omitted or unnotified person, evidence received in the original testacy

proceeding shall constitute prima facie proof of due execution of any will previously admitted to

probate, or of the fact that the decedent left no valid will if the prior proceedings determined this

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fact.

Comment

Subsection (b) is derived from § 64(b) of the Illinois Probate Act (1967) [S.H.A. ch. 3, §
64(b)]. Section 3-106 specifies that an order is binding as to all who are given notice even
though less than all interested persons were notified. This section provides a method of curing
an oversight in regard to notice which may come to light before the estate is finally settled. If the
person who failed to receive notice of the earlier proceeding succeeds in obtaining entry of a
different order from that previously made, others who received notice of the earlier proceeding
may be benefitted. Still, they are not entitled to notice of the curative proceeding, nor should
they be permitted to appear.

See, also, Comment following Section 3-1002.

SECTION 3-1002. FORMAL PROCEEDINGS TERMINATING TESTATE

ADMINISTRATION; ORDER CONSTRUING WILL WITHOUT ADJUDICATING

TESTACY. A personal representative administering an estate under an informally probated will

or any devisee under an informally probated will may petition for an order of settlement of the

estate which will not adjudicate the testacy status of the decedent. The personal representative

may petition at any time, and a devisee may petition after one year, from the appointment of the

original personal representative, except that no petition under this section may be entertained

until the time for presenting claims which arose prior to the death of the decedent has expired.

The petition may request the court to consider the final account or compel or approve an

accounting and distribution, to construe the will and adjudicate final settlement and distribution

of the estate. After notice to all devisees and the personal representative and hearing, the court

may enter an order or orders, on appropriate conditions, determining the persons entitled to

distribution of the estate under the will, and, as circumstances require, approving settlement and

directing or approving distribution of the estate and discharging the personal representative from

further claim or demand of any devisee who is a party to the proceeding and those whom the

devisee represents. If it appears that a part of the estate is intestate, the proceedings shall be

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dismissed or amendments made to meet the provisions of Section 3-1001.

Comment

Section 3-1002 permits a final determination of the rights between each other and against
the personal representative of the devisees under a will when there has been no formal
proceeding in regard to testacy. Hence, the heirs in intestacy need not be made parties. Section
3-1001 permits a final determination of the rights between each other and against the personal
representative of all persons interested in an estate. If supervised administration is used, Section
3-505 directs that the estate be closed by use of procedures like those described in Section 3-
1001. Of course, testacy will have been adjudicated before time for the closing proceeding if
supervised administration is used.

SECTION 3-1003. CLOSING ESTATES; BY SWORN STATEMENT OF

PERSONAL REPRESENTATIVE.

(a) Unless prohibited by order of the court and except for estates being administered in

supervised administration proceedings, a personal representative may close an estate by filing

with the court no earlier than six months after the date of original appointment of a general

personal representative for the estate, a verified statement stating that the personal representative,

or a previous personal representative, has:

(1) determined that the time limited for presentation of creditors’ claims has

expired;

(2) fully administered the estate of the decedent by making payment, settlement,

or other disposition of all claims that were presented, expenses of administration and estate,

inheritance and other death taxes, except as specified in the statement, and that the assets of the

estate have been distributed to the persons entitled. If any claims remain undischarged, the

statement must state whether the personal representative has distributed the estate subject to

possible liability with the agreement of the distributees, or state in detail other arrangements that

have been made to accommodate outstanding liabilities; and

(3) sent a copy of the statement to all distributees of the estate and to all creditors

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or other claimants of whom the personal representative is aware whose claims are neither paid

nor barred and has furnished a full account in writing of the personal representative’s

administration to the distributees whose interests are affected thereby.

(b) If no proceedings involving the personal representative are pending in the court one

year after the closing statement is filed the appointment of the personal representative terminates.

Comment

The Code uses “termination” to refer to events which end a personal representative’s
authority. See Sections 3-608, et seq. The word “closing” refers to circumstances which support
the conclusions that the affairs of the estate either are, or have been alleged to have been, wound
up. If the affairs of the personal representative are reviewed and adjudicated under either
Sections 3-1001 or 3-1002, the judicial conclusion that the estate is wound up serves also to
terminate the personal representative’s authority. See Section 3-610(b). On the other hand, a
“closing” statement under Section 3-1003 is only an affirmation by the personal representative
that he believes the affairs of the estate to be completed. The statement is significant because it
reflects that assets have been distributed. Any creditor whose claim has not been barred and who
has not been paid is permitted by Section 3-1004 to assert his claim against distributees. The
personal representative is also still fully subject to suit under Sections 3-602 and 3-608, for his
authority is not “terminated” under Section 3-610(a) until one year after a closing statement is
filed. Even if his authority is “terminated,” he remains liable to suit unless protected by
limitation or unless an adjudication settling his accounts is the reason for “termination”. See
Sections 3-1005 and 3-608.

From a slightly different viewpoint, a personal representative may obtain a complete

discharge of his fiduciary obligations through a judicial proceeding after notice. Sections 3-1001
and 3-1002 describe two proceedings which enable a personal representative to gain protection
from all persons or from devisees only. A personal representative who neither obtains a judicial
order of protection nor files a closing statement, is protected by Section 3-703 in regard to acts or
distributions which were authorized when done but which become doubtful thereafter because of
a change in testacy status. On the other questions, the personal representative who does not take
any of the steps described by the Code to gain more protection, has no protection against later
claims of breach of his fiduciary obligation other than any arising from consent or waiver of
individual distributees who may have bound themselves by receipts given to the personal
representative.

This section increases the prospects of full discharge of a personal representative who
uses the closing statement route over those of a personal representative who relies on receipts.
Full protection follows from the running of the six months limitations period described in
Section 3-1005. But, Section 3-1005’s protection does not prevent distributees from claiming
lack of full disclosure. Hence, it offers little more protection than a receipt. Still, it may be
useful to decrease the likelihood of later claim of non-disclosure. Its more significant function,

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however, is to provide a means for terminating the office of personal representative in a way that
will be obvious to third persons.

In 1989 the Joint Editorial Board recommended changing subsection (a)(1) to make the
time reference correspond to changes recommended for Section 3-803.

SECTION 3-1004. LIABILITY OF DISTRIBUTES TO CLAIMANTS. After assets

of an estate have been distributed and subject to Section 3-1006, an undischarged claim not

barred may be prosecuted in a proceeding against one or more distributees. No distributee shall

be liable to claimants for amounts received as exempt property, homestead or family allowances,

or for amounts in excess of the value of the distributee’s distribution as of the time of

distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims

as if the claim had been satisfied in the course of administration. Any distributee who shall have

failed to notify other distributees of a demand made upon the distributee by the claimant in

sufficient time to permit them to join in any proceeding in which the claim was asserted against

the distributee loses the right of contribution against other distributees.

Comment

This section creates a ceiling on the liability of a distributee of “the value of his
distribution” as of the time of distribution. The section indicates that each distributee is liable for
all that a claimant may prove to be due, provided the claim does not exceed the value of the
defendant’s distribution from the estate. But, each distributee may preserve a right of
contribution against other distributees. The risk of insolvency of one or more, but less than all
distributees is on the distributee rather than on the claimant.

In 1975, the Joint Editorial Board recommended the addition, after “claimants for
amounts” in the second sentence, of “received as exempt property, homestead or family
allowances, or for amounts…” The purpose of the addition was to prevent unpaid creditors of a
decedent from attempting to enforce their claims against a spouse or child who had received a
distribution of exempt values.

SECTION 3-1005. LIMITATIONS ON PROCEEDINGS AGAINST PERSONAL

REPRESENTATIVE. Unless previously barred by adjudication and except as provided in the

closing statement, the rights of successors and of creditors whose claims have not otherwise been

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barred against the personal representative for breach of fiduciary duty are barred unless a

proceeding to assert the same is commenced within six months after the filing of the closing

statement. The rights thus barred do not include rights to recover from a personal representative

for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent’s

estate.

Comment

This and the preceding section make it clear that a claimant whose claim has not been
barred may have alternative remedies when an estate has been distributed subject to his claim.
Under this section, he has six months to prosecute an action against the personal representative if
the latter breached any duty to the claimant. For example, the personal representative may be
liable to a creditor if he violated the provisions of Section 3-807. The preceding section
describes the fundamental liability of the distributees to unbarred claimants to the extent of the
value received. The last sentence emphasizes that a personal representative who fails to disclose
matters relevant to his liability in his closing statement and in the account of administration he
furnished to distributees, gains no protection from the period described here. A personal
representative may, however, use Section 3-1001, or, where appropriate, Section 3-1002 to
secure greater protection.

SECTION 3-1006. LIMITATIONS ON ACTIONS AND PROCEEDINGS

AGAINST DISTRIBUTEES. Unless previously adjudicated in a formal testacy proceeding or

in a proceeding settling the accounts of a personal representative or otherwise barred, the claim

of a claimant to recover from a distributee who is liable to pay the claim, and the right of an heir

or devisee, or of a successor personal representative acting in their behalf, to recover property

improperly distributed or its value from any distributee is forever barred at the later of three

years after the decedent’s death or one year after the time of its distribution, but all claims of

creditors of the decedent are barred one year after the decedent’s death. This section does not

bar an action to recover property or value received as a result of fraud.

Comment

This section describes an ultimate time limit for recovery by creditors, heirs and devisees
of a decedent from distributees. It is to be noted:

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(1) Section 3-108 imposes a general limit of three years from death on one who must set
aside an informal probate in order to establish his rights, or who must secure probate of a late-
discovered will after an estate has been administered as intestate. Hence the time limit of
Section 3-108 may bar one who would claim as an heir or devisee sooner than this section,
although it would never cause a bar prior to three years from the decedent’s death.

(2) This section would not bar recovery by a supposed decedent whose estate has been
probated. See Section 3-412.

(3) The limitation of this section ends the possibility of appointment of a personal
representative to correct an erroneous distribution as mentioned in Sections 3-1005 and 3-1008.
If there have been no adjudications under Section 3-409, or possibly 3-1001 or 3-1002, estate of
the decedent which is discovered after administration has been closed may be the subject of
different distribution than that attending the estate originally administered.

The last sentence excepting actions or suits to recover property kept from one by the
fraud of another may be unnecessary in view of the blanket provision concerning fraud in Article
I. See Section 1-106.

In 1989, the Joint Editorial Board recommended changing the section so as to separate
proceedings involving claims by claimants barred one year after decedent’s death by Section 3-
803(a)(1), and other proceedings by unbarred claimants or by omitted heirs or devisees.

SECTION 3-1007. CERTIFICATE DISCHARGING LIENS SECURING

FIDUCIARY PERFORMANCE. After an appointment has terminated, the personal

representative, the personal representative’s sureties, or any successor of either, upon the filing

of a verified application showing so far as is known by the applicant, that no action concerning

the estate is pending in any court, is entitled to receive a certificate from the Registrar that the

personal representative appears to have fully administered the estate in question. The certificate

evidences discharge of any lien on any property given to secure the obligation of the personal

representative in lieu of bond or any surety, but does not preclude action against the personal

representative or the surety.

Comment

This section does not affect the liability of the personal representative, or of any surety,
but merely permits a release of security given by a personal representative, or his surety, when,
from the passage of time and other conditions, it seems highly unlikely that there will be any

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liability remaining undischarged. See Section 3-607.

SECTION 3-1008. SUBSEQUENT ADMINISTRATION. If other property of the

estate is discovered after an estate has been settled and the personal representative discharged or

after one year after a closing statement has been filed, the court upon petition of any interested

person and upon notice as it directs may appoint the same or a successor personal representative

to administer the subsequently discovered estate. If a new appointment is made, unless the court

orders otherwise, the provisions of this [code] apply as appropriate; but no claim previously

barred may be asserted in the subsequent administration.

Comment

This section is consistent with Section 3-108 which provides a general period of
limitations of three years from death for appointment proceedings, but makes appropriate
exception for subsequent administrations.

PART 11. COMPROMISE OF CONTROVERSIES

SECTION 3-1101. EFFECT OF APPROVAL OF AGREEMENTS INVOLVING

TRUSTS, INALIENABLE INTERESTS, OR INTERESTS OF THIRD PERSONS. A

compromise of any controversy as to admission to probate of any instrument offered for formal

probate as the will of a decedent, the construction, validity, or effect of any governing

instrument, the rights or interests in the estate of the decedent, of any successor, or the

administration of the estate, if approved in a formal proceeding in the court for that purpose, is

binding on all the parties thereto including those unborn, unascertained or who could not be

located. An approved compromise is binding even though it may affect a trust or an inalienable

interest. A compromise does not impair the rights of creditors or of taxing authorities who are

not parties to it.

Comment

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1993 technical amendments to this and the following section clarified original intention
that the described procedure would be available to resolve controversies other than those
concerning a will.

SECTION 3-1102. PROCEDURE FOR SECURING COURT APPROVAL OF

COMPROMISE. The procedure for securing court approval of a compromise is as follows:

(1) The terms of the compromise shall be set forth in an agreement in writing which shall

be executed by all competent persons and parents acting for any minor child having beneficial

interests or having claims which will or may be affected by the compromise. Execution is not

required by any person whose identity cannot be ascertained or whose whereabouts is unknown

and cannot reasonably be ascertained.

(2) Any interested person, including the personal representative, if any, or a trustee, then

may submit the agreement to the court for its approval and for execution by the personal

representative, the trustee of every affected testamentary trust, and other fiduciaries and

representatives.

(3) After notice to all interested persons or their representatives, including the personal

representative of any estate and all affected trustees of trusts, the court, if it finds that the contest

or controversy is in good faith and that the effect of the agreement upon the interests of persons

represented by fiduciaries or other representatives is just and reasonable, shall make an order

approving the agreement and directing all fiduciaries subject to its jurisdiction to execute the

agreement. Minor children represented only by their parents may be bound only if their parents

join with other competent persons in execution of the compromise. Upon the making of the

order and the execution of the agreement, all further disposition of the estate is in accordance

with the terms of the agreement.

Comment

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This section and the one preceding it outline a procedure which may be initiated by
competent parties having beneficial interests in a decedent’s estate as a means of resolving
controversy concerning the estate. If all competent persons with beneficial interests or claims
which might be affected by the proposal and parents properly representing interests of their
children concur, a settlement scheme differing from that otherwise governing the devolution may
be substituted. The procedure for securing representation of minors and unknown or missing
persons with interests must be followed. See Section 1-403. The ultimate control of the question
of whether the substitute proposal shall be accepted is with the court which must find: “that the
contest or controversy is in good faith and that the effect of the agreement upon the interests of
parties represented by fiduciaries is just and reasonable.”

The thrust of the procedure is to put the authority for initiating settlement proposals with
the persons who have beneficial interests in the estate, and to prevent executors and testamentary
trustees from vetoing any such proposal. The only reason for approving a scheme of devolution
which differs from that framed by the testator or the statutes governing intestacy is to prevent
dissipation of the estate in wasteful litigation. Because executors and trustees may have an
interest in fees and commissions which they might earn through efforts to carry out testator’s
intention, the judgment of the court is substituted for that of such fiduciaries in appropriate cases.
A controversy which the court may find to be in good faith, as well as concurrence of all
beneficially interested and competent persons and parent-representatives provide prerequisites
which should prevent the procedure from being abused. Thus, the procedure does not threaten
the planning of a testator who plans and drafts with sufficient clarity and completeness to
eliminate the possibility of good faith controversy concerning the meaning and legality of his
plan.

See Section 1-403 for rules governing representatives and appointment of guardians ad
litem.

These sections are modeled after Section 93 of the Model Probate Code (1946).
Comparable legislative provisions have proved quite useful in Michigan. See M.C.L.A. §§
702.45-702.49.

PART 12. COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND

SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES.

GENERAL COMMENT

The four sections which follow include two designed to facilitate transfer of small estates
without use of a personal representative, and two designed to simplify the duties of a personal
representative, who is appointed to handle a small estate.

The Flexible System of Administration described by earlier portions of Article III lends
itself well to situations involving small estates. Letters may be obtained quickly without notice
or judicial involvement. Immediately, the personal representative is in a position to distribute to
successors whose deeds or transfers will protect purchasers. This route accommodates the need
for quick and inexpensive transfers of land of small value as well as other assets. Consequently,

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it was unnecessary to frame complex provisions extending the affidavit procedures to land.

Indeed, transfers via letters of administration may prove to be less troublesome than use
of the affidavit procedure. Still, it seemed desirable to provide a quick collection mechanism
which avoids all necessity to visit the probate court. For one thing, unpredictable local variations
in probate practice may produce situations where the alternative procedure will be very useful.
For another, the provision of alternatives is in line with the overall philosophy of Article III to
provide maximum flexibility.

Figures gleaned from a 1970 authoritative report of a major survey of probated estates in
Cleveland, Ohio, demonstrate that more than one-half of all estates in probate had a gross value
of less than $15,000. See, M. Sussman, J. Cates & D. Smith, The Family and Inheritance (1970).
This means that the principal measure of the relevance of any legislation dealing with probate
procedures is to be found in its impact on very small and moderate sized estates. Here is the area
where probate affects most people.

SECTION 3-1201. COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT.

(a) Thirty days after the death of a decedent, any person indebted to the decedent or

having possession of tangible personal property or an instrument evidencing a debt, obligation,

stock or chose in action belonging to the decedent shall make payment of the indebtedness or

deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or

chose in action to a person claiming to be the successor of the decedent upon being presented an

affidavit made by or on behalf of the successor stating that:

(1) the value of the entire estate, wherever located, less liens and encumbrances,

does not exceed $25,000; and

(2) 30 days have elapsed since the death of the decedent; and

(3) no application or petition for the appointment of a personal representative is

pending or has been granted in any jurisdiction; and

(4) the claiming successor is entitled to payment or delivery of the property.

(b) A transfer agent of any security shall change the registered ownership on the books of

a corporation from the decedent to the successor or successors upon the presentation of an

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affidavit as provided in subsection (a).

Comment

This section provides for an easy method for collecting the personal property of a
decedent by affidavit prior to any formal disposition. Existing legislation generally permits the
surviving widow or children to collect wages and other small amounts of liquid funds. Section
3-1201 goes further in that it allows the collection of personal property as well as money and
permits any devisee or heir to make the collection. Since the appointment of a personal
representative may be obtained easily under the Code, it is unnecessary to make the provisions
regarding small estates applicable to realty.

2010 Amendment: The value of property that can be distributed under this section was
increased from $5,000 to $25,000 to account for inflation that has occurred since the Uniform
Probate Code was originally approved in 1969.

SECTION 3-1202. EFFECT OF AFFIDAVIT. The person paying, delivering,

transferring, or issuing personal property or the evidence thereof pursuant to affidavit is

discharged and released to the same extent as if the person dealt with a personal representative of

the decedent. The person is not required to see to the application of the personal property or

evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to

whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or

evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled

upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons

entitled thereto. Any person to whom payment, delivery, transfer or issuance is made is

answerable and accountable therefor to any personal representative of the estate or to any other

person having a superior right.

Comment

Sections 3-1201 and 3-1202 apply to any personal property located in this state whether
or not the decedent died domiciled in this state, to any successor to personal property located in
this state whether or not a resident of this state, and, to the extent that the laws of this state may
control the succession to personal property, to personal property wherever located of a decedent
who died domiciled in this state.

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SECTION 3-1203. SMALL ESTATES; SUMMARY ADMINISTRATION

PROCEDURE. If it appears from the inventory and appraisal that the value of the entire estate,

less liens and encumbrances, does not exceed homestead allowance, exempt property, family

allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable

and necessary medical and hospital expenses of the last illness of the decedent, the personal

representative may, without giving notice to creditors, immediately disburse and distribute the

estate to the persons entitled thereto, and file a closing statement as provided in Section 3-1204.

Comment

This section makes it possible for the personal representative to make a summary
distribution of a small estate without the necessity of giving notice to creditors. Since the
probate estate of many decedents will not exceed the amount specified in the statute, this section
will prove useful in many estates.

SECTION 3-1204. SMALL ESTATES; CLOSING BY SWORN STATEMENT OF

PERSONAL REPRESENTATIVE.

(a) Unless prohibited by order of the court and except for estates being administered by

supervised personal representatives, a personal representative may close an estate administered

under the summary procedures of Section 3-1203 by filing with the court, at any time after

disbursement and distribution of the estate, a verified statement stating that:

(1) to the best knowledge of the personal representative, the value of the entire

estate, less liens and encumbrances, did not exceed homestead allowance, exempt property,

family allowance, costs and expenses of administration, reasonable funeral expenses, and

reasonable, necessary medical and hospital expenses of the last illness of the decedent;

(2) the personal representative has fully administered the estate by disbursing and

distributing it to the persons entitled thereto; and

(3) the personal representative has sent a copy of the closing statement to all

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distributees of the estate and to all creditors or other claimants of whom the personal

representative is aware whose claims are neither paid nor barred, and has furnished a full account

in writing of the administration to the distributees whose interests are affected.

(b) If no actions or proceedings involving the personal representative are pending in the

court one year after the closing statement is filed, the appointment of the personal representative

terminates.

(c) A closing statement filed under this section has the same effect as one filed under

Section 3-1003.

Comment

The personal representative may elect to close the estate under Section 3-1002 in order to
secure the greater protection offered by that procedure.

The remedies for fraudulent statement provided in Section 1-106 of course would apply
to any intentional misstatements by a personal representative.

ARTICLE IV

FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION

GENERAL COMMENT

This Article concerns the law applicable in estate problems which involve more than a
single state. It covers the powers and responsibilities in the adopting state of personal
representatives appointed in other states.

Some provisions of the Code covering local appointment of personal representatives for
non-residents appear in Article III. These include the following: Sections 3-201 (venue), 3-202
(resolution of conflicting claims regarding domicile), 3-203 (priority as personal representative
of representative previously appointed at domicile), 3-307(a) (30 days delay required before
appointment of a local representative for a non-resident), 3-803(a) (claims barred by non-claim at
domicile before local administration commenced are barred locally) and 3-815 (duty of personal
representative in regard to claims where estate is being administered in more than one state). See
also Sections 3-308, 3-611(a) and 3-816. Also, see Section 4-207.

The recognition provisions contained in Article IV and the various provisions of Article
III which relate to administration of estates of non-residents are designed to coerce respect for
domiciliary procedures and administrative acts to the extent possible.

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The first part of Article IV contains some definitions of particular relevance to estates
located in two or more states.

The second part of Article IV deals with the powers of foreign personal representatives in
a jurisdiction adopting the Uniform Probate Code. There are different types of power which may
be exercised. First, a foreign personal representative has the power under Section 4-201 to
receive payments of debts owed to the decedent or to accept delivery of property belonging to
the decedent. The foreign personal representative provides an affidavit indicating the date of
death of the non-resident decedent, that no local administration has been commenced and that the
foreign personal representative is entitled to payment or delivery. Payment under this provision
can be made any time more than 60 days after the death of the decedent. When made in good
faith the payment operates as a discharge of the debtor. A protection for local creditors of the
decedent is provided in Section 4-203, under which local debtors of the non-resident decedent
can be notified of the claims which local creditors have against the estate. This notification will
prevent payment under this provision.

A second type of power is provided in Sections 4-204 to 4-206. Under these provisions a
foreign personal representative can file with the appropriate court a copy of his appointment and
official bond if he has one. Upon so filing, the foreign personal representative has all of the
powers of a personal representative appointed by the local court. This would be all of the powers
provided for in an unsupervised administration as provided in Article III of the Code.

The third type of power which may be obtained by a foreign personal representative is
conferred by the priority the domiciliary personal representative enjoys in respect to local
appointment. This is covered by Section 3-203. Also, see Section 3-611(b).

Part 3 provides for power in the local court over foreign personal representatives who act
locally. If a local or ancillary administration has been started, provisions in Article III subject
the appointee to the power of the court. See Section 3-602. In Part 3 of this article, it is provided
that a foreign personal representative submits himself to the jurisdiction of the local court by
filing a copy of his appointment to get the powers provided in Section 4-205 or by doing any act
which would give the state jurisdiction over him as an individual. In addition, the collection of
funds as provided in Section 4-201 gives the court quasi-in-rem jurisdiction over the foreign
personal representative to the extent of the funds collected.

Finally, Section 4-303 provides that the foreign personal representative is subject to the
jurisdiction of the local court “to the same extent that his decedent was subject to jurisdiction
immediately prior to death.” This is similar to the typical non-resident motorist provision that
provides for jurisdiction over the personal representative of a deceased non-resident motorist, see
Note, 44 Iowa L.Rev. 384 (1959). It is, however, a much broader provision. Section 4-304
provides for the mechanical steps to be taken in serving the foreign personal representatives.

Part 4 of the article deals with the res judicata effect to be given adjudications for or
against a foreign personal representative. Any such adjudication is to be conclusive on a local
personal representative “unless it resulted from fraud or collusion…to the prejudice of the
estate.” This provision must be read with Section 3-408 which deals with certain out-of-state

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findings concerning a decedent’s estate.

PART 1. DEFINITIONS

SECTION 4-101. DEFINITIONS. In this [article]

(1) “local administration” means administration by a personal representative appointed in

this state pursuant to appointment proceedings described in [Article] III.

(2) “local personal representative” includes any personal representative appointed in this

state pursuant to appointment proceedings described in [Article] III and excludes foreign

personal representatives who acquire the power of a local personal representative pursuant to

Section 4-205.

(3) “resident creditor” means a person domiciled in, or doing business in this state, who

is, or could be, a claimant against an estate of a non-resident decedent.

Comment

Section 1-201 includes definitions of “foreign personal representative”, “personal

representative” and “nonresident decedent”.

PART 2. POWERS OF FOREIGN PERSONAL REPRESENTATIVES

SECTION 4-201. PAYMENT OF DEBT AND DELIVERY OF PROPERTY TO

DOMICILIARY FOREIGN PERSONAL REPRESENTATIVE WITHOUT LOCAL

ADMINISTRATION. At any time after the expiration of 60 days from the death of a

nonresident decedent, any person indebted to the estate of the nonresident decedent or having

possession or control of personal property, or of an instrument evidencing a debt, obligation,

stock or chose in action belonging to the estate of the non-resident decedent may pay the debt,

deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in

action, to the domiciliary foreign personal representative of the nonresident decedent upon being

presented with proof of the representative’s appointment and an affidavit made by or on behalf

485
of the representative stating:

(1) the date of the death of the nonresident decedent,

(2) that no local administration, or application or petition therefor, is pending in this state,

that the domiciliary foreign personal representative is entitled to payment or delivery.

Comment

Section 3-201(d) refers to the location of tangible personal estate and intangible personal
estate which may be evidenced by an instrument. The instant section includes both categories.
Transfer of securities is not covered by this section since that is adequately covered by Article 8
of the Uniform Commercial Code.

SECTION 4-202. PAYMENT OR DELIVERY DISCHARGES. Payment or delivery

made in good faith on the basis of the proof of authority and affidavit releases the debtor or

person having possession of the personal property to the same extent as if payment or delivery

had been made to a local personal representative.

SECTION 4-203. RESIDENT CREDITOR NOTICE. Payment or delivery under

Section 4-201 may not be made if a resident creditor of the nonresident decedent has notified the

debtor of the nonresident decedent or the person having possession of the personal property

belonging to the nonresident decedent that the debt should not be paid nor the property delivered

to the domiciliary foreign personal representative.

Comment

Similar to provision in Colorado Revised Statute, 153-6-9.

SECTION 4-204. PROOF OF AUTHORITY-BOND. If no local administration or

application or petition therefor is pending in this state, a domiciliary foreign personal

representative may file with a court in this state in a [county] in which property belonging to the

decedent is located, authenticated copies of the representative’s appointment and of any official

bond.

486
SECTION 4-205. POWERS. A domiciliary foreign personal representative who has

complied with Section 4-204 may exercise as to assets in this state all powers of a local personal

representative, and may maintain actions and proceedings in this state subject to any conditions

imposed upon nonresident parties generally.

SECTION 4-206. POWER OF REPRESENTATIVES IN TRANSITION. The power

of a domiciliary foreign personal representative under Section 4-201 or 4-205 shall be exercised

only if there is no administration or application therefor pending in this state. An application or

petition for local administration of the estate terminates the power of the foreign personal

representative to act under Section 4-205, but the local court may allow the foreign personal

representative to exercise limited powers to preserve the estate. No person who before receiving

actual notice of a pending local administration has changed the person’s position in reliance upon

the powers of a foreign personal representative shall be prejudiced by reason of the application

or petition for, or grant of, local administration. The local personal representative is subject to all

duties and obligations which have accrued by virtue of the exercise of the powers by the foreign

personal representative and may be substituted for the foreign personal representative in any

action or proceedings in this state.

SECTION 4-207. ANCILLARY AND OTHER LOCAL ADMINISTRATIONS;

PROVISIONS GOVERNING. In respect to a nonresident decedent, the provisions of [Article]

III of this [code] govern:

(1) proceedings, if any, in a court of this state for probate of the will, appointment,

removal, supervision, and discharge of the local personal representative, and any other order

concerning the estate; and

(2) the status, powers, duties and liabilities of any local personal representative and the

487
rights of claimants, purchasers, distributees and others in regard to a local administration.

Comment

The purpose of this section is to direct attention to Article III for sections controlling
local probates and administrations. See in particular, Sections 1-301, 3-201, 3-202, 3-203, 3-
307(a), 3-308, 3-611(b), 3-803(a), 3-815 and 3-816.

PART 3. JURISDICTION OVER FOREIGN REPRESENTATIVES

SECTION 4-301. JURISDICTION BY ACT OF FOREIGN PERSONAL

REPRESENTATIVE. A foreign personal representative, submits personally to the jurisdiction

of the courts of this state in any proceeding relating to the estate by (i) filing authenticated copies

of the foreign personal representative’s appointment as provided in Section 4-204, (ii) receiving

payment of money or taking delivery of personal property under Section 4-201, or (iii) doing any

act as a personal representative in this state which would have given the state jurisdiction over

the foreign personal representative as an individual. Jurisdiction under clause (ii) is limited to the

money or value of personal property collected.

Comment

The words “courts of this state” are sufficient under federal legislation to include a
federal court having jurisdiction in the adopting state.

A foreign personal representative appointed at the decedent’s domicile has priority for
appointment in any local administration proceeding. See Section 3-203(g). Once appointed, a
local personal representative remains subject to the jurisdiction of the appointing court under
Section 3-602.

In 1975, the Joint Editorial Board recommended substitution of the word “personally” for
“himself”, in the preliminary language of the first sentence. Also, language restricting the
submission to jurisdiction to cases involving the estate was added in 1975.

SECTION 4-302. JURISDICTION BY ACT OF DECEDENT. In addition to

jurisdiction conferred by Section 4-301, a foreign personal representative is subject to the

jurisdiction of the courts of this state to the same extent that the decedent was subject to

488
jurisdiction immediately prior to death.

SECTION 4-303. SERVICE ON FOREIGN PERSONAL REPRESENTATIVE.

(a) Service of process may be made upon a foreign personal representative by registered

or certified mail, addressed to the foreign personal representative’s last reasonably ascertainable

address, requesting a return receipt signed by addressee only. Notice by ordinary first class mail

is sufficient if registered or certified mail service to the addressee is unavailable. Service may be

made upon a foreign personal representative in the manner in which service could have been

made under other laws of this state on either the foreign personal representative or the decedent

immediately prior to death.

(b) If service is made upon a foreign personal representative as provided in subsection (a),

the foreign personal representative shall be allowed at least [30] days within which to appear or

respond.

Comment

The provision for ordinary mail as a substitute for registered or certified mail is provided
because, under the present postal regulations, registered mail may not be available to reach
certain addresses, 39 C.F.R. Sec. 51.3(c), and also certified mail may not be available as a
process for service because of the method of delivery used, 39 C.F.R. Sec. 58.5(c) (rural
delivery) and (d) (star route delivery.)

PART 4. JUDGMENTS AND PERSONAL REPRESENTATIVE

SECTION 4-401. EFFECT OF ADJUDICATION FOR OR AGAINST

PERSONAL REPRESENTATIVE. An adjudication rendered in any jurisdiction in favor of or

against any personal representative of the estate is as binding on the local personal representative

as if the local personal representative were a party to the adjudication.

Comment

Adapted from Uniform Ancillary Administration of Estates Act (1949), Section 8. The
ULC withdrew UAAEA as obsolete in 1978.

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ARTICLE V

UNIFORM GUARDIANSHIP AND PROTECTIVE PROCEEDINGS ACT (1997/1998)

The following free-standing Acts are associated with Article V:

Uniform Guardianship and Protective Proceedings Act (1997/1998)

Article V has also been adopted as the free-standing Uniform Guardianship and
Protective Proceedings Act (1997/1998).

Approval of the 1997 Act necessitated technical amendments elsewhere in the UPC,
consisting of correction of definitions and cross-references. The following sections were
amended: 1-201, 3-303, 3-308, and 3-915.

In addition, UGPPA (1997/1998) Sections 103 (Supplemental General Principles of Law

Applicable) and 109 (Practice in Court) are not incorporated into the UPC because they duplicate
provisions in UPC Article 1. To preserve comparable numbering of sections between UPGGA
(1997/1998) and the UPC, UPC Sections 5-103 and 5-109 are titled “Reserved.”

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (2007)

Article 5A has also been adopted as the free-standing Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act (2007).

Because this article also dealt with jurisdiction and related issues, upon the addition of
Article 5A to this Code, conforming amendments to this article were necessary. See Sections 5-
106, 5-107, 5-432, 5-433, and 5-434.

Uniform Power of Attorney Act (2006)

Article 5B has also been adopted as the free-standing Uniform Power of Attorney Act
(2006).

PREFATORY NOTE

The topics covered in UPC Article V include minors’ guardianships, adults’

guardianships, and conservatorships of both minors and adults. Part 1 contains definitions and
general provisions applicable to both guardianships and conservatorships, including provisions
that relate to the office of guardian and conservator and to the jurisdiction of the courts, many of
which were previously scattered throughout Article V. Part 2 contains provisions on
guardianships for minors, whether by the court or the parent. Part 3 contains provisions for
guardianships for incapacitated persons, who will most often be adults, but who may also be
minors whose need for guardianship is unrelated to their age. Part 4 covers conservatorships and
other protective arrangements for both minors and adults, including the procedures for
appointment of conservators and the process for implementing a protective arrangement.

490
The Code’s provisions on guardianship and conservatorship codified in this article are
copied from the 1997 revision of the Uniform Guardianship and Protective Proceedings Act
(UGPPA). These provisions replace the 1982 UGPPA, which in turn replaced the guardianship
and protective provisions of the original UPC.

The 1997 revisions were precipitated by a two year study by the A.B.A. Senior Lawyers
Division Task Force on Guardianship Reform. The Task Force consisted of representatives not
only of the Senior Lawyers Division, but also of other A.B.A. entities, including the Real
Property Probate and Trust Law Section and the Commissions on Legal Problems of the Elderly
and Mental and Physical Disability Law, as well as a variety of other groups interested in
guardianship, such as AARP and the National Senior Citizens Law Center. The Task Force
generated a report that served as the starting point for the redrafting of the Uniform Guardianship
and Protective Proceedings Act. The drafting committee of the Uniform Law Commissioners
began the drafting of the revision in 1995. The revised Act was approved at the 1997 Annual
Meeting of the National Conference of Commissioners on Uniform State Laws, with
amendments to the provisions on appointment of counsel approved at the 1998 Annual Meeting
of the National Conference of Commissioners on Uniform State Laws, and subsequently
approved by the A.B.A. House of Delegates at its 1998 annual meeting. The National
Conference, at its 1998 Annual Meeting, also approved the 1997 Act for integration into the
UPC.

Significant developments in the areas of guardianship and conservatorship occurred in

the late 1980s and early 1990s, as states revised their guardianship and conservatorship statutes.
The 1982 UGPPA, with its emphasis on limited guardianship and conservatorship, was
groundbreaking in its support of autonomy. The 1997 revision builds on this and on
developments occurring in the states, by providing that guardianship and conservatorship should
be viewed as a last resort, that limited guardianships or conservatorships should be used
whenever possible, and that the guardian or conservator should consult with the ward or
protected person, to the extent feasible, when making decisions.

The 1997 revision makes other substantial changes. The following discussion
summarizes those of most significance.

The 1997 revision bases the definition of incapacitated person on functional abilities,
recognizing that a person may have the capacity to do some things while needing help with
others. Before a guardian may be appointed for an adult or a minor for reasons other than age,
the individual must be determined to be incapacitated, that is, the individual must be “unable to
receive and evaluate information or make or communicate decisions to such an extent that the
individual lacks the ability to meet essential requirements for physical health, safety, or self-care,
even with appropriate technological assistance.” Section 5-102(4). If assistive technology is
available that may enable the individual to receive and evaluate information or to make or
communicate decisions, then the individual may not be an “incapacitated person.”

A parent or spouse may appoint a guardian to take office immediately upon the need.
Parts 2 and 3 contain provisions for a parental or spousal appointment of a “standby” guardian:
by a parent for a minor child under Part 2 and by a parent for an adult disabled child or by a

491
spouse for an incapacitated spouse under Part 3. The addition of these provisions was spurred by
the increasing number of single-parent families in the United States as well as by the recognition
that adults are living longer and may need assistance in their later lives. The standby provisions
are available in a wide variety of situations where there is a need for a guardian to step in
immediately upon the occurrence of an event, without seeking prior court approval. The
appointment may be used by all parents of minor children as well as for the spouse of an
incapacitated adult or the parent of an adult disabled child.

A guardian or a conservator should be appointed only if there are no other lesser

restrictive alternatives that will meet the respondent’s needs. The Code encourages the use of
alternatives to guardianship or conservatorship and views the appointment of a guardian or a
conservator as a last resort. The court may not appoint a guardian for an incapacitated person
unless the court makes a finding that the respondent’s needs cannot be met by any less restrictive
means. Section 5-311(a)(1)(B). The visitor appointed by the court to investigate the
appropriateness of the guardianship or conservatorship requested for an adult, must investigate
whether alternatives are available and report this to the court. Sections 5-305(e), 5-406(e).

Additionally, procedural steps are specified which must be met before a guardian for an
incapacitated person or conservator may be appointed or a protective order entered. Specific
information is required in the petition (Sections 5-304, 5-403), the respondent must be personally
served with the notice of the hearing and the petition at least 14 days in advance of the hearing
and others must receive copies (Sections 5-113, 5-309, 5-404), and the court must appoint a
visitor (Sections 5-305, 5-406). Enacting jurisdictions must choose between requiring counsel if
requested by the respondent, recommended by the visitor, or if the court otherwise orders
(Alternative A to Sections 5-305(b) and 5-406(b)), or requiring counsel for the respondent in all
cases (Alternative B to Sections 5-305(b) and 5-406(b)). In guardianships, the court must order a
professional evaluation of the respondent if the respondent requests one or the court determines
one to be appropriate (Section 5-306), while in a conservatorship proceeding, the court may
order a professional evaluation. Section 5-406(f). The respondent and proposed guardian or
conservator must attend the hearing unless excused by the court for good cause. Sections 5-
308(a), 5-408(a).

The committee which drafted UGPPA (1997/1998) preferred Alternative A to Sections 5-

305(b) and 5-406(b). Under the committee’s preferred process, a visitor is appointed in every
proceeding for appointment of a guardian under Part 3, with counsel appointed on the
respondent’s request, the visitor’s recommendation, or the court’s determination that a counsel is
needed. See Section 5-305. Concomitantly, in Part 4, a visitor is appointed in every case where
a petition for appointment of conservator is filed and may be appointed when a protective
arrangement is sought and the respondent is not already represented by counsel. See Section 5-
406.

Alternative B for Sections 5-305(b) and 5-406(b) was included at the request of the
American Bar Association (A.B.A.) Commission on Legal Problems of the Elderly.

Emphasized throughout this article are the concepts of limited guardianship and limited
conservatorship. Only when no alternative to guardianship or conservatorship is available

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should the court create a guardianship or conservatorship. Courts are directed to tailor the
guardianship or conservatorship to fit the needs of the incapacitated person and only remove
those rights that the incapacitated person no longer can exercise or manage. Sections 5-311(b),
5-409(b). If an unlimited guardianship or conservatorship is requested, the petition must state
why a limited guardianship or conservatorship is not being sought. Sections 5-304(b)(8), 5-
403(c)(3). The guardian or conservator must take the views of the ward or protected person into
account when making decisions. The guardian must maintain sufficient contact with the ward so
that the guardian knows of the capabilities, limitations, needs and opportunities of the ward
(Sections 5-207(b)(1), 5-314(b)(1)). The guardian or conservator must encourage the ward or
protected person to participate in decisions, to act on his or her own behalf, and to develop or
regain capacity to manage personal or financial affairs. Sections 5-314(a), 5-418(b). The
guardian must consider the ward’s expressed desires and personal values when making decisions
(Section 5-314(a)), while the conservator, in making decisions with respect to the protected
person’s estate plan, or the court, in deciding on a protective arrangement, must rely, when
possible, on the decision the protected person would have made. Sections 5-411(c), 5-412(b).

The position of the drafting committee is that appointment of counsel should not be
mandated in every guardianship under Part 3 or every conservatorship under Part 4. Alternative
provisions are instead provided. Sections 5-305(b) and 5-406(b). The enacting jurisdiction must
choose between requiring counsel only when requested by the respondent, recommended by the
visitor, or otherwise ordered by the court, or requiring counsel for the respondent in all cases.
The appointment of counsel is in addition to the requirement that a visitor be appointed, a
requirement in all proceedings where a guardian for an incapacitated person is requested or
where the appointment of a conservator is sought. (Sections 5-305(a) and 5-406(a)).

The burden of proof in establishing a guardianship or conservatorship is clear and

convincing evidence (see Sections 5-311, 5-401) while the burden of proof for terminating a
guardianship or conservatorship is prima facie evidence. See Sections 5-318(c), 5-431(d). This
distinction was made in recognition that a guardianship or conservatorship, as vehicles that take
away from individuals their rights, should require a higher burden of proof (and thus more
protections) to establish than should be required to restore rights to an individual.

Monitoring of guardianships and conservatorships is critical. Guardians must present a

written report to the court within 30 days of appointment and annually thereafter (Section 5-317),
while the conservator is required to file a plan and an inventory with the court within 60 days of
appointment and annual reports thereafter. Sections 5-418(c), 5-419, 5-420. Both the guardian
and the conservator, in their reports, make recommendations as to whether the guardianship or
conservatorship should be continued or modified. The court is required to establish a monitoring
system. Sections 5-317(c), 5-420(d). The court may use visitors as part of the monitoring
system. Sections 5-317(b), 5-420(c). Suggestions on what an effective monitoring system
should contain can be found in Sally Balch Hurme, Steps to Enhance Guardianship Monitoring
(A.B.A. 1991).

PART 1. GENERAL PROVISIONS

SECTION 5-101. SHORT TITLE. This [article] may be cited as the Uniform

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Guardianship and Protective Proceedings Act.

SECTION 5-102. DEFINITIONS. In this [article]:

(1) “Conservator” means a person who is appointed by a court to manage the estate of a

protected person. The term includes a limited conservator.

(2) “Court” means the [designate appropriate court].

(3) “Guardian” means a person who has qualified as a guardian of a minor or

incapacitated person pursuant to appointment by a parent or spouse, or by the court. The term

includes a limited, emergency, and temporary substitute guardian but not a guardian ad litem.

(4) “ Incapacitated person” means an individual who, for reasons other than being a

minor, is unable to receive and evaluate information or make or communicate decisions to such

an extent that the individual lacks the ability to meet essential requirements for physical health,

safety, or self-care, even with appropriate technological assistance.

(5) “Legal representative” includes the lawyer for the respondent, a representative payee,

a guardian or conservator acting for a respondent in this state or elsewhere, a trustee or custodian

of a trust or custodianship of which the respondent is a beneficiary, and an agent designated

under a power of attorney, whether for health care or property, in which the respondent is

identified as the principal.

(6) “Minor” means an unemancipated individual who has not attained [18] years of age.

(7) “Parent” means a parent whose parental rights have not been terminated.

(8) “ Protected person” means a minor or other individual for whom a conservator has

been appointed or other protective order has been made.

(9) “Respondent” means an individual for whom the appointment of a guardian or

conservator or other protective order is sought.

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(10) “ Ward” means an individual for whom a guardian has been appointed.

Comment

The concepts of limited guardian and limited conservator embraced in this article are
reflected in the definitions of “guardian” (see paragraph (3)) and “conservator” (see paragraph
(1)).

While Part 4 authorizes the appointment of a conservator with limited powers, no

provision is made for the appointment of an emergency or temporary conservator, a type of
conservatorship usually denoting an appointment of limited duration. In situations where other
statutes might permit the appointment of a temporary, emergency or special conservator, Part 4
instead allows the court to appoint a “master.” See Sections 5-405(b), 5-406(g) and 5-412(c).
This is a departure from the 1982 UGPPA, which provided for the appointment of special
conservators, but not of temporary or emergency conservators. See, e.g., UPC Section 5-408(c)
(1982).

Like the 1982 UGPPA, the 1997 revision allows the appointment of a guardian by a
parent or spouse by will or other signed writing, but subjects the appointment to significantly
different requirements. See Sections 5-202 and 5-302. The definition of guardian (see paragraph
(3)) includes a limited guardian, an emergency guardian, or a temporary substitute guardian. See
Sections 5-204, 5-311, 5-312, and 5-313. There is a distinction between an emergency guardian
and a temporary substitute guardian. Compare Sections 5-312 and 5-313. Guardian ad litem is
specifically excluded from the definition of guardian, as a guardian ad litem is generally viewed
as having a separate and limited role in the proceedings.

A finding that a person is an “incapacitated person” is required before a guardian may be

appointed for reasons other than that the respondent is a minor. The definition of “incapacitated
person” (see paragraph (4)) requires that the respondent have an inability to receive and evaluate
information or to make or communicate decisions to the point that the person’s ability to care for
his or her health, safety or self is compromised. This definition emphasizes the importance of
functional assessment and recognizes that the more appropriate measure of a person’s incapacity
is a measurement of the person’s abilities. Like other areas of the law where the concept of
capacity is used, the required incapacity for the appointment of a guardian is no longer
considered an all or nothing proposition but instead it is recognized as having varying degrees.
This definition is designed to work with the concepts of least restrictive alternative and limited
guardianship or conservatorship – only removing those rights that the incapacitated person
cannot exercise, and not establishing a guardianship or conservatorship if a lesser restrictive
alternative exists. See Sections 5-311 and 5-409 for examples. These concepts are carried
throughout the article.

The definition of incapacitated person differs significantly from the definition in the 1982
UGPPA. The requirement that the person be unable to make “responsible” decisions is deleted,
as is the requirement that the person have an impairment by reason of a specified disability or
other cause, a requirement which may have led the trier of fact to focus unduly on the type of the
respondent’s disabling condition, as opposed to the respondent’s actual ability to function. The

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revised definition is based on recommendations of the 1988 Wingspread conference on
guardianship reform, the report of which should be referred to for additional background. See
Guardianship: An Agenda For Reform 15 (A.B.A. 1989). See also Stephen J. Anderer,
Determining Competency in Guardianship Proceedings (A.B.A. 1990). Courts seeking guidance
on particular factors to consider should also consult the California Due Process in Competency
Determination Act, California Probate Code Section 811.

The definition of “legal representative” (see paragraph (5)) expands beyond the
traditional lawyer to include as well those who act in a legally recognized representative
capacity, such as a representative payee, trustee, custodian, and agent, as well as those who hold
court appointments, such as the traditional guardian and conservator. This definition serves to
identify those persons who must receive notice of both guardianship and protective proceedings,
the lawyer, if any, as well as those others holding nominated positions. See Sections 5-304 and
5-403.

The definition of “minor” (paragraph (6)) excludes a minor who has been emancipated.
The effect of this definition is to preclude the appointment of either a guardian or conservator for
an emancipated minor unless the appointment is made for reasons other than the minor’s age. A
guardianship or conservatorship for a minor also terminates upon the minor’s emancipation. See
Sections 5-210 and 5-431. Under the 1982 UGPPA, the appointment of a guardian terminated
upon the minor’s marriage but not other emancipation, and the appointment of a conservator
could continue until the minor attained age 21, without regard to marriage or other emancipating
event.

The drafters of the 1997 revision intentionally chose not to define parent (other than as
those whose parental rights have not been terminated), instead leaving the definition up to the
enacting state’s probate code. Thus, the definition of “parent” (see paragraph (7)) may or may
not include a step-parent. A parent whose parental rights have been terminated, however, is not
a parent as so defined even if the parent is allowed to inherit from the child under the enacting
state’s probate code. Because such a parent has been found to be unfit, the parent is denied a
continued role in determining the child’s custody, including the appointment of a guardian,
whether by parental or court appointment. See Sections 5-202, 5-204, 5-205 and 5-403.

The person who is the subject of a proceeding is referred to as the “respondent.” See
paragraph (9). Once a guardianship is established, the incapacitated person or minor is referred
to as the “ward.” See paragraph (10). Once the conservatorship is established or other protective
order entered, the respondent who was the subject of the proceeding is referred to as the
“protected person.” See paragraph (8). A person for whom a guardian and a conservator has
been appointed or other protective order made is both a ward and a protected person.

SECTION 5-103. [RESERVED.]

Comment

Section 103 of the 1997 UGPPA, which is titled “Supplemental General Principles of
Law Applicable,” is identical to Section 1-103 of this Code and therefore need not be duplicated

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here. Section 1-103 provides in its entirety, “Unless displaced by the particular provisions of this
Code, the principles of law and equity supplement its provisions.” The Section is marked as
reserved in order to preserve the comparable numbering of sections between the UGPPA and this
article.

SECTION 5-104. FACILITY OF TRANSFER.

(a) Unless a person required to transfer money or personal property to a minor knows that

a conservator has been appointed or that a proceeding for appointment of a conservator of the

estate of the minor is pending, the person may do so, as to an amount or value not exceeding

[$10,000] a year, by transferring it to:

(1) a person who has the care and custody of the minor and with whom the minor

resides;

(2) a guardian of the minor;

(3) a custodian under the Uniform Transfers To Minors Act or custodial trustee

under the Uniform Custodial Trust Act; or

(4) a financial institution as a deposit in an interest-bearing account or certificate

in the sole name of the minor and giving notice of the deposit to the minor.

(b) A person who transfers money or property in compliance with this section is not

responsible for its proper application.

(c) A guardian or other person who receives money or property for a minor under

subsection (a)(1) or (2) may only apply it to the support, care, education, health, and welfare of

the minor, and may not derive a personal financial benefit except for reimbursement for

necessary expenses. Any excess must be preserved for the future support, care, education,

health, and welfare of the minor, and any balance must be transferred to the minor upon

emancipation or attaining majority.

Comment

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When a minor annually receives from a specific payer property or cash of $10,000 or
less, in all likelihood it will be expended for the ward’s support within the year and it would be
cumbersome and unnecessarily expensive to require the establishment of a conservatorship to
handle the payments. This section allows the person required to transfer the property to do so in
a more expeditious way.

The person required to transfer the property has the option of making the transfer to the
person having care and custody of the minor when the minor resides with that person, or may
instead make payments to the minor’s guardian, a custodian under the Uniform Transfers to
Minors Act (1983/1986) or the custodial trustee under the Uniform Custodial Trust Act (1987),
or to a financial institution where an interest-bearing account or certificate in only the minor’s
name is located.

The protections of this section do not apply if the person required to make the transfer
knows that a conservator has been appointed or that there is a proceeding pending for the
appointment of a conservator. Consequently, the fact that a guardian has been appointed does
not require that payment be made to that guardian. A guardian of a minor may receive payments
but has no power to compel payment from a third person. See Section 5-208. Should a guardian
desire such authority, the appropriate course is for the guardian to petition the court to be
appointed as conservator.

Although the person making the transfer has no duty or obligation to see that the money
or property is properly applied, this section is a default statute and does not override any specific
provisions in a will or trust instrument relating to monies to be paid to a minor. In those cases,
the duty of the person making the transfer would be dictated by the terms of the instrument. This
section also does not override the provisions of other statutes in the enacting jurisdiction such as
the Uniform Transfers to Minors Act (1983/1986), which allow payment by alternative means
based on the size of the minor’s estate, as opposed to this section, which allows payment based
on the annual payment obligation of the person making the payment.

The section limits the use of the money or property to the minor’s support, care,
education, health or welfare. Only necessary expenses may be reimbursed from this money or
property, with the balance being preserved for the minor’s future education, health, support, care
or welfare. This section is not applicable to child support payments made pursuant to a court
order because child support payments are made to another for the minor’s benefit.

While a recipient of funds is not a fiduciary in the normally understood sense of a person
appointed by the court or by written instrument, a recipient under this section is subject to
fiduciary obligations. Under subsection (c), the recipient may not derive any personal benefit
from the transfer and must preserve funds not used for the minor’s benefit and transfer any
balance to the minor upon emancipation or attainment of majority. Should the recipient
misapply the funds or property transferred, the recipient, given this fiduciary role, would be
liable for breach of trust.

The person receiving the monies may consider, in appropriate cases, the purchase of an
annuity or some other financial arrangement whereby payout occurs at a time subsequent to the

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minor’s attainment of majority. But to provide more certainty for the transaction, the recipient
should consider petitioning the court under Section 5-412 for approval of the purchase as a
protective arrangement.

This section is derived from the UGPPA (1982) Section 1-106 (UPC Section 5-101
(1982)).

2010 Amendment: The amount that can be paid annually was increased from $5,000 to
$10,000 to account for inflation and to conform this section to Section 3-915.

SECTION 5-105. DELEGATION OF POWER BY PARENT OR GUARDIAN. A

parent or a guardian of a minor or incapacitated person, by a power of attorney, may delegate to

another person, for a period not exceeding six months, any power regarding care, custody or

property of the minor or ward, except the power to consent to marriage or adoption.

Comment

This section provides for a temporary delegation of powers by the parent or guardian.
This section does not create a guardianship or grant a parent powers not previously possessed – it
merely allows delegation of the powers that the individual already has. Thus, the ability to make
a delegation under this section may be quite limited for a divorced parent without day-to-day
custody of a child and, depending on the state’s other laws, may not exist at all for a parent of an
adult child. But this section could be useful, for example, in other types of situations when a
parent or a guardian becomes ill or has to be away from home for less than six months. The
parent or guardian under this section could execute a power of attorney delegating to another
some or all of the powers of the parent or guardian. For example, a single parent in the military
who has to go on a tour of duty that will not exceed six months could use this section to grant a
power of attorney relating to the care of the parent’s minor children. Should the tour of duty
exceed six months, the parent would then need to renew the power. Also, this section may be
used when consent to emergency treatment is needed.

This section does not supersede the rights of persons, prior to their incapacity, to delegate
powers relating to their own financial or health-care decisions. This section only authorizes the
delegation of powers that are held by other persons, and then only powers held by parents or
guardians.

In appropriate circumstances, a parent may wish to use a delegation under this section in
lieu of a standby appointment of a guardian under Sections 5-202 and 5-302. Because no
preconditions are imposed, a delegation under this section is easier to accomplish, although a
renewal every six months will be required. A parent with a potential personal incapacity may
conclude that it is better to secure the more permanent appointment of a guardian under Parts 2
or 3 rather than to rely on a temporary delegation to an agent under this section.

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Although this section refers to a delegation of power over property, the application of this
section to management of property is in fact quite limited. Parts 2 and 3 of this article grant a
guardian only limited powers over a ward’s property, and the powers of a parent are similarly
restricted. Should it become necessary to secure powers over a minor’s or ward’s property, the
appropriate step is to petition the court for appointment of a conservator. In particular, this
section does not grant a guardian appointed in the enacting jurisdiction authority to manage the
property of a ward located in another state. A conservator would have such authority, however.
See Sections 5-425(b)(1) and 5-433.

This provision is based on UGPPA (1982) Section 1-107 (UPC Section 5-102 (1982)).

SECTION 5-106. SUBJECT-MATTER JURISDICTION.

(a) Except to the extent the guardianship is subject to the [insert citation to Uniform Child

Custody Jurisdiction and Enforcement Act], the court of this state has jurisdiction over

guardianship for minors domiciled or present in this state. The court of this state has jurisdiction

over protective proceedings for minors domiciled in or having property located in this state.

(b) The court of this state has jurisdiction over guardianship and protective proceedings

for an adult individual as provided in the [insert citation to Uniform Adult Guardianship and

Protective Proceedings Jurisdiction Act].

Comment

Prior to a 2010 amendment, which rewrote this section, this section provided in its
entirety that:

“Parts 1-4 of this article apply to, and the court has jurisdiction over guardianship and
related proceedings for individuals domiciled or present in this state, protective proceedings for
individuals domiciled in or having property located in this state, and property coming into the
control of a guardian or conservator who is subject to the laws of this state.”

This very broad grant of jurisdiction frequently resulted in simultaneous jurisdiction by

courts in more than one state. A guardian could be appointed both by the court in the state where
the individual was domiciled and, if different, the state where the individual was present, even if
temporarily. A conservator could be appointed both by the court in the state where the individual
was domiciled, and, if different, the state where any of the individual’s property was located.

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

(UAGPPJA), which was approved in 2007 and which is codified at Article 5A of this Code,
addresses the rules on jurisdiction over adult proceedings with greater specificity than did the

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previous version of this section. Due to the widespread enactment of UAGPPJA, this section was
amended in 2010 to provide in subsection (b) that the court has jurisdiction over an adult
proceeding as provided in the UAGPPJA.

With respect to minors’ proceedings, the broad jurisdiction granted under the prior
version of this section was pre-empted in substantial part by the Parental Kidnapping Prevention
Act (PKPA), 28 U.S.C. § 1738A. Despite its name, the PKPA is a comprehensive federal statute
affecting all types of interstate custody issues for minors, including judicial appointment of
guardians. The Uniform Child Custody Jurisdiction and Enforcement Act (1997) (UCCJEA)
codifies the principles of PKPA at the state level. To recognize that jurisdiction over
appointment of guardians for minors is largely controlled by the UCCJEA and not by this Code,
subsection (a) of this section was amended in 2010 to clarify that this section applies to a minors’
guardianship only to the extent the proceeding is not subject to the UCCJEA. Neither PKPA or
UCCJEA, however, applies to proceedings involving a minor’s property. Consequently, this
section will continue to apply to a protective proceeding over a minor’s property. For a
discussion of the impact of PKPA and related legislation on minors’ guardianships, see David M.
English, Minors’ Guardianship in an Age of Multiple Marriage, 29 Inst. on Est. Plan. ¶ 500 et
seq. (1995).

SECTION 5-107. TRANSFER OF JURISDICTION.

(a) Except as otherwise provided in subsection (b), the following rules apply:

(1) After the appointment of a guardian or conservator or entry of another

protective order, the court making the appointment or entering the order may transfer the

proceeding to a court in another [county] in this state or to another state if the court is satisfied

that a transfer will serve the best interest of the ward or protected person.

(2) If a guardianship or protective proceeding is pending in another state or a

foreign country and a petition for guardianship or protective proceeding is filed in a court in this

state, the court in this state shall notify the original court and, after consultation with the original

court, assume or decline jurisdiction, whichever is in the best interest of the ward or protected

person.

(3) A guardian, conservator, or like fiduciary appointed in another state may

petition the court for appointment as a guardian or conservator in this state if venue in this state

is or will be established. The appointment may be made upon proof of appointment in the other

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state and presentation of a certified copy of the portion of the court record in the other state

specified by the court in this state. Notice of hearing on the petition, together with a copy of the

petition, must be given to the ward or protected person, if the ward or protected person has

attained 14 years of age, and to the persons who would be entitled to notice if the regular

procedures for appointment of a guardian or conservator under this [article] were applicable.

The court shall make the appointment in this state unless it concludes that the appointment would

not be in the best interest of the ward or protected person. On the filing of an acceptance of

office and any required bond, the court shall issue appropriate letters of guardianship or

conservatorship. Not later than 14 days after an appointment, the guardian or conservator shall

send or deliver a copy of the order of appointment to the ward or protected person, if the ward or

protected person has attained 14 years of age, and to all persons given notice of the hearing on

the petition.

(b) This section does not apply to a guardianship or protective proceeding for an adult

individual that is subject to the transfer provisions of [insert citation to Article 3 of the Uniform

Adult Guardianship and Protective Proceedings Jurisdiction Act (2007)].

Comment

Article 3 of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
(UAGPPJA), approved in 2007, contains a detailed procedure for transferring an adult
proceeding to another state. Due to the widespread enactment of UAGPPJA, subsection (b) of
this section was added in 2010 to clarify that the UAGPPJA and not this section control to the
extent an adult proceeding is subject to the UAGPPJA. The UAGPPJA will control transfers of
an adult proceeding to another state. This section will continue to apply with respect to transfer
of an adult proceeding to another county. This section also will continue to apply to transfers of a
minor’s proceeding, whether to another state or county.

The following is the text of the comment to this section prior to the 2010 amendment:

“This section is based on South Dakota Codified Laws Sections 29A-5-109 and 29A-5-
114. This section sets out the process for transferring cases to another county, state, or foreign
country and the procedures by which a case transferred in from another state or foreign country

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is to be received. In the case of a guardianship for a minor under Part 2, the Uniform Child
Custody Jurisdiction and Enforcement Act should be consulted for additional rules on when a
case may be transferred and the procedures to be used when more than one court is involved in
making these determinations.

“This section, and Section 5-108, which addresses the appropriate venue for the
appointment of a guardian or conservator, are designed to limit forum shopping in which some
guardians and conservators have engaged and also assist the courts in keeping track of
guardianships and conservatorships. Some guardians and conservators have attempted to thwart
a court’s authority by moving the ward or protected person to another county, state, or foreign
country. The standard for transferring a guardianship or protective proceeding under this section
is always the best interest of the ward or protected person.

“The use of a best interest of the ward or protected person standard may be differentiated
for adults and minors. When dealing with an adult, the personal values and current and past
expressed desires of the ward or protected person should be considered. To the extent that these
personal values and expressed desires are unknown, the guardian or conservator should make an
effort to learn the ward’s or protected person’s values and ask about the ward’s or protected
person’s desires. Considering the personal values and expressed desires of the ward or protected
person is also a priority for decision making by guardians and conservators in general. See
Sections 5-314(a), 5-411(c), and 5-418(b).

“Once the guardianship is established, the court does not lose jurisdiction because of a
change in location of the guardian or the ward. See Sections 5-201 and 5-301.

“In the case of intra-state transfer of proceedings, transfers should be made only when the
best interest of the ward or protected person will be advanced, and care should be used by the
court to determine that this is not an attempt to secure more favorable venue for other reasons.
Under subsection (a), courts should be particularly cognizant in minors’ guardianships of
attempts to use such transfers to circumvent school district assignments or tuition payment rules.

“When a guardianship or protective proceeding is started in one state and a guardianship

or conservatorship already exists in another state, the courts from those two states should
communicate with each other. For purposes of subsection (b), the original court is the court
where the petition is first filed, not necessarily where the appointment was first made. The
second court, only after consultation with the first court, should take or decline jurisdiction only
if doing so is in the best interest of the ward or protected person. The burden is on the second
court to contact the original court because the second court would be informed of the existence
of the guardianship or conservatorship as well as the contents of the petition and have access to
other information of which the original court most likely would be unaware. In making this
determination, the second court would ordinarily grant deference to the determination of the
original court, but the granting of such deference is not specifically required by this section nor
should such deference be given when the determination of the original court is clearly contrary to
the current best interest of the ward or protected person.

“Should a transfer of jurisdiction be appropriate, subsection (c) provides a simplified

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procedure for transferring the case. The subsection assumes that the appointment in the prior
jurisdiction is appropriate and that there is consequently no need to duplicate the documentation
and evaluations required in the original proceeding. The establishment of the new guardianship
or protective proceeding is not automatic, however. In addition to the authority to decide that
jurisdiction should not be transferred, the court may also determine that the appointment is no
longer in the best interest of the ward or protected person. The procedure made available in
subsection (c) will most often be used for the appointment of a guardian when both the guardian
and ward no longer reside in the state of the original appointment. The procedure will also prove
useful when the appointment of an ancillary conservator is needed to administer property located
in a state other than the state of the protected person’s domicile. The appointment of a guardian
in the second state would be ineffective in such circumstances because a guardian does not have
general authority to manage the ward’s property. Should a guardian discover that the ward has
property located in another state, the guardian should explore the possibility of being appointed
conservator in that state.”

SECTION 5-108. VENUE.

(a) Venue for a guardianship proceeding for a minor is in the [county] of this state in

which the minor resides or is present at the time the proceeding is commenced.

(b) Venue for a guardianship proceeding for an incapacitated person is in the [county] of

this state in which the respondent resides and, if the respondent has been admitted to an

institution by order of a court of competent jurisdiction, in the [county] in which the court is

located. Venue for the appointment of an emergency or a temporary substitute guardian of an

incapacitated person is also in the [county] in which the respondent is present.

(c) Venue for a protective proceeding is in the [county] of this state in which the

respondent resides, whether or not a guardian has been appointed in another place or, if the

respondent does not reside in this state, in any [county] of this state in which property of the

respondent is located.

(d) If a proceeding under this [article] is brought in more than one [county] in this state,

the court of the [county] in which the proceeding is first brought has the exclusive right to

proceed unless that court determines that venue is properly in another court or that the interests

of justice otherwise require that the proceeding be transferred.

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Comment

This section consolidates but otherwise generally follows the venue provisions of the
1982 UGPPA except that it allows for the appointment of a permanent guardian for an
incapacitated person only in the place where the incapacitated person resides. A court in the
place where the incapacitated person is currently located but not a resident is not prohibited from
taking action, however, such action is limited to the appointment of an emergency or temporary
substitute guardian. This revision was made in direct response to the growing number of cases
where older individuals have been moved across state lines and a guardianship then used to
confirm custody rights in the new state. The drafters concluded that while it is always
appropriate for a court on the scene to issue temporary orders to protect the person’s welfare,
only the court in the place where the person has the most significant contacts should be allowed
to make what could turn out to be a permanent custody order. This requirement that only a court
in the place where the respondent resides may appoint a permanent guardian applies not only to
proceedings brought in different states, but also to multiple proceedings brought in different
counties within a particular state. Subsection (d) provides that when there is more than one
proceeding brought within a state, the first court decides where venue is appropriate. The first
court does not automatically proceed; it should decide where proper venue lies and enter an order
accordingly.

While the venue provisions are generally consolidated in this section, there is one
exception. The venue provisions for the appointment of a guardian by a parent or spouse without
prior court approval are contained in Sections 5-202 and 5-303. However, the subsequent
petition to the court to confirm the parental or spousal appointment is subject to the venue
requirements of this section.

SECTION 5-109. [RESERVED.]

Comment

Section 109 of the 1997 UGPPA, which is titled “Practice in Court,” is similar to
Sections 1-302(d) and 1-304 of this Code and therefore need not be duplicated here. The Section
is marked as reserved in order to preserve the comparable numbering of sections between the
UGPPA and this article.

Section 1-302(d) provides: “If both guardianship and protective proceedings as to the
same person are commenced or pending in the same court, the proceedings may be
consolidated.”

Section 1-304 provides, “Unless specifically provided to the contrary in this Code or
unless inconsistent with its provisions, the rules of civil procedure, including the rules
concerning of vacation of orders and appellate review govern formal proceedings under this
Code.” Guardianship and conservatorship proceedings, because they are conducted in front of a
judge with notice to interested persons, are classified as formal proceedings under the Code. See
Section 1-201(17).

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SECTION 5-110. LETTERS OF OFFICE. Upon the guardian’s filing of an

acceptance of office, the court shall issue appropriate letters of guardianship. Upon the

conservator’s filing of an acceptance of office and any required bond, the court shall issue

appropriate letters of conservatorship. Letters of guardianship must indicate whether the

guardian was appointed by the court, a parent, or the spouse. Any limitation on the powers of a

guardian or conservator or of the assets subject to a conservatorship must be endorsed on the

guardian’s or conservator’s letters.

Comment

A guardian must file an acceptance of office while a conservator must file an acceptance
of office as well as any required bond. Any limits on the powers of the guardian or conservator
must be stated in the letters. This requirement helps to secure the recognition and honoring of
limited guardianships and conservatorships.

Under Section 5-424(a), third persons are charged with knowledge of the restrictions
endorsed on the letters of office and are subject to possible liability for failing to act in
accordance with those restrictions. Either a certified or authenticated copy of the letters may
serve as proof of authority by appointment.

SECTION 5-111. EFFECT OF ACCEPTANCE OF APPOINTMENT. By accepting

appointment, a guardian or conservator submits personally to the jurisdiction of the court in any

proceeding relating to the guardianship or conservatorship. The petitioner shall send or deliver

notice of any proceeding to the guardian or conservator at the guardian’s or conservator’s

address shown in the court records and at any other address then known to the petitioner.

Comment

Once the guardian or conservator accepts the appointment, the court has jurisdiction over
the guardian or conservator in any proceeding relating to the guardianship or conservatorship.
Regardless of where the guardian or conservator may move, jurisdiction over the guardian or
conservator continues. See Sections 5-201 and 5-301. For purposes of giving notice of
proceedings to a guardian or conservator, petitioners may use the address of the guardian or
conservator that is in the court file, any other address known to the petitioner, or any other
procedure available under the enacting state’s rules of civil procedure. It is incumbent on the
guardian and the conservator to keep their current addresses in the court file.

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SECTION 5-112. TERMINATION OF OR CHANGE IN GUARDIAN’S OR

CONSERVATOR’S APPOINTMENT.

(a) The appointment of a guardian or conservator terminates upon the death, resignation,

or removal of the guardian or conservator or upon termination of the guardianship or

conservatorship. A resignation of a guardian or conservator is effective when approved by the

court. [A parental or spousal appointment as guardian under an informally probated will

terminates if the will is later denied probate in a formal proceeding.] Termination of the

appointment of a guardian or conservator does not affect the liability of either for previous acts

or the obligation to account for money and other assets of the ward or protected person.

(b) A ward, protected person, or person interested in the welfare of a ward or protected

person may petition for removal of a guardian or conservator on the ground that removal would

be in the best interest of the ward or protected person or for other good cause. A guardian or

conservator may petition for permission to resign. A petition for removal or permission to resign

may include a request for appointment of a successor guardian or conservator.

(c) The court may appoint an additional guardian or conservator at any time, to serve

immediately or upon some other designated event, and may appoint a successor guardian or

conservator in the event of a vacancy or make the appointment in contemplation of a vacancy, to

serve if a vacancy occurs. An additional or successor guardian or conservator may file an

acceptance of appointment at any time after the appointment, but not later than 30 days after the

occurrence of the vacancy or other designated event. The additional or successor guardian or

conservator becomes eligible to act on the occurrence of the vacancy or designated event, or the

filing of the acceptance of appointment, whichever last occurs. A successor guardian or

conservator succeeds to the predecessor’s powers, and a successor conservator succeeds to the

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predecessor’s title to the protected person’s assets.

Comment

Although a guardian or conservator may submit a resignation at any time, the resignation
is not effective until the court has approved it. A guardian or conservator, regardless of how the
appointment ended, is still liable for previous acts as well as the duty to account for the money
and assets of the ward or protected person. In the event of a termination of appointment due to
the guardian’s or conservator’s death, the duty to account is normally performed by the personal
representative of the guardian or conservator. In the event of the removal of a guardian or
conservator due to the guardian’s or conservator’s own incapacity, the duty to account will
normally be performed by the guardian’s or conservator’s own guardian, conservator or other
legal representative.

Those who may petition for removal of the guardian or conservator are the incapacitated
person, the protected person or a person interested in the welfare of the incapacitated or protected
person. Under subsection (b), the ground for removal is the best interest of the ward or the
protected person. In determining whether it is in the best interest of the ward or protected person
for the guardian or conservator to be removed, the use of a best interest of the ward or protected
person standard in relation to an adult may be differentiated from that used in reference to
minors. When dealing with an adult, every effort should be made to determine the wishes of the
ward or protected person regarding the removal of the guardian or conservator. In determining
the best interest of the adult ward or protected person, the ward’s or protected person’s personal
values and expressed desires, past or present, should be considered. Considering the personal
values and expressed desires of the ward or protected person is also a priority consideration for
decision making by guardians and conservators in general. See Sections 5-314(a), 5-411(c) and
5-418(b).

While the section adopts a best interest of the ward or protected person standard, courts
seeking more precisely stated reasons for removal may wish to consult their state’s law on
removal of a trustee. For a statutory list of reasons directed specifically at removal of guardians
or conservators, see South Dakota Codified Laws Section 29A-5-504.

Among the reasons justifying removal under the South Dakota statute are: (1) securing
of the letters by material misrepresentation or mistake; (2) incapacity or illness, including
substance abuse, affecting fitness for office; (3) conviction of a crime reflecting on fitness; (4)
wasting or mismanagement of the estate; (5) neglecting the care and custody of the ward,
protected person or legal dependents; (6) having an adverse interest that poses a substantial risk
that the guardian or conservator will fail to properly perform duties; (7) failure to timely file a
required account or report or otherwise comply with a court order; and (8) avoidance of service
of process or notice.

Under subsection (c), the court can appoint an additional guardian or conservator,
effective either upon appointment or upon a future contingency. A court can also appoint a
successor guardian or conservator to fill an existing or potential vacancy. In either case,
eligibility to act occurs on the last to occur of the vacancy, the occurrence of the contingency or

508
the filing of the acceptance of appointment. The ability to appoint a guardian or conservator to
act upon some specified future event will usually be used to preplan the filling of a vacancy in
office. This provision, in the states that have enacted it, has proven useful in situations involving
adults with developmental disabilities. The initial guardian or conservator appointed will usually
be a parent of the ward or protected person, but the child’s need for guardianship or
conservatorship is likely to be lifelong. The ability to appoint a successor guardian or
conservator at the time of the initial appointment therefore provides the parent with assurance of
mind that upon the parent’s death someone will be available to step in and assure continuity of
care.

The ability to appoint a successor or additional guardian to take office in the future is
different from the type of standby appointments authorized in Sections 5-202 and 5-302. Those
types of appointments permit a guardian to be appointed to take office in the future even though
no guardian is currently in office. Under this section, only the appointment of a successor or
additional guardian or conservator is allowed.

SECTION 5-113. NOTICE.

(a) Except as otherwise ordered by the court for good cause, if notice of a hearing on a

petition is required, other than a notice for which specific requirements are otherwise provided,

the petitioner shall give notice of the time and place of the hearing to the person to be notified.

Notice must be given in compliance with [insert the applicable rule of civil procedure], at least

14 days before the hearing.

(b) Proof of notice must be made before or at the hearing and filed in the proceeding.

(c) A notice under this [article] must be given in plain language.

Comment

Notice may be provided by mail as well as by private courier or delivery service. If the
adopting state’s rules allow, a faxed copy of the notice may be an appropriate method of
providing notice. This section does not supersede specific notice requirements provided
elsewhere in this article. Special notice requirements apply to a petition for the appointment of
an emergency guardian and to service on the respondent of a petition for the appointment of a
guardian or conservator or other protective order. See Sections 5-309, 5-312, and 5-404. The
requirement of at least 14 days’ prior notice is copied from the 1982 UGPPA. A 14 day prior
notice provision has also been part of the UPC, including its provisions on guardianships and
protective proceedings, since the inception of the Code. Under this section, notice should be
given using the method of notice provided in the enacting jurisdiction’s applicable rule of civil
procedure. However, the time limit for notice contained in subsection (a) should be applied,
even if different from that in the state’s applicable rule.

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Subsection (c) provides that the notice be in plain language. The requirement that all
notices be given in plain language is based on a recommendation of the Wingspread conference
on guardianship reform. See Guardianship: An Agenda for Reform 9 (A.B.A. 1989). Although
this section does not require it, if English is not the respondent’s primary language, best practice
and due process would direct that a copy of the notice be provided in the respondent’s primary
language.

SECTION 5-114. WAIVER OF NOTICE. A person may waive notice by a writing

signed by the person or the person’s attorney and filed in the proceeding. However, a

respondent, ward, or protected person may not waive notice.

Comment

Waivers in this section include both specific and general waivers. Under no
circumstances may the respondent, ward, or protected person waive notice. The protection
provided by this section applies to all petitions brought under this article but is particularly
pertinent to original petitions for appointment of a guardian or conservator or other protective
order. See Sections 5-309 and 5-404. In consequence, except as ordered by the court under
Section 5-113 for good cause, a period of at least 14 days must elapse between the filing of the
petition and the hearing whenever notice to a respondent, ward, or protected person is required.
The source of this section is UGPPA (1982) Section 1-402.

SECTION 5-115. GUARDIAN AD LITEM. At any stage of a proceeding, a court

may appoint a guardian ad litem if the court determines that representation of the interest

otherwise would be inadequate. If not precluded by a conflict of interest, a guardian ad litem

may be appointed to represent several individuals or interests. The court shall state on the record

the duties of the guardian ad litem and its reasons for the appointment.

Comment

Appointments under this section will be infrequent. If the respondent is currently

represented, the attorney representing the respondent should not be appointed as the guardian ad
litem because of the conflict of interest, since there is a distinct difference between the role of the
attorney as an advocate and as a guardian ad litem. It is important that the court, when
appointing a guardian ad litem, advise the guardian ad litem of his or her role. This section
encourages the giving of such advice by requiring that the court record the duties of the guardian
ad litem and its reasons for the appointment. The source of this section is UGPPA (1982)
Section 1-403 (UPC Section 1-403(4) (1982)).

SECTION 5-116. REQUEST FOR NOTICE; INTERESTED PERSONS. An

510
interested person not otherwise entitled to notice who desires to be notified before any order is

made in a guardianship proceeding, including a proceeding after the appointment of a guardian,

or in a protective proceeding, may file a request for notice with the clerk of the court in which

the proceeding is pending. The clerk shall send or deliver a copy of the request to the guardian

and to the conservator if one has been appointed. A request is not effective unless it contains a

statement showing the interest of the person making it and the address of that person or a lawyer

to whom notice is to be given. The request is effective only as to proceedings conducted after its

filing. A governmental agency paying or planning to pay benefits to the respondent or protected

person is an interested person in a protective proceeding.

Comment

This section allows an interested person not otherwise entitled to notice to file a request
for special notice with the guardian or conservator. For purposes of this section, an interested
person in a protective proceeding includes a creditor, secured or otherwise. The section also
specifically provides that an interested person in a protective proceeding includes a governmental
agency that is or will be paying benefits to the respondent or protected person. Whether a
creditor, governmental agency or other person is an interested person as the term is used
elsewhere in this article must be determined according to the particular issue involved. For
example, under certain circumstances an interested person could include a member of the media
or a “watch-dog” agency. For a request for special notice to be effective, a statement of the
person’s interest must be contained in the request.

This section is based on UGPPA (1982) Section 1-404 (UPC Section 5-104 (1982)).

SECTION 5-117. MULTIPLE APPOINTMENTS OR NOMINATIONS. If a

respondent or other person makes more than one written appointment or nomination of a

guardian or a conservator, the most recent controls.

Comment

The most recent appointment or nomination would be the one with the most recent date
during the period when the respondent had capacity to make the appointment or nomination. If
the most recent appointment is determined invalid due to the respondent’s lack of capacity, the
prior appointment would control.

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PART 2. GUARDIANSHIP OF MINOR

SECTION 5-201. APPOINTMENT AND STATUS OF GUARDIAN. A person

becomes a guardian of a minor by parental appointment or upon appointment by the court. The

guardianship status continues until terminated, without regard to the location of the guardian or

minor ward.

Comment

This part provides for the creation and administration of guardianship over minors. The
court’s ability to appoint a guardian for a minor under this part is in certain cases partially or
wholly superseded by special legislation relating to custody of minors. Reference should also be
made to the Uniform Child Custody Jurisdiction and Enforcement Act (1997), the Parental
Kidnapping Prevention Act, 28 U.S.C. § 1738A, and the Indian Child Welfare Act, 25 U.S.C. §
1901 et seq. For a discussion of the jurisdictional limitations, see David M. English, Minors’
Guardianship in an Age of Multiple Marriage, 29 Inst. on Est. Plan. ¶ ¶ 500, 502 (1995).

This section recognizes the creation of a guardianship by parental appointment under

Section 5-202 as well as those created by the court under Section 5-205. A guardian or the ward
can move from the jurisdiction in which the court is located, yet the guardianship will continue
until terminated and remains under the court’s jurisdiction. See Section 5-107 regarding
transfers of jurisdiction and Section 5-111 regarding the effect of acceptance of appointment.

This section is the same as UGPPA (1982) Section 2-101 (UPC Section 5-201 (1982)).

SECTION 5-202. PARENTAL APPOINTMENT OF GUARDIAN.

(a) A guardian may be appointed by will or other signed writing by a parent for any

minor child the parent has or may have in the future. The appointment may specify the desired

limitations on the powers to be given to the guardian. The appointing parent may revoke or

amend the appointment before confirmation by the court.

(b) Upon petition of an appointing parent and a finding that the appointing parent will

likely become unable to care for the child within [two] years, and after notice as provided in

Section 5-205(a), the court, before the appointment becomes effective, may confirm the parent’s

selection of a guardian and terminate the rights of others to object.

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(c) Subject to Section 5-203, the appointment of a guardian becomes effective upon the

appointing parent’s death, an adjudication that the parent is an incapacitated person, or a written

determination by a physician who has examined the parent that the parent is no longer able to

care for the child, whichever first occurs.

(d) The guardian becomes eligible to act upon the filing of an acceptance of appointment,

which must be filed within 30 days after the guardian’s appointment becomes effective. The

guardian shall:

(1) file the acceptance of appointment and a copy of the will with the court of the

[county] in which the will was or could be probated or, in the case of another appointing

instrument, file the acceptance of appointment and the appointing instrument with the court of

the [county] in which the minor resides or is present; and

(2) give written notice of the acceptance of appointment to the appointing parent,

if living, the minor, if the minor has attained 14 years of age, and a person other than the parent

having care and custody of the minor.

(e) Unless the appointment was previously confirmed by the court, the notice given under

subsection (d)(2) must include a statement of the right of those notified to terminate the

appointment by filing a written objection in the court as provided in Section 5-203.

(f) Unless the appointment was previously confirmed by the court, within 30 days after

filing the notice and the appointing instrument, a guardian shall petition the court for

confirmation of the appointment, giving notice in the manner provided in Section 5-205(a).

(g) The appointment of a guardian by a parent does not supersede the parental rights of

either parent. If both parents are dead or have been adjudged incapacitated persons, an

appointment by the last parent who died or was adjudged incapacitated has priority. An

513
appointment by a parent which is effected by filing the guardian’s acceptance under a will

probated in the state of the testator’s domicile is effective in this state.

(h) The powers of a guardian who timely complies with the requirements of subsections

(d) and (f) relate back to give acts by the guardian which are of benefit to the minor and occurred

on or after the date the appointment became effective the same effect as those that occurred after

the filing of the acceptance of the appointment.

(i) The authority of a guardian appointed under this section terminates upon the first to

occur of the appointment of a guardian by the court or the giving of written notice to the

guardian of the filing of an objection pursuant to Section 5-203.

Comment

This section enables a parent to make an advance appointment of a “standby” guardian

whose powers become effective upon the occurrence of certain specified contingencies. The
standby appointment procedure under this section is available to all parents, but is particularly
beneficial for parents with pending incapacities which will likely render them unable to care for
their children at some point prior to their deaths. The section, like UGPPA (1982) Section 2-102
(UPC Section 5-202 (1982)), allows for the appointment of a guardian effective upon a parent’s
death or adjudication of incapacity. Additionally, following the lead of a growing number of
free-standing standby guardianship statutes enacted in the states, it allows for an appointment to
become effective upon a determination that the parent is no longer able to provide care. For
analysis of these state statutes, see Joshua S. Rubenstein, Standby Guardianship Legislation:
Preparing Before the Tidal Wave Hits, 22 ACTEC Notes 60 (1996). The parent can make either
type of appointment in a will or other signed writing, including a power of attorney, a trust or a
document executed for the sole purpose of appointing the guardian.

Under subsection (c), the contingencies upon which the authority of the standby guardian
will become effective are the parent’s death, adjudication of incapacity or written determination
by a physician who has examined the parent that the parent is no longer able to care for a minor
child. The physician making the written determination should be the parent’s treating physician
whenever possible, to avoid the possibility of the other parent manipulating this process in a
custody battle.

In the case of a parent who has disappeared, the appointment of an emergency guardian
should be sought under Section 5-204(e). Under that section, preference will be given to the
nominated guardian absent a showing that it is not in the best interest of the minor child for that
person to be appointed.

514
Subsection (a) recognizes that the appointing parent may have additional children after
making the appointment, so the provision allows a parent to appoint a guardian for children who
may later be born, adopted or whose custody may be given to the appointing parent, without the
need to re-execute the nomination.

The appointment of a person as guardian under this section creates a rebuttable

presumption that the appointed person should be appointed as guardian and that the court should
not disregard the appointment without good cause. A person who chooses not to accept the
appointment is not liable for failing to act.

Under subsection (b), the appointing parent may petition the court prior to the triggering
event for advance confirmation of the appointment. Advance court confirmation terminates both
the right of others to object, including an objection by the child’s other parent, and the right of
the appointing parent to revoke the appointment. Subsection (b) provides that a petition for
advance court confirmation may be made at anytime within the recommended two years from the
date of the likely need, but this time limit is placed in brackets to indicate that the enacting
jurisdiction is free to select a different time period. Depending on the length of time set by the
enacting states, courts may need to show flexibility regarding the time limit. It may be difficult
for the appointing parent to prove with absolute certainty that the appointing parent will become
unable to care for the child within the specified period of time. Courts should liberally construe
this provision in favor of the appointing parent. For this reason, subsection (b) does not require
absolute certainty, and instead uses the standard that it is “likely” that the guardian will be
needed within the time period. If the court confirms the guardian in advance and the stated
deadline (e.g., two years) has passed without the guardian’s filing the acceptance of appointment
required under subsection (d), the court should hold a hearing to determine the appointing
parent’s status and whether the advance confirmation should continue.

While this section allows the court to confirm an appointment in advance, more typically
the guardian will assume duties based solely on the parent’s written appointment. A guardian so
appointed must then seek court confirmation, thereby turning the standby appointment into a
regular guardianship. Allowing the guardian’s appointment to become effective immediately
upon the triggering event avoids gaps in the care and custody of the child. The purpose of the
confirmation of appointment process contained in subsections (d)-(f) is to convert a nominated
guardianship into a regular guardianship as soon as possible. The court should develop
procedures to monitor the conversions.

The section does not specifically enumerate the contents of the petition for confirmation
of appointment to be filed by the guardian. In order for the court to make an informed review,
the petition should include the name and address of the minor; the identity and whereabouts of
all persons having parental rights or serving as guardian; the petitioner’s name and address,
relationship to the parent and child, interest in the appointment, and a statement of the
petitioner’s willingness to serve; information about any custody orders; any limitations the
appointing parent has placed on the powers of the appointed guardian, the powers to be given the
guardian, and if an unlimited guardianship, a statement why a limited guardianship would not
work; and reasons why the appointment should be confirmed. The petition should be
accompanied by a death certificate, an order of adjudication of incapacity or a written statement

515
by the physician who has examined the appointing parent that the appointing parent is no longer
able to care for the minor child. In this last case, the written statement should include the
prognosis and diagnosis of the parent’s condition, as well as the date of the doctor’s examination
of the parent. The petition should be accompanied by a copy of the appointing instrument, as
well as any other relevant documents, such as a custody order or an order terminating parental
rights. If the selection as guardian was previously confirmed pursuant to subsection (b), a copy
of the order of confirmation should accompany the required notice.

Under subsection (g), the appointment of a guardian by a parent does not supersede the
parental rights of either parent. Until the appointment is confirmed by the court, the rights of the
parent and the rights of the guardian coexist. While parental rights are not terminated, at least in
theory, the guardian will often supersede the parental rights in fact. The parent making the
appointment will no longer be able to provide care for the child, even though not yet legally
incapacitated, and the other parent may be uninterested or unable to provide care for the child.
To provide more certainty to the situation, the appointee should seek court confirmation of the
parental appointment as soon as possible.

At the hearing on the petition for confirmation, if the court finds that the appointing
parent will not regain the ability to care for the minor child, the court should enter an order
confirming the appointment, absent evidence rebutting the presumption that the appointment is
in the child’s best interest. If the court finds that the parent may regain ability to care for the
minor child, the court should enter an order confirming the appointment for a period of time
deemed appropriate by the court. An order of confirmation cuts off the right to object of the
minor, the other parent, or a person other than a parent having care and custody of the minor.
The confirmation also supersedes the rights of the non-appointing parent.

Until the parental appointment is confirmed by the court, the minor, the other parent or
the person other than the parent having care and custody of the minor may file an objection to the
appointment under Section 5-203. See subsections (c) and (e). If an objection is filed, the
appointed guardian has no authority to act and instead must petition the court for appointment as
guardian under Section 5-205.

Subsection (h) provides that the timely performance of the requirements for the
guardian’s acceptance of office relate back to give any acts performed between the appointment
becoming effective and the guardian’s filing of the notice of acceptance the same effect as those
occurring after the filing of the notice of acceptance, as long as the prior acts are beneficial to the
minor. In the event of a dispute regarding whether a guardian’s prior act should be validated, the
court first determines whether the act was beneficial to the minor, and if the court determines the
act was beneficial, then subsection (h) will apply.

Unless stated to the contrary in this section, the other provisions of this article relating to
guardians apply to a guardian appointed under this section, including the provisions relating to
the duties and powers of guardians

SECTION 5-203. OBJECTION BY MINOR OR OTHERS TO PARENTAL

516
APPOINTMENT. Until the court has confirmed an appointee under Section 5-202, a minor

who is the subject of an appointment by a parent and who has attained 14 years of age, the other

parent, or a person other than a parent or guardian having care or custody of the minor may

prevent or terminate the appointment at any time by filing a written objection in the court in

which the appointing instrument is filed and giving notice of the objection to the guardian and

any other persons entitled to notice of the acceptance of the appointment. An objection may be

withdrawn, and if withdrawn is of no effect. The objection does not preclude judicial

appointment of the person selected by the parent. The court may treat the filing of an objection

as a petition for the appointment of an emergency or a temporary guardian under Section 5-204,

and proceed accordingly.

Comment

This section provides a mechanism for a listed group of individuals to object to a parental
appointment made under Section 5-202 and to turn the appointment into a contested proceeding.
The individuals who may object include the minor, if at least 14 years old, as well as the other
parent or a person other than a parent or guardian who has care or custody of the minor. The
objection must be in writing and can be filed at any time prior to the court’s confirmation of the
appointment.

If an objection is filed, the appointee has no authority to act and instead must file a
petition for appointment as guardian under Section 5-205. Although the minor, the other parent,
or the person who has care or custody of the minor may object to the appointment, the court still
may appoint the person selected by the parent over the objection. An objection that is not timely
filed will not prevent the appointment.

When an objection is filed, the court may choose to treat the objection as a petition for
the appointment of an emergency (or in appropriate cases, temporary) guardian under Section 5-
204, and use the expedited process contained therein.

This section is based on UGPPA (1982) Section 2-103 (UPC Section 5-203 (1982)).

SECTION 5-204. JUDICIAL APPOINTMENT OF GUARDIAN: CONDITIONS

FOR APPOINTMENT.

(a) A minor or a person interested in the welfare of a minor may petition for appointment

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of a guardian.

(b) The court may appoint a guardian for a minor if the court finds the appointment is in

the minor’s best interest, and:

(1) the parents consent;

(2) all parental rights have been terminated; or

(3) the parents are unwilling or unable to exercise their parental rights.

(c) If a guardian is appointed by a parent pursuant to Section 5-202 and the appointment

has not been prevented or terminated under Section 5-203, that appointee has priority for

appointment. However, the court may proceed with another appointment upon a finding that the

appointee under Section 5-202 has failed to accept the appointment within 30 days after notice of

the guardianship proceeding.

(d) If necessary and on petition or motion and whether or not the conditions of subsection

(b) have been established, the court may appoint a temporary guardian for a minor upon a

showing that an immediate need exists and that the appointment would be in the best interest of

the minor. Notice in the manner provided in Section 5-113 must be given to the parents and to a

minor who has attained 14 years of age. Except as otherwise ordered by the court, the temporary

guardian has the authority of an unlimited guardian, but the duration of the temporary

guardianship may not exceed six months. Within five days after the appointment, the temporary

guardian shall send or deliver a copy of the order to all individuals who would be entitled to

notice of hearing under Section 5-205.

(e) If the court finds that following the procedures of this [part] will likely result in

substantial harm to a minor’s health or safety and that no other person appears to have authority

to act in the circumstances, the court, on appropriate petition, may appoint an emergency

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guardian for the minor. The duration of the guardian’s authority may not exceed [30] days and

the guardian may exercise only the powers specified in the order. Reasonable notice of the time

and place of a hearing on the petition for appointment of an emergency guardian must be given

to the minor, if the minor has attained 14 years of age, to each living parent of the minor, and a

person having care or custody of the minor, if other than a parent. The court may dispense with

the notice if it finds from affidavit or testimony that the minor will be substantially harmed

before a hearing can be held on the petition. If the guardian is appointed without notice, notice

of the appointment must be given within 48 hours after the appointment and a hearing on the

appropriateness of the appointment held within [five] days after the appointment.

Comment

The court, in order to make an informed decision on a petition for appointment, must
have as much information as possible. The court should require that the following specific
information be contained in a petition filed under subsection (a): the name, age and address of
the minor; the name and address of the petitioner and the petitioner’s relationship to the minor;
the name and address of the proposed guardian, the proposed guardian’s relationship to the
minor and the proposed guardian’s qualifications to serve as guardian; whether the minor’s
school district would change if a guardian is appointed; and information about the parents of the
minor, their whereabouts, and if missing or absent, the circumstances surrounding their absence
and whether any court has entered any order regarding their parental rights. The petition should
also include information about the minor’s property and, if the guardian is appointed, where the
minor would live, as well as any other information that the court would deem relevant. The
court should examine the petition to make sure this information has been supplied as fully as
possible and should reject any petitions that provide insufficient information.

Subsection (a) allows a petition to be filed either by the minor or by any person interested
in the minor’s welfare. A person interested in the minor’s welfare is any person with a serious
interest or concern for the minor’s welfare, including both relatives and non-relatives having
knowledge of the circumstances, as well as public officials from relevant agencies. Should the
court determine that the petitioner’s concerns stem from interests other than the welfare and best
interest of the minor, the court may dismiss the petition.

Under this section, the appointment can be made in one of three situations: when the
parents consent, when all parental rights have been terminated or when the parents are unable or
unwilling to exercise their parental rights. In the last situation, the court must decide whether a
parent is unwilling or unable to act. See David M. English, Minors’ Guardianship in an Age of
Multiple Marriage, 29 Inst. on Est. Plan. ¶ ¶ 500, 503 (1995), for a discussion of criteria applied

519
in determining unwillingness or unfitness of a parent to care for a minor child. This section is
not to be used to resolve custody disputes between parents that are more appropriately resolved
in a family law proceeding. See comments to UGPPA (1982) Section 2-104 (UPC Section 5-204
(1982)).

If the parent has made an appointment pursuant to Section 5-202, this section provides
the parental appointee with priority for appointment if a petition for appointment of guardian of
the minor is subsequently filed. Where, however, the appointee failed to timely accept the
appointment as required in Section 5-202, the court can appoint another to serve as the guardian.
The parental appointee has priority for appointment by the court even over the nominee of a
minor age 14 or older.

On occasion, parents have established a guardianship for their minor child in order to
change the child’s school district. Allowing for such use of guardianship is inconsistent with the
intent of this section. For that reason, the recommended information to be contained in the
petition includes a statement as to whether the child’s school district will change. This
information puts the court on notice that the parents may be attempting to use a guardianship to
manipulate a school assignment. The court should inquire whether there will be a change in the
minor’s school assignment if a guardian is appointed. Even when a change of school districts is
not mentioned, the court should inquire whether there will be a change in the minor’s school
district if a guardian is appointed.

Subsection (d) provides for the appointment of a temporary guardian on appropriate

petition or motion, when the court finds that an immediate need exists and it is in the minor’s
best interest for a temporary guardian to be appointed. The temporary guardianship provision is
based on South Dakota Codified Laws Section 29A-5-210. Notice is required as provided in
Section 5-113. The temporary guardian has the same authority as an unlimited guardian, but the
guardianship may not last for more than six months. If the need for a guardian continues beyond
six months, then the temporary guardian should file a petition under Section 5-205 to be
appointed as unlimited guardian.

All individuals listed in Section 5-205(a) are required to receive notice in a temporary
guardianship proceeding under subsection (d). The six month limitation on the temporary
guardianship does not prevent the renewal or extension of the guardianship by court order at the
expiration of the six months. However, if the duration needs to be extended, the court should
examine whether a regular guardianship of the minor would be more appropriate.

Under subsection (e), in emergencies, where following the procedures specified in

Section 5-205 would result in serious harm to the minor’s health or safety and where there is no
one with authority or who is willing to act, the court, on petition, may appoint an emergency
guardian for up to 30 days. Prior notice is required unless the court finds from affidavit or
testimony that the minor will be seriously harmed during the time needed to give notice. Only
then may the court act without notice. A court should have a process established to provide
notice on an emergency basis. Proceedings without prior notice should be the rare exception
rather than the rule. However, subsection (e) recognizes that occasionally there will be situations
where giving prior notice on an emergency guardianship petition is simply not feasible. Thus,

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when an emergency guardianship is established without notice, notice has to be given within 48
hours of the appointment and a return hearing held within five days of the appointment.
Although the five days is bracketed, giving states the option of adopting a different time limit,
five days is the minimum notice requirement in most states for an ex parte hearing. If the
enacting states choose to enact a time limit other than five days, to adequately protect the minor
the time chosen should be relatively short. The procedures under this subsection are similar to
that for emergency appointments for adults, found in Section 5-312.

For both temporary and emergency guardianships, it is possible that one or both parents
may have authority to act but are absent, refusing to act or unable to act. The emergency
provision may be used when the minor is having a health care crisis and the parents are absent or
dead. In cases where the parents are missing and presumed dead, a temporary guardianship
might be used, although this is a situation where the conditions for a permanent appointment of a
guardian would likely be met. Use of a temporary or emergency appointment may also be
appropriate where the parents are absent for a set period of time. In some jurisdictions, it may be
more appropriate to get an order of custody through the juvenile court rather than establishing a
temporary guardianship.

SECTION 5-205. JUDICIAL APPOINTMENT OF GUARDIAN: PROCEDURE.

(a) After a petition for appointment of a guardian is filed, the court shall schedule a

hearing, and the petitioner shall give notice of the time and place of the hearing, together with a

copy of the petition, to:

(1) the minor, if the minor has attained 14 years of age and is not the petitioner;

(2) any person alleged to have had the primary care and custody of the minor

during the 60 days before the filing of the petition;

(3) each living parent of the minor or, if there is none, the adult nearest in kinship

that can be found;

(4) any person nominated as guardian by the minor if the minor has attained 14

years of age;

(5) any appointee of a parent whose appointment has not been prevented or

terminated under Section 5-203; and

(6) any guardian or conservator currently acting for the minor in this state or

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elsewhere.

(b) The court, upon hearing, shall make the appointment if it finds that a qualified person

seeks appointment, venue is proper, the required notices have been given, the conditions of

Section 5-204(b) have been met, and the best interest of the minor will be served by the

appointment. In other cases, the court may dismiss the proceeding or make any other disposition

of the matter that will serve the best interest of the minor.

(c) If the court determines at any stage of the proceeding, before or after appointment,

that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to

represent the minor, giving consideration to the choice of the minor if the minor has attained 14

years of age.

Comment

If the conditions for appointment set out in subsection (b) have not been met, or if the
appointment is not in the minor’s best interest, the court should dismiss the petition or make any
other order that serves the minor’s best interest, including, where appropriate, treating the
petition as one for the appointment of a conservator or other protective order under Part 4.

Under subsection (a)(3), if both parents are dead, notice and a copy of the petition must
be given to the adult nearest in kinship. Where there is more than one adult in the same class,
notice to one is sufficient.

The court may, at any stage of the proceeding, appoint a lawyer to represent the minor if
the conditions in subsection (c) are met. If the minor is at least 14 years old, the minor’s
preference for a lawyer must be considered by the court in appointing counsel.

This section is based on UGPPA (1982) Section 2-106 (UPC Section 5-206 (1982)).

SECTION 5-206. JUDICIAL APPOINTMENT OF GUARDIAN: PRIORITY OF

MINOR’S NOMINEE; LIMITED GUARDIANSHIP.

(a) The court shall appoint as guardian a person whose appointment will be in the best

interest of the minor. The court shall appoint a person nominated by the minor, if the minor has

attained 14 years of age, unless the court finds the appointment will be contrary to the best

522
interest of the minor.

(b) In the interest of developing self-reliance of a ward or for other good cause, the court,

at the time of appointment or later, on its own motion or on motion of the minor or other

interested person, may limit the powers of a guardian otherwise granted by this [part] and

thereby create a limited guardianship. Following the same procedure, the court may grant

additional powers or withdraw powers previously granted.

Comment

Absent a parental appointment, the only person having preference for appointment as
guardian under this section is the person nominated by a minor age 14 or older, as long as that
person’s appointment would be in the minor’s best interest. The priority granted under this
section does not override the preference given to the parental appointee under Section 5-204(c).
Regardless of the preference granted, the standard used by the court in determining whom to
appoint as guardian is the minor’s best interest.

Subsection (b) applies the concept of limited guardianship to minors. A court, whenever
possible, should only grant to the guardian those powers actually needed. The court should be
specific about identifying the powers of the guardian regarding the minor’s education, care,
health, safety, and welfare. This section gives the court flexibility to design the guardianship in a
way to empower the minor as much as possible to make the minor’s own decisions, either at the
time of appointment or at a later date. Subsection (b) can be used by the court to either expand
or limit the guardian’s powers. Although the court can grant additional powers, the court can not
grant powers beyond those provided in Part 2.

Subsection (a) is based on UGPPA (1982) Section 2-107 (UPC Section 5-207 (1982).
Subsection (b) is based on UGPPA (1982) Section 2-109(e) (UPC Section 5-209(e) (1982).

SECTION 5-207. DUTIES OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian of a minor ward has the duties

and responsibilities of a parent regarding the ward’s support, care, education, health, and welfare.

A guardian shall act at all times in the ward’s best interest and exercise reasonable care,

diligence, and prudence.

(b) A guardian shall:

(1) become or remain personally acquainted with the ward and maintain sufficient

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contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and

physical and mental health;

(2) take reasonable care of the ward’s personal effects and bring a protective

proceeding if necessary to protect other property of the ward;

(3) expend money of the ward which has been received by the guardian for the

ward’s current needs for support, care education, health, and welfare;

(4) conserve any excess money of the ward for the ward’s future needs, but if a

conservator has been appointed for the estate of the ward, the guardian shall pay the money at

least quarterly to the conservator to be conserved for the ward’s future needs;

(5) report the condition of the ward and account for money and other assets in the

guardian’s possession or subject to the guardian’s control, as ordered by the court on application

of any person interested in the ward’s welfare or as required by court rule; and

(6) inform the court of any change in the ward’s custodial dwelling or address.

Comment

A guardian of a minor is basically a substitute parent, but without the personal financial
responsibility for the minor’s support. The standard of care for the guardian is contained in
subsection (a). As provided in subsection (a), the duties of a parent to which the guardian
succeeds are those relating to the minor’s support, care, education, health, and welfare. A
guardian also has certain fiduciary responsibilities. A guardian must at all times act in the
minor’s best interest and exercise reasonable care, diligence, and prudence. Subsection (b) of
this section, and Sections 5-208 and 5-209 are in substantial part expansions on these underlying
responsibilities, specifying subsidiary duties and the powers and immunities necessary to
properly implement this role.

A guardian is more than a caretaker. To properly perform the office of guardian, it is

essential that the guardian, as required by subsection (b)(1), become or remain personally
acquainted with the ward and maintain sufficient contact with the ward to know of the capacities,
limitations, needs, opportunities, and physical and mental health of the ward. Such contact is
also essential if the guardian is to act in the best interest of the ward.

The development of the self-reliance of the ward is one of the major themes of the Code,
as demonstrated by the emphasis on limited guardianship, both for minors and adults. See

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Section 5-206(b). To develop the self-reliance of the minor, whether the guardianship for the
minor ward is limited or unlimited, it is essential that the minor be involved in decision making,
that the guardian ascertain the minor’s views and that the guardian, whenever appropriate, make
decisions in line with the minor’s expressed preferences. In line with this philosophy, Section 5-
208(b)(6) permits the guardian, if reasonable under all of the circumstances, to delegate to the
ward certain responsibilities for decisions affecting the ward’s well-being.

A guardian’s powers with respect to the property of the ward are very limited. If the
ward has significant property that requires management, the guardian should petition the court
for the appointment of a conservator or other protective order as provided in subsection (b)(2).
However, subsection (b)(3) requires that the guardian use the ward’s funds, including
government benefits received for the ward, for the ward’s support, care, education, health, and
welfare. The guardian must conserve any excess funds not expended for the ward’s future needs,
and periodically turn over the excess to the conservator, if one has been appointed. See
subsection (b)(4). A guardian may also be required to report the ward’s condition to the court as
well as to account for money and other assets in the guardian’s possession or subject to the
guardian’s control. See subsection (b)(5).

Subsection (b)(6), which is new to the Act, requires that the court be informed whenever
there is a change in the custodial dwelling or address of the ward. Temporary absences, such as
for vacations, need not be reported. This required reporting to the court is consistent with the
recommendation in National Probate Court Standards, Standard 3.3.14 “Reports by the
Guardian” (1993). Keeping the court informed of the minor ward’s location will enable the court
to exercise appropriate oversight of the guardianship. If the ward is removed to another state, it
will also prevent the court from losing jurisdiction over the case without the court’s knowledge.
See also Section 5-208(b)(2), which requires the permission of the court before the ward may be
relocated to another state.

This section is based on UGPPA (1982) Section 2-109(a)-(b) (UPC Section 5-209(a)-(b)
(1982)).

SECTION 5-208. POWERS OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian of a minor ward has the powers

of a parent regarding the ward’s support, care, education, health, and welfare.

(b) A guardian may:

(1) apply for and receive money for the support of the ward otherwise payable to

the ward’s parent, guardian, or custodian under the terms of any statutory system of benefits or

insurance or any private contract, devise, trust, conservatorship, or custodianship;

(2) if otherwise consistent with the terms of any order by a court of competent

525
jurisdiction relating to custody of the ward, take custody of the ward and establish the ward’s

place of custodial dwelling, but may only establish or move the ward’s custodial dwelling

outside the state upon express authorization of the court;

(3) if a conservator for the estate of a ward has not been appointed with existing

authority, commence a proceeding, including an administrative proceeding, or take other

appropriate action to compel a person to support the ward or to pay money for the benefit of the

ward;

(4) consent to medical or other care, treatment, or service for the ward;

(5) consent to the marriage of the ward; and

(6) if reasonable under all of the circumstances, delegate to the ward certain

responsibilities for decisions affecting the ward’s well-being.

(c) The court may specifically authorize the guardian to consent to the adoption of the

ward.

Comment

This section should be read with Section 5-207. Section 5-207 sets out the duties of the
guardian: those responsibilities which a guardian may not ignore. This section sets out the
guardian’s powers, the grant of which are necessary in order for the guardian to carry out the
duties specified in Section 5-207.

Section 5-207(a) imposes on the guardian certain of the duties of a parent. To enable the
guardian to properly carry out those duties, subsection (a) of this section grants the guardian
corresponding powers of a parent with regard to the support, care, education, health, and welfare
of the ward. Subsection (b) then lays out specific applications of the general powers granted in
subsection (a).

Subsections (b)(1) and (3) enable the guardian to carry out the guardian’s limited duties
with respect to the management of the property of the ward. For these duties, see subsections
(b)(2)-(5) of Section 5-207. The powers of the guardian over the minor ward’s property are quite
limited, recognizing that a conservator should be appointed or other protective order sought for
the minor in appropriate circumstances. The guardian is authorized under subsection (b)(1) to
apply for government benefits to which the ward is entitled. Under Section 5-207(b)(3), the
guardian must use those benefits for the ward’s support, care, education, health, and welfare.

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Upon appointment, a guardian should also investigate whether proper application has been made
for all governmental benefits to which the ward may be entitled. It may also be necessary for the
guardian to seek appointment as a representative payee, should the governmental agency in
question use a representative payee mechanism for making payments on behalf of beneficiaries
without legal capacity.

Subsection (b)(2) recognizes that other courts may have a role in determining the custody
of the ward. While a guardian generally has a right to take custody of the ward, the guardian is
denied this power if to assume custody would be inconsistent with the custody order of a court of
competent jurisdiction. Such an order may have been entered by a juvenile court, by a court
responsible for making involuntary mental health commitments, or even by the court supervising
the guardianship.

Subsection (b)(2) also prevents the guardian from moving the minor out of state without
the court’s prior approval. The court must determine whether such move would be in the best
interest of the minor ward. The court should make certain that this provision is not used to
circumvent a custody order or to avoid a determination of custody by an appropriate court.
Under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, the courts of the former state
will generally lose jurisdiction over custody of a minor six months following the minor’s
removal from the state. If there is no conservator, subsection (b)(3) authorizes the guardian to
file a proceeding to collect child support. In implementing this power, the guardian should
consult the state’s applicable child support statutes, which should be read as if incorporated into
this section.

Under subsection (b)(4), the guardian may consent to the medical or other care, treatment
or service for the ward. The guardian may ordinarily make health-care decisions for the ward
without prior court authorization, but for certain types of health-care decisions, prior court
approval may be required or at least be considered. For example, a guardian may ordinarily
consent to elective surgery for the ward, but the guardian is strongly advised to consider seeking
prior court authorization before consenting to experimental medical treatment. While this Code
does not specifically require that a guardian seek prior court approval before making a particular
health-care decision, such prior court approval may be required by other statute, especially when
the minor’s constitutional rights are in question. For example, a guardian may not be able to
place a minor ward in a mental health care facility or consent to electroconvulsive therapy (ECT)
or other types of shock therapy without the court’s order. State statutes may require that specific
procedures be followed before a guardian can consent to an abortion or certain medical treatment
for the minor ward. Because of the important and competing interests at stake, a guardian should
at least consult with, and may need to obtain an order from, the court if the guardian plans to
refuse medical treatment on behalf of the minor ward on the grounds of the minor ward’s
religious beliefs.

Under subsection (c), the court may specifically authorize the guardian to consent to the
ward’s adoption. This section conforms to the requirements of the Uniform Adoption Act (1994)
that the guardian be given specific authority from a court in order to consent to the minor ward’s
adoption. The applicable section of the Uniform Adoption Act (1994), Section 2-101 provides:

527
(a) The only persons who may place a minor for adoption are:

...

(2) a guardian expressly authorized by the court to place the minor for adoption...,

which the comment to that section of the Uniform Adoption Act (1994) then notes is
intended to refer to the court supervising the guardianship. This court is chosen because under
Section 5-210 adoption of the ward will have the effect of terminating the guardianship. If the
enacting jurisdiction has not enacted the Uniform Adoption Act (1994), the state should verify
that subsection (c) is in harmony with the state’s existing adoption laws.

Like the adoption of the minor ward, a guardianship also terminates upon the marriage of
the ward. But unlike an adoption, the guardian’s consent and the court’s approval is not
necessarily required. Whether such consent is required will depend on the state’s laws on the
requirements of marriage. But to the extent that the guardian’s consent may be necessary,
subsection (b)(5) does allow a guardian to consent to the marriage of the ward.

This section is based on UGPPA (1982) Section 2-109(c) (UPC Section 5-209(c) (1982)).

SECTION 5-209. RIGHTS AND IMMUNITIES OF GUARDIAN.

(a) A guardian is entitled to reasonable compensation for services as guardian and to

reimbursement for room, board, and clothing provided by the guardian to the ward, but only as

approved by the court. If a conservator, other than the guardian or a person who is affiliated with

the guardian, has been appointed for the estate of the ward, reasonable compensation and

reimbursement to the guardian may be approved and paid by the conservator without order of the

court.

(b) A guardian need not use the guardian’s personal funds for the ward’s expenses. A

guardian is not liable to a third person for acts of the ward solely by reason of the guardianship.

A guardian is not liable for injury to the ward resulting from the negligence or act of a third

person providing medical or other care, treatment, or service for the ward except to the extent

that a parent would be liable under the circumstances.

Comment

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Subsection (a) recognizes that a guardian has a right to reasonable compensation. The
amount determined to be reasonable may vary from state to state and from one geographical area
to another within a state. In addition, factors to be considered by the court in setting
compensation will vary. See the comments to Section 5-417 for a thorough discussion on the
factors to be considered by the court in determining compensation.

If there is a conservator appointed, the conservator, without the necessity of prior court
approval, may pay the guardian reasonable compensation as well as reimburse the guardian for
room, board and clothing the guardian has provided to the ward. However, if the court
determines that the compensation paid to the guardian is excessive or the expenses reimbursed
were inappropriate, the court may order the guardian to repay the excessive or inappropriate
amount to the estate. See Section 5-417.

Under subsection (b), the guardian has no duty to use the guardian’s personal funds for
the ward. Nor is a guardian liable for the acts of a third person, including negligent medical care,
treatment or service provided to the ward except if a parent would be liable in the same
circumstances. The guardian is not liable, just by reason of being the guardian, if the ward harms
a third person. The guardian is liable only if personally at fault.

This section is based on subsections (a) and (d) of the 1982 UGPPA Section 2-109
(subsections (a) and (d) of UPC Section 5-209 (1982)).

SECTION 5-210. TERMINATION OF GUARDIANSHIP; OTHER

PROCEEDINGS AFTER APPOINTMENT.

(a) A guardianship of a minor terminates upon the minor’s death, adoption, emancipation

or attainment of majority or as ordered by the court.

(b) A ward or a person interested in the welfare of a ward may petition for any order that

is in the best interest of the ward. The petitioner shall give notice of the hearing on the petition

to the ward, if the ward has attained 14 years of age and is not the petitioner, the guardian, and

any other person as ordered by the court.

Comment

Subsection (a) lists the traditional grounds for terminating a guardianship for a minor
created by reasons of the minor’s age. Guardianships created because the minor is also an
incapacitated person are governed by Part 3 and may last into adulthood. While a guardianship
terminates upon emancipation of a minor, the grounds of emancipation are left to the state’s law
on the subject, but in many states a minor is emancipated by marriage, military service, or order
of emancipation. Even though the guardianship is terminated, the guardian is still liable for

529
previous acts and the obligation to account for the funds of the ward within the guardian’s
possession or control. See Section 5-112.

Subsection (b) can be used to seek termination of the guardianship or to expand or restrict
the guardian’s powers, in furthering the ward’s self-reliance. See Section 5-206.

Subsection (a) is based on UGPPA (1982) Section 2-110 (UPC Section 5-210 (1982)),
but has been broadened to allow termination by any act of emancipation, not merely marriage.
Subsection (b) is based on UPC Section 5-212 (1982).

PART 3. GUARDIANSHIP OF INCAPACITATED PERSON

SECTION 5-301. APPOINTMENT AND STATUS OF GUARDIAN. A person

becomes a guardian of an incapacitated person by a parental or spousal appointment or upon

appointment by the court. The guardianship continues until terminated, without regard to the

location of the guardian or ward.

Comment

This part provides for the creation and administration of guardianships for incapacitated
persons. The definition of incapacitated person is found in Section 5-102(4). While an
incapacitated person will typically be an adult, appointment can be made for a minor under this
part if the reason for the appointment is an incapacity other than the minor’s age. If an
appointment is made under this part for a minor, there is no need to petition for a new
guardianship upon the minor’s attainment of majority.

This section is new, although it has a counterpart in Section 5-201. This section
recognizes the ability of the spouse or parent of an adult individual who meets the definition of
incapacitated person to appoint a guardian by spousal or parental appointment under Section 5-
302, as well as that of the court to appoint a guardian under Section 5-311. A guardian or the
ward can move from the jurisdiction in which the court is located, yet the guardianship will
continue until terminated and remains under the court’s jurisdiction. See Section 5-107
regarding transfers of jurisdiction and Section 5-112 regarding termination of appointments.

SECTION 5-302. APPOINTMENT OF GUARDIAN BY WILL OR OTHER

WRITING.

(a) A parent, by will or other signed writing, may appoint a guardian for an unmarried

child who the parent believes is an incapacitated person, specify desired limitations on the

powers to be given to the guardian, and revoke or amend the appointment before confirmation by

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the court.

(b) An individual, by will or other signed writing, may appoint a guardian for the

individual’s spouse who the appointing spouse believes is an incapacitated person, specify

desired limitations on the powers to be given to the guardian, and revoke or amend the

appointment before confirmation by the court.

(c) The incapacitated person, the person having care or custody of the incapacitated

person if other than the appointing parent or spouse, or the adult nearest in kinship to the

incapacitated person may file a written objection to an appointment, unless the court has

confirmed the appointment under subsection (d). The filing of the written objection terminates

the appointment. An objection may be withdrawn and, if withdrawn, is of no effect. The

objection does not preclude judicial appointment of the person selected by the parent or spouse.

Notice of the objection must be given to the guardian and any other person entitled to notice of

the acceptance of the appointment. The court may treat the filing of an objection as a petition for

the appointment of an emergency guardian under Section 5-312 or for the appointment of a

limited or unlimited guardian under Section 5-304 and proceed accordingly.

(d) Upon petition of the appointing parent or spouse, and a finding that the appointing

parent or spouse will likely become unable to care for the incapacitated person within [two]

years, and after notice as provided in this section, the court, before the appointment becomes

effective, may confirm the appointing parent’s or spouse’s selection of a guardian and terminate

the rights of others to object.

Comment

This section enables a parent or spouse to make an advance appointment of a “standby”

guardian whose powers become effective upon the occurrence of certain specified contingencies.
The appointment can be made by will or other instrument, which can include a durable power of
attorney, a trust instrument or a specific document for the spousal or parental appointment of the

531
guardian. The appointment is temporary. Section 5-303(e) requires that a guardian appointed
under this section seek court confirmation no more than 30 days following the filing of notice of
acceptance of office.

Sections 5-302 and 5-303 together are comparable to the standby guardianship provisions
for minors in Section 5-202. The provisions for incapacitated persons are more tentative, since
adults, unlike minors, are presumed to have the legal capacity to make their own decisions. For
this reason, an appointment under this section is easily terminable. See subsection (c). Also, an
appointment under this section is not a determination of the person’s incapacity. See Section 5-
303(g).
Despite these limitations, this section is very useful, especially for parents of
developmentally disabled children. For such parents, the need for a guardian for the
developmentally disabled child often arises only on the parent’s death or other event that
necessitates that care be transferred to another. This section, by allowing a guardian of the
parent’s selection to step in immediately upon the necessitating event, can provide the parents
with assurance of mind that care of their children will not be neglected. This section is also
useful for a spouse of an individual stricken by Alzheimer’s disease, when the spouse no longer
is able to care for the Alzheimer’s victim.

A parent of an adult unmarried child whom the parent believes is incapacitated may make
an appointment under this section as may a spouse for the other spouse whom the appointing
spouse believes to be incapacitated. Under subsection (c), the adult disabled child or the
incapacitated spouse as well as the person having care or custody of the child or spouse or the
adult nearest in kinship have the right to object to the guardian’s appointment. If an objection is
filed, the guardian’s authority terminates, and the guardian must file a petition for appointment of
guardian by the court under Section 5-304. If an objection is withdrawn, it has no effect. An
objection does not prohibit the court from appointing the parental or spousal appointee as the
guardian.

The appointing spouse or parent may petition the court prior to the triggering event for
advance confirmation of the appointment. Advance court confirmation terminates the right to
object and the right of the appointing spouse or parent to revoke the appointment. Advance court
confirmation is available in situations where the appointment is needed due to the pending
incapacity of the appointing spouse or parent. This process provides appointing spouses and
parents with peace of mind, knowing that the court has confirmed their selection of guardian.

A petition for advance court confirmation may be made at any time within a
recommended two years from the date of likely need, but this time limit is placed in brackets to
indicate that the enacting jurisdiction is free to select a different period. Depending on the length
of time set by the enacting states, courts may need to show flexibility regarding the time limit. It
may be difficult for the appointing spouse or parent to prove with absolute certainty that the
appointing spouse or parent will likely become unable to care for the incapacitated spouse or the
adult disabled child within the stated period of time. Courts should liberally construe this
provision in favor of the appointing spouse or parent. For this reason, subsection (d) does not
require absolute certainty, only that the need for a guardian within the specified time frame is
“likely.” If the court confirms the guardian in advance and the stated deadline (two years) has

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passed without the guardian’s filing the acceptance of appointment required under Section 5-
303(b), the court should hold a hearing to determine the status of the appointing spouse or parent
and whether the advance confirmation should continue.

Unless otherwise specified in this section, the other provisions of this Act, including the
provisions relating to the duties and powers of guardians, apply to a guardian appointed by a will
or other writing.

This section is based on UGPPA (1982) Section 2-201 (UPC Section 5-301 (1982)).
However, the 1982 UGPPA did not require court confirmation of the appointment.

SECTION 5-303. APPOINTMENT OF GUARDIAN BY WILL OR OTHER

WRITING: EFFECTIVENESS; ACCEPTANCE; CONFIRMATION.

(a) The appointment of a guardian under Section 5-302 becomes effective upon the death

of the appointing parent or spouse, the adjudication of incapacity of the appointing parent or

spouse, or a written determination by a physician who has examined the appointing parent or

spouse that the appointing parent or spouse is no longer able to care for the incapacitated person,

whichever first occurs.

(b) A guardian appointed under Section 5-302 becomes eligible to act upon the filing of

an acceptance of appointment, which must be filed within 30 days after the guardian’s

appointment becomes effective. The guardian shall:

(1) file the notice of acceptance of appointment and a copy of the will with the

court of the [county] in which the will was or could be probated or, in the case of another

appointing instrument, file the acceptance of appointment and the appointing instrument with the

court in the [county] in which the incapacitated person resides or is present; and

(2) give written notice of the acceptance of appointment to the appointing parent

or spouse if living, the incapacitated person, a person having care or custody of the incapacitated

person other than the appointing parent or spouse, and the adult nearest in kinship.

(c) Unless the appointment was previously confirmed by the court, the notice given under

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subsection (b)(2) must include a statement of the right of those notified to terminate the

appointment by filing a written objection as provided in Section 5-302.

(d) An appointment effected by filing the guardian’s acceptance under a will probated in

the state of the testator’s domicile is effective in this state.

(e) Unless the appointment was previously confirmed by the court, within 30 days after

filing the notice and the appointing instrument, a guardian appointed under Section 5-302 shall

file a petition in the court for confirmation of the appointment. Notice of the filing must be

given in the manner provided in Section 5-309.

(f) The authority of a guardian appointed under Section 5-302 terminates upon the

appointment of a guardian by the court or the giving of written notice to the guardian of the filing

of an objection pursuant to Section 5-302, whichever first occurs.

(g) The appointment of a guardian under this section is not a determination of incapacity.

(h) The powers of a guardian who timely complies with the requirements of subsections

(b) and (e) relate back to give acts by the guardian which are of benefit to the incapacitated

person and occurred on or after the date the appointment became effective the same effect as

those that occurred after the filing of the acceptance of appointment.

Comment

The appointment of a guardian for an incapacitated person by will or other writing

becomes effective on the first to occur of: the death of the appointing parent or spouse;
adjudication of incapacity of that parent or spouse; or a written determination by a doctor who
has examined the appointing parent or spouse that the appointing parent or spouse can no longer
care for the adult disabled child or the incapacitated spouse.

The guardian’s authority terminates upon the timely filing of an objection or upon the
appointing parent or spouse regaining the ability to care for the incapacitated person, or if a
guardian is appointed for the incapacitated person.

Within 30 days of the contingency giving rise to the guardianship, the guardian must file
a notice of acceptance of appointment along with the appointing instrument. If the appointment

534
was not previously confirmed by the court, the guardian also must give written notice of the
acceptance and of the right to file an objection to the appointing parent or spouse, if living, the
incapacitated person for whom the appointment was made, the person having care or custody of
the incapacitated person, if other than the appointing parent or spouse, and to an adult nearest in
kinship.

Subsection (e) requires that the guardian file for confirmation of the appointment no more
than 30 days following the filing of the notice of acceptance. Also, because an appointment
under Sections 5-302 and 5-303 is based on a belief as to the person’s incapacity, in seeking
confirmation of the appointment by the court, the regular procedures for the appointment of a
guardian will apply. See Sections 5-304 through 5-310.

The petition for confirmation of appointment to be filed by a guardian must comply with
the requirements of Section 5-304 but should be tailored to reflect the special circumstances of
the prior parental or spousal appointment. The petition should include: the name and address of
the incapacitated spouse or the adult disabled child, the identity and whereabouts of the adult
children of the incapacitated spouse, if any, or if none, then the living parents of the
incapacitated spouse, if any, or if none, then the living siblings of the incapacitated spouse; the
living parents, if any, or if none, the living siblings of the adult disabled child; all persons serving
as guardian; the petitioner’s name and address, relationship to the married couple or to the parent
and the adult disabled child, interest in the appointment, and a statement of the petitioner’s
willingness to serve; any limitations placed by the appointing spouse or parent on the powers of
the appointed guardian; information about the petitioner; and reasons why the appointment
should be confirmed.

The petition should also indicate any limitations placed on the appointed guardian and the
powers to be given to the guardian, and if an unlimited guardianship, why a limited guardianship
would not work. The petition should be accompanied by a death certificate, an order of
adjudication of incapacity or a written statement by the physician who has examined the
appointing spouse or parent that the appointing spouse or parent is no longer able to care for the
incapacitated spouse or the adult disabled child. The written statement should be made by the
treating physician of the appointing parent or spouse and the statement should include the
prognosis and diagnosis for the spouse or parent as well as the date of the physician’s
examination of the appointing parent or spouse. The petition should be accompanied by a copy
of the appointing instrument, as well as any other relevant documents. If the selection as
guardian was previously confirmed pursuant to Section 5-302(d), a copy of the order of
confirmation should accompany the required notice.

In the hearing on the petition for confirmation, if the court finds that the appointing
spouse or parent will not regain the ability to care for the incapacitated spouse or adult disabled
child, the court should enter an order confirming the appointment, absent evidence rebutting the
presumption of appointment. If the court finds that the appointing spouse or parent may regain
ability to care for the incapacitated spouse or adult disabled child, the court should enter an order
confirming the appointment for a period of time deemed appropriate by the court. An order of
confirmation cuts off the rights of others, including the incapacitated adult or the adult disabled
child, to object.

535
The determination of whether the parental or spousal appointment should be converted
into a regular guardianship should be made as soon as possible. The court should develop
procedures for monitoring the conversions.

Subsection (h) provides that the timely performance of the requirements for the
guardian’s acceptance of office relate back to give any acts performed between the appointment
becoming effective and the guardian’s filing of the notice of acceptance the same effect as those
occurring after the filing of the notice of acceptance, as long as those prior acts are beneficial to
the incapacitated person. In the event of a dispute regarding whether a guardian’s prior act
should be validated, the court first determines whether the act was beneficial to the incapacitated
person, and if the court determines that the act was beneficial, then subsection (h) will apply.

SECTION 5-304. JUDICIAL APPOINTMENT OF GUARDIAN: PETITION.

(a) An individual or a person interested in the individual’s welfare may petition for a

determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited

guardian, for the individual.

(b) The petition must set forth the petitioner’s name, residence, current address if

different, relationship to the respondent, and interest in the appointment and, to the extent

known, state or contain the following with respect to the respondent and the relief requested:

(1) the respondent’s name, age, principal residence, current street address, and, if

different, the address of the dwelling in which it is proposed that the respondent will reside if the

appointment is made;

(2) the name and address of the respondent’s:

(A) spouse, or if the respondent has none, an adult with whom the

respondent has resided for more than six months before the filing of the petition; and

(B) adult children or, if the respondent has none, the respondent’s parents

and adult brothers and sisters, or if the respondent has none, at least one of the adults nearest in

kinship to the respondent who can be found;

(3) the name and address of any person responsible for care or custody of the

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respondent;

(4) the name and address of any legal representative of the respondent;

(5) the name and address of any person nominated as guardian by the respondent;

(6) the name and address of any proposed guardian and the reason why the

proposed guardian should be selected;

(7) the reason why guardianship is necessary, including a brief description of the

nature and extent of the respondent’s alleged incapacity;

(8) if an unlimited guardianship is requested, the reason why limited guardianship

is inappropriate and, if a limited guardianship is requested, the powers to be granted to the

limited guardian; and

(9) a general statement of the respondent’s property with an estimate of its value,

including any insurance or pension, and the source and amount of any other anticipated income

or receipts.

Comment

This section lists the information that must be contained in the petition for appointment of
a guardian. Although the section allows a prospective ward to petition for appointment of a
guardian, the court should scrutinize such a petition closely to confirm that the petition is truly
voluntary, and that the petitioner has the requisite capacity to file a petition. Normally, in such a
case it would be better for the individual to execute a durable power of attorney.

Specifying the required contents of the petition is in accordance with the

recommendations of both the Wingspread conference on guardianship reform and the
Commission on National Probate Court Standards. See Guardianship: An Agenda For Reform 9
(A.B.A. 1989); National Probate Court Standards, Standard 3.3.1, “Petition” (1993)

Subsections (b)(2)-(6) require the listing in the petition of family members and others
who may have information useful to the court and to whom notice of the proceeding must be
given under Section 5-309(b). These persons will likely have the greatest interest in protecting
the respondent and in making certain that the proposed guardianship is appropriate.

Subsection (b)(2)(A) requires that the petition contain the name and address of the spouse
or, if none, then an adult with whom the respondent has resided for more than six months before

537
the petition is filed. Included among the persons with whom the respondent may have resided
are domestic partners and companions. Note that there is no requirement that the respondent
have resided for more than six months immediately prior to the filing of the petition, just that the
requirement have been met at some point in time before the petition was filed. In applying this
provision, the court should focus on the purpose of this provision – i.e., to obtain a list of persons
who likely have a significant interest in the respondent’s welfare. Courts should use a
reasonableness standard so that the petitioner does not have to give the name of every person
with whom the respondent has resided in the respondent’s entire life and whose current interest
in the respondent’s welfare may be quite remote. Also, in interpreting what is meant by
“resided,” the closeness of the relationship to the respondent should be taken into account – for
example, the on-site manager of a 50-apartment complex whose contact with the respondent was
limited to collecting the rent should not be considered as fitting within the definition. However,
for a nursing home resident, the term might include her best friend who resides on the next floor.

Courts should consider whether they wish to exclude persons providing care for a fee
from the class of persons with whom it is considered that the respondent resided. This would
limit the application of subsection (b)(2)(A) to individuals with whom the respondent has a close
personal relationship, a relative, or to a domestic partner or companion, and would eliminate a
professional relationship such as that of a housekeeper, landlord, or owner of a board and care
facility. The committee that drafted this article originally used the language “domestic partner or
companion,” and intended to limit the application of this section to the spouse, domestic partner
or companion, but at the 1997 Annual Meeting of the Uniform Law Commissioners, where the
most recent revision of the Uniform Guardianship and Protective Proceedings Act (this article)
was approved, this phrase was replaced by the phrase “with whom the respondent has resided for
more than six months.” The intent behind this amendment was not to substantially broaden the
concept but only to expand it to include other individuals who have had an enduring relationship
with the respondent for at least a six-month period and who, because of this relationship, should
be given notice.

Subsection (b)(2)(B) requires that the petition contain the names and addresses of the
respondent’s adult children or, if none, parents and adult brothers and sisters or, if none, a
relative of nearest degree in which a relation can be found. However, if there are several adults
of equal degree of kinship to the respondent, the name and address of one is all that is required,
not the names and addresses of the members of the entire class.

Under subsection (b)(4), if the respondent has a legal representative, the representative’s
name and address must be included in the petition. A “legal representative” is defined in Section
5-102(5). Notice to such representative, as required by Section 5-309(b), is especially critical for
ascertaining whether a guardianship is really necessary. For example, the court may conclude
that there is no need to appoint a guardian if a guardian has already been appointed elsewhere or
the respondent has executed a durable power of attorney with authority in the agent to make
health and personal care decisions.

Subsection (b)(8) emphasizes the importance of limited guardianship, the encouragement

of which is a major theme of the Act. The petitioner, when requesting an unlimited
guardianship, must state in the petition why a limited guardianship would not work. If a limited

538
guardianship is requested, the petition must set out the recommended powers to be granted to the
guardian.

Subsection (b)(9) requires the petitioner to include a general statement of the

respondent’s property, including an estimated value, insurance and pension information and
information about other anticipated income or receipts. This information should be as detailed as
possible to enable the visitor to expeditiously complete the required report (see Section 5-305),
and to enable the court to determine whether a protective order will be needed. See Section 5-
311.

SECTION 5-305. JUDICIAL APPOINTMENT OF GUARDIAN:

PRELIMINARIES TO HEARING.

(a) Upon receipt of a petition to establish a guardianship, the court shall set a date and

time for hearing the petition and appoint a [visitor]. The duties and reporting requirements of the

[visitor] are limited to the relief requested in the petition. The [visitor] must be an individual

having training or experience in the type of incapacity alleged.

Alternative A

(b) The court shall appoint a lawyer to represent the respondent in the proceeding if:

(1) requested by the respondent;

(2) recommended by the [visitor]; or

(3) the court determines that the respondent needs representation.

Alternative B

(b) Unless the respondent is represented by a lawyer, the court shall appoint a lawyer to

represent the respondent in the proceeding, regardless of the respondent’s ability to pay.

End of Alternatives

(c) The [visitor] shall interview the respondent in person and, to the extent that the

respondent is able to understand:

(1) explain to the respondent the substance of the petition, the nature, purpose,

539
and effect of the proceeding, the respondent’s rights at the hearing, and the general powers and

duties of a guardian;

(2) determine the respondent’s views about the proposed guardian, the proposed

guardian’s powers and duties, and the scope and duration of the proposed guardianship;

(3) inform the respondent of the right to employ and consult with a lawyer at the

respondent’s own expense and the right to request a court-appointed lawyer; and

(4) inform the respondent that all costs and expenses of the proceeding, including

respondent’s attorney’s fees, will be paid from the respondent’s estate.

(d) In addition to the duties imposed by subsection (c), the [visitor] shall:

(1) interview the petitioner and the proposed guardian;

(2) visit the respondent’s present dwelling and any dwelling in which the

respondent will live if the appointment is made;

(3) obtain information from any physician or other person who is known to have

treated, advised, or assessed the respondent’s relevant physical or mental condition; and

(4) make any other investigation the court directs.

(e) The [visitor] shall promptly file a report in writing with the court, which must include:

(1) a recommendation as to whether a lawyer should be appointed to represent the

respondent;

(2) a summary of daily functions the respondent can manage without assistance,

could manage with the assistance of supportive services or benefits, including use of appropriate

technological assistance, and cannot manage;

(3) recommendations regarding the appropriateness of guardianship, including as

to whether less restrictive means of intervention are available, the type of guardianship, and, if a

540
limited guardianship, the powers to be granted to the limited guardian;

(4) a statement of the qualifications of the proposed guardian, together with a

statement as to whether the respondent approves or disapproves of the proposed guardian, and

the powers and duties proposed or the scope of the guardianship;

(5) a statement as to whether the proposed dwelling meets the respondent’s

individual needs;

(6) a recommendation as to whether a professional evaluation or further

evaluation is necessary; and

(7) any other matters the court directs.

Legislative Note: Those states that enact Alternative B of subsection (b) which requires
appointment of counsel for the respondent in all proceedings for appointment of a guardian
should not enact subsection (e)(1).

Comment

Alternative provisions are offered for subsection (b). Alternative A was favored by the
drafting committee. Alternative A relies on an expanded role for the “visitor,” who can be
chosen or selected to provide the court with advice on a variety of matters other than legal issues.
Appointment of a lawyer, nevertheless, is required under Alternative A when the court
determines that the respondent needs representation, or counsel is requested by the respondent or
recommended by the visitor.

Alternative B is derived from UGPPA (1982) Section 2-203 (UPC Section 5-303 (1982)).
It is expected that in states enacting Alternative A of subsection (b), counsel will be appointed in
virtually all of the cases. Alternative B was favored by the A.B.A. Commission on Legal
Problems of the Elderly, which attached great significance to expressly making appointment of
counsel “mandatory.” Therefore, for states which wish to provide for “mandatory appointment”
of counsel, Alternative B should be enacted.

In Alternative A for subsection (b), then, appointment of counsel for an unrepresented

respondent is mandated when requested by the respondent, when recommended by the visitor, or
when the court determines the respondent needs representation. This requirement is in accord
with the National Probate Court Standards. National Probate Court Standards, Standard 3.3.5
“Appointment of Counsel” (1993), which provides:

(a) Counsel should be appointed by the probate court to represent the respondent when:

541
(1) requested by an unrepresented respondent;

(2) recommended by a court visitor;

(3) the court, in the exercise of its discretion, determines that the respondent is in
need of representation; or

(4) otherwise required by law.

(b) The role of counsel should be that of an advocate for the respondent.
Alternative A of subsection (b) follows the National Probate Court Standards, Standard
3.3.5(a)(1) through (a)(3). Alternative B perhaps may be said to be in accord with the National
Probate Court Standards, Standard 3.3.5(a)(4).

The drafting committee for the 1997 UGPPA debated at length whether to mandate
appointment of counsel or to expand the role of the visitor. The drafting committee concluded
that as between the two, the visitor may be more helpful to the court in providing information on
a wider variety of issues and concerns, by acting as the eyes and ears of the court as well as
determining the respondent’s wishes and conveying them to the court. The committee was
concerned that including mandatory appointment of counsel would cause many to view the Act
as a “lawyer’s bill” and thus severely handicap the Act’s acceptance and adoption. It is the intent
of the committee that counsel for respondent be appointed in all but the most clear cases, such as
when the respondent is clearly incapacitated.

For jurisdictions enacting Alternative A under subsection (b), the visitor needs to be
especially sensitive to the fact that if the respondent is incapacitated, then the respondent may not
have sufficient capacity to intelligently and knowingly waive appointment of counsel. A court
should err on the side of protecting the respondent’s rights and appoint counsel in most cases.

Appointment of a visitor is mandatory (subsection (a)), regardless of which alternative is

enacted under subsection (b). The visitor serves as the information gathering arm of the court.
The visitor can be a physician, psychologist, or other individual qualified to evaluate the alleged
impairment, such as a nurse, social worker, or individual with pertinent expertise. It is
imperative that the visitor have training or experience in the type of incapacity alleged. The
visitor must individually meet with the respondent, the petitioner and the proposed guardian.
The visitor’s report must contain information and recommendations to the court regarding the
appropriateness of the guardianship, whether lesser restrictive alternatives might meet the
respondent’s needs, recommendations about further evaluations, powers to be given the
guardian, and the appointment of counsel. If the petition is withdrawn prior to the appointment
of the visitor, no appointment of the visitor is necessary.

National Probate Court Standards, Standard 3.3.4 “Court Visitor” (1993) provides:

The probate court should require a court appointee to visit with the respondent in a
guardianship petition to (1) explain the rights of the respondent; (2) investigate the facts of the
petition; and (3) explain the circumstances and consequences of the action. The visitor should

542
investigate the need for additional court appointments and should file a written report with the
court promptly after the visit.

The visitor must visit the respondent in person and explain a number of items to the
respondent to the extent the respondent can understand. If the respondent does not have a good
command of the English language, then the visitor should be accompanied by an interpreter. The
drafters did not mandate that the visitor be able to speak the respondent’s primary language, but
good practice and due process protections dictate the use of interpreters when needed for the
respondent to understand. The phrase “to the extent that the respondent is able to understand” is
a recognition that some respondents may be so impaired that they are unable to understand. If
assistive devices are needed in order for the visitor to explain to the respondent in a manner
necessary so that the respondent can understand, then the visitor should use those assistive
devices. The visitor is also charged with confirming compliance with the Americans With
Disabilities Act when visiting the respondent’s dwelling and the proposed dwelling in which it is
expected that the respondent will reside.

Subsection (c)(4) puts the respondent on notice that if the respondent has an estate, costs
and expenses are paid from the estate, including attorney’s fees and visitor’s fees. If there is an
estate, those entitled to compensation would be paid from the estate. If there is no estate, those
entitled to compensation will ordinarily be compensated by whatever process the enacting state
has for indigent proceedings, such as from the county general fund, unless the enacting
jurisdiction has made other arrangements. If a conservatorship exists, payment is made pursuant
to the procedures provided in Section 5-417, otherwise the guardian must file a fee petition. See
Section 5-316.

The visitor must talk with the physician or other person who is known to have assessed,
treated or advised about the respondent’s relevant physical or mental condition. This
information is crucial to the court in making a determination of whether to grant the petition,
since a professional evaluation will no longer be required in every case. See Section 5-306. If
the doctor refuses to talk to the visitor, the visitor may need to seek from the appointing court an
order authorizing the release of the information.

The visitor’s report must be in writing and include a list of recommendations or

statements. For states enacting Alternative A to subsection (b), if the visitor does not
recommend that a lawyer be appointed, the visitor should include in the report the reasons why a
lawyer should not be appointed. States enacting this article should consider developing a
checklist for the items enumerated in subsection (e).

“Visitor” is bracketed in recognition that states use and may wish to substitute different
words to refer to this position.

SECTION 5-306. JUDICIAL APPOINTMENT OF GUARDIAN:

PROFESSIONAL EVALUATION. At or before a hearing under this [part], the court may

order a professional evaluation of the respondent and shall order the evaluation if the respondent

543
so demands. If the court orders the evaluation, the respondent must be examined by a physician,

psychologist, or other individual appointed by the court who is qualified to evaluate the

respondent’s alleged impairment. The examiner shall promptly file a written report with the

court. Unless otherwise directed by the court, the report must contain:

(1) a description of the nature, type, and extent of the respondent’s specific cognitive and

functional limitations;

(2) an evaluation of the respondent’s mental and physical condition and, if appropriate,

educational potential, adaptive behavior, and social skills;

(3) a prognosis for improvement and a recommendation as to the appropriate treatment or

habilitation plan; and

(4) the date of any assessment or examination upon which the report is based.

Comment

Under the 1982 UGPPA, a professional evaluation was mandatory. See UGPPA (1982)
Section 2-203(b) (UPC Section 5-303(b) (1982)). This section is a major departure. The court
may order a professional evaluation but shall order the evaluation only if the respondent demands
it. If an evaluation is ordered, then it must be performed by a professional who is qualified to
evaluate the alleged impairment of the respondent. When counsel is appointed, the respondent
may demand the evaluation through counsel. If the respondent is truly incapacitated and not
represented by counsel, it is unlikely that the respondent will demand an evaluation. The court
still has the ability to order a professional evaluation either on the visitor’s recommendation or
on its own motion. Although a reading of this section may leave the impression that a
professional evaluation will be ordered sparingly, the converse is true. A court should order a
professional evaluation any time it is not absolutely clear, based on its own assessment or on the
visitor’s report, that the respondent is incapacitated. Further, by providing the court with an
expert evaluation of the respondent’s abilities and limitations, the professional evaluation will be
crucial to the court in establishing a limited guardianship.

The evaluation of the respondent’s physical and mental condition referred to in paragraph
(2) should include a summary of the consultation with the respondent’s treating physician. Even
though the visitor’s report required by Section 5-305 may contain information from the treating
physician, it is crucial for the accuracy of the evaluation that the professional evaluator consult
about the respondent’s treatment, and include in the evaluation a summary of the information
received and relied upon and the date of the consultation.

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SECTION 5-307. CONFIDENTIALITY OF RECORDS. The written report of a

[visitor] and any professional evaluation are confidential and must be sealed upon filing, but are

available to:

(1) the court;

(2) the respondent without limitation as to use;

(3) the petitioner, the [visitor], and the petitioner’s and respondent’s lawyers, for

purposes of the proceeding; and

(4) other persons for such purposes as the court may order for good cause.

Comment

This section is new, although a number of states have a comparable provision. This
section is designed to protect the respondent’s privacy, but still make records accessible when
needed, to any of the involved parties or to others on a showing of good cause. The drafting
committee recognized that the media and “watch-dog” groups perform essential functions of
deterring abuse and facilitating reform, and in drafting this provision balanced the need to protect
the respondent’s privacy with the need to access to the information.

SECTION 5-308. JUDICIAL APPOINTMENT OF GUARDIAN: PRESENCE

AND RIGHTS AT HEARING.

(a) Unless excused by the court for good cause, the proposed guardian shall attend the

hearing. The respondent shall attend and participate in the hearing, unless excused by the court

for good cause. The respondent may present evidence and subpoena witnesses and documents;

examine witnesses, including any court-appointed physician, psychologist, or other individual

qualified to evaluate the alleged impairment, and the [visitor]; and otherwise participate in the

hearing. The hearing may be held in a location convenient to the respondent and may be closed

upon the request of the respondent and a showing of good cause.

(b) Any person may request permission to participate in the proceeding. The court may

grant the request, with or without hearing, upon determining that the best interest of the

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respondent will be served. The court may attach appropriate conditions to the participation.

Comment

The proposed guardian is required to attend the hearing, although the court may excuse
the proposed guardian’s attendance on a showing of good cause. This provision is based on a
recommendation from National Probate Court Standards, Standard 3.3.8(c), “Hearing” (1993).
The guardian’s presence at the hearing gives the court the opportunity to determine the
guardian’s appropriateness for appointment and to make any other inquiry of the guardian that
the court deems to be appropriate as well as to emphasize to the guardian the gravity of the
guardian’s responsibilities.

Also new is the requirement that the respondent must attend the hearing unless excused
by the court on a showing of good cause. The respondent has the right to take an active role in
the hearing. There may be instances where circumstances dictate that the court hold the hearing
where the respondent is located.

The respondent can request that the hearing be closed, but good cause must again be
shown for this to occur. Others may make a request to participate, which can be granted by the
court without a hearing if the court finds that the respondent’s best interest is served by the
participation. The court’s order granting the request to participate should indicate the extent to
which participation will be allowed.

This section contains elements of subsections (c) and (d) of UGPPA (1982) Section 2-
303 (subsections (c) and (d) of UPC Section 5-303 (1982)).

SECTION 5-309. NOTICE.

(a) A copy of a petition for guardianship and notice of the hearing on the petition must be

served personally on the respondent. The notice must include a statement that the respondent

must be physically present unless excused by the court, inform the respondent of the

respondent’s rights at the hearing, and include a description of the nature, purpose, and

consequences of an appointment. A failure to serve the respondent with a notice substantially

complying with this subsection precludes the court from granting the petition.

(b) In a proceeding to establish a guardianship, notice of the hearing must be given to the

persons listed in the petition. Failure to give notice under this subsection does not preclude the

appointment of a guardian or the making of a protective order.

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(c) Notice of the hearing on a petition for an order after appointment of a guardian,

together with a copy of the petition, must be given to the ward, the guardian, and any other

person the court directs.

(d) A guardian shall give notice of the filing of the guardian’s report, together with a

copy of the report, to the ward and any other person the court directs. The notice must be

delivered or sent within 14 days after the filing of the report.

Comment

Personal service of the petition and notice of hearing on the respondent is required. A
failure to personally serve the respondent is jurisdictional, as is a notice that does not
substantially comply with the requirements of subsection (a). Notice of hearing must be given to
the persons who are listed in the petition but failing to give notice to those listed (other than the
respondent) is not jurisdictional.

Subsection (c) addresses the notice requirements on hearings on petitions for orders
subsequent to the appointment of a guardian-the ward and the guardian, as well as anyone else
the court directs, must be given copies of any notice of hearing and a copy of any petition. This
provision, along with subsection (d), requiring that the ward receive a copy of the guardian’s
report and a copy of the notice of filing of the report, ensures that the ward is kept informed of
developments in the guardianship.

The National Probate Court Standards, Standard 3.3.7 “Notice” (1993), provides that the
respondent should receive timely notice prior to the hearing and that written notice should be in
both plain language and in large type, indicating, at a minimum, the place and time of the
hearing, the nature and possible consequences of the hearing, and the respondent’s rights.
Similar recommendations are contained in the report of the Wingspread conference on
guardianship reform, which also recommends, in line with Section 5-113 of this Act, that the
respondent be given at least 14 days notice of hearing on a petition for the appointment of a
guardian. See Guardianship: An Agenda for Reform 9-12 (A.B.A. 1989).

This section is based on UGPPA (1982) Section 2-204 (UPC Section 5-304 (1982)).

SECTION 5-310. WHO MAY BE GUARDIAN: PRIORITIES.

(a) Subject to subsection (c), the court in appointing a guardian shall consider persons

otherwise qualified in the following order of priority:

(1) a guardian, other than a temporary or emergency guardian, currently acting for

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the respondent in this state or elsewhere;

(2) a person nominated as guardian by the respondent, including the respondent’s

most recent nomination made in a durable power of attorney, if at the time of the nomination the

respondent had sufficient capacity to express a preference;

(3) an agent appointed by the respondent under [a durable power of attorney for

health care] [the Uniform Health-Care Decisions Act (1993)];

(4) the spouse of the respondent or an individual nominated by will or other

signed writing of a deceased spouse;

(5) an adult child of the respondent;

(6) a parent of the respondent, or an individual nominated by will or other signed

writing of a deceased parent; and

(7) an adult with whom the respondent has resided for more than six months

before the filing of the petition.

(b) With respect to persons having equal priority, the court shall select the one it

considers best qualified. The court, acting in the best interest of the respondent, may decline to

appoint a person having priority and appoint a person having a lower priority or no priority.

(c) An owner, operator, or employee of [a long-term-care institution] at which the

respondent is receiving care may not be appointed as guardian unless related to the respondent

by blood, marriage, or adoption.

Comment

This section gives top priority for appointment as guardian to existing guardians
appointed elsewhere, to the respondent’s nominee for the position, and to the respondent’s agent,
in that order. Existing guardians are granted a first priority for two reasons. First, many of these
cases will involve transfers of a guardianship from another state. To assure a smooth transition,
the currently appointed guardian, whether appointed in this state or another, should have the right
to the appointment at the new location. Second, other cases will involve situations where a

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guardianship appointment is sought despite the appointment in another place. Granting the
existing guardian priority will deter such forum shopping. If the existing guardian is
inappropriate for some reason, subsection (b) permits the court to pass over the existing guardian
and appoint another with or without priority. While an existing guardian is generally granted a
first priority for appointment, a temporary substitute and an emergency guardian are excluded
from priority because of the short-term nature of their involvement.

A guardian or individual nominated by the respondent or the agent named in the

respondent’s health care power of attorney has priority for appointment over the respondent’s
relatives. The nomination may include anyone nominated orally at the hearing, if the respondent
has sufficient capacity at the time to express a preference. The nomination may also be made by
a separate document. While it is generally good practice for an individual to nominate as the
guardian the agent named in a durable power of attorney, the section grants such an agent a
preference even in the absence of a specific nomination. The agent is granted a preference on the
theory that the agent is the person the respondent would most likely prefer to act. The
nomination of the agent will also make it more difficult for someone to use a guardianship to
thwart the authority of the agent. To assure that the agent will be in a position to assert this
priority, Sections 5-304(b)(4) and 5-309(b) require that the agent receive notice of the
proceeding. Also, until the court has acted to approve the revocation of that authority, Section 5-
316(c) provides that the authority of an agent for health-care decisions takes precedence over that
of the guardian.

Subsection (a)(7) gives a seventh-level preference to a domestic partner or companion or

an individual who has a close, personal relationship with the respondent. Note that there is no
requirement that the respondent had resided with the adult for more than six months immediately
prior to the filing of the petition, just that the requisite residency have occurred at some point in
time before the petition is filed. Courts should use a reasonableness standard in applying this
subsection so that priority is given to someone with whom the respondent has had a close,
enduring relationship. For factors to consider in making this determination, see the comment to
Section 5-304, which discusses the interpretation of the phrase “an adult with whom the
respondent has resided for more than six months before the filing of the petition” within the
context of the persons required to be listed in the petition for appointment. Note that although
the phrase can be interpreted quite broadly, it is intended to be descriptive of those individuals
who have had an enduring relationship with the respondent for at least a six month period and
who, because of this relationship, should be given a priority for consideration as guardian.

Subsection (c) prohibits anyone affiliated with a long-term care institution at which the
respondent is receiving care from being appointed as guardian absent a blood, marital or
adoptive relationship. Strict application of this subsection is crucial to avoid a conflict of interest
and to protect the ward. Each state enacting this article needs to insert the particular term or
terms used in the state for those facilities considered to be long-term care institutions.

A professional guardian, including a public agency or nonprofit corporation, was

specifically not given priority for appointment as guardian because those given priority are
limited to individuals with whom the ward has a close relationship. The committee which
drafted the 1997 revision of the Uniform Guardianship and Protective Proceedings Act (this

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article) recognized the valuable service that a professional guardian, a public agency or nonprofit
corporation provides. A professional guardian can still be appointed guardian if no one else with
priority is available and willing to serve or if the court, acting in the respondent’s best interest,
declines to appoint a person having priority. A public agency or nonprofit corporation is eligible
to be appointed guardian as long as it can provide an active and suitable guardianship program
and is not otherwise providing substantial services or assistance to the respondent, but is not
entitled to statutory priority in appointment as guardian.

This section is based on UGPPA (1982) Section 2-205 (UPC Section 5-305 (1982)).

SECTION 5-311. FINDINGS; ORDER OF APPOINTMENT.

(a) The court may:

(1) appoint a limited or unlimited guardian for a respondent only if it finds by

clear and convincing evidence that:

(A) the respondent is an incapacitated person; and

(B) the respondent’s identified needs cannot be met by less restrictive

means, including use of appropriate technological assistance; or

(2) with appropriate findings, treat the petition as one for a protective order under

Section 5-401, enter any other appropriate order, or dismiss the proceeding.

(b) The court, whenever feasible, shall grant to a guardian only those powers necessitated

by the ward’s limitations and demonstrated needs and make appointive and other orders that will

encourage the development of the ward’s maximum self-reliance and independence.

(c) Within 14 days after an appointment, a guardian shall send or deliver to the ward and

to all other persons given notice of the hearing on the petition a copy of the order of

appointment, together with a notice of the right to request termination or modification.

Comment

A guardian may be appointed only when no less restrictive alternative will meet the
respondent’s identified needs. The clear and convincing evidence standard for the appointment
of a guardian is new to the Act, but mandated by the Constitution and strongly recommended by
many commentators on guardianship. See, e.g., Sabrosky v. Denver Dep’t Social Services, 781

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P.2d 106 (Colo. Ct. App. 1989); In re Guardianship of Reyes, 731 P.2d 130 (Ariz. Ct. App.
1986); In re Estate of Boyer, 636 P.2d 1085 (Utah 1981), all three of which involve the
interpretation of the predecessor version of this Act. See also Guardianship: An Agenda for
Reform 16 (A.B.A. 1989).

The use of limited guardianship is emphasized in this section. If a guardian is to be

appointed, the guardian shall be given only those powers needed to meet the ward’s needs and
limitations. The court must specify the powers granted to the guardian and the limits on the
incapacitated person’s rights. The Act’s emphasis on less restrictive alternatives, a high
evidentiary standard and the use of limited guardianship is consistent with the Act’s philosophy
that a guardian should be appointed only when necessary, only for as long as necessary, and with
only those powers as are necessary. The concept of limited guardianship is also emphasized in
the National Probate Court Standards, Standard 3.3.10, “Less Intrusive Alternatives” (1993),
requiring a finding of no less intrusive alternative before appointing a guardian and mandating
the consideration and utilization of limited guardianships.

If appropriate technological assistance is available to meet the respondent’s needs, then

the respondent is not an “incapacitated person” within the meaning of Section 5-102(4) and no
guardianship may be established. The drafting committee discussed whether to put any
modification or limitation on the technological assistance, such as that which is reasonably
available or a limitation on availability based on cost. Given the importance of the respondent’s
rights, the committee decided to reject any modification or limitation whatsoever on required
consideration of technological assistance. Therefore, if appropriate technological assistance
exists that can meet the respondent’s needs, regardless of the cost, then that assistance must be
treated by the court as meeting the respondent’s identified needs by a less restrictive means, and
the guardianship petition must be denied.

Subsection (a)(2) allows the court to consider the petition as a petition for a protective
order and either proceed appropriately under Part 4 or dismiss the Part 3 proceeding. To
guarantee the respondent the maximum possible personal liberty, the court should proceed under
this subsection whenever it concludes that the respondent’s needs can be met by the entry of
orders with respect to the respondent’s property without the need to limit the respondent’s
freedom.

In keeping with the concept of limited guardianship, subsection (c) requires the guardian
to provide the ward and all those persons given notice of the hearing a copy of the order of
appointment along with a notice of the right to request a termination or a modification of the
guardianship. The reason for requiring notice to persons other than the ward is to make certain
that those who were originally notified of the petition will also be notified of the results because
they are the ones most likely to have a continuing interest in the ward’s welfare. The
modification contemplated by this subsection only applies to reduction of the guardian’s powers
from those originally granted, not their enlargement.

SECTION 5-312. EMERGENCY GUARDIAN.

(a) If the court finds that compliance with the procedures of this [part] will likely result in

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substantial harm to the respondent’s health, safety, or welfare, and that no other person appears

to have authority and willingness to act in the circumstances, the court, on petition by a person

interested in the respondent’s welfare, may appoint an emergency guardian whose authority may

not exceed [60] days and who may exercise only the powers specified in the order. Immediately

upon receipt of the petition for an emergency guardianship, the court shall appoint a lawyer to

represent the respondent in the proceeding. Except as otherwise provided in subsection (b),

reasonable notice of the time and place of a hearing on the petition must be given to the

respondent and any other persons as the court directs.

(b) An emergency guardian may be appointed without notice to the respondent and the

respondent’s lawyer only if the court finds from affidavit or testimony that the respondent will be

substantially harmed before a hearing on the appointment can be held. If the court appoints an

emergency guardian without notice to the respondent, the respondent must be given notice of the

appointment within 48 hours after the appointment. The court shall hold a hearing on the

appropriateness of the appointment within [five] days after the appointment.

(c) Appointment of an emergency guardian, with or without notice, is not a determination

of the respondent’s incapacity.

(d) The court may remove an emergency guardian at any time. An emergency guardian

shall make any report the court requires. In other respects, the provisions of this [article]

concerning guardians apply to an emergency guardian.

Comment

There are limited circumstances where there is no one else willing or able to act when
following the normal process for appointment of a guardian would, due to the time involved to
follow the procedures, likely lead to substantial harm to the respondent’s health, safety or
welfare. The classic example of when an emergency guardianship is needed is when the
respondent needs a medical procedure, lacks capacity to consent, has no health care power of
attorney, and no one else is willing or in a position to make the health-care decision. This

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section requires appointment of counsel for the respondent.

An emergency guardian may only be appointed without prior notice when there is
testimony that the respondent would be immediately and substantially harmed before the hearing
on the appointment. In such case, notice must be given within 48 hours and a hearing held
within five days. (Section 5-113 provides the procedures for giving notice.)

States enacting this article should look at their requirements for an ex parte hearing and
determine whether to adopt the time limit contained in this section or whether to impose different
time limits. Five days seems to be the most common time period for a return hearing following
an ex parte appointment. If the enacting state uses a different time period for a hearing following
an ex parte appointment of a guardian, the time period used should be relatively short.

The National Probate Court Standards, Standard 3.3.6 “Emergency Appointment of a

Temporary Guardian” (1993) provides:

(a) Ex parte appointment of a temporary guardian by the probate court should occur only:

(1) upon the showing of an emergency;

(2) in connection with the filing of a petition for a permanent guardianship;

(3) where the petition is set for hearing on the proposed permanent guardianship
on an expedited basis; and

(4) when notice of the temporary appointment is promptly provided to the

respondent....

This section deviates from the above standard by permitting an emergency guardian to be
appointed without the need of filing a petition for a permanent appointment. The drafting
committee was concerned that requiring the filing of a petition for a permanent appointment
would lend an air of inevitability that a permanent guardian should be appointed. Frequently, the
need for an emergency guardian is temporary only and the respondent’s long-term needs can be
met by mechanisms other than guardianship. Consistent with this, subsection (c) provides that
the appointment of an emergency guardian is in no way a finding of incapacity. For purposes of
appointing a regular guardian, the same quantum of proof is required whether or not an
emergency guardian has been appointed.

Unless stated to the contrary in this section, other sections of Part 3 apply to an
emergency guardian appointed under this section, including the provisions relating to the duties
of guardians.

SECTION 5-313. TEMPORARY SUBSTITUTE GUARDIAN.

(a) If the court finds that a guardian is not effectively performing the guardian’s duties

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and that the welfare of the ward requires immediate action, it may appoint a temporary substitute

guardian for the ward for a specified period not exceeding six months. Except as otherwise

ordered by the court, a temporary substitute guardian so appointed has the powers set forth in the

previous order of appointment. The authority of any unlimited or limited guardian previously

appointed by the court is suspended as long as a temporary substitute guardian has authority. If

an appointment is made without previous notice to the ward or the affected guardian, the court,

within five days after the appointment, shall inform the ward or guardian of the appointment.

(b) The court may remove a temporary substitute guardian at any time. A temporary

substitute guardian shall make any report the court requires. In other respects, the provisions of

this [article] concerning guardians apply to a temporary substitute guardian.

Comment

This section differs from Section 5-312 since this section is used when there is a
guardian, but the guardian is not discharging the functions of office. The role of the temporary
substitute guardian, as the name implies, is to literally fill in for the regular guardian, whose
powers are suspended for the duration of the appointment. This section also differs from Section
5-204(d). A temporary guardian for a minor is appointed under Section 5-204(d) in situations
where there is no guardian, whereas under this section, the temporary substitute guardian is
temporarily substituted for another non-performing guardian.

The standard for appointment under this section is that the ward’s welfare requires
immediate action and that the appointed guardian is not effectively performing the duties of
office. This is not the same as the best interest standard applied in the selection of the original
guardian. The standard instead invokes the sense of urgency usually involved in these cases,
most of which involve possible abuse by the regularly-appointed guardian.

If, at the end of the six months, the ward still needs a guardian, the court should appoint a
permanent guardian rather than granting an extension to the temporary substitute guardian. A
temporary substitute guardian does not automatically have preference to be appointed as
guardian in such cases.

In some cases, circumstances may dictate the appointment of the temporary substitute
guardian without notice being given to the ward or current guardian. If that occurs, within five
days of the appointment of the temporary substitute guardian, the court must inform either the
ward or the guardian. Since the authority of the regularly-appointed guardian is suspended by
the appointment of the temporary substitute guardian, the court should make every effort to

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inform the guardian of the appointment. In keeping with the concept of limited guardianship and
empowerment of the ward, the court should also notify the ward of the appointment of the
temporary substitute guardian if the ward has the ability to understand.

States adopting this article are free to enact a notice period of less than five days but are
encouraged to not enact a notice period of more than five days.

This section is based on UGPPA (1982) Section 2-208(b) (UPC Section 5-308(b)
(1982)).

SECTION 5-314. DUTIES OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian shall make decisions regarding

the ward’s support, care, education, health, and welfare. A guardian shall exercise authority only

as necessitated by the ward’s limitations and, to the extent possible, shall encourage the ward to

participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to

manage the ward’s personal affairs. A guardian, in making decisions, shall consider the

expressed desires and personal values of the ward to the extent known to the guardian. A

guardian at all times shall act in the ward’s best interest and exercise reasonable care, diligence,

and prudence.

(b) A guardian shall:

(1) become or remain personally acquainted with the ward and maintain sufficient

contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and

physical and mental health;

(2) take reasonable care of the ward’s personal effects and bring protective

proceedings if necessary to protect the property of the ward;

(3) expend money of the ward that has been received by the guardian for the

ward’s current needs for support, care, education, health, and welfare;

(4) conserve any excess money of the ward for the ward’s future needs, but if a

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conservator has been appointed for the estate of the ward, the guardian shall pay the money to

the conservator, at least quarterly, to be conserved for the ward’s future needs;

(5) immediately notify the court if the ward’s condition has changed so that the

ward is capable of exercising rights previously removed; and

(6) inform the court of any change in the ward’s custodial dwelling or address.

Comment

Under Section 2-209 of the 1982 UGPPA (UPC Section 5-309 (1982)), the guardian of
an incapacitated person was simply granted the powers of guardian of a minor. As a result of the
1997 revision, this and the sections which follow now list the guardian’s powers and duties in
detail instead of referring to the provisions on minor’s guardianship. The general duty of the
guardian of an incapacitated person, as expressed in subsection (a), also differs significantly
from that for a guardian of a minor.

Subsection (a) sets out the guardian’s reasonable standard of care. Subsection (b) and
Sections 5-315 and 5-316 are in substantial part expansions on the fundamental responsibilities
stated in subsection (a), specifying subsidiary duties and the powers and immunities necessary to
properly implement this role. For a discussion of the duties listed in subsection (b), see the
comment to Section 5-207.

Subsection (a) emphasizes the importance of the concept of limited guardianship by

directing that the guardian only exercise the authority needed due to the ward’s limitations. In
the 1982 UGPPA, the phrase “encourage the development of maximum self-reliance and
independence of the incapacitated person and make appointive and other orders only to the
extent necessitated by the incapacitated person’s mental and adaptive limitations” was used as a
standard to encourage the use of limited guardianships. That phrase may still be useful for courts
in tailoring a guardianship to the needs of the incapacitated person. The guardian is admonished
to encourage the ward’s participation in decisions and in developing or regaining capacity to act
without a guardian. The ward’s personal values and expressed desires, whether past or present,
are to be considered when making decisions. Although the guardian only need consider the
ward’s desires and values “to the extent known to the guardian,” that phrase should not be read
as an escape or excuse for the guardian. Instead, the guardian needs to make an effort to learn
the ward’s personal values and ask the ward about the ward’s desires before the guardian makes
a decision. Subsection (a) requires the guardian to act in the ward’s best interest. In determining
the best interest of the ward, the guardian should again consider the ward’s personal values and
expressed desires.

In furtherance of the limited guardianship and least restrictive alternative concepts,

subsection (b)(5) requires the guardian to immediately notify the court if the ward’s condition
has improved, so that the ward may have rights restored. The guardian is not to wait until the
next reporting period.

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SECTION 5-315. POWERS OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian may:

(1) apply for and receive money payable to the ward or the ward’s guardian or

custodian for the support of the ward under the terms of any statutory system of benefits or

insurance or any private contract, devise, trust, conservatorship, or custodianship;

(2) if otherwise consistent with the terms of any order by a court of competent

jurisdiction relating to custody of the ward, take custody of the ward and establish the ward’s

place of custodial dwelling, but may only establish or move the ward’s place of dwelling outside

this state upon express authorization of the court;

(3) if a conservator for the estate of the ward has not been appointed with existing

authority, commence a proceeding, including an administrative proceeding, or take other

appropriate action to compel a person to support the ward or to pay money for the benefit of the

ward;

(4) consent to medical or other care, treatment, or service for the ward;

(5) consent to the marriage [or divorce] of the ward; and

(6) if reasonable under all of the circumstances, delegate to the ward certain

responsibilities for decisions affecting the ward’s well-being.

(b) The court may specifically authorize the guardian to consent to the adoption of the

ward.

Comment

Subsection (a)(1) authorizes the guardian to apply for or receive the ward’s government
benefits. Subsection (a)(2) prohibits the guardian from moving the ward out of state without the
court’s prior express authorization. This provision should be strictly applied for the protection of
the ward and to prevent forum shopping.

Although subsection (a)(4) gives the guardian the power to consent to medical treatment,

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the guardian must ascertain whether a health care directive is in effect. If there is a valid health-
care power of attorney, the decision of the health care agent takes precedence over that of the
guardian, absent a court order to the contrary. Further, the guardian may not revoke a health-
care power of attorney except on court order. See Section 5-316(c). If the health-care directive
does not appoint an agent, the guardian may proceed to make a health-care decision but must
follow the ward’s wishes as expressed in the directive.

Additionally, statutes in many states prohibit a guardian from consenting to certain

procedures without prior court order or without first complying with detailed statutory
requirements, especially procedures which implicate the incapacitated person’s constitutional
rights. For example, a guardian may not commit a ward to a mental health-care institution
without following the state’s statute on civil commitment. See Section 5-316(d). There may be
similar requirements regarding a guardian’s consent to electroconvulsive therapy (ECT) or other
shock treatment, experimental treatment, sterilization, forced medication with psychotropic
drugs, or abortion.

The phrase “or divorce” in subsection (a)(5) is placed in brackets in recognition of the
split among the jurisdictions over whether a guardian has power to initiate a divorce for the
ward. Jurisdictions that do not allow the guardian to initiate a divorce generally base that policy
on the very personal nature of marriage. Enacting states that have not yet addressed this issue
should decide whether to give the guardian the power. Statutes dealing with the dissolution of
marriage should be reviewed to determine whether this issue is addressed.

Consistent with the Act’s encouragement of limited guardianship, subsection (a)(6) gives
the guardian the power, if reasonable under the circumstances, to delegate certain decision
making responsibility to the ward.

Subsection (b) provides the guardian with the authority to consent to the ward’s adoption
only on express authorization of the court. There may be circumstances when it would be
appropriate for the ward, even though an adult, to be adopted by another.

SECTION 5-316. RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS.

(a) A guardian is entitled to reasonable compensation for services as guardian and to

reimbursement for room, board, and clothing provided to the ward, but only as approved by

order of the court. If a conservator, other than the guardian or one who is affiliated with the

guardian, has been appointed for the estate of the ward, reasonable compensation and

reimbursement to the guardian may be approved and paid by the conservator without order of the

court.

(b) A guardian need not use the guardian’s personal funds for the ward’s expenses. A

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guardian is not liable to a third person for acts of the ward solely by reason of the relationship. A

guardian who exercises reasonable care in choosing a third person providing medical or other

care, treatment, or service for the ward is not liable for injury to the ward resulting from the

wrongful conduct of the third party.

(c) A guardian, without authorization of the court, may not revoke a power of attorney for

health care [made pursuant to the Uniform Health-Care Decisions Act (1993)] of which the ward

is the principal. If a power of attorney for health care [made pursuant to the Uniform Health-

Care Decisions Act (1993)] is in effect, absent an order of the court to the contrary, a health-care

decision of the agent takes precedence over that of a guardian.

(d) A guardian may not initiate the commitment of a ward to a [mental health-care]

institution except in accordance with the state’s procedure for involuntary civil commitment.

Comment

Subsection (a) recognizes that a guardian has a right to reasonable compensation. The
amount determined to be reasonable may vary from state to state and from one geographical area
to another within a state. In addition, factors to be considered by the court in setting
compensation will vary. See the comments to Section 5-417 for a thorough discussion on the
factors to be considered by the court in determining compensation.

If there is a conservator appointed, the conservator, without the necessity of prior court
approval, may pay the guardian reasonable compensation as well as reimburse the guardian for
room, board and clothing the guardian has provided to the ward. However, if the court
determines that the compensation paid to the guardian is excessive or the expenses reimbursed
were inappropriate, the court may order the guardian to repay the excessive or inappropriate
amount to the estate. See Section 5-417. If there is no conservator, the guardian must file a fee
petition.

Under subsection (b), the guardian has no duty to use the guardian’s personal funds for
the ward. Nor is a guardian liable for the acts of a third person, including negligent medical care,
treatment or service provided to the ward except if a parent would be liable in the same
circumstances. The guardian is not liable, just by reason of being guardian, if the ward harms a
third person. The guardian is liable only if personally at fault.

If the ward had made a power of attorney for health care, the guardian cannot revoke it
without court order. Further, the agent’s decision takes priority over that of the guardian unless

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the power of attorney has been revoked. For states which have enacted the Uniform Health-Care
Decisions Act (1993), a “mental health-care institution” includes those institutions or treatment
facilities defined in the state’s version of that Act. Commitment by a guardian to a mental
health-care institution may not occur without following the state’s procedures for civil
commitment. Although a guardian may not commit a ward to a mental health-care institution,
the guardian may initiate proceedings in accordance with the state’s applicable mental health
care statutes for civil commitment, outpatient treatment, or involuntary medication for mental
health treatment.

SECTION 5-317. REPORTS; MONITORING OF GUARDIANSHIP.

(a) Within 30 days after appointment, a guardian shall report to the court in writing on the

condition of the ward and account for money and other assets in the guardian’s possession or

subject to the guardian’s control. A guardian shall report at least annually thereafter and

whenever ordered by the court. A report must state or contain:

(1) the current mental, physical, and social condition of the ward;

(2) the living arrangements for all addresses of the ward during the reporting

period;

(3) the medical, educational, vocational, and other services provided to the ward

and the guardian’s opinion as to the adequacy of the ward’s care;

(4) a summary of the guardian’s visits with the ward and activities on the ward’s

behalf and the extent to which the ward has participated in decision-making;

(5) if the ward is institutionalized, whether the guardian considers the current plan

for care, treatment, or habilitation to be in the ward’s best interest;

(6) plans for future care; and

(7) a recommendation as to the need for continued guardianship and any

recommended changes in the scope of the guardianship.

(b) The court may appoint a [visitor] to review a report, interview the ward or guardian,

and make any other investigation the court directs.

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(c) The court shall establish a system for monitoring guardianships, including the filing

and review of annual reports.

Comment

Under subsection (a), the report must contain the current mental, physical and social
condition of the ward. Letters from the treating physician should accompany the report.
Emphasizing the importance of limited guardianship, even if no limited guardian was appointed,
subsections (a)(4), (6), and (7) require the guardian to report information regarding the ward’s
participation in decisions, future care plans and the need for continuing the guardianship.
Compliance with subsection (a)(7) should not be read as relieving the guardian of the duty under
Section 5-314(b)(5) to immediately notify the court that the ward’s condition has changed.

Each state enacting this article should establish a system for monitoring guardianships,
which would include, but not be limited to, mechanisms for assuring that annual reports are
timely filed and reviewed. An independent monitoring system is crucial for a court to adequately
safeguard against abuses in the guardianship cases. Monitors can be paid court personnel, court
appointees or volunteers. For a comprehensive discussion of the various methods for monitoring
guardianships, see Sally Balch Hurme, Steps to Enhance Guardianship Monitoring (A.B.A.
1991).

The National Probate Court Standards also provide for the filing of reports and
procedures for monitoring guardianships. See National Probate Court Standards, Standards
3.3.14 “Reports by the Guardian,” and 3.3.15 “Monitoring of the Guardian” (1993). The
National Probate Court Standards additionally contain recommendations relating to the need for
periodic review of guardianships and sanctions for failures of guardians to comply with reporting
requirements. See National Probate Court Standards, Standards 3.3.16 “Revaluation of
Necessity for Guardianship,” and 3.3.17 “Enforcement.”

SECTION 5-318. TERMINATION OR MODIFICATION OF GUARDIANSHIP.

(a) A guardianship terminates upon the death of the ward or upon order of the court.

(b) On petition of a ward, a guardian, or another person interested in the ward’s welfare,

the court may terminate a guardianship if the ward no longer needs the assistance or protection of

a guardian. The court may modify the type of appointment or powers granted to the guardian if

the extent of protection or assistance previously granted is currently excessive or insufficient or

the ward’s capacity to provide for support, care, education, health, and welfare has so changed as

to warrant that action.

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(c) Except as otherwise ordered by the court for good cause, the court, before terminating

a guardianship, shall follow the same procedures to safeguard the rights of the ward as apply to a

petition for guardianship. Upon presentation by the petitioner of evidence establishing a prima

facie case for termination, the court shall order the termination unless it is proven that

continuation of the guardianship is in the best interest of the ward.

Comment

If the ward’s condition changes so that the guardian believes that the ward is capable of
exercising some or all of the rights that were previously removed, Section 5-314(b)(5) requires
the guardian to immediately notify the court and not wait until the due date of the next report to
be filed under Section 5-317.

Subsection (b) can be used by the court not only to terminate a guardianship but also to
remove powers or add powers granted to the guardian.

Subsection (c) requires the court in terminating a guardianship to follow the same
procedures to safeguard the ward’s rights as apply to a petition for appointment of a guardian.
This includes the appointment of a visitor and, in appropriate circumstances, counsel.

Although clear and convincing evidence is required to establish a guardianship, the

petitioner need only present a prima facie case for termination. Once the petitioner has made out
a prima facie case, the burden then shifts to the party opposing the petition to establish by clear
and convincing evidence that continuation of the guardianship is in the best interest of the ward.
Given the constriction on rights involved in a guardianship, the burden of establishing a
guardianship should be greater than that for restoring rights. In determining whether it is in the
ward’s best interest for the guardianship to continue, every effort should be made to determine
the ward’s wishes and expressed preferences regarding the termination of the guardianship. In
determining the best interest of the ward, the ward’s personal values and expressed desires
should be considered.

To initiate proceedings under this section, the ward or person interested in the ward’s
welfare need not present a formal document prepared with legal assistance. A request to the
court may always be made informally.

Unlike the 1982 UGPPA, this section does not limit the frequency with which petitions
for termination may be made to the court, preferring instead to leave that issue up to general
statutes and rules addressing court management in general. Compare UPC Section 5-311(b)
(1982).

Termination of the guardianship does not relieve the guardian of liability for prior acts.
See Section 5-112.

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PART 4. PROTECTION OF PROPERTY OF PROTECTED PERSON

SECTION 5-401. PROTECTIVE PROCEEDING. Upon petition and after notice and

hearing, the court may appoint a limited or unlimited conservator or make any other protective

order provided in this [part] in relation to the estate and affairs of:

(1) a minor, if the court determines that the minor owns money or property requiring

management or protection that cannot otherwise be provided or has or may have business affairs

that may be put at risk or prevented because of the minor’s age, or that money is needed for

support and education and that protection is necessary or desirable to obtain or provide money;

or

(2) any individual, including a minor, if the court determines that, for reasons other than

age:

(A) by clear and convincing evidence, the individual is unable to manage property

and business affairs because of an impairment in the ability to receive and evaluate information

or make decisions, even with the use of appropriate technological assistance, or because the

individual is missing, detained, or unable to return to the United States; and

(B) by a preponderance of the evidence, the individual has property that will be

wasted or dissipated unless management is provided or money is needed for the support, care,

education, health, and welfare of the individual or of individuals who are entitled to the

individual’s support and that protection is necessary or desirable to obtain or provide money.

Comment

This section sets out the basic standard for appointment of a conservator or entry of
another protective order. Paragraph (1) states the standard for minors for orders entered by
reason of the minor’s age. Paragraph (2), while principally focused on the standard for adults,
also applies to a protective order entered for a minor for reasons other than the minor’s age. A
conservatorship created for a minor for reasons other than age need not terminate at age eighteen.
See Section 5-431(a).

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This section continues the emphasis on limiting assistance expressed in Part 3 by
providing that conservatorship includes both limited and unlimited conservatorships. This part,
like Part 3, encourages the court to appoint a limited conservator whenever possible.

Note the differing evidentiary standards contained in subparagraphs (A) and (B) of
paragraph (2). Paragraph (2) establishes a two-part test for the entry of a protective order for an
adult, or for a minor for reasons other than age. First, unless it is alleged that the respondent is
missing or is an absentee or detainee, the petitioner must show by clear and convincing evidence
that the respondent has an impairment and that as a result of the impairment, the respondent is
unable to manage the respondent’s property and business affairs even with appropriate
technological assistance. In addition, the petitioner must show, by a preponderance of evidence,
that the respondent’s property will be dissipated or wasted without management, or that money is
needed to care for the respondent or those entitled to the respondent’s support and that protection
is needed to provide or receive the money. Under paragraph (2), the requisite impairment for the
appointment of a conservator or entry of another protective order is similar to the test for the
appointment of a guardian, which relies on the definition of “incapacitated person.” See Section
5-102(4).

Under paragraph (2)(A), if appropriate technological assistance is available to meet the

respondent’s needs, then no conservatorship may be established or other protective order entered.
The drafting committee discussed whether to put any modification or limitation on the
technological assistance, such as that which is reasonably available or a limitation on availability
based on cost. Given the importance of the respondent’s rights, the committee decided to reject
any modification or limitation whatsoever on the required consideration of technological
assistance. Therefore, if appropriate technological assistance exists that can meet the
respondent’s needs, regardless of the cost, then that assistance must be treated by the court as
meeting the respondent’s identified needs by a less restrictive means, and the petition for a
protective proceeding must be denied.

This section is based on UGPPA (1982) Section 2-301 (UPC Section 5-401 (1982)).

SECTION 5-402. JURISDICTION OVER BUSINESS AFFAIRS OF

PROTECTED PERSON. After the service of notice in a proceeding seeking a conservatorship

or other protective order and until termination of the proceeding, the court in which the petition

is filed has:

(1) exclusive jurisdiction to determine the need for a conservatorship or other protective

order;

(2) exclusive jurisdiction to determine how the estate of the protected person which is

subject to the laws of this state must be managed, expended, or distributed to or for the use of the

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protected person, individuals who are in fact dependent upon the protected person, or other

claimants; and

(3) concurrent jurisdiction to determine the validity of claims against the person or estate

of the protected person and questions of title concerning assets of the estate.

Comment

While a majority of all proceedings involving a conservatorship will be held in the court
supervising the conservatorship, third parties may bring suit against the conservator or protected
person in other courts to determine the validity of claims and questions of title concerning estate
assets. For the procedures for filing claims against a conservatorship, see Section 5-429.

The source of this section is UGPPA (1982) Section 2-302 (UPC Section 5-402 (1982))
with slight changes.

SECTION 5-403. ORIGINAL PETITION FOR APPOINTMENT OR

PROTECTIVE ORDER.

(a) The following may petition for the appointment of a conservator or for any other

appropriate protective order:

(1) the person to be protected;

(2) an individual interested in the estate, affairs, or welfare of the person to be

protected, including a parent, guardian, or custodian; or

(3) a person who would be adversely affected by lack of effective management of

the property and business affairs of the person to be protected.

(b) A petition under subsection (a) must set forth the petitioner’s name, residence, current

address if different, relationship to the respondent, and interest in the appointment or other

protective order, and, to the extent known state or contain the following with respect to the

respondent and the relief requested:

(1) the respondent’s name, age, principal residence, current street address, and, if

565
different, the address of the dwelling where it is proposed that the respondent will reside if the

appointment is made;

(2) if the petition alleges impairment in the respondent’s ability to receive and

evaluate information, a brief description of the nature and extent of the respondent’s alleged

impairment;

(3) if the petition alleges that the respondent is missing, detained, or unable to

return to the United States, a statement of the relevant circumstances, including the time and

nature of the disappearance or detention and a description of any search or inquiry concerning

the respondent’s whereabouts;

(4) the name and address of the respondent’s:

(A) spouse or, if the respondent has none, an adult with whom the

respondent has resided for more than six months before the filing of the petition; and

(B) adult children or, if the respondent has none, the respondent’s parents

and adult brothers and sisters or, if the respondent has none, at least one of the adults nearest in

kinship to the respondent who can be found;

(5) the name and address of the person responsible for care or custody of the

respondent;

(6) the name and address of any legal representative of the respondent;

(7) a general statement of the respondent’s property with an estimate of its value,

including any insurance or pension, and the source and amount of other anticipated income or

receipts; and

(8) the reason why a conservatorship or other protective order is in the best

interest of the respondent.

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(c) If a conservatorship is requested, the petition must also set forth to the extent known:

(1) the name and address of any proposed conservator and the reason why the

proposed conservator should be selected;

(2) the name and address of any person nominated as conservator by the

respondent if the respondent has attained 14 years of age; and

(3) the type of conservatorship requested and, if an unlimited conservatorship, the

reason why limited conservatorship is inappropriate or, if a limited conservatorship, the property

to be placed under the conservator’s control and any limitation on the conservator’s powers and

duties.

Comment

This section lists the information that must be contained in the petition for appointment of
a conservator or other protective order. Although subsection (a) allows a petition for
appointment to be filed by the person to be protected, the court should scrutinize such a petition
closely to confirm that the petition is truly voluntary and that the petitioner has the requisite
capacity to file a petition. Normally in such a case it would be better for the individual to
execute a durable power of attorney instead of utilizing the more invasive conservatorship.

Subsection (a) specifically provides that a petition for appointment of a conservator or

other protective order may be filed by the respondent’s guardian. The process for appointing a
guardian is more detailed than the appointment of a conservator because of the rights involved
and because other mechanisms are available to protect the respondent’s property besides a
conservatorship. However, in many cases a conservatorship may also be necessary, and so it is
incumbent on a guardian to determine whether there is a need for a conservatorship, and if so,
petition for an appointment.

Subsections (b)(4)-(6) require that the petition list family members and others who may
have information useful to the court and to whom notice of the proceeding must be given under
Section 5-404(b). These persons will likely also have the greatest interest in protecting the
respondent and in making certain that the proposed conservatorship is appropriate.

Subsection (b)(4)(A) requires that the petition contain the name and address of the spouse
or, if none, then an adult with whom the respondent has resided for more than six months before
the petition was filed. Included among the persons with whom the respondent may have resided
are a domestic partner and companions. Note that there is no requirement that the respondent
have resided with the other person for more than six months immediately prior to the filing of the
petition, just that the requirement has been met at some point in time before the petition was

567
filed. In applying this provision, the court should keep the purpose of this provision in mind-to
obtain a list of person who likely have a significant interest in the respondent’s welfare. Courts
should use a reasonableness standard so that the petitioner does not have to give the name of
every person the respondent has resided with in the respondent’s entire life and whose current
interest in the respondent may be quite remote. Also, in interpreting what is meant by “resided,”
the closeness of the relationship to the respondent should be taken into account.

Courts should consider whether they wish to exclude persons providing care for a fee
from the class of persons with whom it is considered that the respondent resided. This would
limit the application of subsection (b)(4)(A) to individuals with whom the respondent has a close
personal relationship, a relative, or to a domestic partner or companion, and would eliminate a
professional relationship such as that of a housekeeper, landlord, or owner of a board and care
facility.

The drafters originally used the language “domestic partner or companion,” and intended
to limit the application of subsection (b)(4)(A) to the spouse, domestic partner or companion, but
at the 1997 Annual Meeting of the Uniform Law Commissioners where the revision of the
Uniform Guardianship and Protective Proceedings Act was finalized, this phrase was replaced by
the phrase “adult with whom the respondent has resided for more than six months.” The intent
behind this amendment was not to substantially broaden the concept but only to expand it to
include other individuals who have had an enduring relationship with the respondent for at least
a six-month period and who, because of this relationship, should be given notice.

Subsection (b)(4)(B) requires the names and addresses of the respondent’s adult children
or, if none, parent and adult brothers and sisters or, if none, a relative of the nearest degree in
which a relation can be found. However, if there are several adults of equal degree of kinship to
the respondent, the name and address of one is all that is required, rather than the names and
addresses of the members of the entire class.

Under subsection (b)(6), if the respondent has a legal representative, the representative’s
name and address must be included in the petition. A “legal representative” is defined in Section
5-102(5). Notice to such a representative, as required by Section 5-404(b), is especially critical
for ascertaining whether a conservatorship or other protective order is really necessary. For
example, should a conservator have already been appointed elsewhere or the respondent have
executed a durable power of attorney with authority in the agent to make financial decisions, the
court may conclude that there may be no need for it to appoint a conservator.

Subsection (b)(7) requires the petitioner to make a general statement of the respondent’s
property, including an estimated value, insurance and pension information and information about
other anticipated income or receipts. This information should be as detailed as possible to enable
the visitor to better complete the report required by Section 5-406, and to enable the court to
determine whether a protective order is really needed.

Subsection (c)(3) emphasizes the importance of limited conservatorship, the

encouragement of which is a major theme of this article. The petitioner must state in the petition
why a limited conservatorship is not sufficient when requesting an unlimited conservatorship. If

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a limited conservatorship is requested, the petition must set out the property requested to be
placed under the conservator’s control.

This section differs slightly from the National Probate Court Standards, Standard 3.4.1,
“Petition” (1993), which also requires that a petition for conservatorship include a description of
the respondent’s functional limitations and a statement that less intrusive alternatives have been
considered.

This section is based on UGPPA (1982) Section 2-304 (UPC Section 5-404 (1982)).

SECTION 5-404. NOTICE.

(a) A copy of the petition and the notice of hearing on a petition for conservatorship or

other protective order must be served personally on the respondent, but if the respondent’s

whereabouts is unknown or personal service cannot be made, service on the respondent must be

made by [substituted service] [or] [publication]. The notice must include a statement that the

respondent must be physically present unless excused by the court, inform the respondent of the

respondent’s rights at the hearing, and, if the appointment of a conservator is requested, include a

description of the nature, purpose, and consequences of an appointment. A failure to serve the

respondent with a notice substantially complying with this subsection precludes the court from

granting the petition.

(b) In a proceeding to establish a conservatorship or for another protective order, notice

of the hearing must be given to the persons listed in the petition. Failure to give notice under this

subsection does not preclude the appointment of a conservator or the making of another

protective order.

(c) Notice of the hearing on a petition for an order after appointment of a conservator or

making of another protective order, together with a copy of the petition, must be given to the

protected person, if the protected person has attained 14 years of age and is not missing,

detained, or unable to return to the United States, any conservator of the protected person’s

569
estate, and any other person as ordered by the court.

(d) A conservator shall give notice of the filing of the conservator’s inventory, report, or

plan of conservatorship, together with a copy of the inventory, report, or plan of conservatorship

to the protected person and any other person the court directs. The notice must be delivered or

sent within 14 days after the filing of the inventory, report, or plan of conservatorship.

Comment

Personal service of the petition and notice of hearing on the respondent is required unless
the respondent is missing or personal service cannot be made, in which event the state’s method
for substituted service must be used. A failure to serve the respondent is jurisdictional, as is a
notice that does not substantially comply with the requirements of subsection (a). Where
appropriate, the court should hold the hearing where the respondent is located. If the
respondent’s presence is impossible because the respondent is missing or absent, then the court
should excuse the respondent’s presence.

Subsection (b) requires that notice of hearing be given to the people listed in the petition
but failing to give notice to those listed (other than the respondent) is not jurisdictional.

Subsection (c) addresses the notice requirements for hearings on petitions for orders after
the establishment of the conservatorship. The protected person and the conservator as well as
anyone else the court directs must be given copies of the notice of hearing and a copy of any
petition. This provision, along with subsection (d), requiring that the protected person be given a
copy of the conservator’s plan, report, and inventory and a copy of the notice of filing, ensures
that the protected person is kept informed of developments.

This section should be read in conjunction with Section 5-113, which requires that notice
be given at least 14 days prior to the hearing unless the court or other provisions of this article
establish a different time period.

National Probate Court Standards, Standard 3.4.7, “Notice” (1993), provides that the
respondent must receive timely notice prior to the hearing on the conservatorship and that written
notice should be in both plain language and in large type. The notice, at a minimum, must
indicate the place and time of the hearing, the nature and consequences of the hearing as well as
the respondent’s rights.

This section is based on UGPPA (1982) Section 2-305 (UPC Section 5-405 (1982)).

SECTION 5-405. ORIGINAL PETITION: MINORS; PRELIMINARIES TO

HEARING.

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(a) Upon the filing of a petition to establish a conservatorship or for another protective

order for the reason that the respondent is a minor, the court shall set a date for hearing. If the

court determines at any stage of the proceeding that the interests of the minor are or may be

inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to

the choice of the minor if the minor has attained 14 years of age.

(b) While a petition to establish a conservatorship or for another protective order is

pending, after preliminary hearing and without notice to others, the court may make orders to

preserve and apply the property of the minor as may be required for the support of the minor or

individuals who are in fact dependent upon the minor. The court may appoint a [master] to assist

in that task.

Comment

Subsection (a) gives the court the authority to appoint counsel for the minor at any stage
of the proceeding. Subsection (b) allows the court to appoint a master to assist the court in
preserving and appropriately applying the minor’s property pending the hearing on the petition.
This article provides for the appointment of “masters” instead of either “emergency” or “special”
conservators. The role of the master is to carry out only those tasks that are specifically ordered
by the court. The terms “emergency” or “special conservator” seemed to be inappropriate
because those terms imply that the person appointed would have all of the powers and duties of a
conservator, which is a characterization that is too broad for the limited role contemplated. The
word “master” is bracketed, recognizing that different states use different words to refer to the
same position. The enacting state that uses a different word should substitute its own term.

This section is based on UGPPA (1982) Sections 2-306(a) and 2-307(b)(1) (UPC
Sections 5-406(a) and 5-407(b)(1) (1982)).

SECTION 5-406. ORIGINAL PETITION: PRELIMINARIES TO HEARING.

(a) Upon the filing of a petition for a conservatorship or other protective order for a

respondent for reasons other than being a minor, the court shall set a date for hearing. The court

shall appoint a [visitor] unless the petition does not request the appointment of a conservator and

the respondent is represented by a lawyer. The duties and reporting requirements of the [visitor]

571
are limited to the relief requested in the petition. The [visitor] must be an individual having

training or experience in the type of incapacity alleged.

Alternative A

(b) The court shall appoint a lawyer to represent the respondent in the proceeding if:

(1) requested by the respondent;

(2) recommended by the [visitor]; or

(3) the court determines that the respondent needs representation.

Alternative B

(b) Unless the respondent is represented by a lawyer, the court shall appoint a lawyer to

represent the respondent in the proceeding, regardless of the respondent’s ability to pay.

End of Alternatives

(c) The [visitor] shall interview the respondent in person and, to the extent that the

respondent is able to understand:

(1) explain to the respondent the substance of the petition and the nature, purpose,

and effect of the proceeding;

(2) if the appointment of a conservator is requested, inform the respondent of the

general powers and duties of a conservator and determine the respondent’s views regarding the

proposed conservator, the proposed conservator’s powers and duties, and the scope and duration

of the proposed conservatorship;

(3) inform the respondent of the respondent’s rights, including the right to employ

and consult with a lawyer at the respondent’s own expense, and the right to request a court-

appointed lawyer; and

(4) inform the respondent that all costs and expenses of the proceeding, including

572
respondent’s attorney’s fees, will be paid from the respondent’s estate.

(d) In addition to the duties imposed by subsection (c), the [visitor] shall:

(1) interview the petitioner and the proposed conservator, if any; and

(2) make any other investigation the court directs.

(e) The [visitor] shall promptly file a report with the court, which must include:

(1) a recommendation as to whether a lawyer should be appointed to represent the

respondent;

(2) recommendations regarding the appropriateness of a conservatorship,

including whether less restrictive means of intervention are available, the type of

conservatorship, and, if a limited conservatorship, the powers and duties to be granted the limited

conservator, and the assets over which the conservator should be granted authority;

(3) a statement of the qualifications of the proposed conservator, together with a

statement as to whether the respondent approves or disapproves of the proposed conservator, and

a statement of the powers and duties proposed or the scope of the conservatorship;

(4) a recommendation as to whether a professional evaluation or further

evaluation is necessary; and

(5) any other matters the court directs.

(f) The court may also appoint a physician, psychologist, or other individual qualified to

evaluate the alleged impairment to conduct an examination of the respondent.

(g) While a petition to establish a conservatorship or for another protective order is

pending, after preliminary hearing and without notice to others, the court may issue orders to

preserve and apply the property of the respondent as may be required for the support of the

respondent or individuals who are in fact dependent upon the respondent. The court may appoint

573
a [master] to assist in that task.

Legislative Note: Those states that enact Alternative B of subsection (b) which requires
appointment of counsel for the respondent in all protective proceedings should not enact
subsection (e)(1).

Comment

Alternative provisions are offered for subsection (b). Alternative A is the drafting
committee’s position. Alternative A relies on an expanded role for the “visitor,” who can be
chosen or selected to provide the court with advice on a variety of matters other than legal issues.
Appointment of a lawyer, nevertheless, is required under Alternative A when the court
determines that the respondent needs representation, or counsel is requested by the respondent or
recommended by the visitor.

Alternative B is derived from UGPPA (1982) Section 2-306 (UPC Section 5-406 (1982)).
It is expected that in states enacting Alternative A of subsection (b), counsel will be appointed in
most of the cases. However, the A.B.A. Commission on Legal Problems of the Elderly attached
great significance to expressly making appointment of counsel “mandatory.” Therefore, for
states which wish to provide for “mandatory appointment” of counsel, Alternative B should be
enacted.

In Alternative A for subsection (b), then, appointment of counsel for an unrepresented

respondent is mandated when requested by the respondent, when recommended by the visitor, or
when the court determines the respondent needs representation. This requirement is in accord
with the National Probate Court Standards. National Probate Court Standards, Standard 3.4.5
“Appointment of Counsel” (1993), like subsection (b) of this section, provides for appointment
of counsel in a conservatorship proceeding when the unrepresented respondent requests it, the
visitor recommends it, the law otherwise requires it, or the court determines that the respondent
needs representation.

The drafting committee for the 1997 revision of the Uniform Guardianship and Protective
Proceedings Act debated at length whether to mandate appointment of counsel or to expand the
role of the visitor. The drafting committee concluded that as between the two, the visitor may be
more helpful to the court in providing information on a wider variety of issues and concerns, by
acting as the eyes and ears of the court as well as determining the respondent’s wishes and
conveying them to the court. The committee was concerned that including mandatory
appointment of counsel would cause many to view the Uniform Guardianship and Protective
Proceedings Act (1997) as a “lawyer’s bill” and thus severely handicap the ’act’s acceptance and
adoption. It is the intent of the committee that counsel for respondent be appointed in all but the
most clear cases, where all are in agreement regarding the need for a conservatorship or
protective order as well as the proposed conservator. For jurisdictions enacting Alternative A
under subsection (b), the visitor needs to be especially sensitive to the fact that if the respondent
is incapacitated, then the respondent may not have sufficient capacity to intelligently and
knowingly waive appointment of counsel. A court should err on the side of protecting the
respondent’s rights and appoint counsel in most cases.

574
Appointment of a visitor is mandatory when a conservatorship is sought for reasons other
than minority even if the respondent is represented by a lawyer (subsection (a)), and regardless
of which alternative is enacted under subsection (b). Only when the respondent is represented by
counsel and the petitioner is seeking a protective order other than the appointment of a
conservator is the appointment of a visitor waived. Although a lawyer, if qualified, may be
appointed as a visitor, the attorney’s role is that of a visitor and not that of an attorney for the
respondent. The visitor serves as the information gathering arm of the court. The role of the
attorney is to act as the respondent’s advocate. See National Probate Court Standards, Standard
3.4.5(b) “Appointment of Counsel” (1993).

The role of a visitor in a conservatorship proceeding is addressed in National Probate

Court Standard 3.4.4 “Court Visitor” (1993):

The probate court should require a court appointee to visit with the respondent in a
conservatorship petition to (1) explain the rights of the respondent; (2) investigate the facts of the
petition; and (3) explain the circumstances and consequences of the action. The visitor should
investigate the need for additional court appointments and should file a written report with the
court promptly after the visit.

The visitor may be any qualified individual with “training or experience in the type of
incapacity alleged.” Under subsection (c), the visitor must visit the respondent in person and
explain to the respondent a number of items, to the extent the respondent can understand. If the
respondent does not have a good command of the English language, then the visitor should be
accompanied by an interpreter. The drafters did not mandate that the visitor be able to speak the
respondent’s primary language, but good practice and due process protections dictate the use of
interpreters where needed for the respondent to understand. The phrase “to the extent that the
respondent is able to understand” is a recognition that some respondents may be so impaired that
they are unable to understand. If assistive devices are needed in order for the visitor to explain to
the respondent in a manner necessary so that the respondent can understand, then the visitor
should use those assistive devices.

Subsection (c)(4) puts the respondent on notice that if the respondent has an estate, costs
and expenses are paid from the estate, including attorney’s fees and visitor’s fees. If there is an
estate, those entitled to compensation would be paid from the estate. If there is no estate, those
entitled to compensation will ordinarily be compensated by whatever process the enacting state
has for indigent proceedings, such as from the county general fund, unless the enacting
jurisdiction has made other arrangements. Payment is made pursuant to the procedures provided
in Section 5-417.

If the relief sought is a protective order other than the appointment of a conservator, the
visitor’s powers and duties relate only to the relief sought in the protective order. When the
relief sought is a conservatorship, the visitor has an expanded list of duties. The visitor’s report
must contain information and recommendations to the court regarding the appropriateness of the
conservatorship, whether lesser restrictive alternatives might meet the respondent’s needs,
recommendations about further evaluations, powers to be given the conservator, and the
appointment of counsel. The visitor’s recommendation about the assets over which the

575
conservator should be granted authority should also include a recommendation of the amount of
the bond that should be required of the conservator. For states enacting Alternative A under
subsection (b), if the visitor does not recommend that a lawyer be appointed, the reasons for this
conclusion should be explained in the visitor’s report.

States enacting the guardianship and conservatorship provisions of this article should
consider developing a checklist for the items enumerated in subsection (e).

Subsection (f) authorizes the court to order a professional evaluation of the respondent
when recommended by the visitor, requested by counsel, or the court otherwise believes it to be
necessary. Subsection (g) authorizes the court to use a master to help in the preservation and
application of the respondent’s property while a petition for appointment of a conservator or
other protective order is pending. For an explanation of why a “master” is appointed instead of a
temporary conservator, see the comment to Section 5-405.

“Visitor” is bracketed in recognition that states use different words to refer to this
position. States enacting this article should insert the term used in their states.
If there is an estate, the visitor would be paid from it. If there is no estate, the visitor will
ordinarily be compensated from the county general fund unless the enacting jurisdiction has
made other arrangements. Payment is made pursuant to the procedures provided in Section 5-
417.

This section is based on UGPPA (1982) Section 2-306 (UPC Section 5-406 (1982)).

SECTION 5-407. CONFIDENTIALITY OF RECORDS. The written report of a

[visitor] and any professional evaluation are confidential and must be sealed upon filing, but are

available to:

(1) the court;

(2) the respondent without limitation as to use;

(3) the petitioner, the [visitor], and the petitioner’s and respondent’s lawyers, for

purposes of the proceeding; and

(4) other persons for such purposes as the court may order for good cause.

Comment

This section is new, although a number of states have a comparable provision. This
section is designed to protect the respondent’s privacy, but still make the records accessible
when needed to any of the involved parties or to others on a showing of good cause. The
drafting committee recognized that “watch-dog” groups, the media, and others can perform

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essential functions of deterring abuse and facilitating reform, and in drafting this provision
balanced the need to protect the respondent’s privacy with the need of others to access this
information.

SECTION 5-408. ORIGINAL PETITION: PROCEDURE AT HEARING.

(a) Unless excused by the court for good cause, a proposed conservator shall attend the

hearing. The respondent shall attend and participate in the hearing, unless excused by the court

for good cause. The respondent may present evidence and subpoena witnesses and documents,

examine witnesses, including any court-appointed physician, psychologist, or other individual

qualified to evaluate the alleged impairment, and the [visitor], and otherwise participate in the

hearing. The hearing may be held in a location convenient to the respondent and may be closed

upon request of the respondent and a showing of good cause.

(b) Any person may request permission to participate in the proceeding. The court may

grant the request, with or without hearing, upon determining that the best interest of the

respondent will be served. The court may attach appropriate conditions to the participation.

Comment

The provision requiring the conservator to attend the hearing is new, although based on a
recommendation from National Probate Court Standards, Standard 3.4.8(c) “Hearing” (1993).
While the court may waive the proposed conservator’s attendance for good cause, in all but the
most unusual of circumstances the proposed conservator should be required to attend to give the
court the opportunity to assess the conservator’s qualifications for appointment and to make any
other inquiry of the conservator that the court determines necessary. Additionally, the
respondent’s attendance is required unless excused for good cause or the respondent’s attendance
is impossible. The respondent has the right to take an active role in the proceeding.

There may be occasions when the court needs to hold the hearing at a location other than
the court, if convenient to the respondent. The respondent may request that the hearing be
closed, and if the respondent shows good cause, the court will close the hearing. Others may
make a request to participate, which may be granted by the court without a hearing if the court
finds that the respondent’s best interest is served by the participation. The court’s order granting
the request to participate should indicate the extent participation will be allowed.

This section is based on subsections (d) and (e) of UGPPA (1982) Section 2-306
(subsections (d) and (e) of UPC Section 5-406 (1982)).

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SECTION 5-409. ORIGINAL PETITION: ORDERS.

(a) If a proceeding is brought for the reason that the respondent is a minor, after a hearing

on the petition, upon finding that the appointment of a conservator or other protective order is in

the best interest of the minor, the court shall make an appointment or other appropriate protective

order.

(b) If a proceeding is brought for reasons other than that the respondent is a minor, after a

hearing on the petition, upon finding that a basis exists for a conservatorship or other protective

order, the court shall make the least restrictive order consistent with its findings. The court shall

make orders necessitated by the protected person’s limitations and demonstrated needs, including

appointive and other orders that will encourage the development of maximum self-reliance and

independence of the protected person.

(c) Within 14 days after an appointment, the conservator shall deliver or send a copy of

the order of appointment, together with a statement of the right to seek termination or

modification, to the protected person, if the protected person has attained 14 years of age and is

not missing, detained, or unable to return to the United States, and to all other persons given

notice of the petition.

(d) The appointment of a conservator or the entry of another protective order is not a

determination of incapacity of the protected person.

Comment

This section emphasizes the related concepts of least restrictive alternative and limited
conservatorship, both of which accord with the philosophy of this article that a conservator
should be appointed only when necessary, and then with only those powers that are necessitated
by the respondent’s actual limitations. The court, in ordering the creation of the conservatorship,
shall, in its order, grant the conservator only those powers that are absolutely essential for the
conservator to exercise. The court, in its order, must also ensure that the protected person’s self-
reliance and independence are maximized.

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In keeping with the concept of limited conservatorship, subsection (c) requires the
guardian to provide the ward and all those persons given notice of the hearing a copy of the order
of appointment along with a notice of the right to request a termination or a modification of the
guardianship. This makes certain that those who were originally notified of the petition will also
be notified of the results because they are the ones most likely to have a continuing interest in the
protected person’s welfare.

Per subsection (d), the fact that a conservator is appointed or another protective order is
entered is not a determination of the protected person’s incapacity under Part 3 for any other
purpose.

This section is based on UGPPA (1982) Sections 2-306(f) and 2-307(a) and (d) (UPC
Sections 5-406(f) and 5-407(a) and (d) (1982)).

SECTION 5-410. POWERS OF COURT.

(a) After hearing and upon determining that a basis for a conservatorship or other

protective order exists, the court has the following powers, which may be exercised directly or

through a conservator:

(1) with respect to a minor for reasons of age, all the powers over the estate and

business affairs of the minor which may be necessary for the best interest of the minor and

members of the minor’s immediate family; and

(2) with respect to an adult, or to a minor for reasons other than age, for the

benefit of the protected person and individuals who are in fact dependent on the protected person

for support, all the powers over the estate and business affairs of the protected person which the

person could exercise if the person were an adult, present, and not under conservatorship or other

protective order.

(b) Subject to Section 5-110 requiring endorsement of limitations on the letters of office,

the court may limit at any time the powers of a conservator otherwise conferred and may remove

or modify any limitation.

Comment

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Subsection (a) gives the court supervising a conservatorship all of the powers the
protected person would have been able to exercise directly were the protected person of full
capacity and the conservatorship or other protective order not in effect. While these powers may
be exercised directly by the court, the powers will most often be exercised by a conservator
without prior court approval. Sections 5-425 and 5-427 list distributive and administrative
powers that a conservator may exercise without prior court approval. Section 5-411 lists powers,
nearly all related to estate planning, that may be exercised only with prior court approval.

Subsection (a)(1) gives the court the power to protect the assets of a minor by
withholding distribution from the minor on attainment of majority when continued supervision of
the assets is needed. Before ordering such a continuation, however, the court must be convinced,
for reasons other than the minor’s age, that a basis exists under Section 5-401(2) for the
appointment of a conservator or other protective order.

Subsection (b) authorizes the court at any time to limit the powers of the conservator,
subject to any limitations contained in the letters of conservatorship. Formal procedures for
enlarging or restricting the powers of a conservator are provided in Section 5-414. Such formal
procedures must be utilized in order to grant a conservator additional powers. Such procedures
may be utilized to limit the powers of a conservator previously granted, or the court may elect
instead to proceed under this section. Per Section 5-110, any restrictions on the conservator’s
powers must be endorsed on the letters of conservatorship. Under Section 5-424(a), third
persons are charged with knowledge of and subject to possible liability for failing to act in
accordance with restrictions endorsed on the letters of office.

This section is based on UGPPA (1982) Sections 2-307(b) and 2-325 (UPC Sections 5-
407(b) and 5-425 (1982)).

SECTION 5-411. REQUIRED COURT APPROVAL.

(a) After notice to interested persons and upon express authorization of the court, a

conservator may:

(1) make gifts, except as otherwise provided in Section 5-427(b);

(2) convey, release, or disclaim contingent and expectant interests in property,

including marital property rights and any right of survivorship incident to joint tenancy or

tenancy by the entireties;

(3) exercise or release a power of appointment;

(4) create a revocable or irrevocable trust of property of the estate, whether or not

the trust extends beyond the duration of the conservatorship, or revoke or amend a trust

580
revocable by the protected person;

(5) exercise rights to elect options and change beneficiaries under insurance

policies and annuities or surrender the policies and annuities for their cash value;

(6) exercise any right to an elective share in the estate of the protected person’s

deceased spouse and to renounce or disclaim any interest by testate or intestate succession or by

transfer inter vivos; and

(7) make, amend, or revoke the protected person’s will.

(b) A conservator, in making, amending, or revoking the protected person’s will, shall

comply with [the state’s statute for executing wills].

(c) The court, in exercising or in approving a conservator’s exercise of the powers listed

in subsection (a), shall consider primarily the decision that the protected person would have

made, to the extent that the decision can be ascertained. The court shall also consider:

(1) the financial needs of the protected person and the needs of individuals who

are in fact dependent on the protected person for support and the interest of creditors;

(2) possible reduction of income, estate, inheritance, or other tax liabilities;

(3) eligibility for governmental assistance;

(4) the protected person’s previous pattern of giving or level of support;

(5) the existing estate plan;

(6) the protected person’s life expectancy and the probability that the

conservatorship will terminate before the protected person’s death; and

(7) any other factors the court considers relevant.

(d) Without authorization of the court, a conservator may not revoke or amend a durable

power of attorney of which the protected person is the principal. If a durable power of attorney

581
is in effect, absent a court order to the contrary, a decision of the agent takes precedence over

that of a conservator.

Comment

This section lists actions for which a conservator must obtain prior court approval. The
actions for which court approval is required all relate to the protected person’s estate plan.
Except for the power to make, amend, or revoke the protect person’s will, this section duplicates
the list of transactions found at UGPPA (1982) Section 2-307(b)(3) (UPC Section 5-407(b)(3)
(1982)). The section should be read together with Section 5-418(d), which authorizes the
conservator to examine the protected person’s estate planning documents.

The power to make, amend, or revoke the protected person’s will is taken from the
California and South Dakota statutes. See Cal. Prob. Code Sections 2580, 6100.5(c), 6110(c);
S.D. Codified Laws Ann. Section 29A-2-520. In subsection (b), the enacting jurisdiction should
insert the citation for its statute on the execution requirements for ordinary attested wills.
Subsection (b) follows the approach taken by the South Dakota statute. The other approach,
followed by California, is to amend the statute on execution of wills to specifically allow
execution by a conservator.

Pursuant to subsection (c), decisions by the conservator under this section must be based
primarily on the decision that the protected person would have made, if of full capacity. The
protected person’s personal values and expressed desires, past and present, are to be considered
when making decisions. Carrying out the protected person’s intent or probable intent is a major
theme of this article. In this regard, this section probably confirms what is already the law. Even
in the absence of a statute, the conservator should consider the protected person’s probable
wishes, particularly with respect to gifts and other estate planning related transactions. For an
overview of the history of this judicially-created doctrine and a sampling of representative cases,
see Restatement (Third) of the Law of Trusts, § 11, reporter’s note to cmt. f (Tentative Draft No.
1, 1996). The authority of a court to authorize a conservator to engage in estate planning related
transactions is also expressly confirmed by statute in a majority of states.

While not so limited, the authority confirmed by this section will most often be used to
minimize tax liabilities. For example, by making annual exclusion gifts, the federal estate tax
liability at the protected person’s death may be substantially reduced. Also quite valuable is the
ability, with court approval, to amend the protected person’s estate planning documents. For
example, failures to meet the technical requirements for the federal estate tax marital or
charitable deduction can be corrected.

This section can also be used for non-tax transactions. Transfers may be made to qualify
the protected person for governmental programs, or the court may continue the protected
person’s prior pattern or giving to charities and others. Per Section 5-427(b), court approval is
required for gifts exceeding 20% of the estate’s annual income.

Under subsection (d), prior court approval is required before a conservator may revoke or

582
amend the protected person’s durable power of attorney. Also, if a durable power of attorney is
in effect, the decision of the agent takes precedence over that of the conservator, absent a court
order to the contrary. The purpose of this provision is to make certain that the court has been
made aware of the durable power of attorney and has determined that the power should be
revoked. For this reason the petition for the appointment of a conservator must state whether the
respondent has executed a power of attorney and list the name and address of the agent, if
known. Also, the agent must be given notice of the proceeding. See Sections 5-403(b)(6) and 5-
404(b).

The persons who must be given notice of hearing on a petition under this section are as
determined under Section 5-404(c), which prescribes the notice requirements for petitions for
orders subsequent to the appointment of a conservator. Notice of the hearing, together with a
copy of the petition, must be given to the protected person, if the protected person has attained
14 years of age and is not missing, detained, or unable to return to the United States, any
conservator of the protected person’s estate, and any other person as ordered by the court.

Both California and South Dakota have enacted more specific notice requirements with
respect to their statutes authorizing conservators, with court approval, to engage in a variety of
estate planning related transactions. California requires that notice be given to the conservator,
the conservatee, the conservatee’s spouse, any person who has made a request for special notice,
any other persons required to be named in a petition for the appointment of a conservator, and, so
far as known to the petitioner, the conservatee’s heirs and beneficiaries under any purported
wills. Cal. Prob. Code Sections 1460, 2581. South Dakota requires notice to the protected
person, to the beneficiaries of the protected person’s estate plan, to the protected person’s
presumptive heirs and, if known, to any attorney or financial advisor who advised the protected
person within the previous five years. Should the petition request amendment or revocation of a
trust or the protected person’s will, notice must also be given to the trustee and the nominated
executor. See S.D. Codified Laws Section 29A-5-420.

Subsection (a) of this section is based on UGPPA (1982) Section 2-307(b) (UPC Section
5-407(b) (1982)). Subsections (b)-(d) are new.

SECTION 5-412. PROTECTIVE ARRANGEMENTS AND SINGLE

TRANSACTIONS.

(a) If a basis is established for a protective order with respect to an individual, the court,

without appointing a conservator, may:

(1) authorize, direct, or ratify any transaction necessary or desirable to achieve

any arrangement for security, service, or care meeting the foreseeable needs of the protected

person, including:

583
(A) payment, delivery, deposit, or retention of funds or property;

(B) sale, mortgage, lease, or other transfer of property;

(C) purchase of an annuity;

(D) making a contract for life care, deposit contract, or contract for

training and education; or

(E) addition to or establishment of a suitable trust [, including a trust

created under the Uniform Custodial Trust Act (1987)]; and

(2) authorize, direct, or ratify any other contract, trust, will, or transaction relating

to the protected person’s property and business affairs, including a settlement of a claim, upon

determining that it is in the best interest of the protected person.

(b) In deciding whether to approve a protective arrangement or other transaction under

this section, the court shall consider the factors described in Section 5-411(c).

(c) The court may appoint a [master] to assist in the accomplishment of any protective

arrangement or other transaction authorized under this section. The [master] has the authority

conferred by the order and shall serve until discharged by order after report to the court.

Comment

Consistent with the philosophy of this article that a conservator be appointed only as a
last resort, this section authorizes the court, in lieu of appointing a conservator, to order a variety
of less intrusive “protective arrangements.” A protective arrangement typically involves a single
transaction such as a sale of land or the entry of a contract for care. The procedure for obtaining
a protective arrangement is similar to that required for the appointment of a conservator. A
petition must be filed (Section 5-403), notice must be given to those listed in the petition
(Section 5-404), the court must appoint a visitor unless the respondent is represented by counsel
and the relief sought is a protective proceeding (Section 5-406(a)), and the court must appoint a
lawyer for the respondent if requested by the respondent, if recommended by the visitor, or if the
court determines that the respondent needs representation (Alternative A of Section 5-406(b)), or
if otherwise required by statute (Alternative B of Section 5-406(b)). The procedure to be
followed at the hearing is also identical. Sections 5-408 and 5-409. At the hearing, the court,
applying the standards of Section 5-401, must determine that a basis for the protective order
exists. Finally, the protective arrangement ordered must be consistent with the least restrictive

584
order consistent with the court’s findings. Section 5-409(b).

While the guardianship and conservatorship statutes of many states do not specifically
authorize protective arrangements, such arrangements are often ordered, usually under the guise
of a temporary or emergency conservatorship. This part deliberately avoids the use of
emergency conservatorships and allows the appointment of a temporary conservator only as a
replacement for a conservator who holds a regular appointment. See Section 5-414(a)(4). This
article instead prefers the less intrusive and more precisely defined protective arrangement. But
to effectuate a protective arrangement under this section, the temporary appointment by the court
of someone to implement the protective arrangement will often be required. To avoid the
implication that such appointee is a type of conservator, this part provides for the appointment of
“masters” instead of either “emergency” or “special” conservators. The role of the master is to
carry out only those tasks that are specifically ordered by the court. The drafting committee
concluded that the terms “emergency” or “special” conservator were inappropriate because they
imply that the person appointed would have all of the powers and duties of a conservator, which
is much too broad a characterization of the limited role contemplated. The word “master” is
bracketed, recognizing that different states use different words to refer to the same position. The
enacting state that uses a different word should substitute its own term.

Under subsection (a)(2), the settlement of a claim includes the settlement of a personal
injury lawsuit brought on behalf of the minor. One of the more important protective
arrangements listed in subsection (a)(1), and also in the 1982 UGPPA, is the authority to enter
into a contract for life care.

This section is based on UGPPA (1982) Section 2-308 (UPC Section 5-408 (1982)).

SECTION 5-413. WHO MAY BE CONSERVATOR: PRIORITIES.

(a) Except as otherwise provided in subsection (d), the court, in appointing a conservator,

shall consider persons otherwise qualified in the following order of priority:

(1) a conservator, guardian of the estate, or other like fiduciary appointed or

recognized by an appropriate court of any other jurisdiction in which the protected person

resides;

(2) a person nominated as conservator by the respondent, including the

respondent’s most recent nomination made in a durable power of attorney, if the respondent has

attained 14 years of age and at the time of the nomination had sufficient capacity to express a

preference;

585
(3) an agent appointed by the respondent to manage the respondent’s property

under a durable power of attorney;

(4) the spouse of the respondent;

(5) an adult child of the respondent;

(6) a parent of the respondent; and

(7) an adult with whom the respondent has resided for more than six months

before the filing of the petition.

(b) A person having priority under subsection (a)(1), (4), (5), or (6) may designate in

writing a substitute to serve instead and thereby transfer the priority to the substitute.

(c) With respect to persons having equal priority, the court shall select the one it

considers best qualified. The court, acting in the best interest of the protected person, may

decline to appoint a person having priority and appoint a person having a lower priority or no

priority.

(d) An owner, operator, or employee of [a long-term care institution] at which the

respondent is receiving care may not be appointed as conservator unless related to the respondent

by blood, marriage, or adoption.

Comment

This section gives top priority for appointment to existing conservators appointed
elsewhere, to the respondent’s nominee for the position, and to the respondent’s agent, in that
order. Existing conservators are granted a first priority for two reasons. First, many of these
cases will involve transfers of a conservatorship from another state. To assure a smooth
transition, the currently appointed conservator appointed in this state or another should have the
right to the appointment at the new location. Second, many cases may involve situations where a
conservatorship appointment is sought despite the appointment in another place. Granting the
existing conservator priority will deter such forum shopping. Should the existing conservator be
inappropriate for some reason, subsection (c) permits the court to skip over the existing
conservator and appoint someone with lower priority or even no priority.

A conservator or individual nominated by the respondent or the agent named in the

586
respondent’s durable power of attorney has priority for appointment over the respondent’s
relatives. The nomination may include anyone nominated orally at the hearing, if the respondent
has sufficient capacity at the time to express a preference. The nomination may also be made by
separate document. While it is generally good practice for an individual to nominate as
conservator the agent named in a durable power of attorney, the section grants such an agent a
preference in the absence of a specific nomination. The agent is granted preference on the theory
that the agent is the person the respondent would most likely prefer to act. The nomination of
the agent will also make it more difficult for someone to use a conservatorship to thwart the
agent’s authority. To assure that the agent will be in a position to assert his priority, Section 5-
404(b) requires that the agent receive notice of the proceeding. Also, until the court has acted to
approve the revocation of that authority, Section 5-411(d) provides that the authority of an agent
takes precedence over that of the conservator.

Subsection (a)(7) gives a seventh-level preference to a domestic partner or companion or

an individual who has a close, personal relationship with the respondent. Note there is no
requirement that the respondent have resided with the other person for more than six months
immediately prior to the filing of the petition, just that the requisite residency have occurred at
some point in time before the petition is filed. Courts should use a reasonableness standard in
applying this subsection so that priority is given to someone with whom the respondent has had a
close, enduring relationship. For factors to consider in making this determination, see the
detailed comment to Section 5-403.

While this section substantially overlaps with Section 5-310, the comparable provision on
selection of guardians, there are some differences. For example, Section 5-310 denies a priority
to an emergency or temporary guardian, but this section does not expressly deny a priority for
appointment to an emergency or temporary conservator appointed in another state. But the
failure in subsection (a)(1) to expressly exclude these categories of conservator does not mean
that they enjoy a priority for appointment. Unlike the case with guardians, emergency or
temporary conservators are not included within the definition of “conservator” found in Section
5-102(1).

Subsection (d) prohibits anyone affiliated with a long-term care facility at which the
respondent is receiving care from being appointed as conservator absent a blood, marital or
adoptive arrangement. Strict application of this subsection is crucial to avoid a conflict of
interest and to protect the protected person from potential financial exploitation. Each state
enacting this article needs to insert the particular term or terms used in the state for facilities
considered to be long-term care institutions.

National Probate Court Standards, Standard 3.4.11 “Qualifications and Appointments of

Conservators” (1993), recognizes that the court should appoint as conservator one who is both
willing and suitable to manage the respondent’s finances and property, based on the nature of the
respondent’s estate and the respondent’s incapacity. The standard provides a preference in
appointment to one known by, related to, or requested by the respondent.

This section is based on UGPPA (1982) Section 2-309 (UPC Section 5-409 (1982)).

587
SECTION 5-414. PETITION FOR ORDER SUBSEQUENT TO APPOINTMENT.

(a) A protected person or a person interested in the welfare of a protected person may file

a petition in the appointing court for an order:

(1) requiring bond or collateral or additional bond or collateral, or reducing bond;

(2) requiring an accounting for the administration of the protected person’s estate;

(3) directing distribution;

(4) removing the conservator and appointing a temporary or successor

conservator;

(5) modifying the type of appointment or powers granted to the conservator if the

extent of protection or management previously granted is currently excessive or insufficient or

the protected person’s ability to manage the estate and business affairs has so changed as to

warrant the action; or

(6) granting other appropriate relief.

(b) A conservator may petition the appointing court for instructions concerning fiduciary

responsibility.

(c) Upon notice and hearing the petition, the court may give appropriate instructions and

make any appropriate order.

Comment

Once a conservator has been appointed, the court supervising the conservatorship will
ordinarily act only following the request of some moving party. This section lists the most
common types of petitions. Subsection (a)(6) allows for petitions for “other appropriate relief”
to be brought.

It is essential that the protected person have the right to petition for appropriate relief.
While such a petition was not forbidden under the 1982 UGPPA, neither was it expressly
authorized. The lead-in language to subsection (a) has been revised to clarify that a petition may
be filed by the protected person.

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While a limited conservatorship should be ordered, whenever feasible, at the time of the
original appointment, such appointments may also be made at a later date. Perhaps the
possibility of a limited conservatorship was not even considered, or perhaps the protected
person’s situation has improved to the point that a limited conservatorship is now realistic. Also,
even when a limited conservatorship is ordered in the first instance, it is sometimes necessary to
grant the conservator additional powers or control over additional property. Subsection (a)(5),
which is new, authorizes petitions to increase or decrease the powers granted to the conservator
or property subject to the conservatorship. Should a request for increased powers require
additional proof of the protected person’s impairment, such impairment must be proved by clear
and convincing evidence. See Section 5-401(2)(A).

This section is based on UGPPA (1982) Section 2-315 (UPC Section 5-415 (1982)).

SECTION 5-415. BOND. The court may require a conservator to furnish a bond

conditioned upon faithful discharge of all duties of the conservatorship according to law, with

sureties as it may specify. Unless otherwise directed by the court, the bond must be in the

amount of the aggregate capital value of the property of the estate in the conservator’s control,

plus one year’s estimated income, and minus the value of assets deposited under arrangements

requiring an order of the court for their removal and the value of any real property that the

fiduciary, by express limitation, lacks power to sell or convey without court authorization. The

court, in place of sureties on a bond, may accept collateral for the performance of the bond,

including a pledge of securities or a mortgage of real property.

Comment

Bond for a conservator is required under this section only if ordered by the court. The
bond may be set pursuant to an order entered on the court’s own motion or a petition by the
protected person or an individual interested in the protected person’s welfare. The bond should
be in an amount adequate to guard against financial exploitation of the protected person’s assets
by the conservator. The statute assumes the amount will normally equal the value of the estate
plus one year’s estimated income. The court is free, however, to set either a lesser or greater
amount. The bond should be adequate in all cases, even in cases where the well-meaning
relative or friend is appointed as conservator.

Bond may be ordered either at the time of the original appointment or at any later time.
The bond requirements for conservators in this section are somewhat more strict than those for
personal representatives under Article III, Part 6 of the UPC. Under the UPC, a personal
representative usually need file a bond only if an interested person makes a demand.

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While this section does not specify factors for the court to consider in deciding whether
to require bond, some of the states have enacted such lists. For example, the South Dakota
statute requires the court to consider the following factors in determining the necessity for or
amount of a conservator’s bond: (1) the value of the personal estate and annual gross income
and other receipts with the conservator’s control; (2) the extent to which the estate has been
deposited under an arrangement requiring an order of court for its removal; (3) whether an order
has been entered waiving the requirement that accountings be filed and presented or permitting
accountings to be filed less frequently than annually; (4) the extent to which the income and
receipts are payable directly to a facility responsible for or which has assumed responsibility for
the care or custody of the minor or protected person; (5) whether a guardian has been appointed,
and if so, whether the guardian has presented reports as required; and (6) whether the conservator
was appointed pursuant to a nomination which requested that bond be waived. See S.D.
Codified Laws Section 29A-5-111.

This section is based on UGPPA (1982) Section 2-310 (UPC Section 5-410 (1982)).

SECTION 5-416. TERMS AND REQUIREMENTS OF BOND.

(a) The following rules apply to any bond required:

(1) Except as otherwise provided by the terms of the bond, sureties and the

conservator are jointly and severally liable.

(2) By executing the bond of a conservator, a surety submits to the jurisdiction of

the court that issued letters to the primary obligor in any proceeding pertaining to the fiduciary

duties of the conservator in which the surety is named as a party. Notice of any proceeding must

be sent or delivered to the surety at the address shown in the court records at the place where the

bond is filed and to any other address then known to the petitioner.

(3) On petition of a successor conservator or any interested person, a proceeding

may be brought against a surety for breach of the obligation of the bond of the conservator.

(4) The bond of the conservator may be proceeded against until liability under the

bond is exhausted.

(b) A proceeding may not be brought against a surety on any matter as to which an action

or proceeding against the primary obligor is barred.

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Comment

This section specifies various technical requirements that apply when bond is required.
The cost of the bond is payable from the protected person’s estate.

This section is based on UGPPA (1982) Section 2-311 (UPC Section 5-411 (1982)).

SECTION 5-417. COMPENSATION AND EXPENSES. If not otherwise

compensated for services rendered, a guardian, conservator, lawyer for the respondent, lawyer

whose services resulted in a protective order or in an order beneficial to a protected person’s

estate, or any other person appointed by the court is entitled to reasonable compensation from the

estate. Compensation may be paid and expenses reimbursed without court order. If the court

determines that the compensation is excessive or the expenses are inappropriate, the excessive or

inappropriate amount must be repaid to the estate.

Comment

This section establishes a standard of reasonable compensation for both guardians and
conservators as well as for the respondent’s lawyer and any one else appointed by the court in a
guardianship or protective proceeding. Factors to be considered by the court in setting
compensation will vary depending on the professional or fiduciary role filled by the person
making the request. Rates of compensation may also vary from state to state and at different
locales within particular states.

This section is derived from UGPPA (1982) Section 2-313 (UPC Section 5-413 (1982)),
but a number of matters left open in the prior version now have been addressed. First, guardians
are expressly added to the list of those who are entitled to compensation from the estate.
Previously, the guardian’s right to compensation was mentioned only in Parts 2 and 3. See
Sections 5-209(a), 5-316(a). Second, the section sets out more clearly which lawyers are entitled
to compensation. The respondent’s lawyer, as well as the lawyer whose services resulted in a
protective order or any other order of benefit to the estate are entitled to compensation and
reimbursement for costs advanced. For example, a lawyer whose services resulted in the
removal of an abusive conservator might be entitled to compensation under this provision.
Third, while compensation may be paid from the estate without court order, excessive or
inappropriate payments must be repaid to the estate.

While the size of the estate is an important factor in setting compensation, in many cases
there will be no estate or the estate will not be sufficient to pay the costs of the initial proceeding.
In that event the court, without appointing a conservator, may simply divide the estate among
those entitled to compensation or reimbursement. Sections 5-305 and 5-406 require a visitor to

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inform the respondent that attorney’s fees and other expenses of the proceeding will be paid from
the respondent’s estate. If the respondent is found to be indigent, compensation and expenses
authorized by this section typically will be paid from the general fund of the county, or from
whatever funding exists in the enacting state for indigent representation, such as legal aid, with
the compensation most likely at a fixed rate.

For a list of factors relevant in determining a conservator’s compensation, see

Restatement (Third) of Trusts, § 38 cmt. c (Tentative Draft No. 2, 1999). Among the factors
listed are skill, experience and time devoted to duties; the amount and character of the property;
the degree of difficulty; responsibility and risk assumed; the nature and cost of services rendered
by others; and the quality of the performance. See also Restatement (Second) of Trusts § 242
(1959). In setting compensation, the services actually performed and responsibilities assumed by
the conservator should be closely examined. For example, an adjustment in compensation may
be appropriate if the conservator had delegated significant duties. On the other hand, a
conservator with special skills, such as those of a real estate agent, may be entitled to extra
compensation for performing services that would ordinarily be delegated. See Restatement
(Third) of Trusts § 38 cmt. d (Tentative Draft No. 2, 1999).

The standard of reasonable compensation also applies if the estate has multiple
conservators. The mere fact that the estate has more than one conservator does not mean that the
conservators together are entitled to more compensation than had either one acted alone. Nor
does the appointment of multiple conservators mean that the conservators are eligible to receive
the compensation in equal shares. The total amount of the compensation to be paid and how it
should be divided depend on the totality of the circumstances. Factors to be considered include
the court’s reasons for appointing multiple conservators and the level of responsibility assumed
and exact services performed by each.

This section authorizes the payment of compensation from the respondent’s estate even if
no guardian or conservator is appointed or other protective order entered. Those entitled to
compensation in that case are persons appointed by the court in connection with the proceeding,
including the visitor, the respondent’s lawyer, and the doctor or other professional appointed to
perform an evaluation. However, other law in the enacting jurisdiction may grant the respondent
a right to reimbursement should the petition be totally without merit.

A guardian or conservator acting as a representative payee of the ward’s or protected

person’s Social Security benefits may not be paid a fee from Social Security funds. Both Titles
II and XVI of the Social Security Act limit the use of the funds to basic necessities. The only
time that a fee may be taken is if the guardian or conservator is an “organizational payee”
approved by the Social Security Administration.

SECTION 5-418. GENERAL DUTIES OF CONSERVATOR; PLAN.

(a) A conservator, in relation to powers conferred by this [part] or implicit in the title

acquired by virtue of the proceeding, is a fiduciary and shall observe the standards of care

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applicable to a trustee.

(b) A conservator may exercise authority only as necessitated by the limitations of the

protected person, and to the extent possible, shall encourage the person to participate in

decisions, act in the person’s own behalf, and develop or regain the ability to manage the

person’s estate and business affairs.

(c) Within 60 days after appointment, a conservator shall file with the appointing court a

plan for protecting, managing, expending, and distributing the assets of the protected person’s

estate. The plan must be based on the actual needs of the person and take into consideration the

best interest of the person. The conservator shall include in the plan steps to develop or restore

the person’s ability to manage the person’s property, an estimate of the duration of the

conservatorship, and projections of expenses and resources.

(d) In investing an estate, selecting assets of the estate for distribution, and invoking

powers of revocation or withdrawal available for the use and benefit of the protected person and

exercisable by the conservator, a conservator shall take into account any estate plan of the person

known to the conservator and may examine the will and any other donative, nominative, or other

appointive instrument of the person.

Comment

This section reflects the dual role of a conservator. On the one hand, a conservator is a
fiduciary charged with management of another’s property. Consequently, subsection (a) requires
a conservator to observe the standard of care applicable to trustees. On the other hand, a
conservator, like a guardian, also owes obligations directly to the protected person, obligations
emphasized in subsection (b). Subsection (b) emphasizes the concept of limited conservatorship
by limiting the exercise of the conservator’s authority and requiring the participation of the
protected person in decision making. The conservator must encourage the participation of the
protected person in decisions as well as encourage the protected person to develop or regain the
capacity to act without a conservator. Before making a decision, the conservator should also
make an effort to learn the personal values of the protected person and ask the protected person
about the protected person’s desires. The conservator should be particularly cognizant of the
views expressed by the protected person prior to the conservator’s appointment.

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Under subsection (c), the conservator must file a plan with the court within 60 days after
appointment. In addition to plans for expenditures, investments, and distributions, the plan must
list the steps that will be taken to develop or restore the protected person’s ability to manage the
person’s property and an estimate of the length of the conservatorship. The filing of a plan will
help the conservator perform more effectively and reduce the need to take action to recover
improper expenditures. While a conservator need not request a hearing on the plan, Section 5-
404(d) does require that the conservator, within 14 days after its filing, give notice of the filing
of the plan to the protected person and any other person the court directs. Should those notified
have concerns about the plan, a hearing on the plan may be requested pursuant to Section 5-414.

Subsection (c) of this section, and many of the sections in Part 4 which follow, are in
substantial part specific applications of the fundamental responsibilities stated in subsections (a)
and (b), specifying subsidiary duties and the powers and immunities necessary to properly
implement the conservator’s role. Subsection (c) is derived from National Probate Court
Standards, Standard 3.4.15 “Reports by the Conservator” (1993).

Subsection (d), contrary to at least some case law, allows a conservator access to and the
right to examine the protected person’s will and other documents comprising the protected
person’s estate plan. Such access is essential for the conservator to carry out the obligation, as
stated in subsection (b), to consider the protected person’s views when making decisions. For
example, by allowing the conservator access to the estate plan, the risk of inadvertent sales of
specifically devised property and the difficult ademption problems such sales often create may
be avoided. Access to the estate plan also facilitates, where appropriate, the filing of a petition
with respect to the protected person’s estate plan as authorized by Section 5-411.

Subsection (a) is based on UGPPA (1982) Section 2-316 (UPC Section 5-416 (1982)),
and subsection (d) on UGPPA (1982) Section 2-326 (UPC Section 5-426 (1982)). Subsections
(b) and (c) are new.

SECTION 5-419. INVENTORY; RECORDS.

(a) Within 60 days after appointment, a conservator shall prepare and file with the

appointing court a detailed inventory of the estate subject to the conservatorship, together with

an oath or affirmation that the inventory is believed to be complete and accurate as far as

information permits.

(b) A conservator shall keep records of the administration of the estate and make them

available for examination on reasonable request of an interested person.

Comment

The time limit for the filing of the inventory has been reduced to 60 days from the 90

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days provided in the 1982 UGPPA in order to coordinate with the filing of the conservatorship
plan required by Section 5-418. While technically separate documents, the conservatorship plan
and inventory should ideally be prepared in tandem, with the inventory providing backup data
for the course of action recommended in the conservatorship plan.

The requirement in the 1982 UGPPA that the conservator provide certain individuals
with a copy of the inventory has been revised and moved to Section 5-404(d). The conservator is
no longer allowed to unilaterally decide whether the protected person is competent to understand
the inventory and to withhold the protected person’s copy. The inventory, like all other
documents of which notice is required, must be provided to the protected person regardless of
competency.

This section is based on UGPPA (1982) Section 2-317 (UPC Section 5-417 (1982)).

SECTION 5-420. REPORTS; APPOINTMENT OF [VISITOR]; MONITORING.

(a) A conservator shall report to the court for administration of the estate annually unless

the court otherwise directs, upon resignation or removal, upon termination of the

conservatorship, and at other times as the court directs. An order, after notice and hearing,

allowing an intermediate report of a conservator adjudicates liabilities concerning the matters

adequately disclosed in the accounting. An order, after notice and hearing, allowing a final

report adjudicates all previously unsettled liabilities relating to the conservatorship.

(b) A report must state or contain:

(1) a list of the assets of the estate under the conservator’s control and a list of the

receipts, disbursements, and distributions during the period for which the report is made;

(2) a list of the services provided to the protected person; and

(3) any recommended changes in the plan for the conservatorship as well as a

recommendation as to the continued need for conservatorship and any recommended changes in

the scope of the conservatorship.

(c) The court may appoint a [visitor] to review a report or plan, interview the protected

person or conservator, and make any other investigation the court directs. In connection with a

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report, the court may order a conservator to submit the assets of the estate to an appropriate

examination to be made in a manner the court directs.

(d) The court shall establish a system for monitoring conservatorships, including the

filing and review of conservators’ reports and plans.

Comment

Similar to previous versions, this section requires a conservator to periodically account

except that the requirement to “account” has been changed to the requirement to “report.” This
change was made because a proper assessment of the conservator’s performance requires more
than the mere verification of receipts and disbursements. A conservator is more than a manager
of property. To assess the conservator’s compliance with the general duties stated in Section 5-
418, the court must also determine whether the conservator has acted in accordance with the
conservatorship plan, whether the conservator, to the extent feasible, has attempted to involve the
protected person in decision making, and whether the conservatorship or its current scope is still
appropriate.

The reporting requirements in this section are consistent with those in Section 5-317 for
guardians of incapacitated persons. Enforcement of the reporting requirements under this section
is a critical component of court oversight of conservatorships to prevent abuses. This includes
the right of the court under subsection (a) to modify the reporting requirements as dictated by the
circumstances of a specific conservatorship.

States are required under subsection (d) to establish a system for monitoring
conservatorships, which would include, but not be limited to, mechanisms for assuring that
annual reports are timely filed and reviewed. An independent monitoring system is crucial so
that the court can adequately safeguard against possible abuses. Monitors can be paid court
personnel, court appointees, or volunteers. For a comprehensive discussion of the various
methods for monitoring conservatorships, see Sally Balch Hurme, Steps to Enhance
Guardianship Monitoring (A.B.A. 1991). See also AARP Volunteers: A Resource For
Strengthening Guardianships (AARP 1991).

States should also establish a plan for payment for the monitoring. In some states, the
monitor may be a court employee or a volunteer. If the estate has sufficient funds to pay the
monitoring fee, the estate should be charged accordingly. Only when an estate has insufficient
assets to pay for monitoring should public funds be used to cover the cost of monitoring.

The National Probate Court Standards also provide for the filing of reports and
procedures for monitoring conservatorships. See National Probate Court Standards, Standards
3.4.15 “Reports by the Conservator,” and 3.4.16 “Monitoring of the Conservator” (1993). The
National Probate Court Standards additionally contains recommendations relating to the need for
periodic review of conservatorships and sanctions for failure of conservators to comply with
reporting requirements. See National Probate Court Standards, Standards 3.4.17 “Revaluation

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of Necessity for Conservatorship,” and 3.4.18 “Enforcement.”

Subsection (a) of this section is derived from UGPPA (1982) Section 2-318 (UPC
Section 5-418 (1982)). Subsections (b)-(d) are new.

SECTION 5-421. TITLE BY APPOINTMENT.

(a) The appointment of a conservator vests title in the conservator as trustee to all

property of the protected person, or to the part thereof specified in the order, held at the time of

appointment or thereafter acquired. An order vesting title in the conservator to only a part of the

property of the protected person creates a conservatorship limited to assets specified in the order.

(b) Letters of conservatorship are evidence of vesting title of the protected person’s assets

in the conservator. An order terminating a conservatorship transfers title to assets remaining

subject to the conservatorship, including any described in the order, to the formerly protected

person, or the person’s successors.

(c) Subject to the requirements of other statutes governing the filing or recordation of

documents of title to land or other property, letters of conservatorship and orders terminating

conservatorships may be filed or recorded to give notice of title as between the conservator and

the protected person.

Comment

Subsection (a) of this section should be read in conjunction with Section 5-409(d), which
provides that the appointment of a conservator or entry of another protective order is not a
determination of incapacity. Consequently, the appointment of a conservator under Part 4 does
not itself affect the protected person’s ability to enter into contracts or engage in other
transactions. Instead, protection against possibly improvident contracts is provided by vesting in
the conservator legal title to the protected person’s assets, the same as if the conservator were
acting as a trustee. This allows for administration of the property independent of the actions of
the protected person except to the extent the conservator is required to consult with the protected
person as required by Section 5-418. See Section 5-422 for possible remedies for third parties
who deal with a protected person without knowledge of the conservatorship.

The order appointing a conservator does not necessarily vest title in the conservator to all
assets of the protected person, but only to assets subject to the conservatorship. Should the order

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of appointment list the assets subject to the conservatorship, only title to those assets is
transferred to the conservator. Ordinarily, in the absence of an order limiting the scope of the
conservatorship, title to all of the protected person’s assets will be transferred to the conservator.
However, if the protected person has executed a durable power of attorney, title to assets within
the agent’s control are not transferred to the conservator until such time as the power of attorney
is revoked and the assets subject to the agency come within the conservator’s control. See
Section 5-411(d).

The appointment of the conservator gives the conservator the authority over the protected
person’s property, or, if a limited conservator, to that property specified in the court’s order. The
letters of conservatorship are evidence of the conservator’s authority and can be recorded to give
notice.

The phrase “other property” in subsection (c) refers only to property title to which is
ordinarily transferred by delivery of possession.

This section is based on UGPPA (1982) Sections 2-319(a) and 2-320 (UPC Sections 5-
419(a) and 5-420 (1982)), modified to delete the former language that title to assets subject to a
power of attorney vests automatically in the conservator.

SECTION 5-422. PROTECTED PERSON’S INTEREST INALIENABLE.

(a) Except as otherwise provided in subsections (c) and (d), the interest of a protected

person in property vested in a conservator is not transferrable or assignable by the protected

person. An attempted transfer or assignment by the protected person, although ineffective to

affect property rights, may give rise to a claim against the protected person for restitution or

damages which, subject to presentation and allowance, may be satisfied as provided in Section 5-

429.

(b) Property vested in a conservator by appointment and the interest of the protected

person in that property are not subject to levy, garnishment, or similar process for claims against

the protected person unless allowed under Section 5-429.

(c) A person without knowledge of the conservatorship who in good faith and for security

or substantially equivalent value receives delivery from a protected person of tangible personal

property of a type normally transferred by delivery of possession, is protected as if the protected

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person or transferee had valid title.

(d) A third party who deals with the protected person with respect to property vested in a

conservator is entitled to any protection provided in other law.

Comment

This section provides a spendthrift effect for property of the protected person vested in
the conservator. The section, like Section 5-421, is designed to allow the estate to be
administered with a minimum of interference, and to make clear that the conservator, with
respect to the property of the conservatorship, occupies a role similar to that of a trustee. The
section is also designed to protect the estate, and hence the protected person, against possibly
abusive or improvident claims. But some significant exceptions are recognized to protect the
rights of third parties. An attempted transfer or assignment by the protected person, while
ineffective to affect property rights, may give rise to a claim against the protected person for
restitution or damages which, subject to presentation and allowance, may be satisfied pursuant to
the claims procedure provided in Section 5-429. In addition, a creditor of the protected person,
while forbidden to directly levy upon or garnish property held in the conservatorship, may be
similarly entitled to relief under the claims procedures.

Subsection (c) addresses a special situation. While title to certain tangible personal
property, such as an automobile, is transferred by means of a document of title, title to most
tangible personal property is transferred simply by delivery of possession. Sales of such
property are often casual, and purchasers do not usually inquire into the source of the seller’s
title. Upon the conservator’s appointment, title to a protected person’s tangible personal
property, like title to the protected person’s other assets, is transferred from the protected person
to the conservator. But this transfer of title will normally not be known to a prospective
purchaser, particularly if the tangible personal property is still in the protected person’s
possession. The effect of this subsection is to generally validate the title of such casual
purchasers. The conservator may contest the purchaser’s title only if the purchaser failed to pay
full value, the purchaser knew of the conservatorship, or the purchaser, based on the
circumstances, should have inquired into the conservatorship’s existence.

Subsection (d) clarifies that this section does not supersede protections third parties may
have under other law, such as under the statutes regulating commercial transactions.

Subsections (a) and (b) are based on subsections (b) and (c) of UGPPA (1982) Section 2-
319 (subsections (b) and (c) of UPC Section 5-419 (1982)). Subsections (c) and (d) are new.

SECTION 5-423. SALE, ENCUMBRANCE, OR OTHER TRANSACTION

INVOLVING CONFLICT OF INTEREST. Any transaction involving the conservatorship

estate which is affected by a substantial conflict between the conservator’s fiduciary and

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personal interests is voidable unless the transaction is expressly authorized by the court after

notice to interested persons. A transaction affected by a substantial conflict between personal

and fiduciary interests includes any sale, encumbrance, or other transaction involving the

conservatorship estate entered into by the conservator, the spouse, descendant, agent, or lawyer

of a conservator, or a corporation or other enterprise in which the conservator has a substantial

beneficial interest.

Comment

Transactions involving conservatorship assets entered into by the conservator or by

persons with close business or personal ties to the conservator have the potential to be tainted by
conflict of interest. Because of this serious risk, a transaction involving the conservatorship
property entered into by the conservator or with persons having close ties to the conservator is
voidable without further proof. But while this principle is well-established, the exact parameters
of the principle are less certain. This section, which is based on comparable provisions of the
UPC, articulates the doctrine with more precision. Compare UPC Section 3-713. Under this
section, a transaction involving the conservatorship property which was entered into by the
conservator or specified relatives or business associates of the conservator is presumed to be
premised on an impermissible advantage based on conflict of interest. However, transactions
involving conservatorship property with parties not on the list are not necessarily valid. While
transactions involving other parties are not presumed to be invalid, a transaction may still be
voided if it is proven that a substantial conflict between personal and fiduciary interests exists
and that the transaction was affected by the conflict. Also, the fact that the transaction is
voidable does not extinguish any action for breach of fiduciary duty or for damages, separate and
apart from voiding the transaction. The section intentionally does not provide any limitation of
time on when an action to void the transaction may be brought. Instead, a laches test will be
applied.

Per Section 5-414, a petition to void a transaction may be filed either by the protected
person or by any person interested in the protected person’s welfare. Whether the court should
grant or deny the petition will typically depend on the financial outcome of the conservatorship
estate. Should the transaction have proven unprofitable to the conservator or related party, the
court will likely allow the transaction to stand.

Conservators considering entering into transactions that might implicate this section
should consider obtaining prior court approval. Under this section, a transaction is not voidable
if approved by the court following notice to interested persons.

This section is based on UGPPA (1982) Section 2-321 (UPC Section 5-421 (1982)).

SECTION 5-424. PROTECTION OF PERSON DEALING WITH

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CONSERVATOR.

(a) A person who assists or deals with a conservator in good faith and for value in any

transaction other than one requiring a court order under Section 5-410 or 5-411 is protected as

though the conservator properly exercised the power. That a person knowingly deals with a

conservator does not alone require the person to inquire into the existence of a power or the

propriety of its exercise, but restrictions on powers of conservators which are endorsed on letters

as provided in Section 5-110 are effective as to third persons. A person who pays or delivers

assets to a conservator is not responsible for their proper application.

(b) Protection provided by this section extends to any procedural irregularity or

jurisdictional defect that occurred in proceedings leading to the issuance of letters and is not a

substitute for protection provided to persons assisting or dealing with a conservator by

comparable provisions in other law relating to commercial transactions or to simplifying

transfers of securities by fiduciaries.

Comment

The purpose of this section is to facilitate commercial transactions by negating the

traditional duty of inquiry found under the common law of trusts. Even the third party’s actual
knowledge that the third party is dealing with a conservator does not require that the third party
inquire into the possession of or propriety of the conservator’s exercise of a power. Nor is the
third party, contrary to the common law, responsible for the proper application of funds or
property delivered to the conservator. But consistent with the emphasis on limited
conservatorship, the protection extended to third parties is not unlimited. Third parties are
charged with knowledge of restrictions on the authority of limited conservators. Pursuant to
Section 5-110, any limitation on the assets subject to a conservatorship must be endorsed on the
conservator’s letters.

The protections provided by this section are of limited application. As provided in

subsection (b), for many transactions this section will be superseded by statutes relating to
commercial transactions, such as the Uniform Commercial Code.

For background on Section 7 of the Uniform Trustees’ Powers Act, upon which this
section is ultimately based, see Jerome H. Curtis, Jr., Transmogrification of the American Trust,
31 Real Prop. Prob. & Tr. J. 251 (1996).

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This section is based on UGPPA (1982) Section 2-322 (UPC Section 5-422 (1982)).

SECTION 5-425. POWERS OF CONSERVATOR IN ADMINISTRATION.

(a) Except as otherwise qualified or limited by the court in its order of appointment and

endorsed on the letters, a conservator has all of the powers granted in this section and any

additional powers granted by law to a trustee in this state.

(b) A conservator, acting reasonably and in an effort to accomplish the purpose of the

appointment, and without further court authorization or confirmation, may:

(1) collect, hold, and retain assets of the estate, including assets in which the

conservator has a personal interest and real property in another state, until the conservator

considers that disposition of an asset should be made;

(2) receive additions to the estate;

(3) continue or participate in the operation of any business or other enterprise;

(4) acquire an undivided interest in an asset of the estate in which the conservator,

in any fiduciary capacity, holds an undivided interest;

(5) invest assets of the estate as though the conservator were a trustee;

(6) deposit money of the estate in a financial institution, including one operated

by the conservator;

(7) acquire or dispose of an asset of the estate, including real property in another

state, for cash or on credit, at public or private sale, and manage, develop, improve, exchange,

partition, change the character of, or abandon an asset of the estate;

(8) make ordinary or extraordinary repairs or alterations in buildings or other

structures, demolish any improvements, and raze existing or erect new party walls or buildings;

(9) subdivide, develop, or dedicate land to public use, make or obtain the vacation

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of plats and adjust boundaries, adjust differences in valuation or exchange or partition by giving

or receiving considerations, and dedicate easements to public use without consideration;

(10) enter for any purpose into a lease as lessor or lessee, with or without option

to purchase or renew, for a term within or extending beyond the term of the conservatorship;

(11) enter into a lease or arrangement for exploration and removal of minerals or

other natural resources or enter into a pooling or unitization agreement;

(12) grant an option involving disposition of an asset of the estate and take an

option for the acquisition of any asset;

(13) vote a security, in person or by general or limited proxy;

(14) pay calls, assessments, and any other sums chargeable or accruing against or

on account of securities;

(15) sell or exercise stock-subscription or conversion rights;

(16) consent, directly or through a committee or other agent, to the reorganization,

consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(17) hold a security in the name of a nominee or in other form without disclosure

of the conservatorship so that title to the security may pass by delivery;

(18) insure the assets of the estate against damage or loss and the conservator

against liability with respect to a third person;

(19) borrow money, with or without security, to be repaid from the estate or

otherwise and advance money for the protection of the estate or the protected person and for all

expenses, losses, and liability sustained in the administration of the estate or because of the

holding or ownership of any assets, for which the conservator has a lien on the estate as against

the protected person for advances so made;

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(20) pay or contest any claim, settle a claim by or against the estate or the

protected person by compromise, arbitration, or otherwise, and release, in whole or in part, any

claim belonging to the estate to the extent the claim is uncollectible;

(21) pay taxes, assessments, compensation of the conservator and any guardian,

and other expenses incurred in the collection, care, administration, and protection of the estate;

(22) allocate items of income or expense to income or principal of the estate, as

provided by other law, including creation of reserves out of income for depreciation,

obsolescence, or amortization or for depletion of minerals or other natural resources;

(23) pay any sum distributable to a protected person or individual who is in fact

dependent on the protected person by paying the sum to the distributee or by paying the sum for

the use of the distributee:

(A) to the guardian of the distributee;

(B) to a distributee’s custodian under [the Uniform Transfers to Minors

Act (1983/1986)] or custodial trustee under [the Uniform Custodial Trust Act (1987)]; or

(C) if there is no guardian, custodian, or custodial trustee, to a relative or

other person having physical custody of the distributee;

(24) prosecute or defend actions, claims, or proceedings in any jurisdiction for the

protection of assets of the estate and of the conservator in the performance of fiduciary duties;

and

(25) execute and deliver all instruments that will accomplish or facilitate the

exercise of the powers vested in the conservator.

Comment

This section is based on UGPPA (1982) Section 2-323 (UPC Section 5-423 (1982)) with
some changes. For example, the provision authorizing delegation is now stated as a separate

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section. See Section 5-426. Also, subsection (b)(23) is revised to expand the list of individuals
to whom the conservator may pay sums otherwise distributable to the protected person. The list
now includes custodians under the Uniform Transfers to Minors Act (1983/1986) and trustees
under the Uniform Custodial Trust Act (1987). But the most significant change to this section is
the deletion of the language of former subsection (a) that allowed a conservator of a minor to
exercise the powers of a guardian without seeking formal appointment to that office.

While subsection (b)(7) authorizes a conservator to deal with real property located in
another state, before disposing of the property in the other state, local law may require that the
conservator have some contact with or supervision by a court in that state.

In recent years, structured settlements have become more common. While the term
“structured settlement” is not expressly used in this section, subsection (b)(20) would authorize a
conservator to enter into such an agreement. The court, by means of a protective arrangement,
may also approve a structured settlement without appointing a conservator. See Section 5-
412(a)(2).

SECTION 5-426. DELEGATION.

(a) A conservator may not delegate to an agent or another conservator the entire

administration of the estate, but a conservator may otherwise delegate the performance of

functions that a prudent trustee of comparable skills may delegate under similar circumstances.

(b) The conservator shall exercise reasonable care, skill, and caution in:

(1) selecting an agent;

(2) establishing the scope and terms of a delegation, consistent with the purposes

and terms of the conservatorship;

(3) periodically reviewing an agent’s overall performance and compliance with

the terms of the delegation; and

(4) redressing an action or decision of an agent which would constitute a breach

of trust if performed by the conservator.

(c) A conservator who complies with subsections (a) and (b) is not liable to the protected

person or to the estate for the decisions or actions of the agent to whom a function was delegated.

(d) In performing a delegated function, an agent shall exercise reasonable care to comply

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with the terms of the delegation.

(e) By accepting a delegation from a conservator subject to the law of this state, an agent

submits to the jurisdiction of the courts of this state.

Comment

This new section is based on Section 9 of the Uniform Prudent Investor Act (1994),
which itself was derived from the Restatement (Third) of Trusts: Prudent Investor Rule Section
171 (1992). The Uniform Prudent Investor Act (1994), despite its title, addresses more than
investment of trust assets. It also covers a variety of topics, including delegation, relating to the
general management of trusts. Section 9 of the Act is designed to replace Section 3(24) of the
Uniform Trustee Powers Act (1964) on which the former delegation provision was based.
Unlike UGPPA (1982) Section 2-323(c)(24) (UPC Section 5-423(c)(24) (1982)), which merely
authorized delegation without specifying standards, this section subjects delegation to a standard
of care.

The purpose of this section is to encourage and protect the trustee in making delegations
appropriate to the facts and circumstances of the particular conservatorship. This section is
designed to strike the appropriate balance between the advantages and hazards of delegation.
The standard for whether a particular function is delegable by a conservator is whether it is a
function that a prudent conservator might delegate under similar circumstances. This section
does not mandate delegation or hold a conservator liable for failing to delegate. However, such
liability may be imposed under some other section if the conservator, due to a failure to delegate,
is unable to perform required duties. See, e.g., Section 5-418 (general duties of conservator).

This section applies to delegation both to agents and co-conservators. Whether a

conservator may delegate to a co-conservator functions which may not be delegated to an agent
and vice versa will depend on the facts and circumstances of the particular conservatorship.

Under subsection (b)(3), the duty to review the agent’s performance includes the periodic
evaluation of the continued need for and appropriateness of the delegation, including the need to
possibly terminate the relationship. The conservator’s compliance with this duty should also
protect the protected person against the risks of an overly broad delegation.

Although subsection (c) exonerates the conservator from personal responsibility for the
agent’s conduct when the delegation satisfies the standards of subsection (a), subsection (d)
makes the agent responsible to the conservatorship.

SECTION 5-427. PRINCIPLES OF DISTRIBUTION BY CONSERVATOR.

(a) Unless otherwise specified in the order of appointment and endorsed on the letters of

appointment or contrary to the plan filed pursuant to Section 5-418, a conservator may expend or

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distribute income or principal of the estate of the protected person without further court

authorization or confirmation for the support, care, education, health, and welfare of the

protected person and individuals who are in fact dependent on the protected person, including the

payment of child or spousal support, in accordance with the following rules:

(1) A conservator shall consider recommendations relating to the appropriate

standard of support, care, education, health, and welfare for the protected person or an individual

who is in fact dependent on the protected person made by a guardian, if any, and, if the protected

person is a minor, the conservator shall consider recommendations made by a parent.

(2) A conservator may not be surcharged for money paid to persons furnishing

support, care, education, or benefit to a protected person, or an individual who is in fact

dependent on the protected person, in accordance with the recommendations of a parent or

guardian of the protected person unless the conservator knows that the parent or guardian derives

personal financial benefit therefrom, including relief from any personal duty of support, or the

recommendations are not in the best interest of the protected person.

(3) In making distributions under this subsection, the conservator shall consider:

(A) the size of the estate, the estimated duration of the conservatorship,

and the likelihood that the protected person, at some future time, may be fully self-sufficient and

able to manage business affairs and the estate;

(B) the accustomed standard of living of the protected person and

individuals who are in fact dependent on the protected person; and

(C) other money or sources used for the support of the protected person.

(4) Money expended under this subsection may be paid by the conservator to any

person, including the protected person, as reimbursement for expenditures that the conservator

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might have made, or in advance for services to be rendered to the protected person if it is

reasonable to expect the services will be performed and advance payments are customary or

reasonably necessary under the circumstances.

(b) If the estate is ample to provide for the distributions authorized by subsection (a), a

conservator for a protected person other than a minor may make gifts that the protected person

might have been expected to make, in amounts that do not exceed in the aggregate for any

calendar year 20 percent of the income of the estate in that year.

Comment

This section sets forth a conservator’s specific duties and powers with respect to ongoing
distributions. Distributions upon termination of the conservatorship are addressed in Section 5-
431. Special rules with respect to a termination due to the death of the protected person are
covered in Section 5-428. Distributions under this section may be made without court
authorization or confirmation.

This section is based on subsections (a) and (b) of UGPPA (1982) Section 2-324
(subsections (a) and (b) of UPC Section 5-424 (1982)) but with several changes. The categories
for which distributions can be made have been expanded to include health and welfare. The
authority to make distributions for the protected person’s dependents has been clarified.
“Dependents” is not limited to dependents whom the protected person is legally obligated to
support, but refers to individuals who are in fact dependent on the protected person, such as
children in college and adult children with developmental disabilities. Child and spousal support
payments are now specifically included within permitted distributions to dependents. Although
Section 5-411 allows the making of a gift, it may only be done pursuant to court order. Under
this section, a conservator may make a gift without court order if the gift meets the stated
limitations.

SECTION 5-428. DEATH OF PROTECTED PERSON.

[(a)] If a protected person dies, the conservator shall deliver to the court for safekeeping

any will of the protected person which may have come into the conservator’s possession, inform

the personal representative or beneficiary named in the will of the delivery, and retain the estate

for delivery to the personal representative of the decedent or to another person entitled to it.

[(b) If a personal representative has not been appointed within 40 days after the death of a

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protected person and an application or petition for appointment is not before the court, the

conservator may apply to exercise the powers and duties of a personal representative in order to

administer and distribute the decedent’s estate. Upon application for an order conferring upon

the conservator the powers of a personal representative, after notice given by the conservator to

any person nominated as personal representative by any will of which the applicant is aware, the

court may grant the application upon determining that there is no objection and endorse the

letters of conservatorship to note that the formerly protected person is deceased and that the

conservator has acquired all of the powers and duties of a personal representative.

(c) The issuance of an order under this section has the effect of an order of appointment

of a personal representative [as provided in Section 3-308 and [Parts] 6 through 10 of [Article]

III]. However, the estate in the name of the conservator, after administration, may be distributed

to the decedent’s successors without retransfer to the conservator as personal representative.]

Comment

Subsection (a) lists the required duties of a conservator incident to the death of the
protected person. The conservator must deliver to the court for safekeeping any will of the
protected person which may have come into the conservator’s possession, inform the personal
representative or a devisee named in the will that the will has been delivered, and retain the
conservatorship estate for delivery to the personal representative or to another person entitled to
it.

Subsections (b) and (c) address the particular problems that can arise if the estate
beneficiaries fail to take action to appoint a personal representative for the protected person’s
estate. The conservator will then be unable to close the conservatorship because there is no
“successor” to whom to deliver the protected person’s assets. To enable the conservator to
expeditiously close the conservatorship, this section specifies a streamlined process whereby the
conservator can secure appointment as personal representative. These subsections are bracketed
for several reasons. First, the enacting jurisdiction’s probate code may already specifically
address the right of the conservator to petition for appointment as personal representative or the
right of the conservator to distribute the conservatorship assets directly to the estate beneficiaries.
Second, subsections (b) and (c) are not essential and may be omitted if the enacting jurisdiction
so chooses. Even though the state’s statute may not specifically authorize a conservator to
petition for appointment as personal representative, a conservator, like any other holder of a
decedent’s assets, may eventually take action to effect a distribution. Finally, subsection (b) is

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specifically tailored for states, such as states which have enacted the Uniform Probate Code, that
allow the appointment of a personal representative without prior notice to the estate
beneficiaries. For example, under the Code, the conservator-personal representative would be
required to give notice of the appointment within 30 days. See Section 3-705. States which
require notice to interested persons prior to the appointment of a personal representative should
modify subsection (b) accordingly.

This section is based on UGPPA (1982) Section 2-324(e) (UPC Section 5-424(e) (1982)).

SECTION 5-429. PRESENTATION AND ALLOWANCE OF CLAIMS.

(a) A conservator may pay, or secure by encumbering assets of the estate, claims against

the estate or against the protected person arising before or during the conservatorship upon their

presentation and allowance in accordance with the priorities stated in subsection (d). A claimant

may present a claim by:

(1) sending or delivering to the conservator a written statement of the claim,

indicating its basis, the name and address of the claimant, and the amount claimed; or

(2) filing a written statement of the claim, in a form acceptable to the court, with

the clerk of court and sending or delivering a copy of the statement to the conservator.

(b) A claim is deemed presented on receipt of the written statement of claim by the

conservator or the filing of the claim with the court whichever first occurs. A presented claim is

allowed if it is not disallowed by written statement sent or delivered by the conservator to the

claimant within 60 days after its presentation. The conservator before payment may change an

allowance to a disallowance in whole or in part, but not after allowance under a court order or

judgment or an order directing payment of the claim. The presentation of a claim tolls the

running of any statute of limitations relating to the claim until 30 days after its disallowance.

(c) A claimant whose claim has not been paid may petition the court for determination of

the claim at any time before it is barred by a statute of limitations and, upon due proof, procure

an order for its allowance, payment, or security by encumbering assets of the estate. If a

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proceeding is pending against a protected person at the time of appointment of a conservator or is

initiated against the protected person thereafter, the moving party shall give to the conservator

notice of any proceeding that could result in creating a claim against the estate.

(d) If it appears that the estate is likely to be exhausted before all existing claims are paid,

the conservator shall distribute the estate in money or in kind in payment of claims in the

following order:

(1) costs and expenses of administration;

(2) claims of the federal or state government having priority under other law;

(3) claims incurred by the conservator for support, care, education, health, and

welfare previously provided to the protected person or individuals who are in fact dependent on

the protected person;

(4) claims arising before the conservatorship; and

(5) all other claims.

(e) Preference may not be given in the payment of a claim over any other claim of the

same class, and a claim due and payable may not be preferred over a claim not due.

(f) If assets of the conservatorship are adequate to meet all existing claims, the court,

acting in the best interest of the protected person, may order the conservator to grant a security

interest in the conservatorship estate for payment of any or all claims at a future date.

Comment

This section provides a procedure for the expeditious payment and resolution of claims.
Should the estate be insufficient to satisfy all claims, payment will be made in accordance with
the priorities specified in subsection (d). Subsection (a) provides for the conservator’s payment
of appropriate claims and the method by which claims can be presented.

Subsection (d), which should be read in conjunction with the applicable bankruptcy law,
is not intended to preclude the filing of a petition for bankruptcy if the protected person is
otherwise eligible.

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This section is based on UGPPA (1982) Section 2-327 (UPC Section 5-427 (1982)),
which in turn was drawn from the claims procedure contained in Article III, Part 8 of the UPC,
except that the priorities in subsection (d) are designed for a conservatorship as opposed to a
decedent’s estate. The principal update is to incorporate into this section a 1987 amendment
made to UPC Section 3-806. The effect of this change is to clarify that a conservator may
change an allowance of claim to a disallowance at any time prior to payment or court order. In
addition, subsection (d)(3) has been revised to conform it to the revisions of the distribution
standards under Section 5-427.

SECTION 5-430. PERSONAL LIABILITY OF CONSERVATOR.

(a) Except as otherwise agreed, a conservator is not personally liable on a contract

properly entered into in a fiduciary capacity in the course of administration of the estate unless

the conservator fails to reveal in the contract the representative capacity and identify the estate.

(b) A conservator is personally liable for obligations arising from ownership or control of

property of the estate or for other acts or omissions occurring in the course of administration of

the estate only if personally at fault.

(c) Claims based on contracts entered into by a conservator in a fiduciary capacity,

obligations arising from ownership or control of the estate, and claims based on torts committed

in the course of administration of the estate may be asserted against the estate by proceeding

against the conservator in a fiduciary capacity, whether or not the conservator is personally liable

therefor.

(d) A question of liability between the estate and the conservator personally may be

determined in a proceeding for accounting, surcharge, or indemnification, or in another

appropriate proceeding or action.

[(e) A conservator is not personally liable for any environmental condition on or injury

resulting from any environmental condition on land solely by reason of an acquisition of title

under Section 5-421.]

Comment

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Subsection (a) is significant in that it provides that the conservator is generally not
personally liable for contracts entered into as the conservator as long as the conservator discloses
the representative capacity in the contract as well as identifies the estate. Liability in such cases
is limited to the estate assets. But the conservator will be personally liable if the contract
expressly so provides.

Subsection (b) reverses the common law rule that a conservator, as a fiduciary is liable
for torts committed in the course of administering the conservatorship property regardless of the
conservator’s personal fault. The protection from liability provided by this subsection does not
apply, however, if the conservator is “personally at fault,” meaning that the conservator
committed the tort either intentionally or negligently.

Subsection (c) confirms the intent of this section, that absent special agreement or other
circumstances, a conservator is liable only in a representative capacity.

Subsection (e) is new, in recognition of the growing issue of environmental conditions on

land that must be dealt with by the conservator. The effect of this subsection is to protect a
conservator from possible liability due to the automatic transfer of title to the protected person’s
assets accruing upon the conservator’s appointment pursuant to Section 5-421. For actions taken
as conservator, the conservator’s liability under state or federal environmental provision or
regulation is generally limited to those assets held in the capacity as conservator. The
conservator may be liable if the conservator’s negligence causes or contributes to an
environmental problem or potential environmental problem. Whether the conservator might be
liable for actions or failures to act with respect to an environmental condition depends on both
state and federal environmental regulations, including CERCLA (Comprehensive Environmental
Response, Compensation and Liability Act), found at 42 U.S.C. § 9601 et seq.

This section is placed in brackets to signal to the enacting jurisdiction that it should
expand on and conform the language of subsection (e) to whatever provisions it may have
enacted with respect to liability of other types of fiduciaries for environmental conditions.

This section is based on UGPPA (1982) Section 2-328 (UPC Section 5-428 (1982)). This
section, with the exception of subsection (e), is also similar to UPC Section 3-808 (personal
representatives).

SECTION 5-431. TERMINATION OF PROCEEDINGS.

(a) A conservatorship terminates upon the death of the protected person or upon order of

the court. Unless created for reasons other than that the protected person is a minor, a

conservatorship created for a minor also terminates when the protected person attains majority or

is emancipated.

(b) Upon the death of a protected person, the conservator shall conclude the

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administration of the estate by distribution to the person’s successors. The conservator shall file

a final report and petition for discharge within [30] days after distribution.

(c) On petition of a protected person, a conservator, or another person interested in a

protected person’s welfare, the court may terminate the conservatorship if the protected person

no longer needs the assistance or protection of a conservator. Termination of the conservatorship

does not affect a conservator’s liability for previous acts or the obligation to account for funds

and assets of the protected person.

(d) Except as otherwise ordered by the court for good cause, before terminating a

conservatorship, the court shall follow the same procedures to safeguard the rights of the

protected person that apply to a petition for conservatorship. Upon the establishment of a prima

facie case for termination, the court shall order termination unless it is proved that continuation

of the conservatorship is in the best interest of the protected person.

(e) Upon termination of a conservatorship and whether or not formally distributed by the

conservator, title to assets of the estate passes to the formerly protected person or the person’s

successors. The order of termination must provide for expenses of administration and direct the

conservator to execute appropriate instruments to evidence the transfer of title or confirm a

distribution previously made and to file a final report and a petition for discharge upon approval

of the final report.

(f) The court shall enter a final order of discharge upon the approval of the final report

and satisfaction by the conservator of any other conditions placed by the court on the

conservator’s discharge.

Comment

This section is new.

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Termination of a conservatorship must be distinguished from termination of a particular
conservator’s appointment. For the provisions on termination of a conservator’s appointment,
see Section 5-112. This section does not apply to modification of a conservatorship, which is
addressed in Section 5-414.

Upon termination of a conservatorship, a conservator is not entitled to an order of

discharge until the court approves the conservator’s final report. A “report” in subsection (b)
refers to a full and detailed accounting of monies received and expended, as well as other
matters, including a description of the conservator’s activities. See Section 5-420 for the
required contents. A report lacking in sufficient detail will preclude entry of the final order of
discharge. Until the final order of discharge is entered, a conservator remains liable for previous
acts as well as the obligation to account for the protected person’s assets and funds. After notice
and hearing, an order allowing a final report adjudicates all previously unsettled liabilities
relating to the conservatorship. See Section 5-420(a).

If an enacting state chooses to use a different time period for the filing of the final report
and petition for discharge than that contained in subsection (b), the time period used should not
be significantly longer than the 30 days contained in subsection (b).

Subsection (d) requires the court to follow the same procedures for a petition to terminate
a conservatorship as apply to the petition for conservatorship, which may include the
appointment of a visitor and counsel in some cases. The standard to terminate a conservatorship
is prima facie evidence, intentionally a lower standard than the standard for creating a
conservatorship. Once the petitioner has made out a prima facie case, the burden then shifts to
the party opposing the petition to establish by clear and convincing evidence that continuation of
the conservatorship is in the best interest of the protected person. A similar standard applies to
the termination of a guardianship for an incapacitated person. See Section 5-318(c) and
comment.

Prior to entering a final order of discharge, the court should confirm that the conservator
has accounted sufficiently for the assets and other property and executed the appropriate
documents and delivered the property under the conservator’s control.

To initiate proceedings under this section, the protected person or person interested in the
protected person’s welfare need not present a formal document prepared with legal assistance. A
request to the court may always be made informally.

The termination provision of the 1982 UGPPA, which was quite abbreviated, was located
at Section 2-329 (UPC Section 5-429 (1982)).

SECTION 5-432. REGISTRATION OF GUARDIANSHIP ORDERS. If a guardian

has been appointed in another state and a petition for the appointment of a guardian is not

pending in this state, the guardian appointed in the other state, after giving notice to the

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appointing court of an intent to register, may register the guardianship order in this state by filing

as a foreign judgment in a court, in any appropriate [county] of this state, certified copies of the

order and letters of office.

Comment

This section, which was added in 2010, is identical to Section 401 of the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act (2007) (UAGPPJA). But unlike the
UAGPPJA, which applies only to adult proceedings, this section and the following two sections
also apply to minors. This section is codified here in Part 4 of this article and not with the other
guardianship provisions, which are codified in Parts 2 and 3, so that like the UAGPPJA, all of
the provisions dealing with the ability of a guardian or conservator to act outside state boundaries
(this section and Sections 5-433 and 5-434) will be codified in one place.

As stated in the General Comment to UAGPPJA Article 4:

“Article 4 (Sections 5-432 through 5-434 of this Code) is designed to facilitate the
enforcement of guardianship and protective orders in other states. This article does not make
distinctions among the types of orders that can be enforced. This article is applicable whether the
guardianship or conservatorship is full or limited. While some states have expedited procedures
for sales of real estate by conservators appointed in other states, few states have enacted statutes
dealing with enforcement of guardianship orders, such as when a care facility questions the
authority of a guardian appointed in another state. Sometimes, these sorts of refusals necessitate
that the proceeding be transferred to the other state or that an entirely new petition be filed,
problems that could often be avoided if guardianship and protective orders were entitled to
recognition in other states.

“Article 4 provides for such recognition. The key concept is registration. Section 401
(Section 5-432 of this Code) provides for registration of guardianship orders, and Section 402
(Section 5-433 of this Code) for registration of protective orders. Following registration of the
order in the appropriate county of the other state, and after giving notice to the appointing court
of the intent to register the order in the other state, Section 403 (Section 5-434 of this Code)
authorizes the guardian or conservator to thereafter exercise all powers authorized in the order of
appointment except as prohibited under the laws of the registering state.

“The drafters of the Act concluded that the registration of certified copies provides
sufficient protection and that it was not necessary to mandate the filing of authenticated copies.”

The 2010 amendment replaces the previous version of Sections 5-432 and 5-433, which
dealt only with the ability of a conservator to act outside the state of appointment and did not
create a registration procedure.

SECTION 5-433. REGISTRATION OF PROTECTIVE ORDERS. If a conservator

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has been appointed in another state and a petition for a protective order is not pending in this

state, the conservator appointed in the other state, after giving notice to the appointing court of an

intent to register, may register the protective order in this state by filing as a foreign judgment in

a court of this state, in any [county] in which property belonging to the protected person is

located, certified copies of the order and letters of office and of any bond.

SECTION 5-434. EFFECT OF REGISTRATION.

(a) Upon registration of a guardianship or protective order from another state, the

guardian or conservator may exercise in this state all powers authorized in the order of

appointment except as prohibited under the laws of this state, including maintaining actions and

proceedings in this state and, if the guardian or conservator is not a resident of this state, subject

to any conditions imposed upon nonresident parties.

(b) A court of this state may grant any relief available under this [article] and other law of

this state to enforce a registered order.

ARTICLE 5A

UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS

JURISDICTION ACT (2007)
PREFATORY NOTE

The Uniform Guardianship and Protective Proceedings Act (UGPPA), which was last
revised in 1997 and which is codified at Article V, is a comprehensive act addressing all aspects
of guardianships and protective proceedings for both minors and adults. The Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) has a much narrower
scope, dealing only with jurisdiction and related issues in adult proceedings. Drafting of the
UAGPPJA began in 2005. The Act had its first reading at the Uniform Law Commission’s 2006
Annual Meeting, and was approved at the 2007 Annual Meeting.

States may enact the UAGPPJA either separately or as part of the broader UGPPA or the
even broader Uniform Probate Code (UPC), of which the UGPPA and UAGPPJA form a part.

The Problem of Multiple Jurisdiction

Because the United States has 50 plus guardianship systems, problems of determining

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jurisdiction are frequent. Questions of which state has jurisdiction to appoint a guardian or
conservator can arise between an American state and another country. But more frequently,
problems arise because the individual has contacts with more than one American state.

In nearly all American states, a guardian may be appointed by a court in a state in which
the individual is domiciled or is physically present. In nearly all American states, a conservator
may be appointed by a court in a state in which the individual is domiciled or has property.
Contested cases in which courts in more than one state have jurisdiction are becoming more
frequent. Sometimes these cases arise because the adult is physically located in a state other than
the adult’s domicile. Sometimes the case arises because of uncertainty as to the adult’s domicile,
particularly if the adult owns a second home in another state. There is a need for an effective
mechanism for resolving multi-jurisdictional disputes. Part 2 of this article is intended to
provide such a mechanism.

The Problem of Transfer

Oftentimes, problems arise even absent a dispute. Even if everyone is agreed that an
already existing guardianship or conservatorship should be moved to another state, few states
have streamlined procedures for transferring a proceeding to another state or for accepting such a
transfer. In most states, all of the procedures for an original appointment must be repeated, a
time consuming and expensive prospect. Part 3 of this article is designed to provide an
expedited process for making such transfers, thereby avoiding the need to relitigate incapacity
and whether the guardian or conservator appointed in the first state was an appropriate selection.

The Problem of Out-of-State Recognition

The Full Faith and Credit Clause of the United States Constitution requires that court
orders in one state be honored in another state. But there are exceptions to the full faith and
credit doctrine, of which guardianship and protective proceedings is one. Sometimes,
guardianship or protective proceedings must be initiated in a second state because of the refusal
of financial institutions, care facilities, and the courts to recognize a guardianship or protective
order issued in another state. Part 4 of this article creates a registration procedure. Following
registration of the guardianship or protective order in the second state, the guardian may exercise
in the second state all powers authorized in the original state’s order of appointment except for
powers that cannot be legally exercised in the second state.

The Proposed Uniform Law and the Child Custody Analogy

Similar problems of jurisdiction existed for many years in the United States in connection
with child custody determinations. If one parent lived in one state and the other parent lived in
another state, frequently courts in more than one state had jurisdiction to issue custody orders.
But the Uniform Law Conference has approved two uniform acts that have effectively
minimized the problem of multiple court jurisdiction in child custody matters; the Uniform Child
Custody Jurisdiction Act (UCCJA), approved in 1968, succeeded by the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), approved in 1997. The drafters of the UAGPPJA
have elected to model Part 2 and portions of Part 1 of their Act after these child custody

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analogues. However, the UAGPPJA applies only to adult proceedings. The UAGPPJA is
limited to adults in part because most jurisdictional issues involving guardianships for minors are
subsumed by the UCCJEA.

The Objectives and Key Concepts of the Proposed UAGPPJA

The UAGPPJA is organized into five articles, the first four of which are codified into
Article 5A of the UPC. Part 1 contains definitions and provisions designed to facilitate
cooperation between courts in different states. Part 2 is the heart of the Act, specifying which
court has jurisdiction to appoint a guardian or conservator or issue another type of protective
order and contains definitions applicable only to that part. Its principal objective is to assure that
an appointment or order is made or issued in only one state except in cases of emergency or in
situations where the individual owns property located in multiple states. Part 3 specifies a
procedure for transferring a guardianship or conservatorship proceedings from one state to
another state. Part 4 deals with enforcement of guardianship and protective orders in other
states. The final article of UAGPPJA, not codified into this article of the UPC, contains an
effective date provision, a place to list provisions of existing law to be repealed or amended, and
boilerplate provisions common to all uniform acts.

Key Definitions (Section 5A-201)

To determine which court has primary jurisdiction under the UAGPPJA, the key factors
are to determine the individual’s “home state” and “significant-connection state.” A “home state”
(Section 5A-201(a)(2)) is the state in which the individual was physically present, including any
period of temporary absence, for at least six consecutive months immediately before the filing of
a petition for a protective order or appointment of a guardian. If the respondent was not
physically present in a single state for the six months immediately preceding the filing of the
petition, the home state is the place where the respondent was last physically present for at least
six months as long a such presence ended within the six months prior to the filing of the petition.
Section 5A-201(a)(2). Stated another way, the ability of the home state to appoint a guardian or
enter a protective order for an individual continues for up to six months following the
individual’s physical relocation to another state.

A “significant-connection state,” which is a potentially broader concept, means the state

in which the individual has a significant connection other than mere physical presence, and
where substantial evidence concerning the individual is available. Section 5A-201(a)(3).
Factors that may be considered in deciding whether a particular respondent has a significant
connection include:

• the location of the respondent’s family and others required to be notified of the
guardianship or protective proceeding;

• the length of time the respondent was at any time physically present in the state
and the duration of any absences;

• the location of the respondent’s property; and

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• the extent to which the respondent has other ties to the state such as voting
registration, filing of state or local tax returns, vehicle registration, driver’s license, social
relationships, and receipt of services. Section 5A-201(b).

A respondent in a guardianship or protective proceeding may have multiple significant-

connection states but will have only one home state.

Jurisdiction (Part 2)

Section 5A-203 is the principal provision governing jurisdiction, creating a three-level

priority; the home state, followed by a significant-connection state, followed by other
jurisdictions:

Home State: The home state has primary jurisdiction to appoint a guardian or
conservator or issue another type of protective order.

Significant-connection State: A significant-connection state has jurisdiction to appoint a

guardian or conservator or issue another type of protective order if on the date the petition was
filed:

• the respondent does not have a home state or the home state has declined
jurisdiction on the basis that the significant-connection state is a more appropriate forum; or

• the respondent has a home state, a petition for an appointment or order is not
pending in a court of that state or another significant-connection state, and, before the court
makes the appointment or issues the order (1) a petition for an appointment or order is not filed
in the respondent’s home state; (2) an objection to the court’s jurisdiction is not filed by a person
required to be notified of the proceeding; and (3) the court in this state concludes that it is an
appropriate forum under the factors set forth in Section 5A-206.

Another State: A court in another state has jurisdiction if the home state and all
significant-connection states have declined jurisdiction because the court in the other state is a
more appropriate forum, or the respondent does not have a home state or significant-connection
state.

Section 5A-204 addresses special cases. Regardless of whether it has jurisdiction under
the general principles stated in Section 5A-203, a court in the state where the respondent is
currently physically present has jurisdiction to appoint a guardian in an emergency, and a court
in a state where a respondent’s real or tangible personal property is located has jurisdiction to
appoint a conservator or issue another type of protective order with respect to that property. In
addition, a court not otherwise having jurisdiction under Section 5A-203 has jurisdiction to
consider a petition to accept the transfer of an already existing guardianship or conservatorship
from another state as provided in Part 3.

The remainder of Part 2 elaborates on these core concepts. Section 5A-205 provides that

620
once a guardian or conservator is appointed or other protective order is issued, the court’s
jurisdiction continues until the proceeding is terminated or transferred or the appointment or
order expires by its own terms. Section 5A-206 authorizes a court to decline jurisdiction if it
determines that the court of another state is a more appropriate forum, and specifies the factors to
be taken into account in making this determination. Section 207 authorizes a court to decline
jurisdiction or fashion another appropriate remedy if jurisdiction was acquired because of
unjustifiable conduct. Section 5A-208 prescribes additional notice requirements if a proceeding
is brought in a state other than the respondent’s home state. Section 5A-209 specifies a
procedure for resolving jurisdictional issues if petitions are pending in more than one state. The
UAGPPJA also includes provisions regarding communication between courts in different states,
requests for assistance made by a court to a court of another state, and the taking of testimony in
another state. Sections 5A-104 to 5A-106.

Transfer to Another State (Part 3)

Part 3 specifies a procedure for transferring an already existing guardianship or

conservatorship to another state. To make the transfer, court orders are necessary from both the
court transferring the case and from the court accepting the case. The transferring court must
find that the incapacitated or protected person is physically present in or is reasonably expected
to move permanently to the other state, that adequate arrangements have been made for the
person or the person’s property in the other state, and that the court is satisfied the case will be
accepted by the court in the other state. To assure continuity, the court in the transferring state
cannot dismiss the local proceeding until the order from the state accepting the case is filed with
the transferring court. To expedite the transfer process, the court in the accepting state must give
deference to the transferring court’s finding of incapacity and selection of the guardian or
conservator. Much of Part 3 is based on the pioneering work of the National Probate Court
Standards, a 1993 joint project of the National College of Probate Judges and the National Center
for State Courts.

Out of State Enforcement (Part 4)

To facilitate enforcement of guardianship and protective orders in other states, Part 4

authorizes a guardian or conservator to register these orders in other states. Upon registration,
the guardian or conservator may exercise in the registration state all powers authorized in the
order except as prohibited by the laws of the registration state.

International Application (Section 5A-103)

Section 5A-103 addresses application of the Act to guardianship and protective orders
issued in other countries. A foreign order is not enforceable pursuant to the registration
procedures under Part 4, but a court in the United States may otherwise apply the Act as if the
foreign country were an American state.

The Problem of Differing Terminology

States differ on terminology for the person appointed by the court to handle the personal

621
and financial affairs of a minor or incapacitated adult. Under the UGPPA and in a majority of
American states, a “guardian” is appointed to make decisions regarding the person of an
“incapacitated person;” a “conservator” is appointed in a “protective proceeding” to manage the
property of a “protected person.” But in many states, only a “guardian” is appointed, either a
guardian of the person or guardian of the estate, and in a few states, the terms guardian and
conservator are used but with different meanings. The UAGPPJA adopts the terminology used
in the UGPPA and in a majority of the states. An enacting state that uses a different term than
“guardian” or “conservator” for the person appointed by the court or that defines either of these
terms differently than does the UGPPA may, but is not encouraged to, substitute its own term or
definition. Use of common terms and definitions by states enacting the Act will facilitate
resolution of cases involving multiple jurisdictions.

The Drafting Committee was assisted by numerous officially designated advisors and
observers, representing an array of organizations. In addition to the American Bar Association
advisors listed above, important contributions were made by Sally Hurme of AARP, Terry W.
Hammond of the National Guardianship Association, Kathleen T. Whitehead and Shirley B.
Whitenack of the National Academy of Elder Law Attorneys, Catherine Anne Seal of the
Colorado Bar Association, Kay Farley of the National Center for State Courts, and Robert G.
Spector, the Reporter for the Joint Editorial Board for Uniform Family Laws and the Reporter for
the Uniform Child Custody Jurisdiction and Enforcement Act (1997).

PART 1. GENERAL PROVISIONS

GENERAL COMMENT

Part 1 contains definitions and general provisions used throughout the Act. Definitions
applicable only to Part 2 are found in Section 5A-201. Section 5A-101 is the title, Section 5A-
102 contains the definitions, and Sections 5A-103 through 5A-106, the general provisions.
Section 5A-103 provides that a court of an enacting state may treat a foreign country as a state
for the purpose of applying all portions of the Act other than Part 4, Section 5A-104 addresses
communication between courts, Section 5A-105 requests by a court to a court in another state for
assistance, and Section 5A-106 the taking of testimony in other states. These Part 1 provisions
relating to court communication and assistance are essential tools to assure the effectiveness of
the provisions of Part 2 determining jurisdiction and in facilitating transfer of a proceeding to
another state as authorized in Part 3.

SECTION 5A-101. SHORT TITLE. This [article] may be cited as the Uniform Adult

Guardianship and Protective Proceedings Jurisdiction Act (2007).

Comment

The title to the Act succinctly describes the Act’s scope. The Act applies only to court
jurisdiction and related topics for adults for whom the appointment of a guardian or conservator
or other protective order is being sought or has been issued.

622
The drafting committee elected to limit the Act to adults for two reasons. First,
jurisdictional issues concerning guardians for minors are subsumed by the Uniform Child
Custody Jurisdiction and Enforcement Act (1997). Second, while the UCCJEA does not address
conservatorship and other issues involving the property of minors, all of the problems and
concerns that led the Uniform Law Commission to appoint a drafting committee involved adults.

SECTION 5A-102. DEFINITIONS. In this [article]:

(1) “Adult” means an individual who has attained [18] years of age.

(2) “Conservator” means a person appointed by the court to administer the property of an

adult as provided in [Article] V.

(3) “Guardian” means a person appointed by the court to make decisions regarding the

person of an adult as provided in [Article] V.

(4) “Guardianship order” means an order appointing a guardian.

(5) “Guardianship proceeding” means a judicial proceeding in which an order for the

appointment of a guardian is sought or has been issued.

(6) “Incapacitated person” means an adult for whom a guardian has been appointed.

(7) “Party” means the respondent, petitioner, guardian, conservator, or any other person

allowed by the court to participate in a guardianship or protective proceeding.

(8) “Protected person” means an adult for whom a protective order has been issued.

(9) “Protective order” means an order appointing a conservator or other order related to

management of an adult’s property.

(10) “Protective proceeding” means a judicial proceeding in which a protective order is

sought or has been issued.

(11) “Respondent” means an adult for whom a protective order or the appointment of a

guardian is sought.

Comment

623
The definition of “adult” (paragraph (1)) would exclude an emancipated minor. The Act
is not designed to supplant the local substantive law on guardianship. States whose guardianship
law treats emancipated minors as adults may wish to modify this definition.

Two of the definitions are common procedural terms. The individual for whom a
guardianship or protective order is sought is a “respondent” (paragraph (11)). A person who may
participate in a guardianship or protective proceeding is referred to as a “party” (paragraph (7)).

The remaining definitions refer to standard guardianship terminology used in a majority

of states. A “guardian” (paragraph (3)) is appointed in a “guardianship order” (paragraph (4))
which is issued as part of a “guardianship proceeding” (paragraph (5)) and which authorizes the
guardian to make decisions regarding the person of an “incapacitated person” (paragraph (6)). A
“conservator” (paragraph (2)) is appointed pursuant to a “protective order” (paragraph (9)) which
is issued as part of a “protective proceeding” (paragraph (10)) and which authorizes the
conservator to manage the property of a “protected person” (paragraph (8)).

In most states, a protective order may be issued by the court without the appointment of a
conservator. For example, under the Uniform Guardianship and Protective Proceedings Act
(1997), the court may authorize a so-called single transaction for the security, service, or care
meeting the foreseeable needs of the protected person, including the payment, delivery, deposit,
or retention of property; sale, mortgage, lease, or other transfer of property; purchase of an
annuity; making a contract for life care, deposit contract, or contract for training and education;
and the creation of or addition to a suitable trust. UGPPA (1997) Section 412(a)(1) (Section 5-
412(a)(1) of this Code). It is for this reason that the Act contains frequent references to the
broader category of protective orders. Where the Act is intended to apply only to
conservatorships, such as in Part 3 dealing with transfers of proceedings to other states, the Act
refers to conservatorship and not to the broader category of protective proceeding.

The Act does not limit the types of conservatorships or guardianships to which the Act
applies. The Act applies whether the conservatorship or guardianship is denominated as plenary,
limited, temporary or emergency. The Act, however, would not ordinarily apply to a guardian ad
litem, who is ordinarily appointed by the court to represent a person or conduct an investigation
in a specified legal proceeding.

Section 5A-102 is not the sole definitional section in the Act. Section 5A-201 contains
definitions of important terms used only in Part 2. These are the definitions of “emergency”
(Section 5A-201(1)), “home state” (Section 5A-201(2)), and “significant-connection state”
(Section 5A-201(3)).

SECTION 5A-103. INTERNATIONAL APPLICATION OF [ARTICLE]. A court

of this state may treat a foreign country as if it were a state for the purpose of applying this [part]

and [parts] 2 and 3.

Comment

624
This section addresses application of the Act to guardianship and protective orders issued
in other countries. A foreign order is not enforceable pursuant to the registration procedures of
Part 4, but a court in this country may otherwise apply this Act to a foreign proceeding as if the
foreign country were an American state. Consequently, a court may conclude that the court in
the foreign country has jurisdiction because it constitutes the respondent’s “home state” or
“significant-connection state” and may therefore decline to exercise jurisdiction on the ground
that the court of the foreign country has a higher priority under Section 5A-203. Or the court
may treat the foreign country as if it were a state of the United States for purposes of applying
the transfer provisions of Part 3.

This section addresses similar issues to but differs in result from Section 105 of the
Uniform Child Custody Jurisdiction and Enforcement Act (1997). Under the UCCJEA, the
United States court must honor a custody order issued by the court of a foreign country if the
order was issued under factual circumstances in substantial conformity with the jurisdictional
standards of the UCCJEA. Only if the child custody law violates fundamental principles of
human rights is enforcement excused. Because guardianship regimes vary so greatly around the
world, particularly in civil law countries, it was concluded that under this Act a more flexible
approach was needed. Under this Act, a court may but is not required to recognize the foreign
order.

The fact that a guardianship or protective order of a foreign country cannot be enforced
pursuant to the registration procedures of Part 4 does not preclude enforcement by the court
under some other provision or rule of law.

SECTION 5A-104. COMMUNICATION BETWEEN COURTS.

[(a)] A court of this state may communicate with a court in another state concerning a

proceeding arising under this [article]. The court may allow the parties to participate in the

communication. [Except as otherwise provided in subsection (b), the court shall make a record

of the communication. The record may be limited to the fact that the communication occurred.

(b) Courts may communicate concerning schedules, calendars, court records, and other

administrative matters without making a record.]

Legislative Note: An enacting state is encouraged to enact the bracketed language so

that a record will be created of the communication with the other court, even though the record
is limited to the fact that the communication occurred. In some states, however, a legislative
enactment directing when a court must make a record in a judicial proceeding may violate the
separation of powers doctrine. Such states are encouraged to achieve the objectives of the
bracketed language by promulgating a comparable requirement by judicial rule.

Comment

625
This section emphasizes the importance of communications among courts with an interest
in a particular matter. Most commonly, this would include communication between courts of
different states to resolve an issue of which court has jurisdiction to proceed under Part 2. It
would also include communication between courts of different states to facilitate the transfer of a
guardianship or conservatorship to a different state under Part 3. Communication can occur in a
variety of ways, including by electronic means. This section does not prescribe the use of any
particular means of communication.

The court may authorize the parties to participate in the communication. But the Act
does not mandate participation or require that the court give the parties notice of any
communication. Communication between courts is often difficult to schedule and participation
by the parties may be impractical. Phone calls or electronic communications often have to be
made after-hours or whenever the schedules of judges allow. When issuing a jurisdictional or
transfer order, the court should set forth the extent to which a communication with another court
may have been a factor in the decision.

This section includes brackets around the language relating to whether a record must be
made of any communication with the court of the other state. As indicated by the Legislative
Note to this section, the language is bracketed because of a concern in some states that a
legislative enactment directing when a court must make a record in a judicial proceeding may
violate the doctrine on separation of powers. The language is not bracketed because the drafters
concluded that the making of a record is not important. Rather, if concerns about separation of
powers leads to the deletion of the bracketed language, the enacting state is encouraged to
achieve the objectives of the bracketed language by promulgating a comparable provision by
judicial rule.

This section does not prescribe the extent of the record that the court must make, leaving
that issue to the court. A record might include notes or transcripts of a court reporter who
listened to a conference call between the courts, an electronic recording of a telephone call, a
memorandum summarizing a conversation, and email communications. No record need be made
of relatively inconsequential matters such as scheduling, calendars, and court records.

Section 110 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997)
addresses similar issues as this section but is more detailed. As is the case with several other
provisions of this Act, the drafters of this Act concluded that the more varied circumstances of
adult guardianship and protective proceedings suggested a need for greater flexibility.

SECTION 5A-105. COOPERATION BETWEEN COURTS.

(a) In a guardianship or protective proceeding in this state, a court of this state may

request the appropriate court of another state to do any of the following:

(1) hold an evidentiary hearing;

(2) order a person in that state to produce evidence or give testimony pursuant to

626
procedures of that state;

(3) order that an evaluation or assessment be made of the respondent;

(4) order any appropriate investigation of a person involved in a proceeding;

(5) forward to the court of this state a certified copy of the transcript or other

record of a hearing under paragraph (1) or any other proceeding, any evidence otherwise

produced under paragraph (2), and any evaluation or assessment prepared in compliance with an

order under paragraph (3) or (4);

(6) issue any order necessary to assure the appearance in the proceeding of a

person whose presence is necessary for the court to make a determination, including the

respondent or the incapacitated or protected person;

(7) issue an order authorizing the release of medical, financial, criminal, or other

relevant information in that state, including protected health information as defined in 45 C.F.R

160.103 [, as amended].

(b) If a court of another state in which a guardianship or protective proceeding is pending

requests assistance of the kind provided in subsection (a), a court of this state has jurisdiction for

the limited purpose of granting the request or making reasonable efforts to comply with the

request.

Legislative Note: A state that permits dynamic references to federal law should delete
the brackets in subsection (a)(7). A state that requires that a reference to federal law be to that
law on a specific date should delete the brackets and bracketed material, insert a specific date,
and periodically update the reference.

Comment

Subsection (a) of this section is similar to Section 112(a) of the Uniform Child Custody
Jurisdiction and Enforcement Act (1997), although modified to address issues of concern in adult
guardianship and protective proceedings and with the addition of subsection (a)(7), which
addresses the release of health information protected under HIPAA. Subsection (b), which
clarifies that a court has jurisdiction to respond to requests for assistance from courts in other

627
states even though it might otherwise not have jurisdiction over the proceeding, is not found in
although probably implicit in the UCCJEA.

Court cooperation is essential to the success of this Act. This section is designed to
facilitate such court cooperation. It provides mechanisms for courts to cooperate with each other
in order to decide cases in an efficient manner without causing undue expense to the parties.
Courts may request assistance from courts of other states and may assist courts of other states.
Typically, such assistance will be requested to resolve a jurisdictional issue arising under Part 2
or an issue concerning a transfer proceeding under Part 3.

This section does not address assessment of costs and expenses, leaving that issue to local
law. Should a court have acquired jurisdiction because of a party’s unjustifiable conduct,
Section 5A-207(b) authorizes the court to assess against the party all costs and expenses,
including attorney’s fees.

SECTION 5A-106. TAKING TESTIMONY IN ANOTHER STATE.

(a) In a guardianship or protective proceeding, in addition to other procedures that may

be available, testimony of a witness who is located in another state may be offered by deposition

or other means allowable in this state for testimony taken in another state. The court on its own

motion may order that the testimony of a witness be taken in another state and may prescribe the

manner in which and the terms upon which the testimony is to be taken.

(b) In a guardianship or protective proceeding, a court in this state may permit a witness

located in another state to be deposed or to testify by telephone or audiovisual or other electronic

means. A court of this state shall cooperate with the court of the other state in designating an

appropriate location for the deposition or testimony.

[(c) Documentary evidence transmitted from another state to a court of this state by

technological means that do not produce an original writing may not be excluded from evidence

on an objection based on the best evidence rule.]

Legislative Note: In cases involving more than one jurisdiction, documentary evidence
often must be presented that has been transmitted by facsimile or in electronic form. A state in
which the best evidence rule might preclude the introduction of such evidence should enact
subsection (c). A state that has adequate exceptions to its best evidence rule to permit the
introduction of evidence transmitted by facsimile or in electronic form should delete subsection

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(c).

Comment

This section is similar to Section 111 of the Uniform Child Custody Jurisdiction and
Enforcement Act (1997). That section was in turn derived from Section 316 of the Uniform
Interstate Family Support Act (1992) and the much earlier and now otherwise obsolete Uniform
Interstate and International Procedure Act (1962).

This section is designed to fill the vacuum that often exists in cases involving an adult
with interstate contacts when much of the essential information about the individual is located in
another state.

Subsection (a) empowers the court to initiate the gathering of out-of-state evidence,
including depositions, written interrogatories and other discovery devices. The authority granted
to the court in no way precludes the gathering of out-of-state evidence by a party, including the
taking of depositions out-of-state.

Subsections (b) and (c) clarify that modern modes of communication are permissible for
the taking of depositions and receipt of documents into evidence. A state that has adequate
exceptions to its best evidence rule to permit the introduction of evidence transmitted by
facsimile or in electronic form should delete subsection (c), which has been placed in brackets
for this reason.

This section is consistent with and complementary to the Uniform Interstate Depositions
and Discovery Act (2007), which specifies the procedure for taking depositions in other states.

PART 2. JURISDICTION

GENERAL COMMENT

The jurisdictional rules in Part 2 will determine which state’s courts may appoint a
guardian or conservator or issue another type of protective order. Section 5A-201 contains
definitions of “emergency,” “home state,” and “significant-connection state,” terms used only in
Part 2 that are key to understanding the jurisdictional rules under the Act. Section 5A-202
provides that Part 2 is the exclusive jurisdictional basis for a court of the enacting state to appoint
a guardian or issue a protective order for an adult. Consequently, Part 2 is applicable even if all
of the respondent’s significant contacts are in-state. Section 5A-203 is the principal provision
governing jurisdiction, creating a three-level priority; the home state, followed by a significant-
connection state, followed by other jurisdictions. But there are circumstances under Section 5A-
203 where a significant-connection state may have jurisdiction even if the respondent also has a
home state, or a state that is neither a home or significant-connection state may be able to assume
jurisdiction even though the particular respondent has both a home state and one or more
significant-connection states. One of these situations is if a state declines to exercise jurisdiction
under Section 5A-206 because a court of that state concludes that a court of another state is a
more appropriate forum. Another is Section 5A-207, which authorizes a court to decline

629
jurisdiction or fashion another appropriate remedy if jurisdiction was acquired because of
unjustifiable conduct. Section 5A-205 provides that once an appointment is made or order
issued, the court’s jurisdiction continues until the proceeding is terminated or the appointment or
order expires by its own terms.

Section 5A-204 addresses special cases. Regardless of whether it has jurisdiction under
the general principles stated in Section 5A-203, a court in the state where the individual is
currently physically present has jurisdiction to appoint a guardian in an emergency, and a court
in a state where an individual’s real or tangible personal property is located has jurisdiction to
appoint a conservator or issue another type of protective order with respect to that property. In
addition, a court not otherwise having jurisdiction under Section 5A-203 has jurisdiction to
consider a petition to accept the transfer of an already existing guardianship or conservatorship
from another state as provided in Part 3.

The remainder of Part 2 addresses procedural issues. Section 5A-208 prescribes

additional notice requirements if a proceeding is brought in a state other than the respondent’s
home state. Section 5A-209 specifies a procedure for resolving jurisdictional issues if petitions
are pending in more than one state.

SECTION 5A-201. DEFINITIONS; SIGNIFICANT CONNECTION FACTORS.

(a) In this [part]:

(1) “Emergency” means a circumstance that likely will result in substantial harm

to a respondent’s health, safety, or welfare, and for which the appointment of a guardian is

necessary because no other person has authority and is willing to act on the respondent’s behalf;

(2) “Home state” means the state in which the respondent was physically present,

including any period of temporary absence, for at least six consecutive months immediately

before the filing of a petition for a protective order or the appointment of a guardian; or if none,

the state in which the respondent was physically present, including any period of temporary

absence, for at least six consecutive months ending within the six months prior to the filing of the

petition.

(3) “Significant-connection state” means a state, other than the home state, with

which a respondent has a significant connection other than mere physical presence and in which

substantial evidence concerning the respondent is available.

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(b) In determining under Sections 5A-203 and Section 5A-301(e) whether a respondent

has a significant connection with a particular state, the court shall consider:

(1) the location of the respondent’s family and other persons required to be

notified of the guardianship or protective proceeding;

(2) the length of time the respondent at any time was physically present in the

state and the duration of any absence;

(3) the location of the respondent’s property; and

(4) the extent to which the respondent has ties to the state such as voting

registration, state or local tax return filing, vehicle registration, driver’s license, social

relationship, and receipt of services.

Comment

The terms “emergency,” “home state,” and “significant-connection state” are defined in
this section and not in Section 5A-102 because they are used only in Part 2.

The definition of “emergency” (subsection (a)(1)) is taken from the emergency

guardianship provision of the Uniform Guardianship and Protective Proceedings Act (1997),
Section 312 [Section 5-312 of this Code].

Pursuant to Section 5A-204 of this Act, a court has jurisdiction to appoint a guardian in
an emergency for a period of up to 90 days even though it does not otherwise have jurisdiction.
However, the emergency appointment is subject to the direction of the court in the respondent’s
home state. Pursuant to Section 5A-204(b), the emergency proceeding must be dismissed at the
request of the court in the respondent’s home state.

Appointing a guardian in an emergency should be an unusual event. Although most

states have emergency guardianship statutes, not all states do, and in those states that do have
such statutes, there is great variation on whether and how an emergency is defined. To provide
some uniformity on when a court acquires emergency jurisdiction, the drafters of this Act
concluded that adding a definition of emergency was essential. The definition does not preclude
an enacting jurisdiction from appointing a guardian under an emergency guardianship statute
with a different or broader test of emergency if the court otherwise has jurisdiction to make an
appointment under Section 5A-203.

Pursuant to Section 5A-203, a court in the respondent’s home state has primary
jurisdiction to appoint a guardian or issue a protective order. A court in a significant-connection

631
state has jurisdiction if the respondent does not have a home state and in other circumstances
specified in Section 5A-203. The definitions of “home state” and “significant-connection state”
are therefore important to an understanding of the Act.

The definition of “home state” (subsection (a)(2)) is derived from but differs in a couple
of respects from the definition of the same term in Section 102 of the Uniform Child Custody
Jurisdiction and Enforcement Act (1997). First, unlike the definition in the UCCJEA, the
definition in this Act clarifies that actual physical presence is necessary. The UCCJEA
definition instead focuses on where the child has “lived” for the prior six months. Basing the test
on where someone has “lived” may imply that the term “home state” is similar to the concept of
domicile. Domicile, in an adult guardianship context, is a vague concept that can easily lead to
claims of jurisdiction by courts in more than one state. Second, under the UCCJEA, home state
jurisdiction continues for six months following physical removal from the state and the state has
ceased to be the actual home. Under this Act, the six-month tail is incorporated directly into the
definition of home state. The place where the respondent was last physically present for six
months continues as the home state for six months following physical removal from the state.
This modification of the UCCJEA definition eliminates the need to refer to the six-month tail
each time home state jurisdiction is mentioned in the Act.

The definition of “significant-connection state” (subsection (a)(3)) is similar to Section

201(a)(2) of the Uniform Child Custody Jurisdiction and Enforcement Act (1997). However,
subsection (b) adds a list of factors relevant to adult guardianship and protective proceedings to
aid the court in deciding whether a particular place is a significant-connection state. Under
Section 5A-301(e)(1), the significant connection factors listed in the definition are to be taken
into account in determining whether a conservatorship may be transferred to another state.

SECTION 5A-202. EXCLUSIVE BASIS. This [part] provides the exclusive

jurisdictional basis for a court of this state to appoint a guardian or issue a protective order for an

adult.

Comment

Similar to Section 201(b) of the Uniform Child Custody Jurisdiction and Enforcement
Act (1997), which provides that the UCCJEA is the exclusive basis for determining jurisdiction
to issue a child custody order, this section provides that this part is the exclusive jurisdictional
basis for determining jurisdiction to appoint a guardian or issue a protective order for an adult.
An enacting jurisdiction will therefore need to repeal any existing provisions addressing
jurisdiction in guardianship and protective proceedings cases. A Legislative Note at the end of
this article provides guidance on which provisions need to be repealed or amended. The drafters
of this Act concluded that limiting the Act to “interstate” cases was unworkable. Such cases are
hard to define, but even if they could be defined, overlaying this Act onto a state’s existing
jurisdictional rules would leave too many gaps and inconsistencies. In addition, if the particular
case is truly local, the local court would likely have jurisdiction under both this Act as well as
under prior law.

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SECTION 5A-203. JURISDICTION. A court of this state has jurisdiction to appoint a

guardian or issue a protective order for a respondent if:

(1) this state is the respondent’s home state;

(2) on the date the petition is filed, this state is a significant-connection state and:

(A) the respondent does not have a home state or a court of the respondent’s home

state has declined to exercise jurisdiction because this state is a more appropriate forum; or

(B) the respondent has a home state, a petition for an appointment or order is not

pending in a court of that state or another significant-connection state, and, before the court

makes the appointment or issues the order:

(i) a petition for an appointment or order is not filed in the respondent’s

home state;

(ii) an objection to the court’s jurisdiction is not filed by a person required

to be notified of the proceeding; and;

(iii) the court in this state concludes that it is an appropriate forum under

the factors set forth in Section 5A-206;

(3) this state does not have jurisdiction under either paragraph (1) or (2), the respondent’s

home state and all significant-connection states have declined to exercise jurisdiction because

this state is the more appropriate forum, and jurisdiction in this state is consistent with the

constitutions of this state and the United States; or

(4) the requirements for special jurisdiction under Section 5A-204 are met.

Comment

Similar to the Uniform Child Jurisdiction and Enforcement Act (1997), this Act creates a
three-level priority for determining which state has jurisdiction to appoint a guardian or issue a
protective order; the home state (defined in Section 5A-201(a)(2)), followed by a significant-

633
connection state (defined in Section 5A-201(a)(3)), followed by other jurisdictions. The
principal objective of this section is to eliminate the possibility of dual appointments or orders
except for the special circumstances specified in Section 5A-204.

While this section is the principal provision for determining whether a particular court
has jurisdiction to appoint a guardian or issue a protective order, it is not the only provision. As
indicated in the cross-reference in Section 5A-203(4), a court that does not otherwise have
jurisdiction under Section 5A-203 may have jurisdiction under the special circumstances
specified in Section 5A-204.

Pursuant to Section 5A-203(1), the home state has primary jurisdiction to appoint a
guardian or conservator or issue another type of protective order. This jurisdiction terminates if
the state ceases to be the home state, if a court of the home state declines to exercise jurisdiction
under Section 206 on the basis that another state is a more appropriate forum, or, as provided in
Section 5A-205, a court of another state has appointed a guardian or issued a protective order
consistent with this Act. The standards by which a home state that has enacted the Act may
decline jurisdiction on the basis that another state is a more appropriate forum are specified in
Section 5A-206. Should the home state not have enacted the Act, Section 5A-203(1) does not
require that the declination meet the standards of Section 5A-206.

Once a petition is filed in a court of the respondent’s home state, that state does not cease
to be the respondent’s home state upon the passage of time even though it may be many months
before an appointment is made or order issued and during that period the respondent is
physically located. Only upon dismissal of the petition can the court cease to be the home state
due to the passage of time. Under the definition of “home state,” the six-month physical
presence requirement is fulfilled or not on the date the petition is filed. See Section 5A-
201(a)(2).

A significant-connection state has jurisdiction under two possible bases; Section 5A-
203(2)(A) and Section 5A-203(2)(B). Under Section 5A-203(2)(A), a significant-connection
state has jurisdiction if the individual does not have a home state or if the home state has
declined jurisdiction on the basis that the significant-connection state is a more appropriate
forum.

Section 5A-203(2)(B) is designed to facilitate consideration of cases where jurisdiction is

not in dispute. Section 5A-203(2)(B) allows a court in a significant-connection state to exercise
jurisdiction even though the respondent has a home state and the home state has not declined
jurisdiction. The significant-connection state may assume jurisdiction under these
circumstances, however, only in situations where the parties are not in disagreement concerning
which court should hear the case. Jurisdiction may not be exercised by a significant-connection
state under Section 203(2)(B) if (1) a petition has already been filed and is still pending in the
home state or other significant-connection state; or (2) prior to making the appointment or
issuing the order, a petition is filed in the respondent’s home state or an objection to the court’s
jurisdiction is filed by a person required to be notified of the proceeding. Additionally, the court
in the significant-connection state must conclude that it is an appropriate forum applying the
factors listed in Section 5A-206.

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There is nothing comparable to Section 203(2)(B) in the Uniform Child Custody
Jurisdiction and Enforcement Act (1997). Under Section 201 of the UCCJEA a court in a
significant-connection state acquires jurisdiction only if the child does not have a home state or
the court of that state has declined jurisdiction. The drafters of this Act concluded that cases
involving adults differed sufficiently from child custody matters that a different rule is
appropriate for adult proceedings in situations where jurisdiction is uncontested.

Pursuant to Section 5A-203(3), a court in a state that is neither the home state or a
significant-connection state has jurisdiction if the home state and all significant-connection states
have declined jurisdiction or the respondent does not have a home state or significant-connection
state. The state must have some connection with the proceeding, however. As Section 5A-203
(3) clarifies, jurisdiction in the state must be consistent with the state and United States
constitutions.

SECTION 5A-204. SPECIAL JURISDICTION.

(a) A court of this state lacking jurisdiction under Section 5A-203 has special jurisdiction

to do any of the following:

(1) appoint a guardian in an emergency for a term not exceeding [90] days for a

respondent who is physically present in this state;

(2) issue a protective order with respect to real or tangible personal property

located in this state;

(3) appoint a guardian or conservator for an incapacitated or protected person for

whom a provisional order to transfer the proceeding from another state has been issued under

procedures similar to Section 5A-301.

(b) If a petition for the appointment of a guardian in an emergency is brought in this state

and this state was not the respondent’s home state on the date the petition was filed, the court

shall dismiss the proceeding at the request of the court of the home state, if any, whether

dismissal is requested before or after the emergency appointment.

Comment

This section lists the special circumstances where a court without jurisdiction under the
general rule of Section 5A-203 has jurisdiction for limited purposes. The three purposes are (1)

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the appointment of a guardian in an emergency for a term not exceeding 90 days for a respondent
who is physically located in the state (subsection (a)(1)); (2) the issuance of a protective order for
a respondent who owns an interest in real or tangible personal property located in the state
(subsection (a)(2)); and (3) the grant of jurisdiction to consider a petition requesting the transfer
of a guardianship or conservatorship proceeding from another state (subsection (a)(3)). If the
court has jurisdiction under Section 5A-203, reference to Section 5A-204 is unnecessary. The
general jurisdiction granted under Section 5A-203 includes within it all of the special
circumstances specified in this section.

When an emergency arises, action must often be taken on the spot in the place where the
respondent happens to be physically located at the time. This place may not necessarily be
located in the respondent’s home state or even a significant-connection state. Subsection (a)(1)
assures that the court where the respondent happens to be physically located at the time has
jurisdiction to appoint a guardian in an emergency but only for a limited period of 90 days. The
time limit is placed in brackets to signal that enacting states may substitute the time period under
their existing emergency guardianship procedures. As provided in subsection (b), the emergency
jurisdiction is also subject to the authority of the court in the respondent’s home state to request
that the emergency proceeding be dismissed. The theory here is that the emergency appointment
in the temporary location should not be converted into a de facto permanent appointment through
repeated temporary appointments.

“Emergency” is specifically defined in Section 5A-201(a)(1). Because of the great

variation among the states on how an emergency is defined and its important role in conferring
jurisdiction, the drafters of this Act concluded that adding a uniform definition of emergency was
essential. The definition does not preclude an enacting jurisdiction from appointing a guardian
under an emergency guardianship statute with a different or broader test of emergency if the
court otherwise has jurisdiction to make an appointment under Section 5A-203.

Subsection (a)(2) grants a court jurisdiction to issue a protective order with respect to real
and tangible personal property located in the state even though the court does not otherwise have
jurisdiction. Such orders are most commonly issued when a conservator has been appointed but
the protected person owns real property located in another state. The drafters specifically
rejected using a general reference to any property located in the state because of the tendency of
some courts to issue protective orders with respect to intangible personal property such as a bank
account where the technical situs of the asset may have little relationship to the protected person.

Subsection (a)(3) is closely related to and is necessary for the effectiveness of Part 3,
which addresses transfer of a guardianship or conservatorship to another state. A “Catch-22”
arises frequently in such cases. The court in the transferring state will not allow the
incapacitated or protected person to move and will not terminate the case until the court in the
transferee state has accepted the matter. But the court in the transferee state will not accept the
case until the incapacitated or protected person has physically moved and presumably become a
resident of the transferee state. Subsection (a)(3), which grants the court in the transferee state
limited jurisdiction to consider a petition requesting transfer of a proceeding form another state,
is intended to unlock the stalemate.

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Not included in this section but a provision also conferring special jurisdiction on the
court is Section 5A-105(b), which grants the court jurisdiction to respond to a request for
assistance from a court of another state.

SECTION 5A-205. EXCLUSIVE AND CONTINUING JURISDICTION. Except as

otherwise provided in Section 5A-204, a court that has appointed a guardian or issued a

protective order consistent with this [article] has exclusive and continuing jurisdiction over the

proceeding until it is terminated by the court or the appointment or order expires by its own

terms.

Comment

While this Act relies heavily on the Uniform Child Jurisdiction and Enforcement Act
(1997) for many basic concepts, the identity is not absolute. Section 202 of the UCCJEA
specifies a variety of circumstances whereby a court can lose jurisdiction based on loss of
physical presence by the child and others, loss of a significant connection, or unavailability of
substantial evidence. Section 203 of the UCCJEA addresses the jurisdiction of the court to
modify a custody determination made in another state. Nothing comparable to either UCCJEA
section is found in this Act. Under this Act, a guardianship or protective order may be modified
only upon request to the court that made the appointment or issued the order, which retains
exclusive and continuing jurisdiction over the proceeding. Unlike child custody matters,
guardianships and protective proceedings are ordinarily subject to continuing court supervision.
Allowing the court’s jurisdiction to terminate other than by its own order would open the
possibility of competing guardianship or conservatorship appointments in different states for the
same person at the same time, the problem under current law that enactment of this Act is
designed to avoid. Should the incapacitated or protected person and others with an interest in the
proceeding relocate to a different state, the appropriate remedy is to seek transfer of the
proceeding to the other state as provided in Part 3.

The exclusive and continuing jurisdiction conferred by this section only applies to
guardianship orders made and protective orders issued under Section 5A-203. Orders made
under the special jurisdiction conferred by Section 5A-204 are not exclusive. And as provided in
Section 5A-204(b), the jurisdiction of a court in a state other than the home state to appoint a
guardian in an emergency is subject to the right of a court in the home state to request that the
proceeding be dismissed and any appointment terminated.

Part 3 authorizes a guardian or conservator to petition to transfer the proceeding to

another state. Upon the conclusion of the transfer, the court in the accepting state will appoint
the guardian or conservator as guardian or conservator in the accepting state and the court in the
transferring estate will terminate the local proceeding, whereupon the jurisdiction of the
transferring court terminates and the court in the accepting state acquires exclusive and
continuing jurisdiction as provided in Section 5A-205.

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SECTION 5A-206. APPROPRIATE FORUM.

(a) A court of this state having jurisdiction under Section 5A-203 to appoint a guardian or

issue a protective order may decline to exercise its jurisdiction if it determines at any time that a

court of another state is a more appropriate forum.

(b) If a court of this state declines to exercise its jurisdiction under subsection (a), it shall

either dismiss or stay the proceeding. The court may impose any condition the court considers

just and proper, including the condition that a petition for the appointment of a guardian or

issuance of a protective order be filed promptly in another state.

(c) In determining whether it is an appropriate forum, the court shall consider all relevant

factors, including:

(1) any expressed preference of the respondent;

(2) whether abuse, neglect, or exploitation of the respondent has occurred or is

likely to occur and which state could best protect the respondent from the abuse, neglect, or

exploitation;

(3) the length of time the respondent was physically present in or was a legal

resident of this or another state;

(4) the distance of the respondent from the court in each state;

(5) the financial circumstances of the respondent’s estate;

(6) the nature and location of the evidence;

(7) the ability of the court in each state to decide the issue expeditiously and the

procedures necessary to present evidence;

(8) the familiarity of the court of each state with the facts and issues in the

proceeding; and

638
(9) if an appointment were made, the court’s ability to monitor the conduct of the

guardian or conservator.

Comment

This section authorizes a court otherwise having jurisdiction to decline jurisdiction on the
basis that a court in another state is in a better position to make a guardianship or protective order
determination. The effect of a declination of jurisdiction under this section is to rearrange the
priorities specified in Section 5A-203. A court of the home state may decline in favor of a court
of a significant-connection or other state and a court in a significant-connection state may decline
in favor of a court in another significant-connection or other state. The court declining
jurisdiction may either dismiss or stay the proceeding. The court may also impose any condition
the court considers just and proper, including the condition that a petition for the appointment of
a guardian or issuance of a protective order be filed promptly in another state.

This section is similar to Section 207 of the Uniform Child Custody Jurisdiction and
Enforcement Act (1997) except that the factors in Section 5A-206(c) of this Act have been
adapted to address issues most commonly encountered in adult guardianship and protective
proceedings as opposed to child custody determinations.

Under Section 5A-203(2)(B), the factors specified in subsection (c) of this section are to
be employed in determining whether a court of a significant-connection state may assume
jurisdiction when a petition has not been filed in the respondent’s home state or in another
significant-connection state. Under Section 5A-207(a)(3)(B), the court is to consider these
factors in deciding whether it will retain jurisdiction when unjustifiable conduct has occurred.

SECTION 5A-207. JURISDICTION DECLINED BY REASON OF CONDUCT.

(a) If at any time a court of this state determines that it acquired jurisdiction to appoint a

guardian or issue a protective order because of unjustifiable conduct, the court may:

(1) decline to exercise jurisdiction;

(2) exercise jurisdiction for the limited purpose of fashioning an appropriate

remedy to ensure the health, safety, and welfare of the respondent or the protection of the

respondent’s property or prevent a repetition of the unjustifiable conduct, including staying the

proceeding until a petition for the appointment of a guardian or issuance of a protective order is

filed in a court of another state having jurisdiction; or

(3) continue to exercise jurisdiction after considering:

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(A) the extent to which the respondent and all persons required to be

notified of the proceedings have acquiesced in the exercise of the court’s jurisdiction;

(B) whether it is a more appropriate forum than the court of any other state

under the factors set forth in Section 5A-206(c); and

(C) whether the court of any other state would have jurisdiction under

factual circumstances in substantial conformity with the jurisdictional standards of Section 5A-

203.

(b) If a court of this state determines that it acquired jurisdiction to appoint a guardian or

issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable

conduct, it may assess against that party necessary and reasonable expenses, including attorney’s

fees, investigative fees, court costs, communication expenses, witness fees and expenses, and

travel expenses. The court may not assess fees, costs, or expenses of any kind against this state

or a governmental subdivision, agency, or instrumentality of this state unless authorized by law

other than this [article].

Comment

This section is similar to the Section 208 of the Uniform Child Custody Jurisdiction and
Enforcement Act (1997). Like the UCCJEA, this Act does not attempt to define “unjustifiable
conduct,” concluding that this issue is best left to the courts. However, a common example
could include the unauthorized removal of an adult to another state, with that state acquiring
emergency jurisdiction under Section 5A-204 immediately upon the move and home state
jurisdiction under Section 5A-203 six months following the move if a petition for a guardianship
or protective order is not filed during the interim in the soon-to-be former home state. Although
child custody cases frequently raise different issues than do adult guardianship matters, the
element of unauthorized removal is encountered in both types of proceedings. For the caselaw
on unjustifiable conduct under the predecessor Uniform Child Custody Jurisdiction Act (1968),
see David Carl Minneman, Parties’ Misconduct as Grounds for Declining Jurisdiction Under § 8
of the Uniform Child Custody Jurisdiction Act (UCCJA), 16 A.L.R. 5th 650 (1993).

Subsection (a) gives the court authority to fashion an appropriate remedy when it has
acquired jurisdiction because of unjustifiable conduct. The court may decline to exercise
jurisdiction; exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to

640
ensure the health, safety, and welfare of the respondent or the protection of the respondent’s
property or prevent a repetition of the unjustifiable conduct; or continue to exercise jurisdiction
after considering several specified factors. Under subsection (a), the unjustifiable conduct need
not have been committed by a party.

Subsection (b) authorizes a court to assess costs and expenses, including attorney’s fees,
against a party whose unjustifiable conduct caused the court to acquire jurisdiction. Subsection
(b) applies only if the unjustifiable conduct was committed by a party and allows for costs and
expenses to be assessed only against that party. Similar to Section 208 of the UCCJEA, the court
may not assess fees, costs, or expenses of any kind against this state or a governmental
subdivision, agency, or instrumentality of the state unless authorized by other law.

SECTION 5A-208. NOTICE OF PROCEEDING. If a petition for the appointment of

a guardian or issuance of a protective order is brought in this state and this state was not the

respondent’s home state on the date the petition was filed, in addition to complying with the

notice requirements of this state, notice of the petition must be given to those persons who would

be entitled to notice of the petition if a proceeding were brought in the respondent’s home state.

The notice must be given in the same manner as notice is required to be given in this state.

Comment

While this Act tries not to interfere with a state’s underlying substantive law on
guardianship and protective proceedings, the issue of notice is fundamental. Under this section,
when a proceeding is brought other than in the respondent’s home state, the petitioner must give
notice in the method provided under local law not only to those entitled to notice under local law
but also to the persons required to be notified were the proceeding brought in the respondent’s
home state. Frequently, the respective lists of persons to be notified will be the same. But where
the lists are different, notice under this section will assure that someone with a right to assert that
the home state has a primary right to jurisdiction will have the opportunity to make that
assertion.

SECTION 5A-209. PROCEEDINGS IN MORE THAN ONE STATE. Except for a

petition for the appointment of a guardian in an emergency or issuance of a protective order

limited to property located in this state under Section 5A-204(a)(1) or (2), if a petition for the

appointment of a guardian or issuance of a protective order is filed in this state and in another

state and neither petition has been dismissed or withdrawn, the following rules apply:

641
(1) If the court in this state has jurisdiction under Section 5A-203, it may proceed with

the case unless a court in another state acquires jurisdiction under provisions similar to Section

5A-203 before the appointment or issuance of the order.

(2) If the court in this state does not have jurisdiction under Section 5A-203, whether at

the time the petition is filed or at any time before the appointment or issuance of the order, the

court shall stay the proceeding and communicate with the court in the other state. If the court in

the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in

the other state determines that the court in this state is a more appropriate forum.

Comment

Similar to Section 206 of the Uniform Child Custody Jurisdiction and Enforcement Act
(1997), this section addresses the issue of which court has the right to proceed when proceedings
for the same respondent are brought in more than one state. The provisions of this section,
however, have been tailored to the needs of adult guardianship and protective proceedings and
the particular jurisdictional provisions of this Act. Emergency guardianship appointments and
protective proceedings with respect to property in other states (Sections 5A-204(a)(1) and (2))
are excluded from this section because the need for dual appointments is frequent in these cases;
for example, a petition will be brought in the respondent’s home state but emergency action will
be necessary in the place where the respondent is temporarily located, or a petition for the
appointment of a conservator will be brought in the respondent’s home state but real estate
located in some other state needs to be brought under management.

Under the Act only one court in which a petition is pending will have jurisdiction under
Section 5A-203. If a petition is brought in the respondent’s home state, that court has
jurisdiction over that of any significant-connection or other state. If the petition is first brought
in a significant-connection state, that jurisdiction will be lost if a petition is later brought in the
home state prior to an appointment or issuance of an order in the significant-connection state.
Jurisdiction will also be lost in the significant-connection state if the respondent has a home state
and an objection is filed in the significant-connection state that jurisdiction is properly in the
home state. If petitions are brought in two significant-connection states, the first state has a right
to proceed over that of the second state, and if a petition is brought in any other state, any claim
to jurisdiction of that state is subordinate to that of the home state and all significant-connection
states.

Under this section, if the court has jurisdiction under Section 5A-203, it has the right to
proceed unless a court of another state acquires jurisdiction prior to the first court making an
appointment or issuing a protective order. If the court does not have jurisdiction under Section
5A-203, it must defer to the court with jurisdiction unless that court determines that the court in

642
this state is the more appropriate forum and it thereby acquires jurisdiction. While the rules are
straightforward, factual issues can arise as to which state is the home state or significant-
connection state. Consequently, while under Section 5A-203 there will almost always be a court
having jurisdiction to proceed, reliance on the communication, court cooperation, and evidence
gathering provisions of Sections 5A-104 through 5A-106 will sometimes be necessary to
determine which court that might be.

PART 3. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

GENERAL COMMENT

While this part consists of two separate sections, they are part of one integrated
procedure. Part 3 authorizes a guardian or conservator to petition the court to transfer the
guardianship or conservatorship proceeding to a court of another state. Such a transfer is often
appropriate when the incapacitated or protected person has moved or has been placed in a facility
in another state, making it impossible for the original court to adequately monitor the proceeding.
Part 3 authorizes a transfer of a guardianship, a conservatorship, or both. There is no
requirement that both categories of proceeding be administered in the same state.

Section 5A-301 addresses procedures in the transferring state. Section 5A-302 addresses
procedures in the accepting state.

A transfer begins with the filing of a petition by the guardian or conservator as provided
in Section 5A-301(a). Notice of this petition must be given to the persons who would be entitled
to notice were the petition a petition for an original appointment. Section 5A-301(b). A hearing
on the petition is required only if requested or on the court’s own motion. Section 5A-301(c).
Assuming the court in the transferring state is satisfied that the grounds for transfer stated in
Section 5A-301(d) (guardianship) or 5A-301(e) (conservatorship) have been met, one of which is
that the court is satisfied that the court in the other state will accept the case, the court must issue
a provisional order approving the transfer. The transferring court will not issue a final order
dismissing the case until, as provided in Section 5A-301(f), it receives a copy of the provisional
order from the accepting court accepting the transferred proceeding.

Following issuance of the provisional order by the transferring court, a petition must be
filed in the accepting court as provided in Section 5A-302(a). Notice of that petition must be
given to those who would be entitled to notice of an original petition for appointment in both the
transferring state and in the accepting state. Section 5A-302(b). A hearing must be held only if
requested or on the court’s own motion. Section 5A-302(c). The court must issue a provisional
order accepting the case unless it is established that the transfer would be contrary to the
incapacitated or protected person’s interests or the guardian or conservator is ineligible for
appointment in the accepting state. Section 5A-302(d). The term “interests” as opposed to “best
interests” was chosen because of the strong autonomy values in modern guardianship law.
Should the court decline the transfer petition, it may consider a separately brought petition for
the appointment of a guardian or issuance of a protective order only if the court has a basis for
jurisdiction under Sections 5A-203 or 5A-204 other than by reason of the provisional order of
transfer. Section 5A-302(h).

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The final steps are largely ministerial. Pursuant to Section 5A-301(f), the provisional
order from the accepting court must be filed in the transferring court. The transferring court will
then issue a final order terminating the proceeding, subject to local requirements such as filing of
a final report or account and the release of any bond. Pursuant to Section 5A-302(e), the final
order terminating the proceeding in the transferring court must then be filed in the accepting
court, which will then convert its provisional order accepting the case into a final order
appointing the petitioning guardian or conservator as guardian or conservator in the accepting
state.

Because guardianship and conservatorship law and practice will likely differ between the
two states, the court in the accepting state must within 90 days after issuance of a final order
determine whether the guardianship or conservatorship needs to be modified to conform to the
law of the accepting state. Section 5A-302(f). The number “90” is placed in brackets to
encourage states to coordinate this time limit with the time limits for other required filings such
as guardianship or conservatorship plans. This initial period in the accepting state is also an
appropriate time to change the guardian or conservator if there is a more appropriate person to
act as guardian or conservator in the accepting state. The drafters specifically did not try to
design the procedures in Part 3 for the difficult problems that can arise in connection with a
transfer when the guardian or conservator is ineligible to act in the second state, a circumstance
that can occur when a financial institution is acting as conservator or a government agency is
acting as guardian. Rather, the procedures in Part 3 are designed for the typical case where the
guardian or conservator is legally eligible to act in the second state. Should that particular
guardian or conservator not be the best person to act in the accepting state, a change of guardian
or conservator can be initiated once the transfer has been secured.

The transfer procedure in this part responds to numerous problems that have arisen in
connection with attempted transfers under the existing law of most states. Sometimes a court
will dismiss a case on the assumption a proceeding will be brought in another state, but such
proceeding is never filed. Sometimes a court will refuse to dismiss a case until the court in the
other state accepts the matter, but the court in the other state refuses to consider the petition until
the already existing guardianship or conservatorship has been terminated. Oftentimes the court
will conclude that it is without jurisdiction to make an appointment until the respondent is
physically present in the state, a problem which Section 5A-204(a)(3) addresses by granting a
court special jurisdiction to consider a petition to accept a proceeding from another state. But the
most serious problem is the need to prove the case in the second state from scratch, including
proving the respondent’s incapacity and the choice of guardian or conservator. Part 3 eliminates
this problem. Section 5A-302(g) requires that the court accepting the case recognize a
guardianship or conservatorship order from the other state, including the determination of the
incapacitated or protected person’s incapacity and the appointment of the guardian or
conservator, if otherwise eligible to act in the accepting state.

SECTION 5A-301. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

TO ANOTHER STATE.

(a) A guardian or conservator appointed in this state may petition the court to transfer the

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guardianship or conservatorship to another state.

(b) Notice of a petition under subsection (a) must be given to the persons that would be

entitled to notice of a petition in this state for the appointment of a guardian or conservator.

(c) On the court’s own motion or on request of the guardian or conservator, the

incapacitated or protected person, or other person required to be notified of the petition, the court

shall hold a hearing on a petition filed pursuant to subsection (a).

(d) The court shall issue an order provisionally granting a petition to transfer a

guardianship and shall direct the guardian to petition for guardianship in the other state if the

court is satisfied that the guardianship will be accepted by the court in the other state and the

court finds that:

(1) the incapacitated person is physically present in or is reasonably expected to

move permanently to the other state;

(2) an objection to the transfer has not been made or, if an objection has been

made, the objector has not established that the transfer would be contrary to the interests of the

incapacitated person; and

(3) plans for care and services for the incapacitated person in the other state are

reasonable and sufficient.

(e) The court shall issue a provisional order granting a petition to transfer a

conservatorship and shall direct the conservator to petition for conservatorship in the other state

if the court is satisfied that the conservatorship will be accepted by the court of the other state

and the court finds that:

(1) the protected person is physically present in or is reasonably expected to move

permanently to the other state, or the protected person has a significant connection to the other

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state considering the factors in Section 5A-201(b);

(2) an objection to the transfer has not been made or, if an objection has been

made, the objector has not established that the transfer would be contrary to the interests of the

protected person; and

(3) adequate arrangements will be made for management of the protected person’s

property.

(f) The court shall issue a final order confirming the transfer and terminating the

guardianship or conservatorship upon its receipt of:

(1) a provisional order accepting the proceeding from the court to which the

proceeding is to be transferred which is issued under provisions similar to Section 5A-302; and

(2) the documents required to terminate a guardianship or conservatorship in this

state.

SECTION 5A-302. ACCEPTING GUARDIANSHIP OR CONSERVATORSHIP

TRANSFERRED FROM ANOTHER STATE.

(a) To confirm transfer of a guardianship or conservatorship transferred to this state under

provisions similar to Section 5A-301, the guardian or conservator must petition the court in this

state to accept the guardianship or conservatorship. The petition must include a certified copy of

the other state’s provisional order of transfer.

(b) Notice of a petition under subsection (a) must be given to those persons that would be

entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a

protective order in both the transferring state and this state. The notice must be given in the

same manner as notice is required to be given in this state.

(c) On the court’s own motion or on request of the guardian or conservator, the

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incapacitated or protected person, or other person required to be notified of the proceeding, the

court shall hold a hearing on a petition filed pursuant to subsection (a).

(d) The court shall issue an order provisionally granting a petition filed under subsection

(a) unless:

(1) an objection is made and the objector establishes that transfer of the

proceeding would be contrary to the interests of the incapacitated or protected person; or

(2) the guardian or conservator is ineligible for appointment in this state.

(e) The court shall issue a final order accepting the proceeding and appointing the

guardian or conservator as guardian or conservator in this state upon its receipt from the court

from which the proceeding is being transferred of a final order issued under provisions similar to

Section 5A-301 transferring the proceeding to this state.

(f) Not later than [90] days after issuance of a final order accepting transfer of a

guardianship or conservatorship, the court shall determine whether the guardianship or

conservatorship needs to be modified to conform to the law of this state.

(g) In granting a petition under this section, the court shall recognize a guardianship or

conservatorship order from the other state, including the determination of the incapacitated or

protected person’s incapacity and the appointment of the guardian or conservator.

(h) The denial by a court of this state of a petition to accept a guardianship or

conservatorship transferred from another state does not affect the ability of the guardian or

conservator to seek appointment as guardian or conservator in this state under [insert statutory

references to this state’s ordinary procedures law for the appointment of guardian or conservator]

if the court has jurisdiction to make an appointment other than by reason of the provisional order

of transfer.

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PART 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER
STATES

GENERAL COMMENT

Part 4 is designed to facilitate the enforcement of guardianship and protective orders in

other states. This part does not make distinctions among the types of orders that can be enforced.
This part is applicable whether the guardianship or conservatorship is full or limited. While
some states have expedited procedures for sales of real estate by conservators appointed in other
states, few states have enacted statutes dealing with enforcement of guardianship orders, such as
when a care facility questions the authority of a guardian appointed in another state. Sometimes,
these sorts of refusals necessitate that the proceeding be transferred to the other state or that an
entirely new petition be filed, problems that could often be avoided if guardianship and
protective orders were entitled to recognition in other states.

Part 4 provides for such recognition. The key concept is registration. Section5A- 401
provides for registration of guardianship orders, and Section 5A-402 for registration of protective
orders. Following registration of the order in the appropriate county of the other state, and after
giving notice to the appointing court of the intent to register the order in the other state, Section
5A- 403 authorizes the guardian or conservator to thereafter exercise all powers authorized in the
order of appointment except as prohibited under the laws of the registering state.

The drafters of the Act concluded that the registration of certified copies provides
sufficient protection and that it was not necessary to mandate the filing of authenticated copies.

SECTION 5A-401. REGISTRATION OF GUARDIANSHIP ORDERS. If a

guardian has been appointed in another state and a petition for the appointment of a guardian is

not pending in this state, the guardian appointed in the other state, after giving notice to the

appointing court of an intent to register, may register the guardianship order in this state by filing

as a foreign judgment in a court, in any appropriate [county] of this state, certified copies of the

order and letters of office.

SECTION 5A-402. REGISTRATION OF PROTECTIVE ORDERS. If a

conservator has been appointed in another state and a petition for a protective order is not

pending in this state, the conservator appointed in the other state, after giving notice to the

appointing court of an intent to register, may register the protective order in this state by filing as

a foreign judgment in a court of this state, in any [county] in which property belonging to the

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protected person is located, certified copies of the order and letters of office and of any bond.

SECTION 5A-403. EFFECT OF REGISTRATION.

(a) Upon registration of a guardianship or protective order from another state, the

guardian or conservator may exercise in this state all powers authorized in the order of

appointment except as prohibited under the laws of this state, including maintaining actions and

proceedings in this state and, if the guardian or conservator is not a resident of this state, subject

to any conditions imposed upon nonresident parties.

(b) A court of this state may grant any relief available under this [article] and other law of

this state to enforce a registered order.

ARTICLE 5B

UNIFORM POWER OF ATTORNEY ACT (2006)

PREFATORY NOTE

The catalyst for the Uniform Power of Attorney Act (2006) (the “Act”) was a national
review of state power of attorney legislation. The review revealed growing divergence among
states’ statutory treatment of powers of attorney. The original Uniform Durable Power of
Attorney Act (“Original Act”), last amended in 1987, was at one time followed by all but a few
jurisdictions. Despite initial uniformity, the review found that a majority of states had enacted
non-uniform provisions to deal with specific matters upon which the Original Act is silent. The
topics about which there was increasing divergence included: (1) the authority of multiple
agents; (2) the authority of a later-appointed fiduciary or guardian; (3) the impact of dissolution
or annulment of the principal’s marriage to the agent; (4) activation of contingent powers; (5) the
authority to make gifts; and (6) standards for agent conduct and liability. Other topics about
which states had legislated, although not necessarily in a divergent manner, included: successor
agents, execution requirements, portability, sanctions for dishonor of a power of attorney, and
restrictions on authority that has the potential to dissipate a principal’s property or alter a
principal’s estate plan.

A national survey was then conducted by the Joint Editorial Board for Uniform Trust and
Estate Acts (JEB) to ascertain whether there was actual divergence of opinion about default rules
for powers of attorney or only the lack of a detailed uniform model. The survey was distributed
to probate and elder law sections of all state bar associations, to the fellows of the American
College of Trust and Estate Counsel, the leadership of the ABA Section of Real Property,
Probate and Trust Law and the National Academy of Elder Law Attorneys, as well as to special
interest list serves of the ABA Commission on Law and Aging. Forty-four jurisdictions were

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represented in the 371 surveys returned.

The survey responses demonstrated a consensus of opinion in excess of seventy percent

that a power of attorney statute should:

(1) provide for confirmation that contingent powers are activated;

(2) revoke a spouse-agent’s authority upon the dissolution or annulment of the

marriage to the principal;

(3) include a portability provision;

(4) require gift making authority to be expressly stated in the grant of authority;

(5) provide a default standard for fiduciary duties;

(6) permit the principal to alter the default fiduciary standard;

(7) require notice by an agent when the agent is no longer willing or able to act;

(8) include safeguards against abuse by the agent;

(9) include remedies and sanctions for abuse by the agent;

(10) protect the reliance of other persons on a power of attorney; and

(11) include remedies and sanctions for refusal of other persons to honor a power of
attorney.

Informed by the review and the survey results, the Conference’s drafting process also
incorporated input from the American College of Trust and Estate Counsel, the ABA Section of
Real Property, Probate and Trust Law, the ABA Commission on Law and Aging, the Joint
Editorial Board for Uniform Trust and Estate Acts, the National Conference of Lawyers and
Corporate Fiduciaries, the American Bankers Association, AARP, other professional groups, as
well as numerous individual lawyers and corporate counsel. As a result of this process, the Act
codifies both state legislative trends and collective best practices, and strikes a balance between
the need for flexibility and acceptance of an agent’s authority and the need to prevent and redress
financial abuse.

While the Act contains safeguards for the protection of an incapacitated principal, the Act
is primarily a set of default rules that preserve a principal’s freedom to choose both the extent of
an agent’s authority and the principles to govern the agent’s conduct. Among the Act’s features
that enhance drafting flexibility are the statutory definitions of powers in Part 2, which can be
incorporated by reference in an individually drafted power of attorney or selected for inclusion
on the optional statutory form provided in Part 3. The statutory definitions of enumerated
powers are an updated version of those in the Uniform Statutory Form Power of Attorney Act

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(1988), which the Act supersedes. The national review found that eighteen jurisdictions had
adopted some type of statutory form power of attorney. The decision to include a statutory form
power of attorney in the Act was based on this trend and the proliferation of power of attorney
forms currently available to the public.

Sections 5B-119 and 5B-120 of the Act address the problem of persons refusing to accept
an agent’s authority. Section 5B-119 provides protection from liability for persons that in good
faith accept an acknowledged power of attorney. Section 5B-120 sanctions refusal to accept an
acknowledged power of attorney unless the refusal meets limited statutory exceptions. An
alternate Section 5B-120 is provided for states that may wish to limit sanctions to refusal of an
acknowledged statutory form power of attorney.

In exchange for mandated acceptance of an agent’s authority, the Act does not require
persons that deal with an agent to investigate the agent or the agent’s actions. Instead,
safeguards against abuse are provided through heightened requirements for granting authority
that could dissipate the principal’s property or alter the principal’s estate plan (Section 5B-
201(a)), provisions that set out the agent’s duties and liabilities (Sections 5B-114 and 5B-117)
and by specification of the categories of persons that have standing to request judicial review of
the agent’s conduct (Section 5B-116). The following provides a brief overview of the entire Act.

Overview of the Uniform Power of Attorney Act

The Act consists of 4 articles, of which the first three are codified into this Code as
Article 5B, Parts 1, 2, and 3. The basic substance of the Act is located in Parts 1 and 2. Part 3
contains the optional statutory form. Article 4, not codified into this Code, consists primarily of
general boilerplate provisions common to all uniform acts.

Part 1 – General Provisions and Definitions – Section 5B-102 lists definitions which
are useful in interpretation of the Act. Of particular note is the definition of “incapacity” which
replaces the term “disability” used in the Original Act. The definition of “incapacity” is
consistent with the standard for appointment of a conservator under Section 401 of the Uniform
Guardianship and Protective Proceedings Act (1997) (Section 5-401 of this Code). Another
significant change in terminology from the Original Act is the use of “agent” in place of the term
“attorney in fact.” The term “agent” was also used in the Uniform Statutory Form Power of
Attorney Act (1988) and is intended to clarify confusion in the lay public about the meaning of
“attorney in fact.” Section 5B-103 provides that the Act is to apply broadly to all powers of
attorney, but excepts from the Act powers of attorney for health care and certain specialized
powers such as those coupled with an interest or dealing with proxy voting.

Another innovation is the default rule in Section 5B-104 that a power of attorney is
durable unless it contains express language indicating otherwise. This change from the Original
Act reflects the view that most principals prefer their powers of attorney to be durable as a hedge
against the need for guardianship. While the Original Act was silent on execution requirements
for a power of attorney, Section 5B-105 requires the principal’s signature and provides that an
acknowledged signature is presumed genuine. Section 5B-106 recognizes military powers of
attorney and powers of attorney properly executed in other states or countries, or which were

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properly executed in the state of enactment prior to the Act’s effective date. Section 5B-107
states a choice of law rule for determining the law that governs the meaning and effect of a
power of attorney.

Section 5B-108 addresses the relationship of the agent to a later court-appointed

fiduciary. The Original Act conferred upon a conservator or other later-appointed fiduciary the
same power to revoke or amend the power of attorney as the principal would have had prior to
incapacity. In contrast, the Act reserves this power to the court and states that the agent’s
authority continues until limited, suspended, or terminated by the court. This approach reflects
greater deference for the previously expressed preferences of the principal and is consistent with
the state legislative trend that has departed from the Original Act.

The default rule for when a power of attorney becomes effective is stated in Section 5B-
109. Unless the principal specifies that it is to become effective upon a future date, event, or
contingency, the authority of an agent under a power of attorney becomes effective when the
power is executed. Section 5B-109 permits the principal to designate who may determine when
contingent powers are triggered. If the trigger for contingent powers is the principal’s
incapacity, Section 5B-109 provides that the person designated to make that determination has
the authority to act as the principal’s personal representative under the Health Insurance
Portability and Accountability Act (HIPAA) for purposes of accessing the principal’s health-care
information and communicating with the principal’s health-care provider. This provision does
not, however, confer on the designated person the authority to make health-care decisions for the
principal. If the trigger for contingent powers is incapacity but the principal has not designated
anyone to make the determination, or the person authorized is unable or unwilling to make the
determination, the determination may be made by a physician or licensed psychologist, who
must find that the principal’s ability to manage property or business affairs is impaired, or by an
attorney at law, judge, or appropriate governmental official, who must find that the principal is
missing, detained, or unable to return to the United States.

The bases for termination of a power of attorney are covered in Section 5B-110. In
response to concerns expressed in the JEB survey, the Act provides as the default rule that
authority granted to a principal’s spouse is revoked upon the commencement of proceedings for
legal separation, marital dissolution or annulment.

Sections 5B-111 through 5B-118 address matters related to the agent, including default
rules for coagents and successor agents (Section 5B-111), reimbursement and compensation
(Section 5B-112), an agent’s acceptance of appointment (Section 5B-113), and the agent’s duties
(Section 5B-114). Section 5B-115 provides that a principal may lower the standard of liability
for agent conduct subject to a minimum level of accountability for actions taken dishonestly,
with an improper motive, or with reckless indifference to the purposes of the power of attorney
or the best interest of the principal. Section 5B-116 sets out a comprehensive list of persons that
may petition the court to review the agent’s conduct and Section 5B-117 addresses agent
liability. An agent may resign by following the notice procedures described in Section 5B-118.

Sections 5B-119 and 5B-120 are included in the Act to address the frequently reported
problem of persons refusing to accept a power of attorney. Section 5B-119 protects persons that

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in good faith accept an acknowledged power of attorney without actual knowledge that the
power of attorney is revoked, terminated, or invalid or that the agent is exceeding or improperly
exercising the agent’s powers. Subject to statutory exceptions, alternative Sections 5B-120
impose liability for refusal to accept a power of attorney. Alternative A sanctions refusal of an
acknowledged power of attorney and Alternative B sanctions only refusal of an acknowledged
statutory form power of attorney.

Sections 5B-121 through 5B-123 address the relationship of the Act to other law. Section
5B-121 clarifies that the Act is supplemented by the principles of common law and equity to the
extent those principles are not displaced by a specific provision of the Act, and Section 5B-122
further clarifies that the Act is not intended to supersede any law applicable to financial
institutions or other entities. With respect to remedies, Section 5B-123 provides that the
remedies under the Act are not exclusive and do not abrogate any other cause of action or
remedy that may be available under the law of the enacting jurisdiction.

Part 2 – Authority – The Act offers the drafting attorney enhanced flexibility whether
drafting an individually tailored power of attorney or using the statutory form. Like the Uniform
Statutory Form Power of Attorney Act, Sections 5B-204 through 5B- 217 of the Act set forth
detailed descriptions of authority relating to subjects such as “real property,” “retirement plans,”
and “taxes,” which a principal, pursuant to Section 5B-202, may incorporate in full into the
power of attorney either by a reference to the short descriptive term for the subject used in the
Act or to the section number. Section 5B-202 further states that a principal may modify in a
power of attorney any authority incorporated by reference. The definitions in Part 2 also provide
meaning for authority with respect to subjects enumerated on the optional statutory form in Part
3. Section 5B-203 applies to all incorporated authority and grants of general authority, providing
further detail on how the authority is to be construed.

Part 2 also addresses concerns about authority that might be used to dissipate the
principal’s property or alter the principal’s estate plan. Section 5B-201(a) lists specific
categories of authority that cannot be implied from a grant of general authority, but which may
be granted only through express language in the power of attorney. Section 5B-201(b) contains a
default rule prohibiting an agent that is not an ancestor, spouse, or descendant of the principal
from creating in the agent or in a person to whom the agent owes a legal obligation of support an
interest in the principal’s property, whether by gift, right of survivorship, beneficiary
designation, disclaimer, or otherwise.

Part 3 – Statutory Forms – The optional form in Article 3 is designed for use by
lawyers as well as lay persons. It contains, in plain language, instructions to the principal and
agent. Step-by-step prompts are given for designation of the agent and successor agents, and
grant of general and specific authority. In the section of the form addressing general authority,
the principal must initial the subjects over which the principal wishes to delegate general
authority to the agent. In the section of the form addressing specific authority, the Section 5B-
201(a) categories of specific authority are listed, preceded by a warning to the principal about the
potential consequences of granting such authority to an agent. The principal is instructed to
initial only the specific categories of actions that the principal intends to authorize. Part 3 also
contains a sample agent certification form.

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PART 1. GENERAL PROVISIONS

GENERAL COMMENT

The Uniform Power of Attorney Act (2006) replaces the Uniform Durable Power of
Attorney Act (1979/1987), formerly codified at Article V, Part 5 of this Code, and the Uniform
Statutory Form Power of Attorney Act (1988), which was not codified in this Code. The primary
purpose of the Uniform Durable Power of Attorney Act (1979/1987) was to provide individuals
with an inexpensive, non-judicial method of surrogate property management in the event of later
incapacity. Two key concepts were introduced by the Uniform Durable Power of Attorney Act
(1979/1987): (1) creation of a durable agency–one that survives, or is triggered by, the
principal’s incapacity, and (2) validation of post-mortem exercise of powers by an agent who
acts in good faith and without actual knowledge of the principal’s death. The success of the
Uniform Durable Power of Attorney Act (1979/1987) is evidenced by the widespread use of
durable powers in every jurisdiction, not only for incapacity planning, but also for convenience
while the principal retains capacity. However, the limitations of the Uniform Durable Power of
Attorney Act (1979/1987) are evidenced by the number of states that have supplemented and
revised their statutes to address myriad issues upon which the Uniform Durable Power of
Attorney Act (1979/1987) is silent. These issues include parameters for the creation and use of
powers of attorney as well as guidelines for the principal, the agent, and the person who is asked
to accept the agent’s authority. The general provisions and definitions of Article 1 in the
Uniform Power of Attorney Act (2006) (Article 5B, Part 1 of this Code) address those issues.

In addition to providing greater detail than the Uniform Durable Power of Attorney Act
(1979/1987), this Act changes two presumptions in the earlier act: (1) that a power of attorney is
not durable unless it contains language to make it durable; and (2) that a later court-appointed
fiduciary for the principal has the power to revoke or amend a previously executed power of
attorney. Section 5B-104 of this part reverses the non-durability presumption by stating that a
power of attorney is durable unless it expressly provides that it is terminated by the incapacity of
the principal. Section 5B-108 gives deference to the principal’s choice of agent by providing
that if a court appoints a fiduciary to manage some or all of the principal’s property, the agent’s
authority continues unless limited, suspended, or terminated by the court.

Although the Act is primarily a default statute, Part 1 also contains rules that govern all
powers of attorney subject to the Act. Examples of these rules include imposition of certain
minimum fiduciary duties on an agent who has accepted appointment (Section 5B-114(a)),
recognition of persons who have standing to request judicial construction of the power of
attorney or review of the agent’s conduct (Section 5B-116), and protections for persons who
accept an acknowledged power of attorney without actual knowledge that the power of attorney
or the agent’s authority is void, invalid, or terminated, or that the agent is exceeding or
improperly exercising the power (Section 5B-119). In contrast with the rules of general
application in Part 1, the default provisions are clearly indicated by signals such as “unless the
power of attorney otherwise provides,” or “except as otherwise provided in the power of
attorney.” These signals alert the draftsperson to options for enlarging or limiting the Act’s
default terms. For example, default provisions in Part 1 state that, unless the power of attorney
otherwise provides, the power of attorney is effective immediately (Section 5B-109), co-agents

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may exercise their authority independently (Section 5B-111), and an agent is entitled to
reimbursement of expenses reasonably incurred and to reasonable compensation (Section 5B-
112).

SECTION 5B-101. SHORT TITLE. This [article] may be cited as the Uniform Power

of Attorney Act (2006).

Comment

This Act, which replaces the Uniform Durable Power of Attorney Act (1979/1987), does
not contain the word “durable” in the title. Pursuant to Section 5B-104, a power of attorney
created under the Act is durable unless the power of attorney provides that it is terminated by the
incapacity of the principal.

SECTION 5B-102. DEFINITIONS. In this [article]:

(1) “Agent” means a person granted authority to act for a principal under a power of

attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an

original agent, coagent, successor agent, and a person to which an agent’s authority is delegated.

(2) “Durable,” with respect to a power of attorney, means not terminated by the

principal’s incapacity.

(3) “Electronic” means relating to technology having electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

(4) “Good faith” means honesty in fact.

(5) “Incapacity” means inability of an individual to manage property or business affairs

because the individual:

(A) has an impairment in the ability to receive and evaluate information or make

or communicate decisions even with the use of technological assistance; or

(B) is:

(i) missing;

(ii) detained, including incarcerated in a penal system; or

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(iii) outside the United States and unable to return.

(6) “Person” means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, public corporation, government or

governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(7) “Power of attorney” means a writing or other record that grants authority to an agent

to act in the place of the principal, whether or not the term power of attorney is used.

(8) “Presently exercisable general power of appointment,” with respect to property or a

property interest subject to a power of appointment, means power exercisable at the time in

question to vest absolute ownership in the principal individually, the principal’s estate, the

principal’s creditors, or the creditors of the principal’s estate. The term includes a power of

appointment not exercisable until the occurrence of a specified event, the satisfaction of an

ascertainable standard, or the passage of a specified period only after the occurrence of the

specified event, the satisfaction of the ascertainable standard, or the passage of the specified

period. The term does not include a power exercisable in a fiduciary capacity or only by will.

(9) “Principal” means an individual who grants authority to an agent in a power of

attorney.

(10) “Property” means anything that may be the subject of ownership, whether real or

personal, or legal or equitable, or any interest or right therein.

(11) “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of

securities and financial instruments, whether held directly, indirectly, or in any other manner.

The term does not include commodity futures contracts and call or put options on stocks or stock

indexes.

Comment

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Although most of the definitions in Section 5B-102 are self-explanatory, a few of the
terms warrant further comment.

“Agent” replaces the term “attorney in fact” used in the Uniform Durable Power of
Attorney Act (1979/1987) to avoid confusion in the lay public about the meaning of the term and
the difference between an attorney in fact and an attorney at law. Agent was also used in the
Uniform Statutory Form Power of Attorney Act (1988) which this Act supersedes.

“Incapacity” replaces the term “disability” used in the Uniform Durable Power of
Attorney Act (1979/1987) in recognition that disability does not necessarily render an individual
incapable of property and business management. The definition of incapacity stresses the
operative consequences of the individual’s impairment–inability to manage property and
business affairs–rather than the impairment itself. The definition of incapacity in the Act is also
consistent with the standard for appointment of a conservator under Section 401 of the Uniform
Guardianship and Protective Proceedings Act (1997/1998) (Section 5-401 of this Code).

The definition of “power of attorney” clarifies that the term applies to any grant of
authority in a writing or other record from a principal to an agent which appears from the grant to
be a power of attorney, without regard to whether the words “power of attorney” are actually
used in the grant.

“Presently exercisable general power of appointment” is defined to clarify that where the
phrase appears in the Act it does not include a power exercisable by the principal in a fiduciary
capacity or exercisable only by will. Cf. Restatement (Third) of Property (Wills and Don.
Trans.) § 19.8 cmt. d (Tentative Draft No. 5, approved 2006) (noting that unless the donor of a
presently exercisable power of attorney has manifested a contrary intent, it is assumed that the
donor intends that the donee’s agent be permitted to exercise the power for the benefit of the
donee). Including in a power of attorney the authority to exercise a presently exercisable general
power of appointment held by the principal is consistent with the objective of giving an agent
comprehensive management authority over the principal’s property and financial affairs. The
term appears in Section 5B-211 (Estates, Trusts, and Other Beneficial Interests) in the context of
authority to exercise for the benefit of the principal a presently exercisable general power of
appointment held by the principal (see Section 5B-211(b)(3)), and in Section 5B-217 (Gifts) in
the context of authority to exercise for the benefit of someone else a presently exercisable
general power of appointment held by the principal (see Section 5B-217(b)(1)). The term is also
incorporated by reference when using the statutory form in Section 5B-301 to grant authority
with respect to “Estates, Trusts, and Other Beneficial Interests” or authority with respect to
“Gifts.” If a principal wishes to delegate authority to exercise a power that the principal holds in
a fiduciary capacity, Section 5B-201(a)(7) requires that the power of attorney contain an express
grant of such authority. Furthermore, delegation of a power held in a fiduciary capacity is
possible only if the principal has authority to delegate the power, and the agent’s authority is
necessarily limited by whatever terms govern the principal’s ability to exercise the power.

SECTION 5B-103. APPLICABILITY. This [article] applies to all powers of attorney

except:

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(1) a power to the extent it is coupled with an interest in the subject of the power,

including a power given to or for the benefit of a creditor in connection with a credit transaction;

(2) a power to make health-care decisions;

(3) a proxy or other delegation to exercise voting rights or management rights with

respect to an entity; and

(4) a power created on a form prescribed by a government or governmental subdivision,

agency, or instrumentality for a governmental purpose.

Comment

The Uniform Power of Attorney Act (2006) is intended to be comprehensive with respect
to delegation of surrogate decision making authority over an individual’s property and property
interests, whether for the purpose of incapacity planning or mere convenience. Given that an
agent will likely exercise authority at times when the principal cannot monitor the agent’s
conduct, the Act specifies minimum agent duties and protections for the principal’s benefit.
These provisions, however, may not be appropriate for all delegations of authority that might
otherwise be included within the definition of a power of attorney. Section 5B-103 lists
delegations of authority that are excluded from the Act because the subject matter of the
delegation, the objective of the delegation, the agent’s role with respect to the delegation, or a
combination of the foregoing, would make application of the Act’s provisions inappropriate.

Paragraph (1) excludes a power to the extent that it is coupled with an interest in the
subject of the power. This exclusion addresses situations where, due to the agent’s interest in the
subject matter of the power, the agent is not intended to act as the principal’s fiduciary. See
Restatement (Third) of Agency § 3.12 (2006) and M.T. Brunner, Annotation, What Constitutes
Power Coupled with Interest within Rule as to Termination of Agency, 28 A.L.R.2d 1243 (1953).
Common examples of powers coupled with an interest include powers granted to a creditor to
perfect or protect title in, or to sell, pledged collateral. While the example of “a power given to
or for the benefit of a creditor in connection with a credit transaction” is highlighted in paragraph
(1), it is not meant to exclude application of paragraph (1) to other contexts in which a power
may be coupled with an interest, such as a power held by an insurer to settle or confess judgment
on behalf of an insured. See, e.g., Hayes v. Gessner, 52 N.E.2d 968 (Mass. 1944).

Paragraph (2) excludes from the Act delegations of authority to make health-care
decisions for the principal. Such delegations are covered under other law of the jurisdiction.
The Act recognizes, however, that matters of financial management and health-care decision
making are often interdependent. The Act consequently provides in Section 5B-114(b)(5) a
default rule that an agent under the Act must cooperate with the principal’s health-care decision
maker.

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Likewise, paragraph (3) excludes from the Act a proxy or other delegation to exercise
voting rights or management rights with respect to an entity. The rules with respect to those
rights are typically controlled by entity-specific statutes within a jurisdiction. See, e.g., Model
Bus. Corp. Act § 7.22 (2002); Unif. Ltd. Partnership Act § 118 (2001); and Unif. Ltd. Liability
Co. Act § 404(e) (1996). Notwithstanding the exclusion of such delegations from the operation
of this Act, Section 5B-209 contemplates that a power granted to an agent with respect to
operation of an entity or business includes the authority to “exercise in person or by proxy…a
right, power, privilege, or option the principal has or claims to have as the holder of stocks and
bonds….” (see paragraph (5) of Section 5B-209). Thus, while a person that holds only a proxy
pursuant to an entity voting statute will not be subject to the provisions of this Act, an agent that
is granted Section 5B-209 authority is subject to the Act because the principal has given the
agent authority that is greater than that of a mere voting proxy. In fact, typical entity statutes
contemplate that a principal’s agent or “attorney in fact” may appoint a proxy on behalf of the
principal. See, e.g., Model Bus. Corp. Act § 7.22 (2002); Unif. Ltd. Partnership Act § 118
(2001); and Unif. Ltd. Liability Co. Act § 404(e) (1996).

Paragraph (4) excludes from the Act any power created on a governmental form for a
governmental purpose. Like the excluded powers in paragraphs (2) and (3), the authority for a
power created on a governmental form emanates from other law and is generally for a limited
purpose. Notwithstanding this exclusion, the Act specifically provides in paragraph (7) of
Section 5B-203 that a grant of authority to an agent includes, with respect to that subject matter,
authority to “prepare, execute, and file a record, report, or other document to safeguard or
promote the principal’s interest under a statute or governmental regulation.” Section 5B-203,
paragraph (8), further clarifies that the agent has the authority to “communicate with any
representative or employee of a government or governmental subdivision, agency, or
instrumentality, on behalf of the principal.” The intent of these provisions is to minimize the
need for a special power on a governmental form with respect to any subject matter over which
an agent is granted authority under the Act.

SECTION 5B-104. POWER OF ATTORNEY IS DURABLE. A power of attorney

created under this [article] is durable unless it expressly provides that it is terminated by the

incapacity of the principal.

Comment

Section 5B-104 establishes that a power of attorney created under the Act is durable
unless it expressly states otherwise. This default rule is the reverse of the approach under the
Uniform Durable Power of Attorney Act and based on the assumption that most principals prefer
durability as a hedge against the need for guardianship. See also Section 5B-107 Comment
(noting that the default rules of the jurisdiction’s law under which a power of attorney is created,
including the default rule for durability, govern the meaning and effect of a power of attorney).

SECTION 5B-105. EXECUTION OF POWER OF ATTORNEY. A power of

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attorney must be signed by the principal or in the principal’s conscious presence by another

individual directed by the principal to sign the principal’s name on the power of attorney. A

signature on a power of attorney is presumed to be genuine if the principal acknowledges the

signature before a notary public or other individual authorized by law to take acknowledgments.

Comment

While notarization of the principal’s signature is not required to create a valid power of
attorney, this section strongly encourages the practice by according acknowledged signatures a
statutory presumption of genuineness. Furthermore, because Section 5B-119 (Acceptance of and
Reliance Upon Acknowledged Power of Attorney) and alternative Sections 5B-120 (Alternative
A–Liability for Refusal to Accept Acknowledged Power of Attorney, and Alternative B–
Liability for Refusal to Accept Acknowledged Statutory Form Power of Attorney) do not apply
to unacknowledged powers, persons who are presented with an unacknowledged power of
attorney may be reluctant to accept it. As a practical matter, an acknowledged signature is
required if the power of attorney will be recorded by the agent in conjunction with the execution
of real estate documents on behalf of the principal. See R.P.D., Annotation, Recording Laws as
Applied to Power of Attorney under which Deed or Mortgage is Executed, 114 A.L.R. 660
(1938).

This section, at a minimum, requires that the power of attorney be signed by the principal
or by another individual who the principal has directed to sign the principal’s name. If another
individual is directed to sign the principal’s name, the signing must occur in the principal’s
“conscious presence.” The 1990 amendments to the Uniform Probate Code codified the
“conscious presence” test for the execution of wills (Section 2-502(a)(2)), which generally
requires that the signing is sufficient if it takes place within the range of the senses–usually sight
or hearing–of the individual who directed that another sign the individual’s name. See Unif.
Probate Code § 2-502 cmt. (2003). For a discussion of acknowledgment of a signature by an
individual whose name is signed by another, see R.L.M., Annotation, Formal Acknowledgment
of Instrument by One Whose Name is Signed thereto by Another as an Adoption of the Signature,
57 A.L.R. 525 (1928).

SECTION 5B-106. VALIDITY OF POWER OF ATTORNEY

(a) A power of attorney executed in this state on or after [the effective date of this

[article]] is valid if its execution complies with Section 5B-105.

(b) A power of attorney executed in this state before [the effective date of this [article]] is

valid if its execution complied with the law of this state as it existed at the time of execution.

(c) A power of attorney executed other than in this state is valid in this state if, when the

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power of attorney was executed, the execution complied with:

(1) the law of the jurisdiction that determines the meaning and effect of the power

of attorney pursuant to Section 5B-107; or

(2) the requirements for a military power of attorney pursuant to 10 U.S.C.

Section 1044b [, as amended].

(d) Except as otherwise provided by statute other than this [article], a photocopy or

electronically transmitted copy of an original power of attorney has the same effect as the

original.

Legislative Note: The brackets in subsections (a) and (b) of this section indicate where
an enacting jurisdiction may elect to insert the actual effective date of the Act.

Comment

One of the purposes of the Uniform Power of Attorney Act (2006) is promotion of the
portability and use of powers of attorney. Section 5B-106 makes clear that the Act does not
affect the validity of pre-existing powers of attorney executed under prior law in the enacting
jurisdiction, powers of attorney validly created under the law of another jurisdiction, and military
powers of attorney. While the effect of this section is to recognize the validity of powers of
attorney created under other law, it does not abrogate the traditional grounds for contesting the
validity of execution such as forgery, fraud, or undue influence.

This section also provides that unless another law in the jurisdiction requires presentation
of the original power of attorney, a photocopy or electronically transmitted copy has the same
effect as the original. An example of another law that might require presentation of the original
power of attorney is the jurisdiction’s recording act. See, e.g., Restatement (Third) of Property
(Wills & Don. Trans.) § 6.3 cmt. e (2003) (noting that in order to record a deed, “some states
require that the document of transfer be signed, sealed, attested, and acknowledged”).

SECTION 5B-107. MEANING AND EFFECT OF POWER OF ATTORNEY. The

meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated

in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the

jurisdiction in which the power of attorney was executed.

Comment

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This section recognizes that a foreign power of attorney, or one executed before this act
became effective, may have been created under different default rules than those in this Act.
Section 5B-107 provides that the meaning and effect of a power of attorney is to be determined
by the law under which it was created. For example, the law in another jurisdiction may provide
for different default rules with respect to durability of a power of attorney (see Section 5B-104),
the authority of coagents (see Section 5B-111) or the scope of specific authority such as the
authority to make gifts (see Section 5B-217). Section 5B-107 clarifies that the principal’s
intended grant of authority will be neither enlarged nor narrowed by virtue of the agent using the
power in a different jurisdiction. For a discussion of the issues that can arise with inter-
jurisdictional use of powers of attorney, see Linda S. Whitton, Crossing State Lines with Durable
Powers, Prob. & Prop., Sept./Oct. 2003, at 28.

This section also establishes an objective means for determining what jurisdiction’s law
the principal intended to govern the meaning and effect of a power of attorney. The phrase, “the
law of the jurisdiction indicated in the power of attorney,” is intentionally broad, and includes
any statement or reference in a power of attorney that indicates the principal’s choice of law.
Examples of an indication of jurisdiction include a reference to the name of the jurisdiction in the
title or body of the power of attorney, citation to the jurisdiction’s power of attorney statute, or
an explicit statement that the power of attorney is created or executed under the laws of a
particular jurisdiction. In the absence of an indication of jurisdiction in the power of attorney,
Section 5B-107 provides that the law of the jurisdiction in which the power of attorney was
executed controls. The distinction between “the law of the jurisdiction indicated in the power of
attorney” and “the law of the jurisdiction in which the power of attorney was executed” is an
important one. The common practice of property ownership in more than one jurisdiction
increases the likelihood that a principal may execute in one jurisdiction a power of attorney that
was created and intended to be interpreted under the laws of another jurisdiction. A clear
indication of the jurisdiction’s law that is intended to govern the meaning and effect of a power
of attorney is therefore advisable in all powers of attorney. See, e.g., Section 5B-301 (providing
for the name of the jurisdiction to appear in the title of the statutory form power of attorney).

SECTION 5B-108. NOMINATION OF [CONSERVATOR OR GUARDIAN];

RELATION OF AGENT TO COURT-APPOINTED FIDUCIARY.

(a) In a power of attorney, a principal may nominate a [conservator or guardian] of the

principal’s estate or [guardian] of the principal’s person for consideration by the court if

protective proceedings for the principal’s estate or person are begun after the principal executes

the power of attorney. [Except for good cause shown or disqualification, the court shall make its

appointment in accordance with the principal’s most recent nomination.]

(b) If, after a principal executes a power of attorney, a court appoints a [conservator or

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guardian] of the principal’s estate or other fiduciary charged with the management of some or all

of the principal’s property, the agent is accountable to the fiduciary as well as to the principal.

[The power of attorney is not terminated and the agent’s authority continues unless limited,

suspended, or terminated by the court.]

Legislative Note: The brackets in this section indicate areas where an enacting
jurisdiction should reference its respective guardianship, conservatorship, or other protective
proceedings statutes and amend, if necessary for consistency, the terminology and substance of
the bracketed language.

Comment

Section 5B-108(b) is a departure from the Uniform Durable Power of Attorney Act
(1979/1987) which gave a court-appointed fiduciary the same power to revoke or amend a power
of attorney as the principal would have if not incapacitated. See Unif. Durable Power of Atty.
Act § 3(a) (1987). In contrast, this Act gives deference to the principal’s choice of agent by
providing that the agent’s authority continues, notwithstanding the later court appointment of a
fiduciary, unless the court acts to limit or terminate the agent’s authority. This approach assumes
that the later-appointed fiduciary’s authority should supplement, not truncate, the agent’s
authority. If, however, a fiduciary appointment is required because of the agent’s inadequate
performance or breach of fiduciary duties, the court, having considered this evidence during the
appointment proceedings, may limit or terminate the agent’s authority contemporaneously with
appointment of the fiduciary. Section 5B-108(b) is consistent with the state legislative trend that
has departed from the Uniform Durable Power of Attorney Act (1979/1987). See, e.g., 755 Ill.
Comp. Stat. Ann. 45/2-10 (West 1992); Ind. Code Ann. § 30-5-3-4 (West 1994); Kan. Stat. Ann.
§ 58-662 (2005); Mo. Ann. Stat. § 404.727 (West 2001); N.J. Stat. Ann. § 46:2B-8.4 (West
2003); N.M. Stat. Ann. § 45-5-503A (LexisNexis 2004); Utah Code Ann. § 75-5-501 (Supp.
2006); Vt. Stat. Ann. tit. 14, § 3509(a) (2002); Va. Code Ann. § 11-9.1B (2006). Section 108(b)
is also consistent with the Uniform Health-Care Decisions Act § 6(a) (1993), which provides that
a guardian may not revoke the ward’s advance health-care directive unless the court appointing
the guardian expressly so authorizes. Furthermore, it is consistent with the Uniform
Guardianship and Protective Proceedings Act (1997/1998), which provides that a guardian or
conservator may not revoke the ward’s or protected person’s power of attorney for health-care or
financial management without first obtaining express authority of the court. See Unif.
Guardianship & Protective Proc. Act § 316(c) (guardianship), § 411(d) (protective
proceedings)(Sections 5-316(c) and 5-411(d) of this Code).

Deference for the principal’s autonomous choice is evident both in the presumption that
an agent’s authority continues unless limited or terminated by the court, and in the directive that
the court shall appoint a fiduciary in accordance with the principal’s most recent nomination (see
subsection (a)). Typically, a principal will nominate as conservator or guardian the same
individual named as agent under the power of attorney. Favoring the principal’s choice of agent
and nominee, an approach consistent with most statutory hierarchies for guardian selection (see

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Unif. Guardianship & Protective Proc. Act § 310(a)(2) (1997/1998) (Section 5-310(a)(2) of this
Code)), also discourages guardianship petitions filed for the sole purpose of thwarting the agent’s
authority to gain control over a vulnerable principal. See Unif. Guardianship & Protective Proc.
Act § 310 cmt. (1997/1998). See also Linda S. Ershow-Levenberg, When Guardianship Actions
Violate the Constitutionally-Protected Right of Privacy, NAELA News, Apr. 2005, at 1 (arguing
that appointment of a guardian when there is a valid power of attorney in place violates the
alleged incapacitated person’s constitutionally protected rights of privacy and association).

SECTION 5B-109. WHEN POWER OF ATTORNEY EFFECTIVE.

(a) A power of attorney is effective when executed unless the principal provides in the

power of attorney that it becomes effective at a future date or upon the occurrence of a future

event or contingency.

(b) If a power of attorney becomes effective upon the occurrence of a future event or

contingency, the principal, in the power of attorney, may authorize one or more persons to

determine in a writing or other record that the event or contingency has occurred.

(c) If a power of attorney becomes effective upon the principal’s incapacity and the

principal has not authorized a person to determine whether the principal is incapacitated, or the

person authorized is unable or unwilling to make the determination, the power of attorney

becomes effective upon a determination in a writing or other record by:

(1) a physician [or licensed psychologist] that the principal is incapacitated within

the meaning of Section 5B-102(5)(A); or

(2) an attorney at law, a judge, or an appropriate governmental official that the

principal is incapacitated within the meaning of Section 5B-102(5)(B).

(d) A person authorized by the principal in the power of attorney to determine that the

principal is incapacitated may act as the principal’s personal representative pursuant to the

Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social

Security Act, 42 U.S.C. Section 1320d, [as amended,] and applicable regulations, to obtain

664
access to the principal’s health-care information and communicate with the principal’s health-

care provider.

Legislative Note: The phrase “or licensed psychologist” is bracketed in subsection

(c)(1) to indicate where an enacting jurisdiction should insert the appropriate designation for
the mental health professional or professionals in that jurisdiction who are qualified to make
capacity determinations. An enacting jurisdiction should also review its respective
guardianship, conservatorship, or other protective proceedings statutes and amend, if necessary
for consistency, the definition of incapacity.

Comment

This section establishes a default rule that a power of attorney is effective when executed.
If the principal chooses to create what is commonly known as a “springing” or contingent power
of attorney–one that becomes effective at a future date or upon a future event or contingency–the
principal may authorize the agent or someone else to provide written verification that the event
or contingency has occurred (subsection (b)). Because the person authorized to verify the
principal’s incapacitation will likely need access to the principal’s health information, subsection
(d) qualifies that person to act as the principal’s “personal representative” for purposes of the
Health Insurance Portability and Accountability Act (HIPAA). See 45 C.F.R. § 164.502(g)(1)-
(2) (2006) (providing that for purposes of disclosing an individual’s protected health
information, “a covered entity must…treat a personal representative as the individual”). Section
5B-109 does not, however, empower the agent to make health-care decisions for the principal.
See Section 5B-103 and comment (discussing exclusion from this Act of powers to make health-
care decisions).

The default rule reflects a “best practices” philosophy that any agent who can be trusted
to act for the principal under a springing power of attorney should be trustworthy enough to hold
an immediate power. Survey evidence suggests, however, that a significant number of principals
still prefer springing powers, most likely to maintain privacy in the hope that they will never
need a surrogate decision maker. See Linda S. Whitton, National Durable Power of Attorney
Survey Results and Analysis, National Conference of Commissioners on Uniform State Laws, 6-
7 (2002), http://www.law.upenn.edu/bll/ulc/dpoaa/surveyoct2002.htm (reporting that 23% of
lawyer respondents found their clients preferred springing powers, 61% reported a preference for
immediate powers, and 16% saw no trend; however, 89% stated that a power of attorney statute
should authorize springing powers).

If the principal’s incapacity is the trigger for a springing power of attorney and the
principal has not authorized anyone to make that determination, or the authorized person is
unable or unwilling to make the determination, this section provides a default mechanism to
trigger the power. Incapacity based on the principal’s impairment may be verified by a physician
or licensed psychologist (subsection (c)(1)), and incapacity based on the principal’s
unavailability (i.e., the principal is missing, detained, or unable to return to the United States)
may be verified by an attorney at law, judge, or an appropriate governmental official (subsection
(c)(2)). Examples of appropriate governmental officials who may be in a position to determine

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that the principal is incapacitated within the meaning of Section 5B-102(5)(B) include an officer
acting under authority of the United States Department of State or uniformed services of the
United States or a sworn federal or state law enforcement officer. The default mechanism for
triggering a power of attorney is available only when no incapacity determination has been
made. It is not available to challenge the determination made by the principal’s authorized
designee.

SECTION 5B-110. TERMINATION OF POWER OF ATTORNEY OR AGENT’S

AUTHORITY.

(a) A power of attorney terminates when:

(1) the principal dies;

(2) the principal becomes incapacitated, if the power of attorney is not durable;

(3) the principal revokes the power of attorney;

(4) the power of attorney provides that it terminates;

(5) the purpose of the power of attorney is accomplished; or

(6) the principal revokes the agent’s authority or the agent dies, becomes

incapacitated, or resigns, and the power of attorney does not provide for another agent to act

under the power of attorney.

(b) An agent’s authority terminates when:

(1) the principal revokes the authority;

(2) the agent dies, becomes incapacitated, or resigns;

(3) an action is filed for the [dissolution] or annulment of the agent’s marriage to

the principal or their legal separation, unless the power of attorney otherwise provides; or

(4) the power of attorney terminates.

(c) Unless the power of attorney otherwise provides, an agent’s authority is exercisable

until the authority terminates under subsection (b), notwithstanding a lapse of time since the

execution of the power of attorney.

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(d) Termination of an agent’s authority or of a power of attorney is not effective as to the

agent or another person that, without actual knowledge of the termination, acts in good faith

under the power of attorney. An act so performed, unless otherwise invalid or unenforceable,

binds the principal and the principal’s successors in interest.

(e) Incapacity of the principal of a power of attorney that is not durable does not revoke

or terminate the power of attorney as to an agent or other person that, without actual knowledge

of the incapacity, acts in good faith under the power of attorney. An act so performed, unless

otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

(f) The execution of a power of attorney does not revoke a power of attorney previously

executed by the principal unless the subsequent power of attorney provides that the previous

power of attorney is revoked or that all other powers of attorney are revoked.

Legislative Note: The word “dissolution” is bracketed in subsection (b)(3) to indicate

where an enacting jurisdiction should insert that jurisdiction’s term for divorce or marital
dissolution.

Comment

This section addresses termination of a power of attorney or an agent’s authority under a

power of attorney. It first lists termination events (see subsections (a) and (b)), and then lists
circumstances that, in contrast, either do not invalidate the power of attorney (see subsections (c)
and (f)) or the actions taken pursuant to the power of attorney (see subsections (d) and (e)).

Subsection (c) provides that a power of attorney under the Act does not become “stale.”
Unless a power of attorney provides for termination upon a certain date or after the passage of a
period of time, lapse of time since execution is irrelevant to validity, a concept carried over from
the Uniform Durable Power of Attorney Act (1979/1987). See Unif. Durable Power of Atty. Act
§ 1 (as amended in 1987). Similarly, subsection (f) clarifies that a subsequently executed power
of attorney will not revoke a prior power of attorney by virtue of inconsistency alone. To effect
a revocation, a subsequently executed power of attorney must expressly revoke a previously
executed power of attorney or state that all other powers of attorney are revoked. The
requirement of express revocation prevents inadvertent revocation when the principal intends for
one agent to have limited authority that overlaps with broader authority held by another agent.
For example, the principal who has given one agent a very broad power of attorney, including
general authority with respect to real property, may later wish to give another agent limited
authority to execute closing documents with respect to out-of-town real estate.

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Subsections (d) and (e) emphasize that even a termination event is not effective as to the
agent or person who, without actual knowledge of the termination event, acts in good faith under
the power of attorney. For example, the principal’s death terminates a power of attorney (see
subsection (a)(1)), but an agent who acts in good faith under a power of attorney without actual
knowledge of the principal’s death will bind the principal’s successors in interest with that action
(see subsection (d)). The same result is true if the agent knows of the principal’s death, but the
person who accepts the agent’s apparent authority has no actual knowledge of the principal’s
death. See Restatement (Third) of Agency § 3.11 (2006) (stating that “termination of actual
authority does not by itself end any apparent authority held by an agent”). See also Section 5B-
119(c) (stating that “[a] person that in good faith accepts an acknowledged power of attorney
without actual knowledge that the power of attorney is…terminated…may rely upon the power
of attorney as if the power of attorney were…still in effect….”). These concepts are also carried
forward from the Uniform Durable Power of Attorney Act (1979/1987). See Unif. Durable
Power Atty. Act § 4 (1987).

Of special note in the list of termination events is subsection (b)(3) which provides that a
spouse-agent’s authority is revoked when an action is filed for the dissolution or annulment of
the agent’s marriage to the principal, or their legal separation. Although the filing of an action
for dissolution or annulment might render a principal particularly vulnerable to self-interested
actions by a spouse-agent, subsection (b)(3) is not mandatory and may be overridden in the
power of attorney. There may be special circumstances precipitating the dissolution, such as
catastrophic illness and the need for public benefits, that would prompt the principal to specify
that the agent’s authority continues notwithstanding dissolution, annulment or legal separation.

SECTION 5B-111. COAGENTS AND SUCCESSOR AGENTS.

(a) A principal may designate two or more persons to act as coagents. Unless the power

of attorney otherwise provides, each coagent may exercise its authority independently.

(b) A principal may designate one or more successor agents to act if an agent resigns,

dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant

authority to designate one or more successor agents to an agent or other person designated by

name, office, or function. Unless the power of attorney otherwise provides, a successor agent:

(1) has the same authority as that granted to the original agent; and

(2) may not act until all predecessor agents have resigned, died, become

incapacitated, are no longer qualified to serve, or have declined to serve.

(c) Except as otherwise provided in the power of attorney and subsection (d), an agent

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that does not participate in or conceal a breach of fiduciary duty committed by another agent,

including a predecessor agent, is not liable for the actions of the other agent.

(d) An agent that has actual knowledge of a breach or imminent breach of fiduciary duty

by another agent shall notify the principal and, if the principal is incapacitated, take any action

reasonably appropriate in the circumstances to safeguard the principal’s best interest. An agent

that fails to notify the principal or take action as required by this subsection is liable for the

reasonably foreseeable damages that could have been avoided if the agent had notified the

principal or taken such action.

Comment

This section provides several default rules that merit careful consideration by the
principal. Subsection (a) states that if a principal names coagents, each coagent may exercise its
authority independently unless otherwise directed in the power of attorney. The Act adopts this
default position to discourage the practice of executing separate, co-extensive powers of attorney
in favor of different agents, and to facilitate transactions with persons who are reluctant to accept
a power of attorney from only one of two or more named agents. This default rule should not,
however, be interpreted as encouraging the practice of naming coagents. For a principal who can
still monitor the activities of an agent, naming coagents multiplies monitoring responsibilities
and significantly increases the risk that inconsistent actions will be taken with the principal’s
property. For the incapacitated principal, the risk is even greater that coagents will use the power
of attorney to vie for control of the principal and the principal’s property. Although the principal
can override the default rule by requiring coagents to act by majority or unanimous consensus,
such a requirement impedes use of the power of attorney, especially among agents who do not
share close physical or philosophical proximity. A more prudent practice is generally to name
one original agent and one or more successor agents. If desirable, a principal may give the
original agent authority to delegate the agent’s authority during periods when the agent is
temporarily unavailable to serve (see Section 5B-201(a)(5)).

Subsection (b) states that unless a power of attorney otherwise provides, a successor
agent has the same authority as that granted to the original agent. While this default provision
ensures that the scope of authority granted to the original agent can be carried forward by
successors, a principal may want to consider whether a successor agent is an appropriate person
to exercise all of the authority given to the original agent. For example, authority to make gifts,
to create, amend, or revoke an inter vivos trust, or to create or change survivorship and
beneficiary designations (see Section 5B-201(a)) may be appropriate for a spouse-agent, but not
for an adult child who is named as the successor agent.

Subsection (c) provides a default rule that an agent is not liable for the actions of another

669
agent unless the agent participates in or conceals the breach of fiduciary duty committed by that
other agent. Consequently, absent specification to the contrary in the power of attorney, an agent
has no duty to monitor another agent’s conduct. However, subsection (d) does require that an
agent that has actual knowledge of a breach or imminent breach of fiduciary duty must notify the
principal, and if the principal is incapacitated, take reasonably appropriate action to safeguard the
principal’s best interest. Subsection (d) provides that if an agent fails to notify the principal or to
take action to safeguard the principal’s best interest, that agent is only liable for the reasonably
foreseeable damages that could have been avoided had the agent provided the required
notification.

SECTION 5B-112. REIMBURSEMENT AND COMPENSATION OF AGENT.

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of

expenses reasonably incurred on behalf of the principal and to compensation that is reasonable

under the circumstances.

Comment

This section provides a default rule that an agent is entitled to reimbursement of expenses
reasonably incurred on behalf of the principal and to reasonable compensation. While it is
unlikely that a principal would choose to alter the default rule as to expenses, a principal’s
circumstances may warrant including limitations in the power of attorney as to the categories of
expenses the agent may incur; likewise, the principal may choose to specify the terms of
compensation rather than leave that determination to a reasonableness standard. Although many
family-member agents serve without compensation, payment of compensation to the agent may
be advantageous to the principal in circumstances where the principal needs to spend down
income or resources to meet qualifications for public benefits.

SECTION 5B-113. AGENT’S ACCEPTANCE. Except as otherwise provided in the

power of attorney, a person accepts appointment as an agent under a power of attorney by

exercising authority or performing duties as an agent or by any other assertion or conduct

indicating acceptance.

Comment

This section establishes a default rule for agent acceptance of appointment under a power
of attorney. Unless a different method is provided in the power of attorney, an agent’s
acceptance occurs upon exercise of authority, performance of duties, or any other assertion or
conduct indicating acceptance. Acceptance is the critical reference point for commencement of
the agency relationship and the imposition of fiduciary duties (see Section 5B-114(a)). Because
a person may be unaware that the principal has designated the person as an agent in a power of

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attorney, clear demarcation of when an agency relationship commences is necessary to protect
both the principal and the agent. See Karen E. Boxx, The Durable Power of Attorney’s Place in
the Family of Fiduciary Relationships, 36 Ga. L. Rev. 1, 41 (2001) (noting that “fiduciary duties
should be imposed only to the extent the attorney-in-fact knows of the role, is able to accept
responsibility, and affirmatively accepts”). The Act also provides a default method for agent
resignation (see Section 5B-118), which terminates the agency relationship (see Section 5B-
110(b)(2)).

SECTION 5B-114. AGENT’S DUTIES.

(a) Notwithstanding provisions in the power of attorney, an agent that has accepted

appointment shall:

(1) act in accordance with the principal’s reasonable expectations to the extent

actually known by the agent and, otherwise, in the principal’s best interest;

(2) act in good faith; and

(3) act only within the scope of authority granted in the power of attorney.

(b) Except as otherwise provided in the power of attorney, an agent that has accepted

appointment shall:

(1) act loyally for the principal’s benefit;

(2) act so as not to create a conflict of interest that impairs the agent’s ability to

act impartially in the principal’s best interest;

(3) act with the care, competence, and diligence ordinarily exercised by agents in

similar circumstances;

(4) keep a record of all receipts, disbursements, and transactions made on behalf

of the principal;

(5) cooperate with a person that has authority to make health-care decisions for

the principal to carry out the principal’s reasonable expectations to the extent actually known by

the agent and, otherwise, act in the principal’s best interest; and

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(6) attempt to preserve the principal’s estate plan, to the extent actually known by

the agent, if preserving the plan is consistent with the principal’s best interest based on all

relevant factors, including:

(A) the value and nature of the principal’s property;

(B) the principal’s foreseeable obligations and need for maintenance;

(C) minimization of taxes, including income, estate, inheritance,

generation-skipping transfer, and gift taxes; and

(D) eligibility for a benefit, a program, or assistance under a statute or

regulation.

(c) An agent that acts in good faith is not liable to any beneficiary of the principal’s estate

plan for failure to preserve the plan.

(d) An agent that acts with care, competence, and diligence for the best interest of the

principal is not liable solely because the agent also benefits from the act or has an individual or

conflicting interest in relation to the property or affairs of the principal.

(e) If an agent is selected by the principal because of special skills or expertise possessed

by the agent or in reliance on the agent’s representation that the agent has special skills or

expertise, the special skills or expertise must be considered in determining whether the agent has

acted with care, competence, and diligence under the circumstances.

(f) Absent a breach of duty to the principal, an agent is not liable if the value of the

principal’s property declines.

(g) An agent that exercises authority to delegate to another person the authority granted

by the principal or that engages another person on behalf of the principal is not liable for an act,

error of judgment, or default of that person if the agent exercises care, competence, and diligence

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in selecting and monitoring the person.

(h) Except as otherwise provided in the power of attorney, an agent is not required to

disclose receipts, disbursements, or transactions conducted on behalf of the principal unless

ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary

acting for the principal, a governmental agency having authority to protect the welfare of the

principal, or, upon the death of the principal, by the personal representative or successor in

interest of the principal’s estate. If so requested, within 30 days the agent shall comply with the

request or provide a writing or other record substantiating why additional time is needed and

shall comply with the request within an additional 30 days.

Comment

Although well settled that an agent under a power of attorney is a fiduciary, there is little
clarity in state power of attorney statutes about what that means. See generally Karen E. Boxx,
The Durable Power of Attorney’s Place in the Family of Fiduciary Relationships, 36 Ga. L.
Rev. 1 (2001); Carolyn L. Dessin, Acting as Agent under a Financial Durable Power of
Attorney: An Unscripted Role, 75 Neb. L. Rev. 574 (1996). Among states that address agent
duties, the standard of care varies widely and ranges from a due care standard (see, e.g., 755 Ill.
Comp. Stat. Ann. 45/2-7 (West 1992); Ind. Code Ann. § 30-5-6-2 (West 1994)) to a trustee-type
standard (see, e.g., Fla. Stat. Ann. § 709.08(8) (West 2000 & Supp. 2006); Mo. Ann. Stat. §
404.714 (West 2001)). Section 5B-114 clarifies agent duties by articulating minimum
mandatory duties (subsection (a)) as well as default duties that can be modified or omitted by the
principal (subsection (b)).

The mandatory duties–acting in accordance with the principal’s reasonable expectations,

if known, and otherwise in the principal’s best interest; acting in good faith; and acting only
within the scope of authority granted–may not be altered in the power of attorney. Establishing
the principal’s reasonable expectations as the primary guideline for agent conduct is consistent
with a policy preference for “substituted judgment” over “best interest” as the surrogate
decision-making standard that better protects an incapacitated person’s self-determination
interests. See Wingspan–The Second National Guardianship Conference, Recommendations, 31
Stetson L. Rev. 595, 603 (2002). See also Unif. Guardianship & Protective Proc. Act § 314(a)
(1997) (Section 5-314(a) of this Code).

The Act does not require, nor does common practice dictate, that the principal state
expectations or objectives in the power of attorney. In fact, one of the advantages of a power of
attorney over a trust or guardianship is the flexibility and informality with which an agent may
exercise authority and respond to changing circumstances. However, when a principal’s

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subjective expectations are potentially inconsistent with an objective best interest standard, good
practice suggests memorializing those expectations in a written and admissible form as a
precaution against later challenges to the agent’s conduct (see Section 5B-116).

If a principal’s expectations potentially conflict with a default duty under the Act, then
stating the expectations in the power of attorney, or altering the default rule to accommodate the
expectations, or both, is advisable. For example, a principal may want to invest in a business
owned by a family member who is also the agent in order to improve the economic position of
the agent and the agent’s family. Without the principal’s clear expression of this objective,
investment by the agent of the principal’s property in the agent’s business may be viewed as
breaching the default duty to act loyally for the principal’s benefit (subsection (b)(1)) or the
default duty to avoid conflicts of interest that impair the agent’s ability to act impartially for the
principal’s best interest (subsection (b)(2)).

Two default duties in this section protect the principal’s previously-expressed choices.
These are the duty to cooperate with the person authorized to make health-care decisions for the
principal (subsection (b)(5)) and the duty to preserve the principal’s estate plan (subsection
(b)(6)). However, an agent has a duty to preserve the principal’s estate plan only to the extent
the plan is actually known to the agent and only if preservation of the estate plan is consistent
with the principal’s best interest. Factors relevant to determining whether preservation of the
estate plan is in the principal’s best interest include the value of the principal’s property, the
principal’s need for maintenance, minimization of taxes, and eligibility for public benefits. The
Act protects an agent from liability for failure to preserve the estate plan if the agent has acted in
good faith (subsection (c)).

Subsection (d) provides that an agent acting with care, competence, and diligence for the
best interest of the principal is not liable solely because the agent also benefits from the act or
has a conflict of interest. This position is a departure from the traditional common law duty of
loyalty which required an agent to act solely for the benefit of the principal. See Restatement
(Second) of Agency § 387 (1958); see also Unif. Trust Code § 802(a) (2003) (requiring a trustee
to administer a trust “solely in the interests” of the beneficiary). Subsection (d) is modeled after
state statutes which provide that loyalty to the principal can be compatible with an incidental
benefit to the agent. See Cal. Prob. Code § 4232(b) (West Supp. 2006); 755 Ill. Comp. Stat.
Ann. 45/2-7 (West 1992); Ind. Code Ann. § 30-5-9-2 (West 1994 & Supp. 2005). The
Restatement (Third) of Agency § 8.01 (2006) also contemplates that loyal service to the principal
may be concurrently beneficial to the agent (see Reporter’s note a). See also John H. Langbein,
Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?, 114 Yale L.J. 929,
943 (2005) (arguing that the sole interest test for loyalty should be replaced by the best interest
test). The public policy which favors best interest over sole interest as the benchmark for agent
loyalty comports with the practical reality that most agents under powers of attorney are family
members who have inherent conflicts of interest with the principal arising from joint property
ownership or inheritance expectations.

Subsection (e) provides additional protection for a principal who has selected an agent
with special skills or expertise by requiring that such skills or expertise be considered when
evaluating the agent’s conduct. If a principal chooses to appoint a family member or close friend

674
to serve as an agent, but does not intend that agent to serve under a higher standard because of
special skills or expertise, the principal should consider including an exoneration provision
within the power of attorney (see comment to Section 5B-115).

Subsections (f) and (g) state protections for an agent that are similar in scope to those
applicable to a trustee. Subsection (f) holds an agent harmless for decline in the value of the
principal’s property absent a breach of fiduciary duty (cf. Unif. Trust Code § 1003(b) (2003)).
Subsection (g) holds an agent harmless for the conduct of a person to whom the agent has
delegated authority, or who has been engaged by the agent on the principal’s behalf, provided the
agent has exercised care, competence, and diligence in selecting and monitoring the person (cf.
Unif. Trust Code § 807(c) (2003).

Subsection (h) codifies the agent’s common law duty to account to a principal (see
Restatement (Third) of Agency § 8.12 (2006); Restatement (First) of Agency § 382 (1933)).
Rather than create an affirmative duty of periodic accounting, subsection (h) states that the agent
is not required to disclose receipts, disbursements or transactions unless ordered by a court or
requested by the principal, a fiduciary acting for the principal, or a governmental agency with
authority to protect the welfare of the principal. If the principal is deceased, the principal’s
personal representative or successor in interest may request an agent to account. While there is
no affirmative duty to account unless ordered by the court or requested by one of the foregoing
persons, subsection (b)(4) does create a default duty to keep records.

The narrow categories of persons that may request an agent to account are consistent with
the premise that a principal with capacity should control to whom the details of financial
transactions are disclosed. If a principal becomes incapacitated or dies, then the principal’s
fiduciary or personal representative may succeed to that monitoring function. The inclusion of a
governmental agency (such as Adult Protective Services) in the list of persons that may request
an agent to account is patterned after state legislative trends and is a response to growing national
concern about financial abuse of vulnerable persons. See 755 Ill. Comp. Stat. Ann. 45/2-7.5
(West Supp. 2006 & 2006 Ill. Legis. Serv. 1754); 20 Pa. Cons. Stat. Ann. § 5604(d) (West
2005); Vt. Stat. Ann. tit. 14, § 3510(b) (2002 & 2006-3 Vt. Adv. Legis. Serv. 228). See
generally Donna J. Rabiner, David Brown & Janet O’Keeffe, Financial Exploitation of Older
Persons: Policy Issues and Recommendations for Addressing Them, 16 J. Elder Abuse &
Neglect 65 (2004). As an additional protective counter-measure to the narrow categories of
persons who may request an agent to account, the Act contains a broad standing provision for
seeking judicial review of an agent’s conduct. See Section 5B-116 and Comment.

SECTION 5B-115. EXONERATION OF AGENT. A provision in a power of

attorney relieving an agent of liability for breach of duty is binding on the principal and the

principal’s successors in interest except to the extent the provision:

(1) relieves the agent of liability for breach of duty committed dishonestly, with an

improper motive, or with reckless indifference to the purposes of the power of attorney or the

675
best interest of the principal; or

(2) was inserted as a result of an abuse of a confidential or fiduciary relationship with the

principal.

Comment

This section permits a principal to exonerate an agent from liability for breach of
fiduciary duty, but prohibits exoneration for a breach committed dishonestly, with improper
motive, or with reckless indifference to the purposes of the power of attorney or the best interest
of the principal. The mandatory minimum standard of conduct required of an agent is equivalent
to the good faith standard applicable to trustees. A trustee’s failure to adhere to that standard
cannot be excused by language in the trust instrument. See Unif. Trust Code § 1008 cmt. (2003)
(noting that “a trustee must always act in good faith with regard to the purposes of the trust and
the interests of the beneficiaries”). See also Section 5B-102(4) (defining good faith for purposes
of the Act as “honesty in fact”). Section 5B-115 provides, as an additional measure of protection
for the principal, that an exoneration provision is not binding if it was inserted as the result of
abuse of a confidential or fiduciary relationship with the principal. While as a matter of good
practice an exoneration provision should be the exception rather than the rule, its inclusion in a
power of attorney may be useful in meeting particular objectives of the principal. For example,
if the principal is concerned that contentious family members will attack the agent’s conduct in
order to gain control of the principal’s assets, an exoneration provision may deter such action or
minimize the likelihood of success on the merits.

SECTION 5B-116. JUDICIAL RELIEF.

(a) The following persons may petition a court to construe a power of attorney or review

the agent’s conduct, and grant appropriate relief:

(1) the principal or the agent;

(2) a guardian, conservator, or other fiduciary acting for the principal;

(3) a person authorized to make health-care decisions for the principal;

(4) the principal’s spouse, parent, or descendant;

(5) an individual who would qualify as a presumptive heir of the principal;

(6) a person named as a beneficiary to receive any property, benefit, or

contractual right on the principal’s death or as a beneficiary of a trust created by or for the

principal that has a financial interest in the principal’s estate;

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(7) a governmental agency having regulatory authority to protect the welfare of

the principal;

(8) the principal’s caregiver or another person that demonstrates sufficient interest

in the principal’s welfare; and

(9) a person asked to accept the power of attorney.

(b) Upon motion by the principal, the court shall dismiss a petition filed under this

section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or

the power of attorney.

Comment

The primary purpose of this section is to protect vulnerable or incapacitated principals

against financial abuse. Subsection (a) sets forth broad categories of persons who have standing
to petition the court for construction of the power of attorney or review of the agent’s conduct,
including in the list a “person that demonstrates sufficient interest in the principal’s welfare”
(subsection (a)(8)). Allowing any person with sufficient interest to petition the court is the
approach taken by the majority of states that have standing provisions. See Cal. Prob. Code §
4540 (West Supp. 2006); Colo. Rev. Stat. Ann. § 15-14-609 (West 2005); 755 Ill. Comp. Stat.
Ann. 45/2-10 (West 1992); Ind. Code Ann. § 30-5-3-5 (West 1994); Kan. Stat. Ann. § 58-662
(2005); Mo. Ann. Stat. § 404.727 (West 2001); N.H. Rev. Stat. Ann. § 506:7 (LexisNexis 1997
& Supp. 2005); Wash. Rev. Code Ann. § 11.94.100 (Supp. 2006); Wis. Stat. Ann. § 243.07(6r)
(West 2001). But cf. 20 Pa. Cons. Stat. Ann. § 5604 (West 2005) (limiting standing to an agency
acting pursuant to the Older Adults Protective Services Act); Vt. Stat. Ann. tit.14, § 3510(b)
(2002 & 2006-3 Vt. Adv. Legis. Serv. 228) (limiting standing to the commissioner of disabilities,
aging, and independent living).

In addition to providing a means for detecting and redressing financial abuse by agents,
this section protects the self-determination rights of principals. Subsection (b) states that the
court must dismiss a petition upon the principal’s motion unless the court finds that the principal
lacks the capacity to revoke the agent’s authority or the power of attorney. Contrasted with the
breadth of Section 5B-116 is Section 5B-114(h) which narrowly limits the persons who can
request an agent to account for transactions conducted on the principal’s behalf. The rationale
for narrowly restricting who may request an agent to account is the preservation of the
principal’s financial privacy. See Section 5B-114 Comment. Section 5B-116 operates as a
check-and-balance on the narrow scope of Section 5B-114(h) and provides what, in many
circumstances, may be the only means to detect and stop agent abuse of an incapacitated
principal.

SECTION 5B-117. AGENT’S LIABILITY. An agent that violates this [article] is

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liable to the principal or the principal’s successors in interest for the amount required to:

(1) restore the value of the principal’s property to what it would have been had the

violation not occurred; and

(2) reimburse the principal or the principal’s successors in interest for the attorney’s fees

and costs paid on the agent’s behalf.

Comment

This section provides that an agent’s liability for violating the Act includes not only the
amount necessary to restore the principal’s property to what it would have been had the violation
not occurred, but also any amounts for attorney’s fees and costs advanced from the principal’s
property on the agent’s behalf. This section does not, however, limit the agent’s liability
exposure to these amounts. Pursuant to Section 5B-123, remedies under the Act are not
exclusive. If a jurisdiction has enacted separate statutes to deal with financial abuse, an agent
may face additional civil or criminal liability. For a discussion of state statutory responses to
financial abuse, see Carolyn L. Dessin, Financial Abuse of the Elderly: Is the Solution a
Problem?, 34 McGeorge L. Rev. 267 (2003).

SECTION 5B-118. AGENT’S RESIGNATION; NOTICE. Unless the power of

attorney provides a different method for an agent’s resignation, an agent may resign by giving

notice to the principal and, if the principal is incapacitated:

(1) to the [conservator or guardian], if one has been appointed for the principal, and a

coagent or successor agent; or

(2) if there is no person described in paragraph (1), to:

(A) the principal’s caregiver;

(B) another person reasonably believed by the agent to have sufficient interest in

the principal’s welfare; or

(C) a governmental agency having authority to protect the welfare of the

principal.

Legislative Note: The brackets in this section indicate where the enacting jurisdiction
should review its respective guardianship, conservatorship, or other protective proceedings

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statutes and amend, if necessary for consistency, the bracketed language.

Comment

Section 5B-118 provides a default procedure for an agent’s resignation. An agent who no
longer wishes to serve should formally resign in order to establish a clear demarcation of the end
of the agent’s authority and to minimize gaps in fiduciary responsibility before a successor
accepts the office. If the principal still has capacity when the agent wishes to resign, this section
requires only that the agent give notice to the principal. If, however, the principal is
incapacitated, the agent must, in addition to giving notice to the principal, give notice as set forth
in paragraphs (1) or (2).

Paragraph (1) provides that notice must be given to a fiduciary, if one has been
appointed, and to a coagent or successor agent, if any. If the principal does not have an
appointed fiduciary and no coagent or successor agent is named in the power of attorney, then
the agent may choose among the notice options in paragraph (2). Paragraph (2) permits the
resigning agent to give notice to the principal’s caregiver, a person reasonably believed to have
sufficient interest in the principal’s welfare, or a governmental agency having authority to protect
the welfare of the principal. The choice among these options is intentionally left to the agent’s
discretion and is governed by the same standards as apply to other agent conduct. See Section
5B-114(a) (requiring the agent to act in accordance with the principal’s reasonable expectations,
if known, and otherwise in the principal’s best interest).

SECTION 5B-119. ACCEPTANCE OF AND RELIANCE UPON

ACKNOWLEDGED POWER OF ATTORNEY.

(a) For purposes of this section and Section 5B-120, “acknowledged” means purportedly

verified before a notary public or other individual authorized to take acknowledgements.

(b) A person that in good faith accepts an acknowledged power of attorney without actual

knowledge that the signature is not genuine may rely upon the presumption under Section 5B-

105 that the signature is genuine.

(c) A person that in good faith accepts an acknowledged power of attorney without actual

knowledge that the power of attorney is void, invalid, or terminated, that the purported agent’s

authority is void, invalid, or terminated, or that the agent is exceeding or improperly exercising

the agent’s authority may rely upon the power of attorney as if the power of attorney were

genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and

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the agent had not exceeded and had properly exercised the authority.

(d) A person that is asked to accept an acknowledged power of attorney may request, and

rely upon, without further investigation:

(1) an agent’s certification under penalty of perjury of any factual matter

concerning the principal, agent, or power of attorney;

(2) an English translation of the power of attorney if the power of attorney

contains, in whole or in part, language other than English; and

(3) an opinion of counsel as to any matter of law concerning the power of attorney

if the person making the request provides in a writing or other record the reason for the request.

(e) An English translation or an opinion of counsel requested under this section must be

provided at the principal’s expense unless the request is made more than seven business days

after the power of attorney is presented for acceptance.

(f) For purposes of this section and Section 5B-120, a person that conducts activities

through employees is without actual knowledge of a fact relating to a power of attorney, a

principal, or an agent if the employee conducting the transaction involving the power of attorney

is without actual knowledge of the fact.

Comment

This section protects persons who in good faith accept an acknowledged power of
attorney. Section 5B-119 does not apply to unacknowledged powers of attorney. See Section
5B-105 (providing that the signature on a power of attorney is presumed genuine if
acknowledged). Subsection (a) states that for purposes of this section and Section 5B-120
“acknowledged” means “purportedly” verified before an individual authorized to take
acknowledgments. The purpose of this definition is to protect a person that in good faith accepts
an acknowledged power of attorney without knowledge that it contains a forged signature or a
latent defect in the acknowledgment. See, e.g., Cal. Prob. Code § 4303(a)(2) (West Supp. 2006);
755 Ill. Comp. Stat. Ann. 45/2-8 (Supp. 2006); Ind. Code Ann. § 30-5-8-2 (West 1994); N.C.
Gen. Stat. § 32A-40 (2005). The Act places the risk that a power of attorney is invalid upon the
principal rather than the person that accepts the power of attorney. This approach promotes
acceptance of powers of attorney, which is essential to their effectiveness as an alternative to

680
guardianship. The national survey conducted by the Joint Editorial Board for Uniform Trust and
Estate Acts (see Prefatory Note) found that a majority of respondents had difficulty obtaining
acceptance of powers of attorney. Sixty-three percent reported occasional difficulty and
seventeen percent reported frequent difficulty. Linda S. Whitton, National Durable Power of
Attorney Survey Results and Analysis, National Conference of Commissioners on Uniform State
Laws 12-13 (2002), available at http://www.law.upenn.edu/bll/ulc/dpoaa/surveyoct2002.htm.

Section 5B-119 permits a person to rely in good faith on the validity of the power of
attorney, the validity of the agent’s authority, and the propriety of the agent’s exercise of
authority, unless the person has actual knowledge to the contrary (subsection (c)). Although a
person is not required to investigate whether a power of attorney is valid or the agent’s exercise
of authority proper, subsection (d) permits a person to request an agent’s certification of any
factual matter (see Section 5B-302 for a sample certification form) and an opinion of counsel as
to any matter of law. If the power of attorney contains, in whole or part, language other than
English, an English translation may also be requested. Further protection is provided in
subsection (f) for persons that conduct activities through employees. Subsection (f) states that
for purposes of Sections 5B-119 and 5B-120, a person is without actual knowledge of a fact if
the employee conducting the transaction is without actual knowledge of the fact.

Alternative A

SECTION 5B-120. LIABILITY FOR REFUSAL TO ACCEPT

ACKNOWLEDGED POWER OF ATTORNEY.

(a) Except as otherwise provided in subsection (b):

(1) a person shall either accept an acknowledged power of attorney or request a

certification, a translation, or an opinion of counsel under Section 5B-119(d) no later than seven

business days after presentation of the power of attorney for acceptance;

(2) if a person requests a certification, a translation, or an opinion of counsel

under Section 119(d), the person shall accept the power of attorney no later than five business

days after receipt of the certification, translation, or opinion of counsel; and

(3) a person may not require an additional or different form of power of attorney

for authority granted in the power of attorney presented.

(b) A person is not required to accept an acknowledged power of attorney if:

(1) the person is not otherwise required to engage in a transaction with the

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principal in the same circumstances;

(2) engaging in a transaction with the agent or the principal in the same

circumstances would be inconsistent with federal law;

(3) the person has actual knowledge of the termination of the agent’s authority or

of the power of attorney before exercise of the power;

(4) a request for a certification, a translation, or an opinion of counsel under

Section 5B-119(d) is refused;

(5) the person in good faith believes that the power is not valid or that the agent

does not have the authority to perform the act requested, whether or not a certification, a

translation, or an opinion of counsel under Section 5B-119(d) has been requested or provided; or

(6) the person makes, or has actual knowledge that another person has made, a

report to the [local adult protective services office] stating a good faith belief that the principal

may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent

or a person acting for or with the agent.

(c) A person that refuses in violation of this section to accept an acknowledged power of

attorney is subject to:

(1) a court order mandating acceptance of the power of attorney; and

(2) liability for reasonable attorney’s fees and costs incurred in any action or

proceeding that confirms the validity of the power of attorney or mandates acceptance of the

power of attorney.

Legislative Note: Section 5B-120 enumerates the bases for legitimate refusals of a
power of attorney as well as sanctions for refusals that violate the Act. Alternatives A and B are
identical except that Alternative B applies only to acknowledged statutory form powers of
attorney while Alternative A applies to all acknowledged powers of attorney.

Under both alternatives, the phrase “local adult protective services office” is bracketed

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to indicate where an enacting jurisdiction should insert the appropriate designation for the
governmental agency with regulatory authority to protect the welfare of the principal.

COMMENT to Alternative A:

As a complement to Section 5B-119, Section 5B-120 enumerates the bases for legitimate
refusals of a power of attorney as well as sanctions for refusals that violate the Act. Like Section
5B-119, Section 5B-120 does not apply to unacknowledged powers of attorney. Enacting
jurisdictions are provided a choice between alternative Sections 5B-120. Alternatives A and B
are identical except that Alternative B applies only to acknowledged statutory form powers of
attorney while Alternative A applies to all acknowledged powers of attorney.

Subsection (b) of Alternative A provides the bases upon which an acknowledged power
of attorney may be refused without liability. The last paragraph of subsection (b) permits refusal
of an otherwise valid acknowledged power of attorney that does not meet any of the other bases
for refusal if the person in good faith believes that the principal is subject to abuse by the agent
or someone acting in concert with the agent (paragraph (6)). A refusal under this paragraph is
protected if the person makes, or knows another person has made, a report to the governmental
agency authorized to protect the welfare of the principal. Pennsylvania has a similar provision.
See 20 Pa. Cons. Stat. Ann. § 5608(a) (West 2005).

Unless a basis exists in subsection (b) for refusing an acknowledged power of attorney,
subsection (a) requires that, within seven business days after the power of attorney is presented, a
person must either accept the power of attorney or request a certification, a translation, or an
opinion of counsel pursuant to Section 5B-119. If a request under Section 5B-119 is made, the
person must decide to accept or reject the power of attorney no later than five business days after
receipt of the requested document (subsection (a)(2)). Provided no basis exists for refusing the
power of attorney, subsection (a)(3) prohibits a person from requesting an additional or different
form of power of attorney for authority granted in the power of attorney presented.

Subsection (c) of Alternative A provides that a person that refuses an acknowledged

power of attorney in violation of Section 5B-120 is subject to a court order mandating
acceptance and to reasonable attorney’s fees and costs incurred in the action to confirm the
validity of the power of attorney or to mandate acceptance. Statutory liability for unreasonable
refusal of a power of attorney is based on a growing state legislative trend. See, e.g., Alaska Stat.
§ 13.26.353(c) (2004); Cal. Prob. Code § 4306(a) (West Supp. 2006); Fla. Stat. Ann. §
709.08(11) (West 2000 & Supp. 2006); 755 Ill. Comp. Stat. Ann. 45/ 2-8 (West 1992); Ind. Code
Ann. § 30-5-9-9 (West Supp. 2005); Minn. Stat. Ann. § 523.20 (West 2006); N.Y. Gen. Oblig.
Law § 5-1504 (McKinney 2001); N.C. Gen. Stat. § 32A-41 (2005); 20 Pa. Cons. Stat. Ann. §
5608 (West 2005); S.C. Code Ann. § 62-5-501(F)(1) (Supp. 2005).

Alternative B

SECTION 5B-120. LIABILITY FOR REFUSAL TO ACCEPT

ACKNOWLEDGED STATUTORY FORM POWER OF ATTORNEY.

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(a) In this section, “statutory form power of attorney” means a power of attorney

substantially in the form provided in Section 5B-301 or that meets the requirements for a military

power of attorney pursuant to 10 U.S.C. Section 1044b [, as amended].

(b) Except as otherwise provided in subsection (c):

(1) a person shall either accept an acknowledged statutory form power of attorney

or request a certification, a translation, or an opinion of counsel under Section 5B-119(d) no later

than seven business days after presentation of the power of attorney for acceptance;

(2) if a person requests a certification, a translation, or an opinion of counsel

under Section 5B-119(d), the person shall accept the statutory form power of attorney no later

than five business days after receipt of the certification, translation, or opinion of counsel; and

(3) a person may not require an additional or different form of power of attorney

for authority granted in the statutory form power of attorney presented.

(c) A person is not required to accept an acknowledged statutory form power of attorney

if:

(1) the person is not otherwise required to engage in a transaction with the

principal in the same circumstances;

(2) engaging in a transaction with the agent or the principal in the same

circumstances would be inconsistent with federal law;

(3) the person has actual knowledge of the termination of the agent’s authority or

of the power of attorney before exercise of the power;

(4) a request for a certification, a translation, or an opinion of counsel under

Section 5B-119(d) is refused;

(5) the person in good faith believes that the power is not valid or that the agent

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does not have the authority to perform the act requested, whether or not a certification, a

translation, or an opinion of counsel under Section 5B-119(d) has been requested or provided; or

(6) the person makes, or has actual knowledge that another person has made, a

report to the [local adult protective services office] stating a good faith belief that the principal

may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent

or a person acting for or with the agent.

(d) A person that refuses in violation of this section to accept an acknowledged statutory

form power of attorney is subject to:

(1) a court order mandating acceptance of the power of attorney; and

(2) liability for reasonable attorney’s fees and costs incurred in any action or

proceeding that confirms the validity of the power of attorney or mandates acceptance of the

power of attorney.

Legislative Note: Section 5B-120 enumerates the bases for legitimate refusals of a
power of attorney as well as sanctions for refusals that violate the Act. Alternatives A and B are
identical except that Alternative B applies only to acknowledged statutory form powers of
attorney while Alternative A applies to all acknowledged powers of attorney.

Under both alternatives, the phrase “local adult protective services office” is bracketed
to indicate where an enacting jurisdiction should insert the appropriate designation for the
governmental agency with regulatory authority to protect the welfare of the principal.

Comment to Alternative B:

As a complement to Section 5B-119, Section 5B-120 enumerates the bases for legitimate
refusals of a power of attorney as well as sanctions for refusals that violate the Act. Like Section
5B-119, Section 5B-120 does not apply to unacknowledged powers of attorney. Enacting
jurisdictions are provided a choice between alternative Sections 5B-120. Alternatives A and B
are identical except that Alternative B applies only to acknowledged statutory form powers of
attorney while Alternative A applies to all acknowledged powers of attorney.

Subsection (a) of Alternative B defines “statutory form power of attorney” as a power of

attorney substantially in the form provided in Section 5B-301 or one that meets the requirements
for a military power of attorney.

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Subsection (c) of Alternative B provides the bases upon which an acknowledged statutory
form power of attorney may be refused without liability. The last paragraph of subsection (c)
permits refusal of an otherwise valid acknowledged statutory form power of attorney that does
not meet any of the other bases for refusal if the person in good faith believes that the principal is
subject to abuse by the agent or someone acting in concert with the agent (paragraph (6)). A
refusal under this paragraph is protected if the person makes, or knows another person has made,
a report to the governmental agency authorized to protect the welfare of the principal.
Pennsylvania has a similar provision. See 20 Pa. Cons. Stat. Ann. § 5608(a) (West 2005).

Unless a basis exists in subsection (c) for refusing an acknowledged statutory form power
of attorney, subsection (b) requires that, within seven business days after the power of attorney is
presented, a person must either accept the power of attorney or request a certification, a
translation, or an opinion of counsel pursuant to Section 5B-119. If a request under Section 5B-
119 is made, the person must decide to accept or reject the power of attorney no later than five
business days after receipt of the requested document (subsection (b)(2)). Provided no basis
exists for refusing the power of attorney, subsection (b)(3) prohibits a person from requesting an
additional or different form of power of attorney for authority granted in the power of attorney
presented.

Subsection (d) of Alternative B provides that a person that refuses an acknowledged

statutory form power of attorney in violation of Section 5B-120 is subject to a court order
mandating acceptance and to reasonable attorney’s fees and costs incurred in the action to
confirm the validity of the power of attorney or to mandate acceptance. Statutory liability for
unreasonable refusal of a power of attorney is based on a growing state legislative trend. See,
e.g., Alaska Stat. § 13.26.353(c) (2004); Cal. Prob. Code § 4306(a) (West Supp. 2006); Fla. Stat.
Ann. § 709.08(11) (West 2000 & Supp. 2006); 755 Ill. Comp. Stat. Ann. 45/ 2-8 (West 1992);
Ind. Code Ann. § 30-5-9-9 (West Supp. 2005); Minn. Stat. Ann. § 523.20 (West 2006); N.Y.
Gen. Oblig. Law § 5-1504 (McKinney 2001); N.C. Gen. Stat. § 32A-41 (2005); 20 Pa. Cons.
Stat. Ann. § 5608 (West 2005); S.C. Code Ann. § 62-5-501(F)(1) (Supp. 2005).

End of Alternatives

SECTION 5B-121. PRINCIPLES OF LAW AND EQUITY. Unless displaced by a

provision of this [article], the principles of law and equity supplement this [article].

Comment

The Act is supplemented by common law, including the common law of agency, where
provisions of the Act do not displace relevant common law principles. The common law of
agency is articulated in the Restatement of Agency and includes contemporary and evolving
rules of decision developed by the courts in exercise of their power to adapt the law to new
situations and changing conditions. The common law also includes the traditional and broad
equitable jurisdiction of the court, which this Act in no way restricts.

The statutory text of the Uniform Power of Attorney Act (2006) is also supplemented by

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these comments, which, like the comments to any Uniform Act, may be relied on as a guide for
interpretation. See Acierno v. Worthy Bros. Pipeline Corp., 656 A.2d 1085, 1090 (Del. 1995)
(interpreting Uniform Commercial Code); Yale University v. Blumenthal, 621 A.2d 1304, 1307
(Conn. 1993) (interpreting Uniform Management of Institutional Funds Act); 2B Norman
Singer, Southerland Statutory Construction § 52.5 (6th ed. 2000).

SECTION 5B-122. LAWS APPLICABLE TO FINANCIAL INSTITUTIONS AND

ENTITIES. This [article] does not supersede any other law applicable to financial institutions

or other entities, and the other law controls if inconsistent with this [article].

Comment

This section addresses concerns of representatives from the banking and insurance
industries that there may be regulations which govern those entities that conflict with provisions
of this Act. Although no specific conflicts were identified during the drafting process, Section
5B-122 provides that in the event a law applicable to a financial institution or other entity is
inconsistent with this Act, the other law will supersede this Act to the extent of the inconsistency.
This concern about inconsistency with the requirements of other law is already substantially
addressed in Section 5B-120, which provides, in pertinent part, that a person is not required to
accept a power of attorney if, “the person is not otherwise required to engage in a transaction
with the principal in the same circumstances,” or “engaging in a transaction with the agent or the
principal in the same circumstances would be inconsistent with federal law.”

SECTION 5B-123. REMEDIES UNDER OTHER LAW. The remedies under this

[article] are not exclusive and do not abrogate any right or remedy under the law of this state

other than this [article].

Comment

The remedies under the Act are not intended to be exclusive with respect to causes of
action that may accrue in relation to a power of attorney. The Act applies to many persons,
individual and entity (see Section 5B-102(6) (defining “person” for purposes of the Act)), that
may serve as agents or that may be asked to accept a power of attorney. Likewise, the Act
applies to many subject areas (see Part 2) over which principals may delegate authority to agents.
Remedies under other laws which govern such persons and subject matters should be considered
by aggrieved parties in addition to remedies available under this Act. See, e.g., Section 5B-117
Comment.

PART 2. AUTHORITY

GENERAL COMMENT

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Part 2 is based in part on the predecessor Uniform Statutory Form Power of Attorney Act,
approved in 1988. It provides the default statutory construction for authority granted in a power
of attorney. Sections 5B-204 through 5B-217 describe authority with respect to various subject
matters. These descriptions may be incorporated by reference in the optional statutory form
(Section 5B-301) or in an individually drafted power of attorney. Incorporation is accomplished
either by referring to the descriptive term for the subject or by providing a citation to the section
in which the authority is described (Section 5B-202). A principal may also modify any authority
incorporated by reference (Section 5B-202(c)). Section 5B-203 supplements Sections 5B-204
through 5B-217 by providing general terms of construction that apply to all grants of authority
under those sections unless otherwise indicated in the power of attorney.

Most of the language in Sections 5B-204 through 5B-216 of Part 2 comes directly from
the Uniform Statutory Form Power of Attorney Act (1988). The language has been revised
where necessary to reflect modern custom and practice. Where significant changes have been
made, they are noted in a comment to the relevant section. In general, there are two important
differences between the statutory treatment of authority in this Act and in the Uniform Statutory
Form Power of Attorney Act (1988). First, this Act includes a section that provides a default
rule for the parameters of gift making authority (Section 5B-217). Second, this Act identifies
specific acts that may be authorized only by an express grant in the power of attorney (Section
5B-201(a)). Express authorization for the acts listed in Section 5B-201(a) is required because of
the risk those acts pose to the principal’s property and estate plan. The purpose of Section 5B-
201(a) is to make clear that authority for these acts may not be inferred from a grant of general
authority.

SECTION 5B-201. AUTHORITY THAT REQUIRES SPECIFIC GRANT;

GRANT OF GENERAL AUTHORITY.

(a) An agent under a power of attorney may do the following on behalf of the principal or

with the principal’s property only if the power of attorney expressly grants the agent the

authority and exercise of the authority is not otherwise prohibited by another agreement or

instrument to which the authority or property is subject:

(1) create, amend, revoke, or terminate an inter vivos trust;

(2) make a gift;

(3) create or change rights of survivorship;

(4) create or change a beneficiary designation;

(5) delegate authority granted under the power of attorney;

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(6) waive the principal’s right to be a beneficiary of a joint and survivor annuity,

including a survivor benefit under a retirement plan; [or]

(7) exercise fiduciary powers that the principal has authority to delegate[; or

(8) disclaim property, including a power of appointment].

(b) Notwithstanding a grant of authority to do an act described in subsection (a), unless

the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant

of the principal, may not exercise authority under a power of attorney to create in the agent, or in

an individual to whom the agent owes a legal obligation of support, an interest in the principal’s

property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.

(c) Subject to subsections (a), (b), (d), and (e), if a power of attorney grants to an agent

authority to do all acts that a principal could do, the agent has the general authority described in

Sections 5B-204 through 5B-216.

(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift is

subject to Section 5B-217.

(e) Subject to subsections (a), (b), and (d), if the subjects over which authority is granted

in a power of attorney are similar or overlap, the broadest authority controls.

(f) Authority granted in a power of attorney is exercisable with respect to property that

the principal has when the power of attorney is executed or acquires later, whether or not the

property is located in this state and whether or not the authority is exercised or the power of

attorney is executed in this state.

(g) An act performed by an agent pursuant to a power of attorney has the same effect and

inures to the benefit of and binds the principal and the principal’s successors in interest as if the

principal had performed the act.

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Legislative Note: The phrase “or disclaim property, including a power of appointment”
is in brackets in subsection (a) and should be deleted if under the law of the enacting jurisdiction
a fiduciary has authority to disclaim an interest in, or power over, property and the jurisdiction
does not wish to restrict that authority by the Uniform Power of Attorney Act (2006). See Unif.
Disclaimer of Property Interests Acts § 5(b) (2006) (providing, “[e]xcept to the extent a
fiduciary’s right to disclaim is expressly restricted or limited by another statute of this state or by
the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part,
any interest in or power over property, including a power of appointment….”). See also Section
5B-301 Legislative Note.

Comment

This section distinguishes between grants of specific authority that require express
language in a power of attorney and grants of general authority. Section 5B-201(a) enumerates
the acts that require an express grant of specific authority and which may not be inferred from a
grant of general authority. This approach follows a growing trend among states to require
express specific authority for such actions as making a gift, creating or revoking a trust, and
using other non-probate estate planning devices such as survivorship interests and beneficiary
designations. See, e.g., Cal. Prob. Code § 4264 (West Supp. 2006); Kan. Stat. Ann. § 58-654(f)
(2005); Mo. Ann. Stat. § 404.710 (West 2001); Wash. Rev. Code Ann. § 11.94.050 (West Supp.
2006). The rationale for requiring a grant of specific authority to perform the acts enumerated in
subsection (a) is the risk those acts pose to the principal’s property and estate plan. Although
risky, such authority may nevertheless be necessary to effectuate the principal’s property
management and estate planning objectives. Ideally, these are matters about which the principal
will seek advice before granting authority to an agent.

The Act does not contain statutory construction language for any of the acts enumerated
in subsection (a) other than the making of gifts (see Section 5B-217). Because a gift of the
principal’s property reduces the principal’s estate, the Act, like a number of state statutes, sets
default per-donee limits on gift amounts. See, e.g., N.Y. Gen. Oblig. Law § 5-1502M
(McKinney 2001); 20 Pa. Cons. Stat. Ann. § 5603(a)(2)(ii) (West 2005). However, as with any
authority incorporated by reference in a power of attorney, the principal may enlarge or restrict
the default parameters set by the Act.

With respect to other acts listed in Section 5B-201(a), the Act contemplates that the
principal will specify any special instructions in the power of attorney to further define or limit
the authority granted. For example, if a principal grants authority to create or change rights of
survivorship (subsection (a)(3)) or beneficiary designations (subsection (a)(4)) the principal may
choose to restrict that authority to specifically identified property interests, accounts, or
contracts. Principals should carefully consider not only whether to authorize any of the acts
listed in Section 5B-201(a), but also whether to limit the scope of such actions.

Subsection (b) contains an additional safeguard for the principal. It establishes as a

default rule that an agent who is not an ancestor, spouse, or descendant of the principal may not
exercise authority to create in the agent or in an individual the agent is legally obligated to
support, an interest in the principal’s property. For example, a non-relative agent with gift

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making authority could not make a gift to the agent or a dependant of the agent without the
principal’s express authority in the power of attorney. In contrast, a spouse-agent with express
gift-making authority could implement the principal’s expectation that annual family gifts be
continued without additional authority in the power of attorney.

Notwithstanding a grant of authority to perform any of the enumerated acts in subsection

(a), an agent is bound by the mandatory fiduciary duties set forth in Section 5B-114(a) as well as
the default duties that the principal has not modified. For a list of these default rules, see Section
5B-301 Comment. If the principal’s expectations for the performance of authorized acts
potentially conflict with those duties, then clarification of the principal’s expectations,
modification of the default duties, or both, may be advisable. See Section 5B-114 Comment.

Authority for acts and subject matters other than those listed in Section 5B-201(a) may be
granted either through incorporation by reference (see Section 5B-202) or, if the principal wishes
to grant comprehensive general authority, by a grant of authority to do all the acts that a principal
could do. A broad grant of general authority is interpreted under the Act as including all of the
subject matters and authority described in Sections 5B-204 through 5B-216 (see subsection (c)).

SECTION 5B-202. INCORPORATION OF AUTHORITY.

(a) An agent has authority described in this [article] if the power of attorney refers to

general authority with respect to the descriptive term for the subjects stated in Sections 5B-204

through 5B-217 or cites the section in which the authority is described.

(b) A reference in a power of attorney to general authority with respect to the descriptive

term for a subject in Sections 5B-204 through 5B-217 or a citation to a section of Sections 5B-

204 through 5B-217 incorporates the entire section as if it were set out in full in the power of

attorney.

(c) A principal may modify authority incorporated by reference.

Comment

This section provides two methods for incorporating into a power of attorney the Act’s
statutory construction for authority over various subject matters. A reference in a power of
attorney to the descriptive term for a subject in Sections 5B-204 through 5B-217, or to the
section number, incorporates the entire statutory section as if it were set out in full in the power
of attorney. Subsection (c) provides that a principal may modify any authority incorporated by
reference. The optional statutory form power of attorney provided in Section 5B-301 uses the
descriptive terms in Sections 5B-204 through 5B-217 to incorporate statutory construction for
authority granted on the form and provides a “Special Instructions” section where the principal

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may modify any authority incorporated by reference.

SECTION 5B-203. CONSTRUCTION OF AUTHORITY GENERALLY. Except as

otherwise provided in the power of attorney, by executing a power of attorney that incorporates

by reference a subject described in Sections 5B-204 through 5B-217 or that grants to an agent

authority to do all acts that a principal could do pursuant to Section 5B-201(c), a principal

authorizes the agent, with respect to that subject, to:

(1) demand, receive, and obtain by litigation or otherwise, money or another thing of

value to which the principal is, may become, or claims to be entitled, and conserve, invest,

disburse, or use anything so received or obtained for the purposes intended;

(2) contract in any manner with any person, on terms agreeable to the agent, to

accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate,

release, or modify the contract or another contract made by or on behalf of the principal;

(3) execute, acknowledge, seal, deliver, file, or record any instrument or communication

the agent considers desirable to accomplish a purpose of a transaction, including creating at any

time a schedule listing some or all of the principal’s property and attaching it to the power of

attorney;

(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or

propose or accept a compromise with respect to a claim existing in favor of or against the

principal or intervene in litigation relating to the claim;

(5) seek on the principal’s behalf the assistance of a court or other governmental agency

to carry out an act authorized in the power of attorney;

(6) engage, compensate, and discharge an attorney, accountant, discretionary investment

manager, expert witness, or other advisor;

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(7) prepare, execute, and file a record, report, or other document to safeguard or promote

the principal’s interest under a statute or regulation;

(8) communicate with any representative or employee of a government or governmental

subdivision, agency, or instrumentality, on behalf of the principal;

(9) access communications intended for, and communicate on behalf of the principal,

whether by mail, electronic transmission, telephone, or other means; and

(10) do any lawful act with respect to the subject and all property related to the subject.

Comment

This section is based on Section 3 of the Uniform Statutory Form Power of Attorney Act
(1988). It describes incidental types of authority that accompany all authority granted to an
agent under each of Sections 5B-204 through 5B-217, unless this incidental authority is modified
in the power of attorney. The actions authorized in Section 5B-203 are of the type often
necessary for the exercise or implementation of authority over the subjects described in Sections
5B-204 through 5B-217. See Unif. Statutory Form Power of Atty. Act prefatory note (1988).
Paragraph (10), which states that an agent is authorized to “do any lawful act with respect to the
subject and all property related to the subject,” emphasizes that a grant of general authority is
intended to be comprehensive unless otherwise limited by the Act or the power of attorney.
Paragraphs (8) and (9) were added to the section to clarify that this comprehensive authority
includes authorization to communicate with government employees on behalf of the principal, to
access communications intended for the principal, and to communicate on behalf of the principal
using all modern means of communication.

SECTION 5B-204. REAL PROPERTY. Unless the power of attorney otherwise

provides, language in a power of attorney granting general authority with respect to real property

authorizes the agent to:

(1) demand, buy, lease, receive, accept as a gift or as security for an extension of credit,

or otherwise acquire or reject an interest in real property or a right incident to real property;

(2) sell; exchange; convey with or without covenants, representations, or warranties;

quitclaim; release; surrender; retain title for security; encumber; partition; consent to

partitioning; subject to an easement or covenant; subdivide; apply for zoning or other

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governmental permits; plat or consent to platting; develop; grant an option concerning; lease;

sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or

dispose of an interest in real property or a right incident to real property;

(3) pledge or mortgage an interest in real property or right incident to real property as

security to borrow money or pay, renew, or extend the time of payment of a debt of the principal

or a debt guaranteed by the principal;

(4) release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust,

conditional sale contract, encumbrance, lien, or other claim to real property which exists or is

asserted;

(5) manage or conserve an interest in real property or a right incident to real property

owned or claimed to be owned by the principal, including:

(A) insuring against liability or casualty or other loss;

(B) obtaining or regaining possession of or protecting the interest or right by

litigation or otherwise;

(C) paying, assessing, compromising, or contesting taxes or assessments or

applying for and receiving refunds in connection with them; and

(D) purchasing supplies, hiring assistance or labor, and making repairs or

alterations to the real property;

(6) use, develop, alter, replace, remove, erect, or install structures or other improvements

upon real property in or incident to which the principal has, or claims to have, an interest or

right;

(7) participate in a reorganization with respect to real property or an entity that owns an

interest in or right incident to real property and receive, and hold, and act with respect to stocks

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and bonds or other property received in a plan of reorganization, including:

(A) selling or otherwise disposing of them;

(B) exercising or selling an option, right of conversion, or similar right with

respect to them; and

(C) exercising any voting rights in person or by proxy;

(8) change the form of title of an interest in or right incident to real property; and

(9) dedicate to public use, with or without consideration, easements or other real property

in which the principal has, or claims to have, an interest.

SECTION 5B-205. TANGIBLE PERSONAL PROPERTY. Unless the power of

attorney otherwise provides, language in a power of attorney granting general authority with

respect to tangible personal property authorizes the agent to:

(1) demand, buy, receive, accept as a gift or as security for an extension of credit, or

otherwise acquire or reject ownership or possession of tangible personal property or an interest in

tangible personal property;

(2) sell; exchange; convey with or without covenants, representations, or warranties;

quitclaim; release; surrender; create a security interest in; grant options concerning; lease;

sublease; or, otherwise dispose of tangible personal property or an interest in tangible personal

property;

(3) grant a security interest in tangible personal property or an interest in tangible

personal property as security to borrow money or pay, renew, or extend the time of payment of a

debt of the principal or a debt guaranteed by the principal;

(4) release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien,

or other claim on behalf of the principal, with respect to tangible personal property or an interest

695
in tangible personal property;

(5) manage or conserve tangible personal property or an interest in tangible personal

property on behalf of the principal, including:

(A) insuring against liability or casualty or other loss;

(B) obtaining or regaining possession of or protecting the property or interest, by

litigation or otherwise;

(C) paying, assessing, compromising, or contesting taxes or assessments or

applying for and receiving refunds in connection with taxes or assessments;

(D) moving the property from place to place;

(E) storing the property for hire or on a gratuitous bailment; and

(F) using and making repairs, alterations, or improvements to the property; and

(6) change the form of title of an interest in tangible personal property.

SECTION 5B-206. STOCKS AND BONDS. Unless the power of attorney otherwise

provides, language in a power of attorney granting general authority with respect to stocks and

bonds authorizes the agent to:

(1) buy, sell, and exchange stocks and bonds;

(2) establish, continue, modify, or terminate an account with respect to stocks and bonds;

(3) pledge stocks and bonds as security to borrow, pay, renew, or extend the time of

payment of a debt of the principal;

(4) receive certificates and other evidences of ownership with respect to stocks and

bonds; and

(5) exercise voting rights with respect to stocks and bonds in person or by proxy, enter

into voting trusts, and consent to limitations on the right to vote.

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Comment

The substance of this section remains unchanged from Section 6 the Uniform Statutory
Form Power of Attorney Act (1988); however, the wording is revised to reflect that “stocks and
bonds” is now a defined term in the Act. See Section 5B-102(11).

SECTION 5B-207. COMMODITIES AND OPTIONS. Unless the power of attorney

otherwise provides, language in a power of attorney granting general authority with respect to

commodities and options authorizes the agent to:

(1) buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call

or put options on stocks or stock indexes traded on a regulated option exchange; and

(2) establish, continue, modify, and terminate option accounts.

SECTION 5B-208. BANKS AND OTHER FINANCIAL INSTITUTIONS. Unless

the power of attorney otherwise provides, language in a power of attorney granting general

authority with respect to banks and other financial institutions authorizes the agent to:

(1) continue, modify, and terminate an account or other banking arrangement made by or

on behalf of the principal;

(2) establish, modify, and terminate an account or other banking arrangement with a

bank, trust company, savings and loan association, credit union, thrift company, brokerage firm,

or other financial institution selected by the agent;

(3) contract for services available from a financial institution, including renting a safe

deposit box or space in a vault;

(4) withdraw, by check, order, electronic funds transfer, or otherwise, money or property

of the principal deposited with or left in the custody of a financial institution;

(5) receive statements of account, vouchers, notices, and similar documents from a

financial institution and act with respect to them;

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(6) enter a safe deposit box or vault and withdraw or add to the contents;

(7) borrow money and pledge as security personal property of the principal necessary to

borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt

guaranteed by the principal;

(8) make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes,

checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the

principal or the principal’s order, transfer money, receive the cash or other proceeds of those

transactions, and accept a draft drawn by a person upon the principal and pay it when due;

(9) receive for the principal and act upon a sight draft, warehouse receipt, or other

document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;

(10) apply for, receive, and use letters of credit, credit and debit cards, electronic

transaction authorizations, and traveler’s checks from a financial institution and give an

indemnity or other agreement in connection with letters of credit; and

(11) consent to an extension of the time of payment with respect to commercial paper or a

financial transaction with a financial institution.

SECTION 5B-209. OPERATION OF ENTITY OR BUSINESS. Subject to the terms

of a document or an agreement governing an entity or an entity ownership interest, and unless

the power of attorney otherwise provides, language in a power of attorney granting general

authority with respect to operation of an entity or business authorizes the agent to:

(1) operate, buy, sell, enlarge, reduce, or terminate an ownership interest;

(2) perform a duty or discharge a liability and exercise in person or by proxy a right,

power, privilege, or option that the principal has, may have, or claims to have;

(3) enforce the terms of an ownership agreement;

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(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or

propose or accept a compromise with respect to litigation to which the principal is a party

because of an ownership interest;

(5) exercise in person or by proxy, or enforce by litigation or otherwise, a right, power,

privilege, or option the principal has or claims to have as the holder of stocks and bonds;

(6) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or

propose or accept a compromise with respect to litigation to which the principal is a party

concerning stocks and bonds;

(7) with respect to an entity or business owned solely by the principal:

(A) continue, modify, renegotiate, extend, and terminate a contract made by or on

behalf of the principal with respect to the entity or business before execution of the power of

attorney;

(B) determine:

(i) the location of its operation;

(ii) the nature and extent of its business;

(iii) the methods of manufacturing, selling, merchandising, financing,

accounting, and advertising employed in its operation;

(iv) the amount and types of insurance carried; and

(v) the mode of engaging, compensating, and dealing with its employees

and accountants, attorneys, or other advisors;

(C) change the name or form of organization under which the entity or business is

operated and enter into an ownership agreement with other persons to take over all or part of the

operation of the entity or business; and

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(D) demand and receive money due or claimed by the principal or on the

principal’s behalf in the operation of the entity or business and control and disburse the money in

the operation of the entity or business;

(8) put additional capital into an entity or business in which the principal has an interest;

(9) join in a plan of reorganization, consolidation, conversion, domestication, or merger

of the entity or business;

(10) sell or liquidate all or part of an entity or business;

(11) establish the value of an entity or business under a buy-out agreement to which the

principal is a party;

(12) prepare, sign, file, and deliver reports, compilations of information, returns, or other

papers with respect to an entity or business and make related payments; and

(13) pay, compromise, or contest taxes, assessments, fines, or penalties and perform any

other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or

penalties, with respect to an entity or business, including attempts to recover, in any manner

permitted by law, money paid before or after the execution of the power of attorney.

Comment

The substance of this section remains unchanged from Section 9 of the Uniform Statutory
Form Power of Attorney Act (1988); however, the wording is updated to encompass all modern
business and entity forms, including limited liability companies, limited liability partnerships,
and entities that may be organized other than for a business purpose.

SECTION 5B-210. INSURANCE AND ANNUITIES. Unless the power of attorney

otherwise provides, language in a power of attorney granting general authority with respect to

insurance and annuities authorizes the agent to:

(1) continue, pay the premium or make a contribution on, modify, exchange, rescind,

release, or terminate a contract procured by or on behalf of the principal which insures or

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provides an annuity to either the principal or another person, whether or not the principal is a

beneficiary under the contract;

(2) procure new, different, and additional contracts of insurance and annuities for the

principal and the principal’s spouse, children, and other dependents, and select the amount, type

of insurance or annuity, and mode of payment;

(3) pay the premium or make a contribution on, modify, exchange, rescind, release, or

terminate a contract of insurance or annuity procured by the agent;

(4) apply for and receive a loan secured by a contract of insurance or annuity;

(5) surrender and receive the cash surrender value on a contract of insurance or annuity;

(6) exercise an election;

(7) exercise investment powers available under a contract of insurance or annuity;

(8) change the manner of paying premiums on a contract of insurance or annuity;

(9) change or convert the type of insurance or annuity with respect to which the principal

has or claims to have authority described in this section;

(10) apply for and procure a benefit or assistance under a statute or regulation to

guarantee or pay premiums of a contract of insurance on the life of the principal;

(11) collect, sell, assign, hypothecate, borrow against, or pledge the interest of the

principal in a contract of insurance or annuity;

(12) select the form and timing of the payment of proceeds from a contract of insurance

or annuity; and

(13) pay, from proceeds or otherwise, compromise or contest, and apply for refunds in

connection with, a tax or assessment levied by a taxing authority with respect to a contract of

insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

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Comment

This section contains a significant change from Section 10 of the Uniform Statutory Form
Power of Attorney Act (1988). The default language in the Uniform Statutory Form Power of
Attorney Act (1988) permitted an agent to designate the beneficiary of an insurance contract.
See Unif. Statutory Form Power of Atty. Act § 10(4) (1988). However, under Section 5B-210 of
this Act, an agent does not have authority to “create or change a beneficiary designation” unless
that authority is specifically granted to the agent pursuant to Section 5B-201(a). The authority
granted under Paragraph (2) of Section 5B-210 is more limited, allowing an agent to only
“procure new, different, and additional contracts of insurance and annuities for the principal and
the principal’s spouse, children, and other dependents.” A principal who grants authority to an
agent under Section 5B-210 should therefore carefully consider whether a specific grant of
authority to create or change beneficiary designations is also desirable.

SECTION 5B-211. ESTATES, TRUSTS, AND OTHER BENEFICIAL

INTERESTS.

(a) In this section, “estate, trust, or other beneficial interest” means a trust, probate estate,

guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is,

may become, or claims to be, entitled to a share or payment.

(b) Unless the power of attorney otherwise provides, language in a power of attorney

granting general authority with respect to estates, trusts, and other beneficial interests authorizes

the agent to:

(1) accept, receive, receipt for, sell, assign, pledge, or exchange a share in or

payment from an estate, trust, or other beneficial interest;

(2) demand or obtain money or another thing of value to which the principal is,

may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by

litigation or otherwise;

(3) exercise for the benefit of the principal a presently exercisable general power

of appointment held by the principal;

(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose,

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or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or

effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest

of the principal;

(5) initiate, participate in, submit to alternative dispute resolution, settle, oppose,

or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a

fiduciary;

(6) conserve, invest, disburse, or use anything received for an authorized purpose;

[and]

(7) transfer an interest of the principal in real property, stocks and bonds, accounts

with financial institutions or securities intermediaries, insurance, annuities, and other property to

the trustee of a revocable trust created by the principal as settlor [; and

(8) reject, renounce, disclaim, release, or consent to a reduction in or modification

of a share in or payment from an estate, trust, or other beneficial interest].

Legislative Note: The bracketed language in paragraph (8) of subsection (b), which
grants an agent a power to “reject, renounce, disclaim [or] release,” should be omitted by an
enacting jurisdiction if that jurisdiction elects to include bracketed paragraph (8) in Section 5B-
201(a), which authorizes an agent to disclaim property, including a power of appointment, only
if specifically authorized in the power of attorney. If, however, other law of the enacting
jurisdiction, such as the state’s disclaimer statute, authorizes an agent to disclaim an interest in,
or power over, property even without specific authority and the jurisdiction does not wish to
restrict that general authority, the jurisdiction should not adopt Section 5B-201(a)(8), but should
enact the bracketed language in Section 5B-21l(b)(8). See Unif. Disclaimer of Property Interests
Act § 5(b) (2006) (providing, “[e]xcept to the extent a fiduciary’s right to disclaim is expressly
restricted or limited by another statute of this state or by the instrument creating the fiduciary
relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property,
including a power of appointment….”).

Comment

This section, which corresponds to Section 11 of the Uniform Statutory Form Power of
Attorney Act (1988), has been revised to clarify that an agent’s authority includes authority to
exercise, for the benefit of the principal, a presently exercisable general power of appointment
held by the principal (subsection (b)(3)). “Presently exercisable general power of appointment”

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is defined for purposes of the Act in Section 5B-102(8).

SECTION 5B-212. CLAIMS AND LITIGATION. Unless the power of attorney

otherwise provides, language in a power of attorney granting general authority with respect to

claims and litigation authorizes the agent to:

(1) assert and maintain before a court or administrative agency a claim, claim for relief,

cause of action, counterclaim, offset, recoupment, or defense, including an action to recover

property or other thing of value, recover damages sustained by the principal, eliminate or modify

tax liability, or seek an injunction, specific performance, or other relief;

(2) bring an action to determine adverse claims or intervene or otherwise participate in

litigation;

(3) seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or

intermediate relief and use an available procedure to effect or satisfy a judgment, order, or

decree;

(4) make or accept a tender, offer of judgment, or admission of facts, submit a

controversy on an agreed statement of facts, consent to examination, and bind the principal in

litigation;

(5) submit to alternative dispute resolution, settle, and propose or accept a compromise;

(6) waive the issuance and service of process upon the principal, accept service of

process, appear for the principal, designate persons upon which process directed to the principal

may be served, execute and file or deliver stipulations on the principal’s behalf, verify pleadings,

seek appellate review, procure and give surety and indemnity bonds, contract and pay for the

preparation and printing of records and briefs, receive, execute, and file or deliver a consent,

waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other

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instrument in connection with the prosecution, settlement, or defense of a claim or litigation;

(7) act for the principal with respect to bankruptcy or insolvency, whether voluntary or

involuntary, concerning the principal or some other person, or with respect to a reorganization,

receivership, or application for the appointment of a receiver or trustee which affects an interest

of the principal in property or other thing of value;

(8) pay a judgment, award, or order against the principal or a settlement made in

connection with a claim or litigation; and

(9) receive money or other thing of value paid in settlement of or as proceeds of a claim

or litigation.

SECTION 5B-213. PERSONAL AND FAMILY MAINTENANCE.

(a) Unless the power of attorney otherwise provides, language in a power of attorney

granting general authority with respect to personal and family maintenance authorizes the agent

to:

(1) perform the acts necessary to maintain the customary standard of living of the

principal, the principal’s spouse, and the following individuals, whether living when the power

of attorney is executed or later born:

(A) the principal’s children;

(B) other individuals legally entitled to be supported by the principal; and

(C) the individuals whom the principal has customarily supported or

indicated the intent to support;

(2) make periodic payments of child support and other family maintenance

required by a court or governmental agency or an agreement to which the principal is a party;

(3) provide living quarters for the individuals described in paragraph (1) by:

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(A) purchase, lease, or other contract; or

(B) paying the operating costs, including interest, amortization payments,

repairs, improvements, and taxes, for premises owned by the principal or occupied by those

individuals;

(4) provide normal domestic help, usual vacations and travel expenses, and funds

for shelter, clothing, food, appropriate education, including postsecondary and vocational

education, and other current living costs for the individuals described in paragraph (1);

(5) pay expenses for necessary health care and custodial care on behalf of the

individuals described in paragraph (1);

(6) act as the principal’s personal representative pursuant to the Health Insurance

Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42

U.S.C. Section 1320d, [as amended,] and applicable regulations, in making decisions related to

the past, present, or future payment for the provision of health care consented to by the principal

or anyone authorized under the law of this state to consent to health care on behalf of the

principal;

(7) continue any provision made by the principal for automobiles or other means

of transportation, including registering, licensing, insuring, and replacing them, for the

individuals described in paragraph (1);

(8) maintain credit and debit accounts for the convenience of the individuals

described in paragraph (1) and open new accounts; and

(9) continue payments incidental to the membership or affiliation of the principal

in a religious institution, club, society, order, or other organization or to continue contributions to

those organizations.

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(b) Authority with respect to personal and family maintenance is neither dependent upon,

nor limited by, authority that an agent may or may not have with respect to gifts under this [act].

Comment

This section, based on Section 13 of the Uniform Statutory Form Power of Attorney Act
(1988), contains three important changes. The first is clarification in subsection (a)(1) of who
qualifies to benefit from payments for personal and family maintenance. Subsection (a)(1) states
that the individuals who may benefit include not only the principal’s children and other
individuals legally entitled to be supported by the principal, but also “individuals whom the
principal has customarily supported or indicated the intent to support,” “whether living when the
power of attorney is executed or later born.” This definition is broad enough to include common
recipients of family support such as parents and later-born grandchildren if such support is
intended by the principal.

The second important addition to Section 5B-213 is the inclusion of paragraph (6) in
subsection (a) which qualifies the agent to act as the principal’s “personal representative” for
purposes of the Health Insurance Portability and Accountability Act (HIPAA) so that the agent
can communicate with health care providers in order to pay medical bills. See 45 C.F.R. §
164.502(g)(1)-(2) (2006) (providing that for purposes of disclosing an individual’s protected
health information, “a covered entity must…treat a personal representative as the individual”).
Section 5B-213 does not, however, empower the agent to make health-care decisions for the
principal. See Section 5B-103 and comment (discussing exclusion from this Act of powers to
make health-care decisions).

The third important addition to this section is subsection (b) which provides that authority
under Section 5B-213 is neither dependent upon, nor limited by, authority that an agent may or
may not have with respect to making gifts. Although payments made for the benefit of persons
under Section 5B-213 may in fact be subject to gift tax treatment, subsection (b) clarifies that the
authority for personal and family maintenance payments by an agent emanates from this section
rather than Section 5B-217. This is an important distinction because the Act requires a grant of
specific authority under Section 5B-201(a) to authorize gift making, and the default provisions of
Section 5B-217 limit the amounts of those gifts. The authority to make payments under Section
5B-213 is not constrained by either of these provisions.

SECTION 5B-214. BENEFITS FROM GOVERNMENTAL PROGRAMS OR

CIVIL OR MILITARY SERVICE.

(a) In this section, “benefits from governmental programs or civil or military service”

means any benefit, program or assistance provided under a statute or regulation including Social

Security, Medicare, and Medicaid.

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(b) Unless the power of attorney otherwise provides, language in a power of attorney

granting general authority with respect to benefits from governmental programs or civil or

military service authorizes the agent to:

(1) execute vouchers in the name of the principal for allowances and

reimbursements payable by the United States or a foreign government or by a state or

subdivision of a state to the principal, including allowances and reimbursements for

transportation of the individuals described in Section 5B-213(a)(1), and for shipment of their

household effects;

(2) take possession and order the removal and shipment of property of the

principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either

governmental or private, and execute and deliver a release, voucher, receipt, bill of lading,

shipping ticket, certificate, or other instrument for that purpose;

(3) enroll in, apply for, select, reject, change, amend, or discontinue, on the

principal’s behalf, a benefit or program;

(4) prepare, file, and maintain a claim of the principal for a benefit or assistance,

financial or otherwise, to which the principal may be entitled under a statute or regulation;

(5) initiate, participate in, submit to alternative dispute resolution, settle, oppose,

or propose or accept a compromise with respect to litigation concerning any benefit or assistance

the principal may be entitled to receive under a statute or regulation; and

(6) receive the financial proceeds of a claim described in paragraph (4) and

conserve, invest, disburse, or use for a lawful purpose anything so received.

SECTION 5B-215. RETIREMENT PLANS.

(a) In this section, “retirement plan” means a plan or account created by an employer, the

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principal, or another individual to provide retirement benefits or deferred compensation of which

the principal is a participant, beneficiary, or owner, including a plan or account under the

following sections of the Internal Revenue Code:

(1) an individual retirement account under Internal Revenue Code Section 408, 26

U.S.C. Section 408 [, as amended];

(2) a Roth individual retirement account under Internal Revenue Code Section

408A, 26 U.S.C. Section 408A [, as amended];

(3) a deemed individual retirement account under Internal Revenue Code Section

408(q), 26 U.S.C. Section 408(q) [, as amended];

(4) an annuity or mutual fund custodial account under Internal Revenue Code

Section 403(b), 26 U.S.C. Section 403(b) [, as amended];

(5) a pension, profit-sharing, stock bonus, or other retirement plan qualified under

Internal Revenue Code Section 401(a), 26 U.S.C. Section 401(a) [, as amended];

(6) a plan under Internal Revenue Code Section 457(b), 26 U.S.C. Section 457(b)

[, as amended]; and

(7) a nonqualified deferred compensation plan under Internal Revenue Code

Section 409A, 26 U.S.C. Section 409A [, as amended].

(b) Unless the power of attorney otherwise provides, language in a power of attorney

granting general authority with respect to retirement plans authorizes the agent to:

(1) select the form and timing of payments under a retirement plan and withdraw

benefits from a plan;

(2) make a rollover, including a direct trustee-to-trustee rollover, of benefits from

one retirement plan to another;

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(3) establish a retirement plan in the principal’s name;

(4) make contributions to a retirement plan;

(5) exercise investment powers available under a retirement plan; and

(6) borrow from, sell assets to, or purchase assets from a retirement plan.

Comment

This section, based on Section 15 of the Uniform Statutory Form Power of Attorney Act
(1988), has been substantially updated to reflect changes in the laws governing retirement plans.
A significant departure from the Uniform Statutory Form Power of Attorney Act (1988) is the
deletion of default authority in the agent to waive the right of the principal to be a beneficiary of
a joint or survivor annuity (see Unif. Statutory Form Power of Atty. Act § 15 (1988)). Under
this Act, the authority to waive the principal’s right to be a beneficiary of a joint and survivor
annuity must be given by a specific grant pursuant to Section 5B-201(a).

SECTION 5B-216. TAXES. Unless the power of attorney otherwise provides,

language in a power of attorney granting general authority with respect to taxes authorizes the

agent to:

(1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property,

Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for

extension of time, petitions regarding tax matters, and any other tax-related documents, including

receipts, offers, waivers, consents, including consents and agreements under Internal Revenue

Code Section 2032A, 26 U.S.C. Section 2032A, [as amended,] closing agreements, and any

power of attorney required by the Internal Revenue Service or other taxing authority with respect

to a tax year upon which the statute of limitations has not run and the following 25 tax years;

(2) pay taxes due, collect refunds, post bonds, receive confidential information, and

contest deficiencies determined by the Internal Revenue Service or other taxing authority;

(3) exercise any election available to the principal under federal, state, local, or foreign

tax law; and

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(4) act for the principal in all tax matters for all periods before the Internal Revenue

Service, or other taxing authority.

SECTION 5B-217. GIFTS.

(a) In this section, a gift “for the benefit of” a person includes a gift to a trust, an account

under the Uniform Transfers to Minors Act (1983/1986), and a tuition savings account or prepaid

tuition plan as defined under Internal Revenue Code Section 529, 26 U.S.C. Section 529 [, as

amended].

(b) Unless the power of attorney otherwise provides, language in a power of attorney

granting general authority with respect to gifts authorizes the agent only to:

(1) make outright to, or for the benefit of, a person, a gift of any of the principal’s

property, including by the exercise of a presently exercisable general power of appointment held

by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift

tax exclusion under Internal Revenue Code Section 2503(b), 26 U.S.C. Section 2503(b), [as

amended,] without regard to whether the federal gift tax exclusion applies to the gift, or if the

principal’s spouse agrees to consent to a split gift pursuant to Internal Revenue Code Section

2513, 26 U.S.C. 2513, [as amended,] in an amount per donee not to exceed twice the annual

federal gift tax exclusion limit; and

(2) consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C. Section

2513, [as amended,] to the splitting of a gift made by the principal’s spouse in an amount per

donee not to exceed the aggregate annual gift tax exclusions for both spouses.

(c) An agent may make a gift of the principal’s property only as the agent determines is

consistent with the principal’s objectives if actually known by the agent and, if unknown, as the

agent determines is consistent with the principal’s best interest based on all relevant factors,

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including:

(1) the value and nature of the principal’s property;

(2) the principal’s foreseeable obligations and need for maintenance;

(3) minimization of taxes, including income, estate, inheritance, generation-

skipping transfer, and gift taxes;

(4) eligibility for a benefit, a program, or assistance under a statute or regulation;

and

(5) the principal’s personal history of making or joining in making gifts.

Comment

This section provides default limitations on an agent’s authority to make a gift of the
principal’s property. Authority to make a gift must be made by a specific grant in a power of
attorney (see Section 5B-201(a)(2); see also Section 5B-301). The mere granting to an agent of
authority to make gifts does not, however, grant an agent unlimited authority. The agent’s
authority is subject to this section unless enlarged or further limited by an express modification
in the power of attorney. Without modification, the authority of an agent under this section is
limited to gifts in an amount per donee not to exceed the annual dollar limits of the federal gift
tax exclusion, or twice that amount if the principal and the principal’s spouse consent to make a
split gift.

Subsection (a) of this section clarifies the fact that a gift includes not only outright gifts,
but also gifts for the benefit of a person. Subsection (a) provides examples of gifts made for the
benefit of a person, but these examples are not intended to be exclusive.

Subsection (c) emphasizes that exercise of authority to make a gift, as with exercise of all
authority under a power of attorney, must be consistent with the principal’s objectives. If these
objectives are not known, then gifts must be consistent with the principal’s best interest based on
all relevant factors. Subsection (c) provides examples of factors relevant to the principal’s best
interest, but these examples are illustrative rather than exclusive.

To the extent that a principal’s objectives with respect to the making of gifts may
potentially conflict with an agent’s default duties under the Act, the principal should carefully
consider stating those objectives in the power of attorney, or altering the default rules to
accommodate the objectives, or both. See Section 5B-114 Comment.

PART 3. STATUTORY FORMS

Legislative Note: An enacting jurisdiction should review its respective statutory

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requirements for acknowledgments and for the recording of documents and amend, where
necessary for conformity with those requirements, the statutory forms provided in Sections 5B-
301 and 5B-302.

GENERAL COMMENT

Part 3 provides a concise, optional statutory form for creating a power of attorney under
this Act (Section 5B-301). With the proliferation of power of attorney forms in the public
domain, the advantage of a statutorily-sanctioned form is the promotion of uniformity in power
of attorney practice. In states such as Illinois and New York, where state-sanctioned statutory
forms have existed for many years, the statutory form is widely used by both lawyers and lay
persons. The familiarity and common understanding achieved with the use of one statutory form
also facilitates acceptance of powers of attorney. In the twenty years preceding this Act, the
number of states with statutory forms has increased from only a few to eighteen.

In addition to the statutory form power of attorney, Part 3 provides an optional form for
agent certification of facts pertaining to a power of attorney (Section 5B-302). Pursuant to
Section 5B-119, a person may request an agent to certify any factual matter concerning the
principal, agent, or power of attorney. The form in Section 5B-302 is intended to facilitate agent
compliance with these requests. The form lists factual matters about which persons commonly
request certification (e.g., the principal is alive and has not revoked the power of attorney or the
agent’s authority), and provides a designated space for certification of additional factual
statements. Both the statutory form power of attorney and the agent certification form may be
tailored to accommodate individual circumstances and objectives.

SECTION 5B-301. STATUTORY FORM POWER OF ATTORNEY. A document

substantially in the following form may be used to create a statutory form power of attorney that

has the meaning and effect prescribed by this [article].

[INSERT NAME OF JURISDICTION]

STATUTORY FORM POWER OF ATTORNEY

IMPORTANT INFORMATION

This power of attorney authorizes another person (your agent) to make decisions
concerning your property for you (the principal). Your agent will be able to make decisions and
act with respect to your property (including your money) whether or not you are able to act for
yourself. The meaning of authority over subjects listed on this form is explained in the Uniform
Power of Attorney Act [insert citation].

This power of attorney does not authorize the agent to make health-care decisions for
you.

713
You should select someone you trust to serve as your agent. Unless you specify
otherwise, generally the agent’s authority will continue until you die or revoke the power of
attorney or the agent resigns or is unable to act for you.

Your agent is entitled to reasonable compensation unless you state otherwise in the
Special Instructions.

This form provides for designation of one agent. If you wish to name more than one
agent you may name a coagent in the Special Instructions. Coagents are not required to act
together unless you include that requirement in the Special Instructions.

If your agent is unable or unwilling to act for you, your power of attorney will end unless
you have named a successor agent. You may also name a second successor agent.

This power of attorney becomes effective immediately unless you state otherwise in the
Special Instructions.

If you have questions about the power of attorney or the authority you are granting to
your agent, you should seek legal advice before signing this form.

DESIGNATION OF AGENT

I name the following

(Name of Principal)
person as my agent:

Name of Agent:

Agent’s Address:

Agent’s Telephone Number:

DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)

If my agent is unable or unwilling to act for me, I name as my successor agent:

Name of Successor Agent:

Successor Agent’s Address:

Successor Agent’s Telephone Number:_______________________________________

If my successor agent is unable or unwilling to act for me, I name as my second successor
agent:

Name of Second Successor Agent:

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Second Successor Agent’s Address:_________________________________________

Second Successor Agent’s Telephone Number:

GRANT OF GENERAL AUTHORITY

I grant my agent and any successor agent general authority to act for me with respect to
the following subjects as defined in the Uniform Power of Attorney Act [insert citation]:
(INITIAL each subject you want to include in the agent’s general authority. If you wish
to grant general authority over all of the subjects you may initial “All Preceding Subjects”
instead of initialing each subject.)

(___) Real Property

(___) Tangible Personal Property
(___) Stocks and Bonds
(___) Commodities and Options
(___) Banks and Other Financial Institutions
(___) Operation of Entity or Business
(___) Insurance and Annuities
(___) Estates, Trusts, and Other Beneficial Interests
(___) Claims and Litigation
(___) Personal and Family Maintenance
(___) Benefits from Governmental Programs or Civil or Military Service
(___) Retirement Plans
(___) Taxes
(___) All Preceding Subjects

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

My agent MAY NOT do any of the following specific acts for me UNLESS I have
INITIALED the specific authority listed below:

(CAUTION: Granting any of the following will give your agent the authority to take
actions that could significantly reduce your property or change how your property is distributed
at your death. INITIAL ONLY the specific authority you WANT to give your agent.)

(___) Create, amend, revoke, or terminate an inter vivos trust

(___) Make a gift, subject to the limitations of the Uniform Power of Attorney Act
[insert citation to Section 217 of the act] and any special instructions in this power of attorney
(___) Create or change rights of survivorship
(___) Create or change a beneficiary designation
(___) Authorize another person to exercise the authority granted under this power of
attorney
(___) Waive the principal’s right to be a beneficiary of a joint and survivor annuity,
including a survivor benefit under a retirement plan
(___) Exercise fiduciary powers that the principal has authority to delegate

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[(___) Disclaim or refuse an interest in property, including a power of appointment]

LIMITATION ON AGENT’S AUTHORITY

An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to
benefit the agent or a person to whom the agent owes an obligation of support unless I have
included that authority in the Special Instructions.

SPECIAL INSTRUCTIONS (OPTIONAL)

You may give special instructions on the following lines:

EFFECTIVE DATE

This power of attorney is effective immediately unless I have stated otherwise in the
Special Instructions.

NOMINATION OF [CONSERVATOR OR GUARDIAN] (OPTIONAL)

If it becomes necessary for a court to appoint a [conservator or guardian] of my estate or

[guardian] of my person, I nominate the following person(s) for appointment:

Name of Nominee for [conservator or guardian] of my estate:

Nominee’s Address:

Nominee’s Telephone Number:

Name of Nominee for [guardian] of my person:

Nominee’s Address:

Nominee’s Telephone Number:

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RELIANCE ON THIS POWER OF ATTORNEY

Any person, including my agent, may rely upon the validity of this power of attorney or a
copy of it unless that person knows it has terminated or is invalid.

SIGNATURE AND ACKNOWLEDGMENT

____________________________________________
Your Signature Date

Your Name Printed

Your Address

Your Telephone Number

State of

[County] of

This document was acknowledged before me on ,________

(Date)
by______________________________________.
(Name of Principal)

____________________________________________ (Seal, if any)

Signature of Notary
My commission expires:
[This document prepared by:

IMPORTANT INFORMATION FOR AGENT

Agent’s Duties

When you accept the authority granted under this power of attorney, a special legal
relationship is created between you and the principal. This relationship imposes upon you legal
duties that continue until you resign or the power of attorney is terminated or revoked. You
must:

717
(1) do what you know the principal reasonably expects you to do with the principal’s
property or, if you do not know the principal’s expectations, act in the principal’s best interest;
(2) act in good faith;
(3) do nothing beyond the authority granted in this power of attorney; and
(4) disclose your identity as an agent whenever you act for the principal by writing or
printing the name of the principal and signing your own name as “agent” in the following
manner:

(Principal’s Name) by (Your Signature) as Agent

Unless the Special Instructions in this power of attorney state otherwise, you must also:

(1) act loyally for the principal’s benefit;

(2) avoid conflicts that would impair your ability to act in the principal’s best interest;
(3) act with care, competence, and diligence;
(4) keep a record of all receipts, disbursements, and transactions made on behalf of the
principal;
(5) cooperate with any person that has authority to make health-care decisions for the
principal to do what you know the principal reasonably expects or, if you do not know the
principal’s expectations, to act in the principal’s best interest; and
(6) attempt to preserve the principal’s estate plan if you know the plan and preserving the
plan is consistent with the principal’s best interest.

Termination of Agent’s Authority

You must stop acting on behalf of the principal if you learn of any event that terminates
this power of attorney or your authority under this power of attorney. Events that terminate a
power of attorney or your authority to act under a power of attorney include:

(1) death of the principal;

(2) the principal’s revocation of the power of attorney or your authority;
(3) the occurrence of a termination event stated in the power of attorney;
(4) the purpose of the power of attorney is fully accomplished; or
(5) if you are married to the principal, a legal action is filed with a court to end your
marriage, or for your legal separation, unless the Special Instructions in this power of attorney
state that such an action will not terminate your authority.

Liability of Agent

The meaning of the authority granted to you is defined in the Uniform Power of Attorney
Act [insert citation]. If you violate the Uniform Power of Attorney Act [insert citation] or act
outside the authority granted, you may be liable for any damages caused by your violation.

If there is anything about this document or your duties that you do not understand, you
should seek legal advice.

718
Legislative Note: The brackets which precede the words “Statutory Form Power of
Attorney” indicate where the enacting jurisdiction should insert the name of the jurisdiction. An
indication of the jurisdiction in a power of attorney is important to establish what law supplies
the default rules and statutory definitions for interpretation of the power of attorney (see Section
5B-107 and Comment). Likewise, the brackets in the first paragraph of the “Important
Information” section of the form indicate where the enacting jurisdiction should insert the
citation for its codification of the Uniform Power of Attorney Act.

In the “Grant of Specific Authority” section of the form, the phrase “Disclaim or refuse
an interest in property, including a power of appointment” is in brackets and should be deleted if
under the law of the enacting jurisdiction a fiduciary has authority to disclaim an interest in, or
power over, property and the jurisdiction does not wish to restrict that authority by the Uniform
Power of Attorney Act. See Unif. Disclaimer of Property Interests Acts § 5(b) (2006) (providing,
“[e]xcept to the extent a fiduciary’s right to disclaim is expressly restricted or limited by another
statute of this state or by the instrument creating the fiduciary relationship, a fiduciary may
disclaim, in whole or part, any interest in or power over property, including a power of
appointment….”). See also Section 5B-201 Legislative Note.

The brackets in the “Nomination of Conservator or Guardian” section of the form

indicate areas where an enacting jurisdiction should review its respective guardianship,
conservatorship, or other protective proceedings statutes and amend, if necessary for
consistency, the terminology and substance of the bracketed language.

The bracketed language “This document prepared by:” at the conclusion of the
“Signature and Acknowledgment” section of the form may be omitted or amended as necessary
to conform to the jurisdiction’s statutory requirements for acknowledgments or the recording of
documents.

Comment

This section provides an optional form for creating a power of attorney. Any power of
attorney that substantially complies with the form in Section 5B-301 constitutes a statutory form
power of attorney with the meaning and effect prescribed by the Act.

The form begins with an “Important Information” section that contains instructions for
the principal and concludes with an “Important Information for Agent” section that contains
general information for the agent about agent duties, events that terminate an agent’s authority,
and agent liability. The form is constructed to guide the principal through designation of an
agent, optional designation of one or more successor agents, and selection of subject areas and
acts with respect to which the principal wishes to grant the agent authority. The form also
contains an option for nomination of a conservator or guardian in the event later court-
appointment of a fiduciary becomes necessary (see Section 5B-108 and Comment).

The grant of authority provisions in the form are divided into two sections: “Grant of
General Authority,” which corresponds to the subject areas defined in Sections 5B-204 through
5B-216 of the Act, and “Grant of Specific Authority,” which corresponds to the actions for

719
which Section 5B-201(a) requires an express grant of authority in a power of attorney. Part 2 of
the Act provides statutory construction with respect to all of the subject matters in the Grant of
General Authority section and for the authority to make a gift listed in the Grant of Specific
Authority section. The principal may modify any authority granted in the form by using the
“Special Instructions” section of the form. For example, the scope of authority to make a gift is
defined by the default provisions of Section 5B-217 unless the principal expands or narrows that
authority in the Special Instructions.

Cautionary language in the Grant of Specific Authority section alerts the principal to the
increased risks associated with a grant of authority that could significantly reduce the principal’s
property or alter the principal’s estate plan. The form is constructed to require that the principal
initial each action over which the principal grants specific authority. The separate authorization
of acts covered by Section 5B-201(a) is intended to emphasize to the principal the significance of
granting such specific authority and to minimize the risk that those actions might be authorized
inadvertently.

Many principals may wish to grant an agent comprehensive authority over their day-to-
day affairs. If this is the case, the principal may grant authority over all of the subject areas in
the Grant of General Authority section by initialing “All Preceding Subjects.” Otherwise, the
principal may authorize fewer than all of the subjects listed in the Grant of General Authority
section by initialing only those particular subjects.

The statutory form is drafted to follow the Act’s default provisions, but it does not
preclude alteration of the default rules or the exercise of other options available under the Act.
For example, if not altered by the Special Instructions, the default rules embodied in a statutory
form power of attorney include:

(1) the power of attorney is durable (Section 5B-104);

(2) the power of attorney is effective when executed (Section 5B-109);

(3) a spouse-agent’s authority terminates upon the filing of an action for dissolution,
annulment, or legal separation (Section 5B-110(b)(3));

(4) lapse of time does not affect an agent’s authority (Section 5B-110(c));

(5) a successor agent has the same authority as the original agent (Section 5B-
111(b));

(6) a successor agent may not act until all predecessors have resigned, died, become
incapacitated, are no longer qualified to serve, or have declined to serve (Section 5B-111(b));

(7) an agent is entitled to reimbursement of expenses reasonably incurred (Section

5B-112);

(8) an agent is entitled to reasonable compensation (Section 5B-112);

720
(9) the agent accepts appointment by exercising authority or performing duties, or by
any assertion or conduct indicating acceptance (Section 5B-113);

(10) an agent has a duty to act loyally for the principal’s benefit; to act so as not to
create a conflict of interest that impairs the ability to act impartially in the principal’s best
interest; to act with care, competence, and diligence; to keep a record of receipts, disbursements,
and transactions; to cooperate with the principal’s health-care agent; to attempt to preserve the
principal’s estate plan to the extent the plan is known to the agent and if preservation is
consistent with the principal’s best interest; and to account if ordered by a court or requested by
the principal, a fiduciary acting for the principal, a governmental agency with authority to protect
the principal, or the personal representative or successor in interest of the principal’s estate
(Section 5B-114);

(11) an agent must give notice of resignation as specified in Section 5B-118; and

(12) an agent that is not the principal’s ancestor, spouse, or descendant may not
exercise authority to create in the agent, or an individual to whom the agent owes support, an
interest in the principal’s property (Section 5B-201(b)).

Although the statutory form does not include express prompts for deviating from the
foregoing default rules, any statutorily-sanctioned deviation from the statutory form may be
indicated in, or on an addendum to, the Special Instructions.

SECTION 5B-302. AGENT’S CERTIFICATION. The following optional form may

be used by an agent to certify facts concerning a power of attorney.

AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND

AGENT’S AUTHORITY

State of _____________________________

[County] of___________________________]

I, ___________________________________________ (Name of Agent), [certify] under

penalty

of perjury that _______________________(Name of Principal) granted me authority as

an agent or successor agent in a power of attorney dated ________________________.

I further [certify] that to my knowledge:

(1) the Principal is alive and has not revoked the Power of Attorney or my authority to act
under the Power of Attorney and the Power of Attorney and my authority to act under the Power
of Attorney have not terminated;

721
(2) if the Power of Attorney was drafted to become effective upon the happening of an
event or contingency, the event or contingency has occurred;

(3) if I was named as a successor agent, the prior agent is no longer able or willing to
serve; and

(4)

(Insert other relevant statements)

SIGNATURE AND ACKNOWLEDGMENT

Agent’s Signature Date

__________________________
Agent’s Name Printed

_____________________________
Agent’s Address

Agent’s Telephone Number

This document was acknowledged before me on ________________________,________

(Date)
by .
(Name of Agent)

(Seal, if any)
Signature of Notary

My commission expires:

[This document prepared by:

Legislative Note: The phrase “certify” is bracketed in this section to indicate where an
enacting jurisdiction should review its respective statutory requirements for acknowledgments
and the recording of documents and amend, if necessary for consistency, the terminology and
substance of the bracketed language. Likewise, the bracketed language “This document

722
prepared by:” at the conclusion of the Agent’s certification form may be omitted or amended as
necessary to conform with the jurisdiction’s statutory requirements for acknowledgments or the
recording of documents.

Comment

This section provides an optional form that may be used by an agent to certify facts
concerning a power of attorney. Although the form contains statements of fact about which
persons commonly request certification, other factual statements may be added to the form for
the purpose of providing an agent certification pursuant to Section 5B-119.

ARTICLE VI

NONPROBATE TRANSFERS ON DEATH

The following free-standing Acts are associated with Article VI:

Uniform Nonprobate Transfers on Death Act (1989/1998)

Article VI, Parts 1-3 have also been adopted in some states as a free-standing Uniform
Nonprobate Transfers on Death Act. While the substance of this Act remains valid, the
freestanding act was withdrawn as part of a 2010 reorganization because it did not include the
provisions relating to real estate in Part 4. States may still adopt Parts 2, 3, and 4 as free-
standing Acts.

Uniform Multiple-Person Accounts Act (1989/1998)

Article VI, Part 2 has also been adopted as the free-standing Uniform Multiple-Person
Accounts Act (1989/1998).

Uniform TOD Security Registration Act (1989/1998)

Article VI, Part 3 has also been adopted as the free-standing Uniform TOD Security
Registration Act (1989/1998).

Uniform Real Property Transfer on Death Act (2009).

Article VI, Part 4 has also been adopted as the free-standing Uniform Real Property
Transfer on Death Act (2009).

PREFATORY NOTE

The 1989 amendment of Uniform Probate Code Article VI (nonprobate transfers)

replaced former Article VI with a revised article. Part 1 (provisions relating to effect of death) of
the revised article was amended and relocated from former Part 2. Part 2 (Uniform Multiple
Person-Accounts Act (1989/1998)) of the revised article was amended and relocated from former

723
Part 1. Part 3 (Uniform TOD Security Registration Act (1989/1998)) of the revised article was
added. This reorganization allowed for general provisions at the beginning of the article, and
permitted parts to be divided into subparts that group related provisions together. This
reorganization also facilitated the addition of the Uniform Real Property Transfer on Death Act
(2009) as Part 4.

Multiple-Person Accounts

The 1989 amendment of Part 2 (Uniform Multiple Person-Accounts Act (1989/1998)) of

the revised article simplified drafting and terminology. It consolidated treatment of POD
accounts and trust accounts so that the same rules apply to both, since both types of account
operate identically and serve the same function of passing property to a beneficiary at the death
of the account owner. The amendment likewise eliminated references to “joint” accounts, since
the statute treats joint tenancy accounts and tenancy in common accounts the same for all
purposes other than survivorship. Other terminological and drafting simplifications and
standardizations were made throughout the statute. Treatment of existing accounts is included.

The 1989 amendment made a few substantive changes in rules previously established in
the multiple-person account statute. The changes included recognition of checks issued by an
account owner before death and presented for payment after death, revision of the creditor rights
procedure to enable a survivor or beneficiary to spread the burden among survivors and
beneficiaries of other accounts of the decedent and to provide a uniform one-year limitation
period for creditors, and a provision that a financial institution must have received notice at the
appropriate office and have had a reasonable time to act before it is charged with knowledge that
any change in account circumstances has occurred. A provision was also added that on the death
of a married person, beneficial ownership of the decedent’s share in a survivorship account
passes to the surviving spouse who is an account party in preference to other surviving account
parties.

The 1989 amendment included a number of important improvements designed to make

multiple-person accounts more useful. An agency designation is authorized to enable an account
owner to add another person to the account as a convenience in making withdrawals without
creating any ownership or survivorship interest in the person identified as an agent. Optional
statutory forms for multiple-person accounts are provided for the convenience and protection of
financial institutions. Payment to a minor who is an account beneficiary is authorized pursuant
to the Uniform Transfers to Minors Act (1983/1986). A provision is added to make clear that
marital funds deposited in an account retain any community property incidents, and the law
governing tenancy by the entireties is preserved where applicable.

The drafting committee believes that the 1989 amendment of the multiple-person account
statute is a substantial improvement in an already successful law. This part of the Uniform
Probate Code is one of the most broadly accepted, having been adopted either as part of the code
or independently by over half the states. This amendment draws on useful improvements made
by various states that have enacted the statute, and should make the statute even more attractive.

Uniform TOD Security Registration Act

724
The purpose of Part 3 (Uniform TOD Security Registration Act) of the revised article is
to allow the owner of securities to register the title in transfer-on-death (TOD) form. Mutual
fund shares and accounts maintained by brokers and others to reflect a customer’s holdings of
securities (so-called “street accounts”) are also covered. The legislation enables an issuer,
transfer agent, broker, or other such intermediary to transfer the securities directly to the
designated transferee on the owner’s death. Thus, TOD registration achieves for securities a
certain parity with existing TOD and pay-on-death (POD) facilities for bank deposits and other
assets passing at death outside the probate process.

The TOD registration under this part is designed to give the owner of securities who
wishes to arrange for a nonprobate transfer at death an alternative to the frequently troublesome
joint tenancy form of title. Because joint tenancy registration of securities normally entails a
sharing of lifetime entitlement and control, it works satisfactorily only so long as the co-owners
cooperate. Difficulties arise when co-owners fall into disagreement, or when one becomes
afflicted or insolvent.

Use of the TOD registration form encouraged by this legislation has no effect on the
registered owner’s full control of the affected security during his or her lifetime. A TOD
designation and any beneficiary interest arising under the designation ends whenever the
registered asset is transferred, or whenever the owner otherwise complies with the issuer’s
conditions for changing the title form of the investment. The part recognizes, in Section 6-302,
that co-owners with right of survivorship may be registered as owners together with a TOD
beneficiary designated to take if the registration remains unchanged until the beneficiary survives
the joint owners. In such a case, the survivor of the joint owners has full control of the asset and
may change the registration form as he or she sees fit after the other’s death.

Implementation of the part is wholly optional with issuers. The drafting committee
received the benefit of considerable advice and assistance from representatives of the mutual
fund and stock transfer industries during the course of its three years of preparatory work.
Accordingly, it is believed that this part takes full account of the practical requirements for
efficient transfer within the securities industry.

Section 6-303 invites application of the legislation to locally owned securities though the
statute may not have been locally enacted, so long as the part or similar legislation is in force in a
jurisdiction of the issuer or transfer agent. Thus, if the principal jurisdictions in which securities
issuers and transfer agents are sited enact the measure, its benefits will become generally
available to persons domiciled in states that do not at once enact the statute.

The 1989 legislation was drafted as a separate part, hence not interpolated as an
expansion of the former UPC Article VI, Part 1, treating bank accounts (“multiple-party
accounts”). Securities merit a distinct statutory regime, because a different principle has
governed concurrent ownership of securities. By virtue either of statute or of account terms
(contract), multiple-party bank accounts allow any one cotenant to consume or transfer account
balances. See R. Brown, The Law of Personal Property § 65, at 217 (2d ed. 1955); Langbein,
The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108,
1112 (1984). The rule for securities, however, has been the rule that applies to real property: all

725
cotenants must act together in transferring the securities. This difference in the legal regime
reflects differences in function among the types of assets. Multiple-party bank accounts typically
arise as convenience accounts, to facilitate frequent small transactions, often on an agency basis
(as when spouses or relatives share an account). Securities resemble real estate in that the values
are typically large and the transactions relatively infrequent, which is why the legal regime
requires the concurrence of all concurrent owners for transfers affecting such assets.

This distinction between bank accounts and securities has begun to crumble. Banks are
offering certificates of deposit of large value under the same account forms that were devised for
low-value convenience accounts. Meanwhile, brokerage houses with their so-called cash
management accounts and mutual funds with their money market accounts have rendered
securities subject to small recurrent transactions. Even the line between real estate and bank
accounts is becoming indistinct, as the “home equity line of credit” creates a check-writing
conduit to real estate values.

Nevertheless, even though new forms of contract have rendered the boundaries between
securities and bank accounts less firm, the distinction seems intuitively correct for statutory
default rules. True co-owners of securities, like owners of realty, should act together in
transferring the asset.

The joint bank account and the Totten trust originated in ambiguous lifetime ownership
forms, which required former UPC Section 6-103 or comparable state legislation to clarify that
an inter vivos transfer was not intended. In the securities field, by contrast, we start with
unambiguous lifetime ownership rules. The sole purpose of the present statute is to facilitate a
nonprobate TOD mechanism as an option for those owners.

For a comprehensive discussion of the issues entailed in this legislation, see Wellman,
Transfer-on-Death Securities Registration: A New Title Form, 21 Ga. L. Rev. 789 (1987).

Uniform Real Property Transfer on Death Act (2009).

One of the main innovations in the property law of the twentieth century has been the
development of asset-specific will substitutes for the transfer of property at death. By these
mechanisms, an owner may designate beneficiaries to receive the property at the owner’s death
without waiting for probate and without the beneficiary designation needing to comply with the
witnessing requirements of wills. Examples of specific assets that today routinely pass outside
of probate include the proceeds of life insurance policies and pension plans, securities registered
in transfer on death (TOD) form, and funds held in pay on death (POD) bank accounts.

Today, nonprobate transfers are widely accepted. The trend has largely focused on assets
that are personal property, such as the assets described in the preceding paragraph. However,
long-standing uniform law speaks more broadly. Section 6-101 of the Uniform Probate Code
(UPC) provides: “A provision for a nonprobate transfer on death in an insurance policy, contract
of employment, bond, mortgage, promissory note, certificated or uncertificated security, account
agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual
retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property

726
agreement, or other written instrument of a similar nature is nontestamentary.”

A small but growing number of jurisdictions have implemented the principle of UPC
Section 6-101 by enacting statutes providing an asset-specific mechanism for the nonprobate
transfer of land. This is done by permitting owners of interests in real property to execute and
record a transfer on death (TOD) deed. By this deed, the owner identifies the beneficiary or
beneficiaries who will succeed to the property at the owner’s death. During the owner’s lifetime,
the beneficiaries have no interest in the property, and the owner retains full power to transfer or
encumber the property or to revoke the TOD deed.

PART 1. PROVISIONS RELATING TO EFFECT OF DEATH

SECTION 6-101. NONPROBATE TRANSFERS ON DEATH. A provision for a

nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage,

promissory note, certificated or uncertificated security, account agreement, custodial agreement,

deposit agreement, compensation plan, pension plan, individual retirement plan, employee

benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written

instrument of a similar nature is nontestamentary. This subsection includes a written provision

that:

(1) money or other benefits due to, controlled by, or owned by a decedent before death

must be paid after the decedent’s death to a person whom the decedent designates either in the

instrument or in a separate writing, including a will, executed either before or at the same time as

the instrument, or later;

(2) money due or to become due under the instrument ceases to be payable in the event of

death of the promisee or the promisor before payment or demand; or

(3) any property controlled by or owned by the decedent before death which is the subject

of the instrument passes to a person the decedent designates either in the instrument or in a

separate writing, including a will, executed either before or at the same time as the instrument, or

later.

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Comment

This section is a revised version of former Section 6-201 of the original Uniform Probate
Code, which authorized a variety of contractual arrangements that had sometimes been treated as
testamentary in prior law. For example, most courts treated as testamentary a provision in a
promissory note that if the payee died before making payment, the note should be paid to another
named person; or a provision in a land contract that if the seller died before completing payment,
the balance should be canceled and the property should belong to the vendee. These provisions
often occurred in family arrangements. The result of holding such provisions testamentary was
usually to invalidate them because not executed in accordance with the statute of wills. On the
other hand, the same courts for years upheld beneficiary designations in life insurance contracts.
The drafters of the original Uniform Probate Code declared in the Comment that they were
unable to identify policy reasons for continuing to treat these varied arrangements as
testamentary. The drafters said that the benign experience with such familiar will substitutes as
the revocable inter vivos trust, the multiple-party bank account, and United States government
bonds payable on death to named beneficiaries all demonstrated that the evils envisioned if the
statute of wills were not rigidly enforced simply do not materialize. The Comment also observed
that because these provisions often are part of a business transaction and are evidenced by a
writing, the danger of fraud is largely eliminated.

Because the modes of transfer authorized by an instrument under this section are declared
to be nontestamentary, the instrument does not have to be executed in compliance with the
formalities for wills prescribed under Section 2-502; nor does the instrument have to be
probated, nor does the personal representative have any power or duty with respect to the assets.

The sole purpose of this section is to prevent the transfers authorized here from being
treated as testamentary. This section does not invalidate other arrangements by negative
implication. Thus, this section does not speak to the phenomenon of the oral trust to hold
property at death for named persons, an arrangement already generally enforceable under trust
law.

The reference to a “marital property agreement” in the introductory portion of subsection

(a) of Section 6-101 includes an agreement made during marriage as well as a premarital
contract.

The term “or other written instrument of a similar nature” in the introductory portion of
subsection (a) replaces the former language “or any other written instrument effective as a
contract, gift, conveyance or trust” in the original Section 6-201. The Supreme Court of
Washington read that language to relieve against the delivery requirement of the law of deeds, a
result that was not intended. Estate of O’Brien v. Woodhouse, 109 Wash.2d 913, 749 P.2d 154
(1988). The point was correctly decided in First National Bank in Minot v. Bloom, 264 N.W.2d
208, 212 (N.D.1978), in which the Supreme Court of North Dakota held that “nothing in [former
Section 6-201] of the Uniform Probate Code...eliminates the necessity of delivery of a deed to
effectuate a conveyance from one living person to another.”

SECTION 6-102. LIABILITY OF NONPROBATE TRANSFEREES FOR

728
CREDITOR CLAIMS AND STATUTORY ALLOWANCES.

(a) In this section, “nonprobate transfer” means a valid transfer effective at death, other

than a transfer of a survivorship interest in a joint tenancy of real estate, by a transferor whose

last domicile was in this state to the extent that the transferor immediately before death had

power, acting alone, to prevent the transfer by revocation or withdrawal and instead to use the

property for the benefit of the transferor or apply it to discharge claims against the transferor’s

probate estate.

(b) Except as otherwise provided by statute, a transferee of a nonprobate transfer is

subject to liability to any probate estate of the decedent for allowed claims against decedent’s

probate estate and statutory allowances to the decedent’s spouse and children to the extent the

estate is insufficient to satisfy those claims and allowances. The liability of a nonprobate

transferee may not exceed the value of nonprobate transfers received or controlled by that

transferee.

(c) Nonprobate transferees are liable for the insufficiency described in subsection (b) in

the following order of priority:

(1) a transferee designated in the decedent’s will or any other governing

instrument, as provided in the instrument;

(2) the trustee of a trust serving as the principal nonprobate instrument in the

decedent’s estate plan as shown by its designation as devisee of the decedent’s residuary estate

or by other facts or circumstances, to the extent of the value of the nonprobate transfer received

or controlled;

(3) other nonprobate transferees, in proportion to the values received.

(d) Unless otherwise provided by the trust instrument, interests of beneficiaries in all

729
trusts incurring liabilities under this section abate as necessary to satisfy the liability, as if all of

the trust instruments were a single will and the interests were devises under it.

(e) A provision made in one instrument may direct the apportionment of the liability

among the nonprobate transferees taking under that or any other governing instrument. If a

provision in one instrument conflicts with a provision in another, the later one prevails.

(f) Upon due notice to a nonprobate transferee, the liability imposed by this section is

enforceable in proceedings in this state, whether or not the transferee is located in this state.

(g) A proceeding under this section may not be commenced unless the personal

representative of the decedent’s estate has received a written demand for the proceeding from the

surviving spouse or a child, to the extent that statutory allowances are affected, or a creditor. If

the personal representative declines or fails to commence a proceeding after demand, a person

making demand may commence the proceeding in the name of the decedent’s estate, at the

expense of the person making the demand and not of the estate. A personal representative who

declines in good faith to commence a requested proceeding incurs no personal liability for

declining.

(h) A proceeding under this section must be commenced within one year after the

decedent’s death, but a proceeding on behalf of a creditor whose claim was allowed after

proceedings challenging disallowance of the claim may be commenced within 60 days after final

allowance of the claim.

(i) Unless a written notice asserting that a decedent’s probate estate is nonexistent or

insufficient to pay allowed claims and statutory allowances has been received from the

decedent’s personal representative, the following rules apply:

(1) Payment or delivery of assets by a financial institution, registrar, or other

730
obligor, to a nonprobate transferee in accordance with the terms of the governing instrument

controlling the transfer releases the obligor from all claims for amounts paid or assets delivered.

(2) A trustee receiving or controlling a nonprobate transfer is released from

liability under this section with respect to any assets distributed to the trust’s beneficiaries. Each

beneficiary to the extent of the distribution received becomes liable for the amount of the

trustee’s liability attributable to assets received by the beneficiary.

Comment

1. Added to the Code in 1998, this section clarifies that the recipients of nonprobate
transfers can be required to contribute to pay allowed claims and statutory allowances to the
extent the probate estate is inadequate. The maximum liability for a single nonprobate transferee
is the value of the transfer. Values are determined under subsection (b) as of the time when the
benefits are “received or controlled by that transferee.” This would be the date of the decedent’s
death for nonprobate transfers made by means of a revocable trust, and date of receipt for other
nonprobate transfers. Two or more transferees are severally liable for the portion of the liability
based on the value of the transfers received by each.

This section replaces Section 6-107 of the original Code, and its 1989 sequel, Section 6-
215. To the extent a deceased party’s probate estate was insufficient, these sections made a
deceased party’s interest in multiple-name accounts in financial institutions passing outside
probate liable for the deceased party’s statutory allowances and creditor claims. Assets passing
at death by revocable trust or TOD asset registration agreements were not covered by these
sections. Also, Section 6-201(b) of the original Code and its 1989 sequel, Section 6-101(b),
provided merely that the section did not limit any other rights that might exist. Neither section
created any rights.

If there are no probate assets, a creditor or other person seeking to use this Section 6-102
would first need to secure appointment of a personal representative to invoke Code procedures
for establishing a creditor’s claim as “allowed.” The use of probate proceedings as a prerequisite
to gaining rights for creditors against nonprobate transferees has been a feature of UPC Article
VI since originally approved in 1969. It works well in practice. The Article III procedures for
opening estates, satisfying probate exemptions, and presenting claims are very efficient.

2. Section 6-102 replaces Section 6-215 with coverage designed to extend the principle
of Section 6-215 to transfers at death by revocable trust, TOD security registration agreements
and similar death benefits not insulated from decedents’ creditors or statutory allowances by
other legislation. The initial clause of subsection (b), “ Except as otherwise provided by statute,”
is designed to prevent a conflict with and to clarify that this section does not supersede existing
legislation protecting death benefits in life insurance, retirement plans or IRAs from claims by
creditors.

731
If a state’s insurance laws do not exempt or protect a particular insurance death benefit,
the insured’s creditors would not be able to establish a “nonprobate transfer” under subsection
(a) except to the extent of any cash surrender value generated by premiums paid by the insured
that the insured could have obtained immediately before death. Note, also, that subsection (i)(1)
would protect a life insurance company that paid a death benefit before receiving written notice
from the decedent’s personal representative.

3. The definition of “nonprobate transfer” in subsection (a) includes revocable transfers

by a decedent; it does not include a transfer at death incident to a decedent’s exercise or non-
exercise of a presently exercisable general power of appointment created by another person. The
drafters decided against including such powers even though presently exercisable general powers
of appointment are subject to the Code’s augmented estate provisions dealing with protection of
a surviving spouse from disinheritance. Spousal protection against disinheritance by the other
spouse supports the institution of marriage; creditors are better able to fend for themselves than
financially disadvantaged surviving spouses. In addition, a presently exercisable general power
of appointment created by another person is commonly viewed as a provision in the trust
creator’s instrument designed to provide flexibility in the estate plan rather than as a gift to the
donee.

4. The required ability to revoke or otherwise prevent a nonprobate transfer at death that
is vital to application of subsection (a) is described as a “power,” a word intended by the drafters
to signify legal authority rather than capacity or practical ability. This corresponds to the
definition in Section 2-201(6).

5. The exclusion of “a survivorship interest in a joint tenancy of real estate” from the
definition of “nonprobate transfer” in subsection (a) is contrary to the law of some states (e.g.,
South Dakota) that allow an insolvent decedent’s creditors to reach the share the decedent could
have received prior to death by unilateral severance of the joint tenancy. The law in most other
states is to the contrary. By excluding real estate joint tenancies, stability of title and ease of title
examination is preserved. Moreover, real estate joint tenancies have served for generations to
keep the share of a couple’s real estate owned by the first to die out of probate and away from
estate creditors. This familiar arrangement need not be disturbed incident to expanding the
ability of decedents’ creditors to reach newly recognized nonprobate transfers at death.

No view is expressed as to whether a survivorship interest in personal or intangible

property registered in two or more names as joint tenants with right of survivorship would come
within Section 6-102(a). The outcome might depend on who originated the registration and
whether severance by any co-owner acting alone was possible immediately preceding a co-
owner’s death.

6. A feature of replaced Section 6-215 that was clarified by 1991 technical amendment
protected a survivor beneficiary of a joint account from liability to the probate estate of a
deceased co-depositor for funds in the account owned by the survivor prior to decedent’s death.
Subsection (a) continues this protection by use of the language “valid transfer effective at death
...by a transferor...[who] had power, acting alone, to prevent the transfer by revocation or

732
withdrawal and instead use the property for the benefit of the transferor....” Section 6-211 and
related sections of the Code make it clear that parties to a joint and survivor account separately
own values in the account in proportion to net contributions. Hence, a surviving joint account
depositor who had contributed to the balance on deposit prior to the death of the other party is
subject to the remedies described in this section only to the extent of new account values gained
through survival of the decedent.

7. Transferees of nonprobate transfers subject to the possible liability described in

subsection (b) include trustees of revocable trusts to the extent assets transferred to the trust
before death were subject to the decedent’s sole power to revoke. Such assets would be valued
as of the date of death. While the trustee of an irrevocable trust, or of a trust that may be revoked
only by the settlor and another person would ordinarily not be subject to this section, this section
could apply if the trust is named as a beneficiary of a nonprobate transfer, such as of securities
registered in TOD form. Under subsection (b), such a transfer would involve a possibility of
trust liability based on the value of the TOD transfer as of the time of its receipt. Liability under
this section incurred by a trustee is a trust liability for which the trustee does not incur personal
liability except as provided by Section 3-808(b).

8. Trusts and non-trust recipients of nonprobate transfers incur liability in the order
prescribed in subsection (c). Note that either a revocable or an irrevocable trust might be
designated devisee of a pour-over provision that would make the trust the “principal non-probate
instrument in the decedent’s estate plan” and, consequently, make it liable under subsection
(c)(2) ahead of other nonprobate transferees to the extent of values acquired by a transfer at death
as described in subsection (a). Note, too, that nothing would pass to the receptacle trust by the
pour-over devise if all probate estate assets are used to discharge statutory allowances and
claims. However, the fact that the trust was designated to receive a pour-over devise signals that
the trust probably includes the equivalent of a residuary clause measuring benefits by available
assets and signaling probable intention of the settlor that residuary benefits should abate to pay
the settlor’s debts prior to other trust gifts.

9. The abatement order among classes of beneficiaries of trusts specified by subsection

(d) applies to all trusts subject to liability to the extent of nonprobate transfers received or
administered whether or not the trust instrument is the principal nonprobate instrument in the
decedent’s estate plan. The drafters decided against a cross-reference to the Code’s abatement
provision, Section 3-902, in part because that section deals with intestate and partially intestate
estates as well as estates governed by wills. Note, too, that trusts for successive beneficiaries
also will be governed by income and principal accounting rules that will serve to resolve some
abatement issues.

10. Subsection (e) recognizes that a number of separate instruments and transactions,
executed at different times and with or without internal references linking them to other
documents, may constitute the paperwork describing succession to a decedent’s assets by probate
and nonprobate methods. By authorizing control of abatement among gifts made by various
transfers at death by the last executed instrument, the subsection permits a simple, last-minute
override of earlier directions concerning a decedent’s wishes regarding priorities among
successors. Thus, a will or trust amendment can correct or avoid liquidity and abatement

733
problems discovered prior to death. The expression “block-buster will” was coined by estate
planners in the mid 70’s to refer to interest in legislation enabling a later will to override death
benefits by any nonprobate transfer device. This subsection meets some of the goals of
advocates of this legislation.

11. Subsection (f) builds on the principle employed in the Code’s augmented estate
provisions (UPC Sections 2-201 through 2-214) in relation to nonprobate transfers made to
persons in other states, possibly by transactions governed by laws of other states. The
underlying principle is that the law of a decedent’s last domicile should be controlling as to rules
of public policy that override the decedent’s power to devise the estate to anyone the decedent
chooses. The principle is implemented by subjecting donee recipients of the decedent to liability
under the decedent’s domiciliary law, with the belief that judgments recovered in that state
following appropriate due process notice to defendants in other states will be accorded full faith
and credit by courts in other states should collection proceedings be necessary.

12. The first and third sentences of subsection (g) are identical to sentences from former
Section 6-215, which this section replaces. The second sentence is new. It reflects sensitivity
for the dilemma confronting a probate fiduciary who, acting as required of a fiduciary, concludes
that the costs and risks associated with a possible recovery from a nonprobate transferee
outweigh the probable advantages to the estate and its claimants. A creditor whose claim has
been allowed but remains unsatisfied and whose demand for a proceeding has been turned down
by the estate fiduciary may proceed at personal risk in efforts to enforce the estate claim against
the nonprobate beneficiary. This is so because the last two sentences of subsection (g) shift the
risk of unrecoverable costs from the decedent’s estate to the claimant who undertakes collection
efforts on behalf of the decedent’s estate. Any recovery of costs should be used to reimburse the
claimant who bore the risk of loss for the proceeding. A personal representative tempted to
decline a demand for a proceeding should note that the “good faith” standard of this subsection
must be determined in light of the fiduciary responsibility imposed by Section 3-703.

13. Subsection (h) meshes with time limits in the Code’s sections governing allowance
and disallowance of claims. See Sections 3-804 and 3-806.

14. Subsection (i)(1) is designed to protect issuers of TOD security registrations who
make payments or delivery to designated death beneficiaries before receiving notice from the
decedent’s probate estate of a probable insolvency. These entities are not “transferees” subject
to liability under subsection (b), but they might incur legal or other costs if the beneficiaries
request payment in spite of warning notices from estate fiduciaries.

Subsection (i)(2) is designed to enable trustees handling nonprobate transfers to distribute

trust assets in accordance with trust terms if a warning of probable estate insolvency has not been
received. Beneficiaries receiving distributions from a trustee take subject to personal liability in
the amount and priority of the trustee based on the value distributed.

PART 2. UNIFORM MULTIPLE-PERSON ACCOUNTS ACT (1989/1998)

Subpart 1. Definitions And General Provisions

734
SECTION 6-201. DEFINITIONS. In this [part]:

(1) “Account” means a contract of deposit between a depositor and a financial institution,

and includes a checking account, savings account, certificate of deposit, and share account.

(2) “Agent” means a person authorized to make account transactions for a party.

(3) “Beneficiary” means a person named as one to whom sums on deposit in an account

are payable on request after death of all parties or for whom a party is named as trustee.

(4) “Financial institution” means an organization authorized to do business under state or

federal laws relating to financial institutions, and includes a bank, trust company, savings bank,

building and loan association, savings and loan company or association, and credit union.

(5) “Multiple-party account” means an account payable on request to one or more of two

or more parties, whether or not a right of survivorship is mentioned.

(6) “Party” means a person who, by the terms of an account, has a present right, subject

to request, to payment from the account other than as a beneficiary or agent.

(7) “Payment” of sums on deposit includes withdrawal, payment to a party or third

person pursuant to a check or other request, and a pledge of sums on deposit by a party, or a set-

off, reduction, or other disposition of all or part of an account pursuant to a pledge.

(8) “P.O.D. designation” means the designation of (i) a beneficiary in an account payable

on request to one party during the party’s lifetime and on the party’s death to one or more

beneficiaries, or to one or more parties during their lifetimes and on death of all of them to one or

more beneficiaries, or (ii) a beneficiary in an account in the name of one or more parties as

trustee for one or more beneficiaries if the relationship is established by the terms of the account

and there is no subject of the trust other than the sums on deposit in the account, whether or not

payment to the beneficiary is mentioned.

735
(9) “Receive,” as it relates to notice to a financial institution, means receipt in the office

or branch office of the financial institution in which the account is established, but if the terms of

the account require notice at a particular place, in the place required.

(10) “Request” means a request for payment complying with all terms of the account,

including special requirements concerning necessary signatures and regulations of the financial

institution; but, for purposes of this [part], if terms of the account condition payment on advance

notice, a request for payment is treated as immediately effective and a notice of intent to

withdraw is treated as a request for payment;

(11) “Sums on deposit” means the balance payable on an account, including interest and

dividends earned, whether or not included in the current balance, and any deposit life insurance

proceeds added to the account by reason of death of a party;

(12) “Terms of the account” includes the deposit agreement and other terms and

conditions, including the form, of the contract of deposit.

Comment

This and the sections that follow are designed to reduce certain questions concerning
many forms of multiple-person accounts (including the so-called Totten trust account). A
“payable on death” designation and an “agency” designation are also authorized for both single-
party and multiple-party accounts. The POD designation is a more direct means of achieving the
same purpose as a Totten trust account; this part therefore discourages creation of a Totten trust
account and treats existing Totten trust accounts as POD designations.

An agent (paragraph (2)) may not be a party. The agency designation must be signed by
all parties, and the agent is the agent of all parties. See Section 6-205 (designation of agent).

A “beneficiary” of a party (paragraph (3)) may be either a POD beneficiary or the

beneficiary of a Totten trust; the two types of designations in an account serve the same function
and are treated the same under this part. See paragraph (8) (“POD designation” defined). The
definition of “beneficiary” refers to a “person,” who may be an individual, corporation,
organization, or other legal entity. Section 1-201(34). Thus a church, trust company, family
corporation, or other entity, as well as any individual, may be designated as a beneficiary.

The term “multiple-party account” (paragraph (5)) is used in this part in a broad sense to

736
include any account having more than one owner with a present interest in the account. Thus an
account may be a “multiple-party account” within the meaning of this part regardless of whether
the terms of the account refer to it as “joint tenancy” or as “tenancy in common,” regardless of
whether the parties named are coupled by “or” or “and,” and regardless of whether any reference
is made to survivorship rights, whether expressly or by abbreviation such as JTWROS or JT
TEN. Survivorship rights in a multiple-party account are determined by the terms of the account
and by statute, and survivorship is not a necessary incident of a multiple-party account. See
Section 6-212 (rights at death).

Under paragraph (6), a “party” is a person with a present right to payment from an
account. Therefore, present owners of a multiple-party account are parties, as is the present
owner of an account with a POD designation. The beneficiary of an account with a POD
designation is not a party, but is entitled to payment only on the death of all parties. The trustee
of a Totten trust is a party but the beneficiary is not. An agent with the right of withdrawal on
behalf of a party is not itself a party. A person claiming on behalf of a party such as a guardian
or conservator, or claiming the interest of a party such as a creditor, is not itself a party, and the
right of such a person to payment is governed by general law other than this part.

Various signature requirements may be involved in order to meet the payment

requirements of the account. A “request” (paragraph (10)) involves compliance with these
requirements. A “party” is one to whom an account is presently payable without regard to whose
signature may be required for a “request.”

SECTION 6-202. LIMITATION ON SCOPE OF PART. This [part] does not apply

to:

(1) an account established for a partnership, joint venture, or other organization for a

business purpose,

(2) an account controlled by one or more persons as an agent or trustee for a corporation,

unincorporated association, or charitable or civic organization, or

(3) a fiduciary or trust account in which the relationship is established other than by the

terms of the account.

Comment

This part applies to accounts in this state. Section 1-301(4).

The reference to a fiduciary or trust account in paragraph (3) includes a regular trust
account under a testamentary trust or a trust agreement that has significance apart from the
account, and a fiduciary account arising from a fiduciary relation such as attorney-client.

737
SECTION 6-203. TYPES OF ACCOUNT; EXISTING ACCOUNTS.

(a) An account may be for a single party or multiple parties. A multiple-party account

may be with or without a right of survivorship between the parties. Subject to Section 6-212(c),

either a single-party account or a multiple-party account may have a POD designation, an agency

designation, or both.

(b) An account established before, on, or after the effective date of this [part], whether in

the form prescribed in Section 6-204 or in any other form, is either a single-party account or a

multiple-party account, with or without right of survivorship, and with or without a POD

designation or an agency designation, within the meaning of this [part], and is governed by this

[part].

Comment

In the case of an account established before (or after) the effective date of this part that is
not in substantially the form provided in Section 6-204, the account is governed by the
provisions of this part applicable to the type of account that most nearly conforms to the
depositor’s intent. See Section 6-204 (forms).

Thus, a tenancy in common account established before or after the effective date of this
part would be classified as a “multiple-party account” for purposes of this part. See Section 6-
201(5) (“multiple-party account” defined). On death of a party there would not be a right of
survivorship since the tenancy in common title would be treated as a multiple-party account
without right of survivorship. See Section 6-212(c). It should be noted that a POD designation
may not be made in a multiple-party account without right of survivorship. See Sections 6-
201(8) (“POD designation” defined), 6-204 (forms), and 6-212 (rights at death).

Under this section, a Totten trust account established before, on, or after the effective
date of this part is governed by the provisions of this part applicable to an account with a POD
designation. See Section 6-201(8) (“POD designation” defined) and the Comment to Section 6-
201.

SECTION 6-204. FORMS.

(a) A contract of deposit that contains provisions in substantially the following form

establishes the type of account provided, and the account is governed by the provisions of this

738
[part] applicable to an account of that type:

UNIFORM SINGLE-OR MULTIPLE-PARTY ACCOUNT FORM

PARTIES [Name One or More Parties]:

_____________________________ _____________________________

OWNERSHIP [Select One And Initial]:

SINGLE-PARTY ACCOUNT

MULTIPLE-PARTY ACCOUNT

Parties own account in proportion to net contributions unless there is clear and

convincing evidence of a different intent.

RIGHTS AT DEATH [Select One And Initial]:

SINGLE-PARTY ACCOUNT

At death of party, ownership passes as part of party’s estate.

SINGLE-PARTY ACCOUNT WITH POD (PAY ON DEATH) DESIGNATION

[Name One Or More Beneficiaries]:

______________________________ _______________________________

At death of party, ownership passes to POD beneficiaries and is not part of party’s

estate.

MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP

At death of party, ownership passes to surviving parties.

MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND POD

(PAY ON DEATH) DESIGNATION

[Name One Or More Beneficiaries]:

______________________________ ______________________________

739
At death of last surviving party, ownership passes to POD beneficiaries and is not

part of last surviving party’s estate.

MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF SURVIVORSHIP

At death of party, deceased party’s ownership passes as part of deceased party’s

estate.

AGENCY (POWER OF ATTORNEY) DESIGNATION [Optional]

Agents may make account transactions for parties but have no ownership or rights

at death unless named as POD beneficiaries.

[To Add Agency Designation To Account, Name One Or More Agents]:

______________________________ ________________________________

[Select One And Initial]:

______AGENCY DESIGNATION SURVIVES DISABILITY OR INCAPACITY

OF PARTIES

______AGENCY DESIGNATION TERMINATES ON DISABILITY OR

INCAPACITY OF PARTIES

(b) A contract of deposit that does not contain provisions in substantially the form

provided in subsection (a) is governed by the provisions of this [part] applicable to the type of

account that most nearly conforms to the depositor’s intent.

Comment

This section provides short forms for single- and multiple-party accounts which, if used,
bring the accounts within the terms of this part. A financial institution that uses the statutory
form language in its accounts is protected in acting in reliance on the form of the account. See
also Section 6-226 (discharge).

The forms provided in this section enable a person establishing a multiple-party account
to state expressly in the account whether there are to be survivorship rights between the parties.
The account forms permit greater flexibility than traditional account designations. It should be

740
noted that no separate form is provided for a Totten trust account, since the POD designation
serves the same function.

An account that is not substantially in the form provided in this section is nonetheless
governed by this part. See Section 6-203 (types of account; existing accounts).

SECTION 6-205. DESIGNATION OF AGENT.

(a) By a writing signed by all parties, the parties may designate as agent of all parties on

an account a person other than a party.

(b) Unless the terms of an agency designation provide that the authority of the agent

terminates on disability or incapacity of a party, the agent’s authority survives disability and

incapacity. The agent may act for a disabled or incapacitated party until the authority of the

agent is terminated.

(c) Death of the sole party or last surviving party terminates the authority of an agent.

Comment

An agent has no beneficial interest in the account. See Section 6-211 (ownership during
lifetime). The agency relationship is governed by the general law of agency of the state, except
to the extent this part provides express rules, including the rule that the agency survives the
disability or incapacity of a party.

A financial institution may make payments at the direction of an agent notwithstanding

disability, incapacity, or death of the party, subject to receipt of a stop notice. Section 6-226
(discharge); see also Section 6-224 (payment to designated agent).

The rule of subsection (b) applies to agency designations on all types of accounts,
including nonsurvivorship as well as survivorship forms of multiple-party accounts.

SECTION 6-206. APPLICABILITY OF PART. The provisions of [Subpart] 2

concerning beneficial ownership as between parties or as between parties and beneficiaries apply

only to controversies between those persons and their creditors and other successors, and do not

apply to the right of those persons to payment as determined by the terms of the account.

[Subpart] 3 governs the liability and set-off rights of financial institutions that make payments

741
pursuant to it.

Subpart 2. Ownership As Between Parties And Others

SECTION 6-211. OWNERSHIP DURING LIFETIME.

(a) In this section, “net contribution” of a party means the sum of all deposits to an

account made by or for the party, less all payments from the account made to or for the party

which have not been paid to or applied to the use of another party and a proportionate share of

any charges deducted from the account, plus a proportionate share of any interest or dividends

earned, whether or not included in the current balance. The term includes deposit life insurance

proceeds added to the account by reason of death of the party whose net contribution is in

question.

(b) During the lifetime of all parties, an account belongs to the parties in proportion to the

net contribution of each to the sums on deposit, unless there is clear and convincing evidence of

a different intent. As between parties married to each other, in the absence of proof otherwise,

the net contribution of each is presumed to be an equal amount.

(c) A beneficiary in an account having a POD designation has no right to sums on deposit

during the lifetime of any party.

(d) An agent in an account with an agency designation has no beneficial right to sums on

deposit.

Comment

This section reflects the assumption that a person who deposits funds in an account
normally does not intend to make an irrevocable gift of all or any part of the funds represented
by the deposit. Rather, the person usually intends no present change of beneficial ownership.
The section permits parties to accounts to be as definite, or as indefinite, as they wish in respect
to the matter of how beneficial ownership should be apportioned between them.

The assumption that no present change of beneficial ownership is intended may be

disproved by showing that a gift was intended. For example, under subsection (c) it is presumed

742
that the beneficiary of a POD designation has no present ownership interest during lifetime.
However, it is possible that in the case of a POD designation in trust form an irrevocable gift was
intended.

It is important to note that the section is limited to ownership of an account while parties
are alive. Section 6-212 prescribes what happens to beneficial ownership on the death of a party.

The section does not undertake to describe the situation between parties if one party
withdraws more than that party is then entitled to as against the other party. Sections 6-221 and
6-226 protect a financial institution in that circumstance without reference to whether a
withdrawing party may be entitled to less than that party withdraws as against another party.
Rights between parties in this situation are governed by general law other than this part.

“Net contribution” as defined by subsection (a) has no application to the financial

institution-depositor relationship. Rather, it is relevant only to controversies that may arise
between parties to a multiple-party account.

The last sentence of subsection (b) provides a clear rule concerning the amount of “net
contribution” in a case where the actual amount cannot be established as between spouses. This
part otherwise contains no provision dealing with a failure of proof. The omission is deliberate.
The theory of these sections is that the basic relationship of the parties is that of individual
ownership of values attributable to their respective deposits and withdrawals, and not equal and
undivided ownership that would be an incident of joint tenancy.

In a state that recognizes tenancy by the entireties for personal property, this section
would not change the rule that parties who are married to each other own their combined net
contributions to an account as tenants by the entireties. See Section 6-216 (community property
and tenancy by the entireties).

SECTION 6-212. RIGHTS AT DEATH.

(a) Except as otherwise provided in this [part], on death of a party sums on deposit in a

multiple-party account belong to the surviving party or parties. If two or more parties survive

and one is the surviving spouse of the decedent, the amount to which the decedent, immediately

before death, was beneficially entitled under Section 6-211 belongs to the surviving spouse. If

two or more parties survive and none is the surviving spouse of the decedent, the amount to

which the decedent, immediately before death, was beneficially entitled under Section 6-211

belongs to the surviving parties in equal shares, and augments the proportion to which each

survivor, immediately before the decedent’s death, was beneficially entitled under Section 6-211,

743
and the right of survivorship continues between the surviving parties.

(b) In an account with a POD designation:

(1) On death of one of two or more parties, the rights in sums on deposit are

governed by subsection (a).

(2) On death of the sole party or the last survivor of two or more parties, sums on

deposit belong to the surviving beneficiary or beneficiaries. If two or more beneficiaries survive,

sums on deposit belong to them in equal and undivided shares, and there is no right of

survivorship in the event of death of a beneficiary thereafter. If no beneficiary survives, sums on

deposit belong to the estate of the last surviving party.

(c) Sums on deposit in a single-party account without a POD designation, or in a

multiple-party account that, by the terms of the account, is without right of survivorship, are not

affected by death of a party, but the amount to which the decedent, immediately before death,

was beneficially entitled under Section 6-211 is transferred as part of the decedent’s estate. A

POD designation in a multiple-party account without right of survivorship is ineffective. For

purposes of this section, designation of an account as a tenancy in common establishes that the

account is without right of survivorship.

(d) The ownership right of a surviving party or beneficiary, or of the decedent’s estate, in

sums on deposit is subject to requests for payment made by a party before the party’s death,

whether paid by the financial institution before or after death, or unpaid. The surviving party or

beneficiary, or the decedent’s estate, is liable to the payee of an unpaid request for payment. The

liability is limited to a proportionate share of the amount transferred under this section, to the

extent necessary to discharge the request for payment.

Comment

744
The effect of subsection (a) is to make an account payable to one or more of two or more
parties a survivorship arrangement unless a nonsurvivorship arrangement is specified in the
terms of the account. This rule applies to community property as well as other forms of marital
property. See Section 6-216 (community property and tenancy by the entireties). The section
also applies to various forms of multiple-party accounts that may be in use at the effective date
of the legislation. See Sections 6-203 (type of account; existing accounts) and 6-204 (forms).

By technical amendment effective August 5, 1991, the word “part” was substituted for
“section” in the first sentence of subsection (a). The amendment clarified the original purpose of
the drafters and Commissioners to permit a court to implement the intentions of parties to a joint
account governed by Section 6-204(b) if it finds that the account was opened solely for the
convenience of a party who supplied all funds reflected by the account and intended no present
gift or death benefit for the other party. In short, the account characteristics described in this
section must be determined by reference to the form of the account and the impact of Sections 6-
203 and 6-204 on the admissibility of extrinsic evidence tending to confirm or contradict
intention as signalled by the form.

Subsection (b) applies to both POD and Totten trust beneficiaries. See Section 6-201(8)
(“POD designation” defined). It accepts the New York view that an account opened by “A” in
A’s name as “trustee for B” usually is intended by A to be an informal will of any balance
remaining on deposit at A’s death.

SECTION 6-213. ALTERATION OF RIGHTS.

(a) Rights at death of a party under Section 6-212 are determined by the terms of the

account at the death of the party. A party may alter the terms of the account by a notice signed

by the party and given to the financial institution to change the terms of the account or to stop or

vary payment under the terms of the account. To be effective, the notice must be received by the

financial institution during the party’s lifetime.

(b) A right of survivorship arising from the express terms of the account, Section 6-212,

or a POD designation, may not be altered by will.

Comment

Under this section, rights of parties and beneficiaries are determined by the type of
account at the time of death. It is to be noted that only a “party” may give notice blocking the
provisions of Section 6-212 (rights at death). “Party” is defined by Section 6-201(6). Thus if
there is an account with a POD designation in the name of A and B with C as beneficiary, C
cannot change the right of survivorship because C has no present right to payment and hence is
not a party.

745
1995 Technical Amendment. By technical amendment in 1995, subsection (a) was
amended to substitute “terms of the account” (as defined in Section 6-201(12)) for the language
“type of account.” The purpose of this amendment is to reject any implication that to fall within
this section an alteration of an account must affect the “type” of account, not merely its “terms.”

SECTION 6-214. ACCOUNTS AND TRANSFERS NONTESTAMENTARY.

Except as provided in [Part] 2 of [Article] II (elective share of surviving spouse) or as a

consequence of, and to the extent directed by, Section 6-215, a transfer resulting from the

application of Section 6-212 is effective by reason of the terms of the account involved and this

[part] and is not testamentary or subject to [Articles] I through IV (estate administration).

Comment

The purpose of classifying the transactions contemplated by this part as nontestamentary

is to bolster the explicit statement that their validity as effective modes of transfers at death is not
to be determined by the requirements for wills. The section is consistent with Part 1 of Article
VI (provisions relating to effect of death).

SECTION 6-215. [RESERVED.]

Comment

Former Section 6-215 became unnecessary with the approval in 1998 of Section 6-102.
The former section, titled “Rights of Creditors and Others,” imposed potential liability on
survivor beneficiaries of multiple person bank accounts for the debts of a deceased party and
statutory allowances owed by the decedent’s estate. Section 6-102 is more comprehensive,
subjecting other types of nonprobate transfers to creditor claims and statutory allowances.

SECTION 6-216. COMMUNITY PROPERTY AND TENANCY BY THE

ENTIRETIES.

(a) A deposit of community property in an account does not alter the community

character of the property or community rights in the property, but a right of survivorship between

parties married to each other arising from the express terms of the account or Section 6-212 may

not be altered by will.

(b) This [part] does not affect the law governing tenancy by the entireties.

746
Comment

Section 6-216 does not affect or limit the right of the financial institution to make
payments pursuant to Subpart 3 (protection of financial institutions) and the deposit agreement.
See Section 6-206 (applicability of part). For this reason, Section 6-216 does not affect the
definiteness and certainty that the financial institution must have in order to be induced to make
payments from the account and, at the same time, the section preserves the rights of the parties,
creditors, and successors that arise out of the nature of the funds in the account – community or
separate, or tenancy by the entireties.

Subpart 3. Protection Of Financial Institutions

SECTION 6-221. AUTHORITY OF FINANCIAL INSTITUTION. A financial

institution may enter into a contract of deposit for a multiple-party account to the same extent it

may enter into a contract of deposit for a single-party account, and may provide for a POD

designation and an agency designation in either a single-party account or a multiple-party

account. A financial institution need not inquire as to the source of a deposit to an account or as

to the proposed application of a payment from an account.

Comment

The provisions of this subpart relate only to protection of a financial institution that
makes payment as provided in the subpart. Nothing in this subpart affects the beneficial rights of
persons to sums on deposit or paid out. Ownership as between parties, and others, is governed
by Subpart 2. See Section 6-206 (applicability of part).

SECTION 6-222. PAYMENT ON MULTIPLE-PARTY ACCOUNT. A financial

institution, on request, may pay sums on deposit in a multiple-party account to:

(1) one or more of the parties, whether or not another party is disabled, incapacitated, or

deceased when payment is requested and whether or not the party making the request survives

another party; or

(2) the personal representative, if any, or, if there is none, the heirs or devisees of a

deceased party if proof of death is presented to the financial institution showing that the deceased

party was the survivor of all other persons named on the account either as a party or beneficiary,

747
unless the account is without right of survivorship under Section 6-212.

Comment

A financial institution that makes payment on proper request under this section is
protected unless the financial institution has received written notice not to. Section 6-226
(discharge). Paragraph (1) applies to both a multiple-party account with right of survivorship
and a multiple-party account without right of survivorship (including an account in tenancy in
common form). Paragraph (2) is limited to a multiple-party account with right of survivorship;
payment to the personal representative or heirs or devisees of a deceased party to an account
without right of survivorship is governed by the general law of the state relating to the authority
of such persons to collect assets alleged to belong to a decedent.

SECTION 6-223. PAYMENT ON POD DESIGNATION. A financial institution, on

request, may pay sums on deposit in an account with a POD designation to:

(1) one or more of the parties, whether or not another party is disabled, incapacitated, or

deceased when the payment is requested and whether or not a party survives another party;

(2) the beneficiary or beneficiaries, if proof of death is presented to the financial

institution showing that the beneficiary or beneficiaries survived all persons named as parties; or

(3) the personal representative, if any, or, if there is none, the heirs or devisees of a

deceased party, if proof of death is presented to the financial institution showing that the

deceased party was the survivor of all other persons named on the account either as a party or

beneficiary.

Comment

A financial institution that makes payment on proper request under this section is
protected unless the financial institution has received written notice not to. Section 6-226
(discharge). Payment to the personal representative or heirs or devisees of a deceased
beneficiary who would be entitled to payment under paragraph (2) is governed by the general
law of the state relating to the authority of such persons to collect assets alleged to belong to a
decedent.

SECTION 6-224. PAYMENT TO DESIGNATED AGENT. A financial institution,

on request of an agent under an agency designation for an account, may pay to the agent sums on

748
deposit in the account, whether or not a party is disabled, incapacitated, or deceased when the

request is made or received, and whether or not the authority of the agent terminates on the

disability or incapacity of a party.

Comment

This section is intended to protect a financial institution that makes a payment pursuant to
an account with an agency designation even though the agency may have terminated at the time
of the payment due to disability, incapacity, or death of the principal. The protection does not
apply if the financial institution has received notice under Section 6-226 not to make payment or
that the agency has terminated. This section applies whether or not the agency survives the
party’s disability or incapacity under Section 6-205 (designation of agent).

SECTION 6-225. PAYMENT TO MINOR. If a financial institution is required or

permitted to make payment pursuant to this [part] to a minor designated as a beneficiary,

payment may be made pursuant to the Uniform Transfers to Minors Act (1983/1986).

Comment

Section 6-225 is intended to avoid the need for a guardianship or other protective
proceeding in situations where the Uniform Transfers to Minors Act (1983/1986) may be used.

SECTION 6-226. DISCHARGE.

(a) Payment made pursuant to this [part] in accordance with the terms of the account

discharges the financial institution from all claims for amounts so paid, whether or not the

payment is consistent with the beneficial ownership of the account as between parties,

beneficiaries, or their successors. Payment may be made whether or not a party, beneficiary, or

agent is disabled, incapacitated, or deceased when payment is requested, received, or made.

(b) Protection under this section does not extend to payments made after a financial

institution has received written notice from a party, or from the personal representative,

surviving spouse, or heir or devisee of a deceased party, to the effect that payments in

accordance with the terms of the account, including one having an agency designation, should

749
not be permitted, and the financial institution has had a reasonable opportunity to act on it when

the payment is made. Unless the notice is withdrawn by the person giving it, the successor of

any deceased party must concur in a request for payment if the financial institution is to be

protected under this section. Unless a financial institution has been served with process in an

action or proceeding, no other notice or other information shown to have been available to the

financial institution affects its right to protection under this section.

(c) A financial institution that receives written notice pursuant to this section or otherwise

has reason to believe that a dispute exists as to the rights of the parties may refuse, without

liability, to make payments in accordance with the terms of the account.

(d) Protection of a financial institution under this section does not affect the rights of

parties in disputes between themselves or their successors concerning the beneficial ownership of

sums on deposit in accounts or payments made from accounts.

Comment

The provision of subsection (a) protecting a financial institution for payments made after
the death, disability, or incapacity of a party is a specific elaboration of the general protective
provisions of this section and is drawn from Uniform Commercial Code Section 4-405.

Knowledge of disability, incapacity, or death of a party does not affect payment on

request of an agent, whether or not the agent’s authority survives disability or incapacity. See
Section 6-224 (payment to designated agent). But under subsection (b), the financial institution
may not make payments on request of an agent after it has received written notice not to, whether
because the agency has terminated or otherwise.

1995 Technical Amendment. By technical amendment in 1995, the defined expression

“terms of the account” was substituted for “type of account” in the first sentence of subsection
(a). This amendment, made in association with a similar technical amendment to Section 6-213,
was not intended to change the meaning of this section. Rather, it was made to negate a possible
interpretation of the words “type of account” that is more restrictive than that intended by the
drafters.

SECTION 6-227. SET-OFF. Without qualifying any other statutory right to set-off or

lien and subject to any contractual provision, if a party is indebted to a financial institution, the

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financial institution has a right to set-off against the account. The amount of the account subject

to set-off is the proportion to which the party is, or immediately before death was, beneficially

entitled under Section 6-211 or, in the absence of proof of that proportion, an equal share with all

parties.

PART 3. UNIFORM TOD SECURITY REGISTRATION ACT (1989/1998)

SECTION 6-301. DEFINITIONS. In this [part]:

(1) “Beneficiary form” means a registration of a security which indicates the present

owner of the security and the intention of the owner regarding the person who will become the

owner of the security upon the death of the owner.

(2) “Register,” including its derivatives, means to issue a certificate showing the

ownership of a certificated security or, in the case of an uncertificated security, to initiate or

transfer an account showing ownership of securities.

(3) “Registering entity” means a person who originates or transfers a security title by

registration, and includes a broker maintaining security accounts for customers and a transfer

agent or other person acting for or as an issuer of securities.

(4) “Security” means a share, participation, or other interest in property, in a business, or

in an obligation of an enterprise or other issuer, and includes a certificated security, an

uncertificated security, and a security account.

(5) “Security account” means (i) a reinvestment account associated with a security, a

securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings,

or dividends earned or declared on a security in an account, a reinvestment account, or a

brokerage account, whether or not credited to the account before the owner’s death, or (ii) a cash

balance or other property held for or due to the owner of a security as a replacement for or

751
product of an account security, whether or not credited to the account before the owner’s death.

Comment

The definition of “security” is derived from UCC Section 8-102 and includes shares of
mutual funds and other investment companies. The defined term “security account” is not
intended to include securities held in the name of a bank or similar institution as nominee for the
benefit of a trust.

“Survive” is not defined. No effort is made in this part to define survival as it is for
purposes of intestate succession in UPC Section 2-104 which requires survival by an heir of the
ancestor for 120 hours. For purposes of this part, survive is used in its common law sense of
outliving another for any time interval no matter how brief. The drafting committee sought to
avoid imposition of a new and unfamiliar meaning of the term on intermediaries familiar with
the meaning of “survive” in joint tenancy registrations.

SECTION 6-302. REGISTRATION IN BENEFICIARY FORM; SOLE OR JOINT

TENANCY OWNERSHIP. Only individuals whose registration of a security shows sole

ownership by one individual or multiple ownership by two or more with right of survivorship,

rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners

of a security registered in beneficiary form hold as joint tenants with right of survivorship, as

tenants by the entireties, or as owners of community property held in survivorship form, and not

as tenants in common.

Comment

This section is designed to prevent co-owners from designating any death beneficiary
other than one who is to take only upon survival of all co-owners. It coerces co-owning
registrants to signal whether they hold as joint tenants with right of survivorship (JT TEN), as
tenants by the entireties (T ENT), or as owners of community property. Also, it imposes
survivorship on co-owners holding in a beneficiary form that fails to specify a survivorship form
of holding. Tenancy in common and community property otherwise than in a survivorship
setting is negated for registration in beneficiary form because persons desiring to signal
independent death beneficiaries for each individual’s fractional interest in a co-owned security
normally will split their holding into separate registrations of the number of units previously
constituting their fractional share. Once divided, each can name his or her own choice of death
beneficiary.

The term “individuals,” as used in this section, limits those who may register as owner or
co-owner of a security in beneficiary form to natural persons. However, the section does not

752
restrict individuals using this ownership form as to their choice of death beneficiary. The
definition of “beneficiary form” in Section 6-301 indicates that any “person” may be designated
beneficiary in a registration in beneficiary form. “Person” is defined so that a church, trust
company, family corporation, or other entity, as well as any individual, may be designated as a
beneficiary. Section 1-201(34).

SECTION 6-303. REGISTRATION IN BENEFICIARY FORM; APPLICABLE

LAW. A security may be registered in beneficiary form if the form is authorized by this or a

similar statute of the state of organization of the issuer or registering entity, the location of the

registering entity’s principal office, the office of its transfer agent or its office making the

registration, or by this or a similar statute of the law of the state listed as the owner’s address at

the time of registration. A registration governed by the law of a jurisdiction in which this or

similar legislation is not in force or was not in force when a registration in beneficiary form was

made is nevertheless presumed to be valid and authorized as a matter of contract law.

Comment

This section encourages registrations in beneficiary form to be made whenever a state

with which either of the parties to a registration has contact has enacted this or a similar statute.
Thus, a registration in beneficiary form of X Company shares might rely on an enactment of this
Act in X Company’s state of incorporation, or in the state of incorporation of X Company’s
transfer agent. Or, an enactment by the state of the issuer’s principal office, the transfer agent’s
principal office, or of the issuer’s office making the registration also would validate the
registration. An enactment of the state of the registering owner’s address at time of registration
also might be used for validation purposes.

The last sentence of this section is designed, as is UPC Section 6-101, to establish a
statutory presumption that a general principle of law is available to achieve a result like that
made possible by this part.

SECTION 6-304. ORIGINATION OF REGISTRATION IN BENEFICIARY

FORM. A security, whether evidenced by certificate or account, is registered in beneficiary

form when the registration includes a designation of a beneficiary to take the ownership at the

death of the owner or the deaths of all multiple owners.

Comment

753
As noted above in commentary to Section 6-302, this part places no restriction on who
may be designated beneficiary in a registration in beneficiary form.

SECTION 6-305. FORM OF REGISTRATION IN BENEFICIARY FORM.

Registration in beneficiary form may be shown by the words “transfer on death” or the

abbreviation “TOD,” or by the words “pay on death” or the abbreviation “POD,” after the name

of the registered owner and before the name of a beneficiary.

Comment

The abbreviation POD is included for use without regard for whether the subject is a
money claim against an issuer, such as its own note or bond for money loaned, or is a claim to
securities evidenced by conventional title documentation. The use of POD in a registration in
beneficiary form of shares in an investment company should not be taken as a signal that the
investment is to be sold or redeemed on the owner’s death so that the sums realized may be
“paid” to the death beneficiary. Rather, only a transfer on death, not a liquidation on death, is
indicated. The committee would have used only the abbreviation TOD except for the familiarity,
rooted in experience with certificates of deposit and other deposit accounts in banks, with the
abbreviation POD as signalling a valid nonprobate death benefit or transfer on death.

SECTION 6-306. EFFECT OF REGISTRATION IN BENEFICIARY FORM. The

designation of a TOD beneficiary on a registration in beneficiary form has no effect on

ownership until the owner’s death. A registration of a security in beneficiary form may be

canceled or changed at any time by the sole owner or all then surviving owners without the

consent of the beneficiary.

Comment

This section simply affirms the right of a sole owner, or the right of all multiple owners,
to end a TOD beneficiary registration without the assent of the beneficiary. The section says
nothing about how a TOD beneficiary designation may be canceled, meaning that the registering
entity’s terms and conditions, if any, may be relevant. See Section 6-310. If the terms and
conditions have nothing on the point, cancellation of a beneficiary designation presumably
would be effected by a reregistration showing a different beneficiary or omitting reference to a
TOD beneficiary.

SECTION 6-307. OWNERSHIP ON DEATH OF OWNER. On death of a sole

owner or the last to die of all multiple owners, ownership of securities registered in beneficiary

754
form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all

owners and compliance with any applicable requirements of the registering entity, a security

registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries

who survived the death of all owners. Until division of the security after the death of all owners,

multiple beneficiaries surviving the death of all owners hold their interests as tenants in common.

If no beneficiary survives the death of all owners, the security belongs to the estate of the

deceased sole owner or the estate of the last to die of all multiple owners.

Comment

Even though multiple owners holding in the beneficiary form here authorized hold with
right of survivorship, no survivorship rights attend the positions of multiple beneficiaries who
become entitled to securities by reason of having survived the sole owner or the last to die of
multiple owners. Issuers (and registering entities) who decide to accept registrations in
beneficiary form involving more than one primary beneficiary also should provide by rule
whether fractional shares will be registered in the names of surviving beneficiaries where the
number of shares held by the deceased owner does not divide without remnant among the
survivors. If fractional shares are not desired, the issuer may wish to provide for sale of odd
shares and division of proceeds, for an uneven distribution with the first or last named to receive
the odd share, or for other resolution. Section 6-308 deals with whether intermediaries have any
obligation to offer beneficiary registrations of any sort; Section 6-310 enables issuers to adopt
terms and conditions controlling the details of applications for registrations they decide to accept
and procedures for implementing such registrations after an owner’s death.

The reference to surviving, multiple TOD beneficiaries as tenants in common is not

intended to suggest that a registration form specifying unequal shares, such as “TOD A (20%), B
(30%), C (50%),” would be improper. Though not included in the beneficiary forms described
for illustrative purposes in Section 6-310, the part enables a registering entity to accept and
implement a TOD beneficiary designation like the one just suggested. If offered, such a
registration form should be implemented by registering entity terms and conditions providing for
disposition of the share of a beneficiary who predeceases the owner when two or more of a group
of multiple beneficiaries survive the owner. For example, the terms might direct the share of the
predeceased beneficiary to the survivors in the proportion that their original shares bore to each
other. Unless unequal shares are specified in a registration in beneficiary form designating
multiple beneficiaries, the shares of the beneficiaries would, of course, be equal.

The statement that a security registered in beneficiary form is in the deceased owner’s
estate when no beneficiary survives the owner is not intended to prevent application of any anti-
lapse statute that might direct a nonprobate transfer on death to the surviving issue of a
beneficiary who failed to survive the owner. Rather, the statement is intended only to indicate

755
that the registering entity involved should transfer or reregister the security as directed by the
decedent’s personal representative.

See the Comment to Section 6-301 regarding the meaning of “survive” for purposes of
this part.

SECTION 6-308. PROTECTION OF REGISTERING ENTITY.

(a) A registering entity is not required to offer or to accept a request for security

registration in beneficiary form. If a registration in beneficiary form is offered by a registering

entity, the owner requesting registration in beneficiary form assents to the protections given to

the registering entity by this [part].

(b) By accepting a request for registration of a security in beneficiary form, the

registering entity agrees that the registration will be implemented on death of the deceased owner

as provided in this [part].

(c) A registering entity is discharged from all claims to a security by the estate, creditors,

heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with

Section 6-307 and does so in good faith reliance (i) on the registration, (ii) on this [part], and (iii)

on information provided to it by affidavit of the personal representative of the deceased owner,

or by the surviving beneficiary or by the surviving beneficiary’s representatives, or other

information available to the registering entity. The protections of this [part] do not extend to a

reregistration or payment made after a registering entity has received written notice from any

claimant to any interest in the security objecting to implementation of a registration in

beneficiary form. No other notice or other information available to the registering entity affects

its right to protection under this [part].

(d) The protection provided by this [part] to the registering entity of a security does not

affect the rights of beneficiaries in disputes between themselves and other claimants to

756
ownership of the security transferred or its value or proceeds.

Comment

It is to be noted that the “request” for a registration in beneficiary form may be in any
form chosen by a registering entity. The Act does not prescribe a particular form and does not
impose record-keeping requirements. Registering entities’ business practices, including any
industry standards or rules of transfer agent associations, will control.

“Good faith” as used in this section is intended to mean “honesty in fact and the
observance of reasonable commercial standards of fair dealing,” as specified in Revised U.C.C.
Section 1-201(b)(20).

The protections described in this section are generally in harmony with those provided in
the Uniform Commercial Code. U.C.C. Section 8-404(c), as revised in 1994, provides that an
issuer is generally not liable to third parties for registering transfer of a security pursuant to an
effective indorsement or instruction. U.C.C. Section 8-107(b) provides that an indorsement or
instruction is effective if it is made by the appropriate person, and under Section 8-107(a)(4) the
term “appropriate person” includes a deceased person’s “successor taking under other law.” The
beneficiary under Uniform Probate Code Section 6-307 is such a successor, so that the issuer
registering transfer as contemplated by that section pursuant to the beneficiary’s indorsement or
instruction is generally protected. See also official comment 2 to U.C.C. Section 8-107 (“If the
registration of a security or a securities account contains a designation of a death beneficiary
under the Uniform Transfer on Death Security Registration Act or comparable legislation, the
designated beneficiary would, under that law, have power to transfer upon the person’s death and
so would be the appropriate person.”).

Under subsection (c) of this section, the protections of this part do not apply to a
registration made after the registering entity receives “written notice” of objection from a
claimant. The protections of the Uniform Commercial Code may, however, continue to apply
notwithstanding such a notice, because the exceptions to U.C.C. Section 8-404(c) generally
require substantially more than written notice – for example, an injunction or other legal process
enjoining the issuer from registering the transfer. See U.C.C. Section 8-404(a)(3). Under the
statute as revised in 1994, an issuer receiving mere notice from a third party no longer has a duty
to inquire into the third party’s claim. See official comment 3 to U.C.C. Section 8-404.

SECTION 6-309. NONTESTAMENTARY TRANSFER ON DEATH. A transfer on

death resulting from a registration in beneficiary form is effective by reason of the contract

regarding the registration between the owner and the registering entity and this [part] and is not

testamentary.

Comment

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This section is comparable to UPC Section 6-214.

Incident to the addition of Section 6-102 in 1998, former subsection (b) was deleted and
the text of former subsection (a) became the entire text of the section. Section 6-102 makes the
decedent’s nonprobate transferees liable for statutory allowances and allowed claims against the
decedent’s estate to the extent the decedent’s probate estate is inadequate. Former subsection (b)
provided:

This part does not limit the rights of creditors of security owners against beneficiaries and
other transferees under other laws of this state.

SECTION 6-310. TERMS, CONDITIONS, AND FORMS FOR REGISTRATION.

(a) A registering entity offering to accept registrations in beneficiary form may establish

the terms and conditions under which it will receive requests (i) for registrations in beneficiary

form, and (ii) for implementation of registrations in beneficiary form, including requests for

cancellation of previously registered TOD beneficiary designations and requests for

reregistration to effect a change of beneficiary. The terms and conditions so established may

provide for proving death, avoiding or resolving any problems concerning fractional shares,

designating primary and contingent beneficiaries, and substituting a named beneficiary’s

descendants to take in the place of the named beneficiary in the event of the beneficiary’s death.

Substitution may be indicated by appending to the name of the primary beneficiary the letters

LDPS, standing for “lineal descendants per stirpes.” This designation substitutes a deceased

beneficiary’s descendants who survive the owner for a beneficiary who fails to so survive, the

descendants to be identified and to share in accordance with the law of the beneficiary’s domicile

at the owner’s death governing inheritance by descendants of an intestate. Other forms of

identifying beneficiaries who are to take on one or more contingencies, and rules for providing

proofs and assurances needed to satisfy reasonable concerns by registering entities regarding

conditions and identities relevant to accurate implementation of registrations in beneficiary form,

may be contained in a registering entity’s terms and conditions.

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(b) The following are illustrations of registrations in beneficiary form which a registering

entity may authorize:

(1) Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. Brown

Jr.

(2) Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN

TOD John S. Brown Jr.

(3) Multiple owners-primary and secondary (substituted) beneficiaries: John S.

Brown Mary B. Brown JT TEN TOD John S. Brown Jr. SUB BENE Peter Q. Brown or John S.

Brown Mary B. Brown JT TEN TOD John S. Brown Jr. LDPS.

Comment

Use of “and” or “or” between the names of persons registered as co-owners is

unnecessary under this part and should be discouraged. If used, the two words should have the
same meaning insofar as concerns a title form; i.e., that of “and” to indicate that both named
persons own the asset.

Descendants of a named beneficiary who take by virtue of a “LDPS” designation

appended to a beneficiary’s name take as TOD beneficiaries rather than as intestate successors.
If no descendant of a predeceased primary beneficiary survives the owner, the security passes as
a part of the owner’s estate as provided in Section 6-307.

[SECTION 6-311. APPLICATION OF PART. This [part] applies to registrations of

securities in beneficiary form made before or after [effective date], by decedents dying on or

after [effective date].]

Comment

Section 6-311 is an optional provision that may be particularly useful in a state that has
previously enacted the Uniform Probate Code, since the general effective date and transitional
provisions of UPC Section 8-101 are not expressly adapted for the addition of this part. A state
newly enacting the Uniform Probate Code, including this part, may find that general Section 8-
101 is adequate for this purpose and addition of optional Section 6-311 unnecessary.

PART 4. UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT (2009)

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SECTION 6-401. SHORT TITLE. This [part] may be cited as the Uniform Real

Property Transfer on Death Act.

SECTION 6-402. DEFINITIONS. In this [part]:

(1) “Beneficiary” means a person that receives property under a transfer on death deed.

(2) “Designated beneficiary” means a person designated to receive property in a transfer

on death deed.

(3) “Joint owner” means an individual who owns property concurrently with one or more

other individuals with a right of survivorship. The term includes a joint tenant[,][ and] [owner of

community property with a right of survivorship[,][ and tenant by the entirety]. The term does

not include a tenant in common [or owner of community property without a right of

survivorship].

(4) “Person” means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, public corporation, government or

governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(5) “Property” means an interest in real property located in this state which is transferable

on the death of the owner.

(6) “Transfer on death deed” means a deed authorized under this [part].

(7) “Transferor” means an individual who makes a transfer on death deed.

Comment

Paragraph (1) defines a beneficiary as a person that receives property under a transfer on
death deed. This links the definition of a “beneficiary” to the definition of a “person.” A
beneficiary can be any person, including the trustee of a revocable trust.

Paragraph (2) defines a designated beneficiary as a person designated to receive property

in a transfer on death deed. This links the definition of a “designated beneficiary” to the
definition of a “person.” A designated beneficiary can be any person, including a revocable trust.

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The distinction between a “beneficiary” and a “designated beneficiary” is easily
illustrated. Section 6-413 provides that, on the transferor’s death, the property that is the subject
of a transfer on death deed is transferred to the designated beneficiaries who survive the
transferor. If X and Y are the designated beneficiaries but only Y survives the transferor, then Y is
a beneficiary and X is not. A further illustration comes into play if Section 6-413 is made subject
to the state’s antilapse statute. If X fails to survive the transferor but has a descendant, Z, who
survives the transferor, the antilapse statute may create a substitute gift in favor of Z. In such a
case, the designated beneficiaries are X and Y, but the beneficiaries are Y and Z.

Paragraph (3) provides a definition of a “joint owner” as an individual who owns

property with one or more other individuals with a right of survivorship. The term is used in
Sections 6-411 and 6-413.

Paragraph (4) is the standard Uniform Law Commission definition of a “person.”

The effect of paragraph (5) is that this part applies to all interests in real property located
in this state that are transferable at the death of the owner.

Paragraph (6) provides that a “transfer on death deed” is a deed authorized under this
part. In some states with existing transfer on death deed legislation, the legislation has instead
used the term “beneficiary deed.” The term “transfer on death deed” is preferred, to be consistent
with the transfer on death registration of securities. See Article VI, Part 3, containing the
Uniform TOD Security Registration Act.

Paragraph (7) limits the definition of a “transferor” to an individual. The term

“transferor” does not include a corporation, business trust, estate, trust, partnership, limited
liability company, association, joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any legal or commercial entity other than an
individual. The term also does not include an agent or other representative. If a transfer on
death deed is made by an agent on behalf of a principal or by a conservator, guardian, or judge
on behalf of a ward, the principal or ward is the transferor. By way of analogy, see Uniform
Trust Code (2000/2005) Section 103(15) (defining “settlor”) and the accompanying Comment
(excluding an individual “acting as the agent for the person who will be funding the trust”). The
power of an agent to make or revoke a transfer on death deed on behalf of a principal is
determined by other law, such as the Uniform Power of Attorney Act (2006) (UPC Article 5B),
as indicated in the Comments to Sections 6-409 and 6-411.

SECTION 6-403. APPLICABILITY. This [part] applies to a transfer on death deed

made before, on, or after [the effective date of this [part]] by a transferor dying on or after [the

effective date of this [part]].

Comment

This section provides that this part applies to a transfer on death deed made before, on, or

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after the effective date of this part by a transferor dying on or after the effective date of this part.
This section is consistent with the provisions governing transfer on death registration of
securities. Those provisions “appl[y] to registrations of securities in beneficiary form made
before or after [effective date], by decedents dying on or after [effective date].” See Section 6-
311.

SECTION 6-404. NONEXCLUSIVITY. This [part] does not affect any method of

transferring property otherwise permitted under the law of this state.

Comment

This section provides that this part is nonexclusive. This part does not affect any method
of transferring property otherwise permitted under state law.

One such method is a present transfer with a retained legal life estate. Consider the
following examples:

Example 1. A conveys Blackacre to B while reserving A’s right to remain in possession

until A’s death. By this conveyance, A has made a present transfer of a future interest to B. The
transfer is irrevocable. The future interest will ripen into possession at A’s death, even if B fails
to survive A.

Example 2. A executes, acknowledges, and records a transfer on death deed for

Blackacre, naming B as the designated beneficiary. During A’s lifetime, no interest passes to B,
and A may revoke the deed. If unrevoked, the deed will transfer possession to B at A’s death
only if B survives A.

As illustrated in these examples, the two methods of transfer have different effects and
are governed by different rules.

SECTION 6-405. TRANSFER ON DEATH DEED AUTHORIZED. An individual

may transfer property to one or more beneficiaries effective at the transferor’s death by a transfer

on death deed.

Comment

This section authorizes a transfer on death deed and makes it clear that the transfer is not
an inter vivos transfer. The transfer occurs at the transferor’s death.

The transferor is an individual, but the singular includes the plural. Multiple individuals
can readily act together to transfer property by a transfer on death deed, as in the common case
of a husband and wife who own the property as joint tenants or as tenants by the entirety. On the
effect of a transfer on death deed made by joint owners, see Section 6-413(c) and the

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accompanying Comment.

The transferor may select any form of ownership, concurrent or successive, absolute or
conditional, contingent or vested, valid under state law. Among many other things, this permits
the transferor to reserve interests for his estate (e.g., mineral interests); to specify the nature and
extent of the beneficiary’s interest; and to designate one or more primary beneficiaries and one
or more alternate beneficiaries to take in the event the primary beneficiaries fail to survive the
transferor. This freedom to specify the form and terms of the transferee’s interest comports with
the fundamental principle of American law recognized by the Restatement (Third) of Property
(Wills and Other Donative Transfers) § 10.1 that the donor’s intention should be “given effect to
the maximum extent allowed by law.” As the Restatement explains in Comment c to § 10.1,
“American law curtails freedom of disposition only to the extent that the donor attempts to make
a disposition or achieve a purpose that is prohibited or restricted by an overriding rule of law.”

Notwithstanding this freedom of disposition, transferors are encouraged as a practical

matter to avoid formulating dispositions that would complicate title. Dispositions containing
conditions or class gifts, for example, may require a court proceeding to sort out the
beneficiaries’ interests. Other estate planning mechanisms, such as trusts, may be more
appropriate in such cases.

SECTION 6-406. TRANSFER ON DEATH DEED REVOCABLE. A transfer on

death deed is revocable even if the deed or another instrument contains a contrary provision.

Comment

A fundamental feature of a transfer on death deed under this part is that the transferor
retains the power to revoke the deed. Section 6-406 is framed as a mandatory rule, for two
reasons. First, the rule prevents an off-record instrument from affecting the revocability of a
transfer on death deed. Second, the rule protects the transferor who may wish later to revoke the
deed.

If the transferor promises to make the deed irrevocable or not to revoke the deed, the
promisee may have a remedy under other law if the promise is broken. The deed remains
revocable despite the promise.

SECTION 6-407. TRANSFER ON DEATH DEED NONTESTAMENTARY. A

transfer on death deed is nontestamentary.

Comment

This section is consistent with Section 6-101(a), which provides: “A provision for a
nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage,
promissory note, certificated or uncertificated security, account agreement, custodial agreement,
deposit agreement, compensation plan, pension plan, individual retirement plan, employee

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benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written
instrument of a similar nature is nontestamentary.”

As the Comment to Section 6-101 explains, because the mode of transfer is declared to be
nontestamentary, the instrument of transfer is not a will and does not have to be executed in
compliance with the formalities for wills, nor does the instrument need to be probated.

Whether a document that is ineffective as a transfer on death deed (e.g., because it has
not been recorded before the transferor’s death) should be given effect as a testamentary
instrument will depend on the applicable facts and on the wills law of the jurisdiction. Section 2-
503 provides in pertinent part: “Although a document...was not executed in compliance with
Section 2-502, the document... is treated as if it had been executed in compliance with that
section if the proponent of the document...establishes by clear and convincing evidence that the
decedent intended the document...to constitute...(iii) an addition to or alteration of the
[decedent’s] will....”

SECTION 6-408. CAPACITY OF TRANSFEROR. The capacity required to make or

revoke a transfer on death deed is the same as the capacity required to make a will.

Comment

This section provides that the capacity required to make or revoke a transfer on death
deed, which is a revocable will substitute, is the same as the capacity required to make a will. It
is appropriate that a will and a transfer on death deed require the same level of capacity, for both
mechanisms are revocable and ambulatory, the latter term meaning that they do not operate
before the grantor’s death. This approach is consistent with the Restatement (Third) of Property
(Wills and Other Donative Transfers) § 8.1(b), which applies the standard of testamentary
capacity, and not the standard of capacity for inter vivos gifts, to revocable will substitutes: “If
the donative transfer is in the form of a will, a revocable will substitute, or a revocable gift, the
testator or donor must be capable of knowing and understanding in a general way the nature and
extent of his or her property, the natural objects of his or her bounty, and the disposition that he
or she is making of that property, and must also be capable of relating these elements to one
another and forming an orderly desire regarding the disposition of the property.” This section is
also consistent with Uniform Trust Code Section 601: “The capacity required to create, amend,
revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable
trust, is the same as that required to make a will.”

A transfer on death deed is not affected if the transferor subsequently loses capacity. On
the ability of an agent under a power of attorney to make or revoke a transfer on death deed, see
the Comments to Sections 6-409 and 6-411.

SECTION 6-409. REQUIREMENTS. A transfer on death deed:

(1) except as otherwise provided in paragraph (2), must contain the essential elements

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and formalities of a properly recordable inter vivos deed;

(2) must state that the transfer to the designated beneficiary is to occur at the transferor’s

death; and

(3) must be recorded before the transferor’s death in the public records in [the office of

the county recorder of deeds] of the [county] where the property is located.

Comment

Paragraph (1) requires a transfer on death deed to contain the same essential elements and
formalities, other than a present intention to convey, as are required for a properly recordable
inter vivos deed under state law. “Essential elements” is a term with a long usage in the law of
deeds of real property. The essential elements of a deed vary from one state to another but
commonly include the names of the grantor and grantee, a clause transferring title, a description
of the property transferred, and the grantor’s signature. In all states, the essential elements of a
properly recordable deed include the requirement that the deed be acknowledged by the grantor
before a notary public or other individual authorized by law to take acknowledgments. See
Thompson on Real Property § 92.04(c) (observing that a “certificate of acknowledgment or
attestation is universally required to qualify an instrument for recordation”). In the context of
transfer on death deeds, the requirement of acknowledgment fulfills at least four functions. First,
it cautions a transferor that he or she is performing an act with legal consequences. Such caution
is important where, as here, the transferor does not experience the wrench of delivery because
the transfer occurs at death. Second, acknowledgment helps to prevent fraud. Third,
acknowledgment facilitates the recording of the deed. Fourth, acknowledgment enables the rule
in Section 6-411 that a later acknowledged deed prevails over an earlier acknowledged deed.

Paragraph (2) emphasizes an important distinction between an inter vivos transfer and a
transfer on death. An inter vivos transfer reflects an intention to transfer, at the time of the
conveyance, an interest in property, either a present interest or a future interest. In contrast, a
transfer on death reflects an intention that the transfer occur at the transferor’s death. Under no
circumstances should a transfer on death be given effect inter vivos; to do so would violate the
transferor’s intention that the transfer occur at the transferor’s death.

Paragraph (3) requires a transfer on death deed to be recorded before the transferor’s
death in the county (or other appropriate administrative division of a state, such as a parish)
where the land is located. If the property described in the deed is in more than one county, the
deed is effective only with respect to the property in the county or counties where the deed is
recorded. The requirement of recordation before death helps to prevent fraud by ensuring that all
steps necessary to the effective transfer on death deed are completed during the transferor’s
lifetime. The requirement of recordation before death also enables all parties to rely on the
recording system.

An individual’s agent may execute a transfer on death deed on the individual’s behalf to

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the extent permitted by other law, such as the Uniform Power of Attorney Act (2006). This part
does not define, but instead relies on other law to determine, the authority of an agent.

SECTION 6-410. NOTICE, DELIVERY, ACCEPTANCE, CONSIDERATION

NOT REQUIRED. A transfer on death deed is effective without:

(1) notice or delivery to or acceptance by the designated beneficiary during the

transferor’s life; or

(2) consideration.

Comment

This section makes it clear that a transfer on death deed is effective without notice or
delivery to or acceptance by the beneficiary during the transferor’s lifetime (paragraph (1)) and
without consideration (paragraph (2)).

Paragraph (1) is consistent with the fundamental distinction under this part between a
transfer on death deed and an inter vivos deed. Under the former, but not under the latter, the
transfer occurs at the transferor’s death. Therefore, there is no requirement of notice, delivery, or
acceptance during the transferor’s life. This does not mean that the beneficiary is required to
accept the property. The beneficiary may disclaim the property, as explained in Section 6-414
and the accompanying Comment.

Paragraph (2) is consistent with the law of donative transfers. A deed need not be
supported by consideration.

SECTION 6-411. REVOCATION BY INSTRUMENT AUTHORIZED;

REVOCATION BY ACT NOT PERMITTED.

(a) Subject to subsection (b), an instrument is effective to revoke a recorded transfer on

death deed, or any part of it, only if the instrument:

(1) is one of the following:

(A) a transfer on death deed that revokes the deed or part of the deed

expressly or by inconsistency;

(B) an instrument of revocation that expressly revokes the deed or part of

the deed; or

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(C) an inter vivos deed that expressly revokes the transfer on death deed or

part of the deed; and

(2) is acknowledged by the transferor after the acknowledgment of the deed being

revoked and recorded before the transferor’s death in the public records in [the office of the

county recorder of deeds] of the [county] where the deed is recorded.

(b) If a transfer on death deed is made by more than one transferor:

(1) revocation by a transferor does not affect the deed as to the interest of another

transferor; and

(2) a deed of joint owners is revoked only if it is revoked by all of the living joint

owners.

(c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act

on the deed.

(d) This section does not limit the effect of an inter vivos transfer of the property.

Comment

This section concerns revocation by instrument and revocation by act. On revocation by

change of circumstances, such as by divorce or homicide, see Section 6-413 and the
accompanying Comment.

Subsection (a) provides the exclusive methods of revoking, in whole or in part, a

recorded transfer on death deed by a subsequent instrument. Revocation by an instrument not
specified, such as the transferor’s will, is not permitted.

The rule that a transfer on death deed may not be revoked by the transferor’s subsequent
will is a departure from the Restatement (Third) of Property (Wills and Other Donative
Transfers) § 7.2 comment e (see also the corresponding Reporter’s Note), which encourages the
revocability of will substitutes by will. However, there is a sound reason for the departure in the
specific case of a transfer on death deed. A transfer on death deed operates on real property, for
which certainty of title is essential. This certainty would be difficult, and in many cases
impossible, to achieve if an off-record instrument, such as the grantor’s will, could revoke a
recorded transfer on death deed. The rule in this part against revocation by will is also consistent
with the rule governing multiple-party bank accounts. See Section 6-213(b) (“A right of
survivorship arising from the express terms of the account, Section 6-212, or a POD designation,

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may not be altered by will.”)

A recorded transfer on death deed may be revoked by instrument only by (1) a

subsequently acknowledged transfer on death deed, (2) a subsequently acknowledged instrument
of revocation, such as the form in Section 6-417, or (3) a subsequently acknowledged inter vivos
deed containing an express revocation clause. Consider the following examples:

Example 1. T executes, acknowledges, and records a transfer on death deed for

Blackacre. Later, T executes, acknowledges, and records a second transfer on death deed for
Blackacre, containing an express revocation clause revoking “all my prior transfer on death
deeds concerning this property.” The second deed revokes the first deed. The revocation occurs
when the second deed is recorded. (For the result if the second deed had not contained the
express revocation clause, see Example 5.)

Example 2. T executes, acknowledges, and records two transfer on death deeds for
Blackacre. Both deeds expressly revoke “all my prior transfer on death deeds concerning this
property.” The dates of acknowledgment determine which deed revoked the other. The first deed
is acknowledged November 1; the second deed is acknowledged December 15. The second deed
is the later acknowledged, so it revokes the first deed. The revocation occurs when the second
deed is recorded.

Example 3. T executes and acknowledges a transfer on death deed for Blackacre. T later
executes and acknowledges a revocation form. Both instruments are recorded. Because the
revocation form is acknowledged later than the deed, the form revokes the deed. The revocation
occurs when the form is recorded.

Example 4. T executes and acknowledges a transfer on death deed for Blackacre. T later
executes and acknowledges an inter vivos deed conveying Blackacre and expressly revoking the
transfer on death deed. Both instruments are recorded. Because the inter vivos deed contains an
express revocation provision and is acknowledged later than the transfer on death deed, the inter
vivos deed revokes the transfer on death deed. The revocation occurs when the inter vivos deed
is recorded. (For the result if the inter vivos deed had not contained an express revocation
clause, see the discussion below on “ademption by extinction.”)

The same rules apply whether the revocation is total or partial. In the previous examples,
suppose instead that the initial transfer on death deed provides for the transfer of two parcels,
Blackacre and Whiteacre, and that the subsequent instrument revokes the transfer on death deed
as to Blackacre. The subsequent instrument revokes the transfer on death deed in part.

If the property described in the original deed is in more than one county, the revocation is
effective only with respect to the property in the county or counties where the revoking deed or
instrument is recorded.

Subsection (a)(1)(A) speaks of revocation “expressly or by inconsistency.” This

provision references the well-established law of revocation by inconsistency of wills. Consider
the following examples:

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Example 5. T executes, acknowledges, and records a transfer on death deed for
Blackacre naming X as the designated beneficiary. Later, T executes, acknowledges, and
records a transfer on death deed for the same property, Blackacre, containing no express
revocation of the earlier deed but naming Y as the designated beneficiary. Later, T dies. The
recording of the deed in favor of Y revokes the deed in favor of X by inconsistency. At T’s
death, Y is the owner of Blackacre.

Example 6. T, the owner of Blackacre in fee simple absolute, executes, acknowledges,

and records a transfer on death deed for Blackacre naming X as the designated beneficiary.
Later, T executes, acknowledges, and records a transfer on death deed containing no express
revocation of the earlier deed but naming Y as the designated beneficiary of a life estate (or a
mineral interest) in Blackacre. Later, T dies. The recording of the deed in favor of Y partially
revokes the deed in favor of X by inconsistency. At T’s death, Y is the owner of a life estate (or
a mineral interest) in Blackacre, and X is the owner of the remainder.

The question is sometimes raised whether a recorded inter vivos deed without an express
revocation clause operates as a revocation of an earlier transfer on death deed. The answer
highlights the important distinction between “revocation” and “ademption by extinction.” See
Atkinson on Wills § 134. Revocation means that the instrument is rendered void. Ademption by
extinction means that the transfer of the property cannot occur because the property is not owned
by the transferor at death. The doctrines are different.

In some instances, revocation and ademption have the same practical effect: the
designated beneficiary of the property receives nothing. Nothing in this section changes that
fact, as indicated in subsection (d). However, there are other instances where the doctrines have
differing effects. Consider the following illustration, drawn from the law of wills.

Example 7. T executes a will devising Blackacre to A. Later, T becomes legally

incompetent, and G is appointed as T’s conservator. G, acting within the scope of his authority,
sells Blackacre to B for $100,000. Later, T dies.

The law of wills provides that the devise to A is adeemed rather than revoked. This
means that A is not entitled to Blackacre but is entitled to a pecuniary devise in the amount of
$100,000. See Section 2-606(b). See also Atkinson on Wills § 134; Wasserman v. Cohen, 606
N.E.2d 901, 903 (Mass. 1993). The result is designed to effectuate T’s presumed intention.

The Joint Editorial Board for Uniform Trust and Estate Acts has begun a conversation on
whether this Code’s provisions on ademption should be extended to nonprobate transfers, thus
harmonizing the treatment of wills and will substitutes on this aspect of the law. This part
accepts the well recognized distinction between revocation and ademption in order to leave the
door open for such future harmonization, which would effectuate the presumed intention of
nonprobate grantors.

Subsection (b) supplies rules governing revocation by instrument in the event of a

transfer on death deed made by multiple owners. Subsection (b)(1) provides that revocation by a
transferor does not affect a transfer on death deed as to the interest of another transferor.

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Subsection (b)(2) provides that a transfer on death deed of joint owners is revoked only if it is
revoked by all of the living joint owners. This rule is consistent with Section 6-306, which
provides in pertinent part: “A registration of a security in beneficiary form may be canceled or
changed at any time by the sole owner or all then surviving owners without the consent of the
beneficiary.” Subsection (b)(2) applies only to a deed of joint owners. A joint tenant who severs
the joint tenancy, thereby destroying the right of survivorship, is no longer a joint owner.

Subsection (c) provides that a recorded transfer on death deed may not be revoked by a
revocatory act performed on the deed. Such an act includes burning, tearing, canceling,
obliterating, or destroying the deed or any part of it.

This part does not define, but instead looks to other law to determine, the authority of an
agent. An individual’s agent may revoke a transfer on death deed on the individual’s behalf to
the extent permitted by other law, such as the Uniform Power of Attorney Act (2006).

SECTION 6-412. EFFECT OF TRANSFER ON DEATH DEED DURING

TRANSFEROR’S LIFE. During a transferor’s life, a transfer on death deed does not:

(1) affect an interest or right of the transferor or any other owner, including the right to

transfer or encumber the property;

(2) affect an interest or right of a transferee, even if the transferee has actual or

constructive notice of the deed;

(3) affect an interest or right of a secured or unsecured creditor or future creditor of the

transferor, even if the creditor has actual or constructive notice of the deed;

(4) affect the transferor’s or designated beneficiary’s eligibility for any form of public

assistance;

(5) create a legal or equitable interest in favor of the designated beneficiary; or

(6) subject the property to claims or process of a creditor of the designated beneficiary.

Comment

A fundamental feature of a transfer on death deed under this part is that it does not
operate until the transferor’s death. The transfer occurs at the transferor’s death, not before.

Paragraph (1): A transfer on death deed, during the transferor’s lifetime, does not affect
the interests or property rights of the transferor or any other owners. Therefore, the deed does

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not, among many other things: affect the transferor’s right to transfer or encumber the property
inter vivos; sever a joint tenancy or a joint tenant’s right of survivorship; trigger a due-on-sale
clause in the transferor’s mortgage; trigger the imposition of real estate transfer tax; or affect the
transferor’s homestead or real estate tax exemptions, if any.

Paragraph (2): A transfer on death deed does not affect transferees, whether or not they
have notice of the deed. Like a will, the transfer on death deed is ambulatory. It has no effect on
inter vivos transfers.

Paragraph (3): A transfer on death deed, during the transferor’s lifetime, does not affect
pre-existing or future creditors, secured or unsecured, whether or not they have an interest in the
property or notice of the deed.

Paragraph (4): A transfer on death deed, during the transferor’s lifetime, does not affect
the transferor’s or designated beneficiary’s eligibility for any form of public assistance, including
Medicaid. On this point, the drafting committee of this part specifically disapproves of the
contrary approach of Colo. Rev. Stat. § 15-15-403.

Paragraph (5): During the transferor’s lifetime, a transfer on death deed does not create a
legal or equitable interest in the designated beneficiary. The beneficiary does not have an
interest that can be assigned or encumbered. Note, however, that this rule would not preclude
the doctrine of after-acquired title. A warranty deed from a designated beneficiary to a third
party would operate to pass the beneficiary’s title to the third party after the transferor’s death.

Paragraph (6): A transfer on death deed, during the transferor’s lifetime, does not make
the property subject to claims or process of the designated beneficiary’s creditors. The deed has
no more effect than a will.

If a transferor combines an inter vivos transfer of an interest in property (such as a

mineral interest) with a transfer on death of the remainder interest, the inter vivos transfer may
have present effect even though the transfer on death does not occur until the transferor’s death.

SECTION 6-413. EFFECT OF TRANSFER ON DEATH DEED AT

TRANSFEROR’S DEATH.

(a) Except as otherwise provided in the transfer on death deed[,][ or] in this section[,][ or

in [cite state statutes on antilapse, revocation by divorce or homicide, survival and simultaneous

death, and elective share, if applicable to nonprobate transfers]], on the death of the transferor,

the following rules apply to property that is the subject of a transfer on death deed and owned by

the transferor at death:

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(1) Subject to paragraph (2), the interest in the property is transferred to the

designated beneficiary in accordance with the deed.

(2) The interest of a designated beneficiary is contingent on the designated

beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive

the transferor lapses.

(3) Subject to paragraph (4), concurrent interests are transferred to the

beneficiaries in equal and undivided shares with no right of survivorship.

(4) If the transferor has identified two or more designated beneficiaries to receive

concurrent interests in the property, the share of one which lapses or fails for any reason is

transferred to the other, or to the others in proportion to the interest of each in the remaining part

of the property held concurrently.

(b) Subject to [cite state recording act], a beneficiary takes the property subject to all

conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to

which the property is subject at the transferor’s death. For purposes of this subsection and [cite

state recording act], the recording of the transfer on death deed is deemed to have occurred at the

transferor’s death.

(c) If a transferor is a joint owner and is:

(1) survived by one or more other joint owners, the property that is the subject of

a transfer on death deed belongs to the surviving joint owner or owners with right of

survivorship; or

(2) the last surviving joint owner, the transfer on death deed is effective.

(d) A transfer on death deed transfers property without covenant or warranty of title even

if the deed contains a contrary provision.

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Comment

Subsection (a) states four default rules, except as otherwise provided by the transfer on
death deed, by this section, or by other provisions of state law governing nonprobate transfers.

The four default rules established by subsection (a) are these. First, the property that is
the subject of an effective transfer on death deed and owned by the transferor at death is
transferred at the transferor’s death to the designated beneficiaries as provided in the deed. The
rule implements the transferor’s intention as described in the deed. Consider the following
example:

Example 1. A executes, acknowledges, and records a transfer on death deed for

Blackacre naming X as the primary beneficiary and Y as the alternate beneficiary if X fails to
survive A. Both X and Y survive A. Blackacre is transferred to X at A’s death in accordance
with the provisions of the deed.

This default rule implements the fundamental principle that the provisions of the deed
control the disposition of the property, unless otherwise provided by state law.

The drafting committee of this part approves of the result in In re Estate of Roloff, 143
P.3d 406 (Kan. Ct. App. 2006) (holding that crops should be transferred with the land under a
transfer on death deed because this result would be reached on the same facts with any other
deed).

The bracketed language at the beginning of subsection (a) enables a state to make the
default rules subject to other statutes, such as an antilapse statute or a statute providing for
revocation on divorce. Consider the following examples:

Example 2. A executes, acknowledges, and records a transfer on death deed for

Blackacre naming X as the primary beneficiary and Y as the alternate beneficiary if X fails to
survive A. In fact, X and Y fail to survive A, who is survived only by X’s child, Z. Assume that
the state’s antilapse statute applies to transfer on death deeds and creates a substitute gift in Z.
(For such a statute, see Section 2-706.) Blackacre is transferred to Z at A’s death in accordance
with the provisions of the deed as modified by the antilapse statute.

Example 3. A executes, acknowledges, and records a transfer on death deed for

Blackacre naming her spouse, X, as the primary beneficiary and Y as the alternate beneficiary if
X fails to survive A. Later, A and X divorce. Assume that the state’s statute on revocation by
divorce applies to transfer on death deeds and revokes the designation in favor of X, with the
effect that the provisions of the transfer on death deed are given effect as if X had disclaimed.
(For such a statute, see Section 2-804.) Assume further that the effect of the putative disclaimer
is that X is treated as having failed to survive A. (See Section 2-1106(a)(3)(B).) Blackacre is
transferred to Y at A’s death in accordance with the provisions of the deed as modified by the
revocation on divorce and disclaimer statutes.

Note that the property must be owned by the transferor at death. Property no longer

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owned by the transferor at death cannot be transferred by a transfer on death deed, just as it
cannot be transferred by a will. This is the principle of ademption by extinction, discussed in the
Comment to Section 6-411.

In almost every instance, the transferor will own the property not only at death but also
when the transfer on death deed is executed, but the latter is not imperative. Consider the
following example. H and W, a married couple, hold Blackacre as tenants by the entirety. H
executes, acknowledges, and records a transfer on death deed for Blackacre in favor of X. W
later dies, at which point H owns Blackacre in fee simple absolute. Later, H dies. Under the law
of some states, there may be a question whether the transfer on death deed is effective, given that
H executed it when Blackacre was owned, not by H and W, but by the marital entity. The
correct answer is that the transfer on death deed is effective at H’s death because Blackacre is
owned by H at H’s death. See, e.g., Mitchell v. Wilmington Trust Co., 449 A.2d 1055 (Del. Ch.
1982) (mortgage granted by one tenant by the entirety is not void upon execution but remains
inchoate during the lives of both spouses, and becomes a valid lien if the spouse who executed
the mortgage survives the other spouse or if the spouses get divorced).

The second default rule established by subsection (a) is that the interest of a designated
beneficiary is contingent on surviving the transferor. This default rule treats wills and will
substitutes alike. The interest of a designated beneficiary who fails to survive the transferor
lapses.

The third default rule established by subsection (a) is that concurrent beneficiaries receive
equal and undivided interests with no right of survivorship among them. This default rule is
consistent with the general presumption in favor of tenancy in common. See Powell on Real
Property § 51.02. The rule is also consistent with Section 6-212 governing multiple-party
accounts and Section 6-307 governing the transfer on death registration of securities.

The fourth and last default rule established by subsection (a) is that, in the event of the
lapse or failure of an interest to be held concurrently, the share that lapses or fails passes
proportionately to the surviving concurrent beneficiaries. Consider the following example:

Example 4. A executes, acknowledges, and records a transfer on death deed for

Blackacre naming X, Y, and Z as the designated beneficiaries. X and Y survive A, but Z fails to
survive A. The transfer on death deed is effective and, in the absence of an antilapse statute,
transfers Blackacre to X and Y. This default rule is consistent with the transferor’s probable
intention in the absence of an antilapse statute and also with Section 2-604(b) on the lapse of a
residuary devise.

Subsection (b) concerns the effect of transactions during the transferor’s life. The
subsection states an intermediate rule between two extremes. One extreme would provide that
transactions during the transferor’s life affect the beneficiary only if the transactions are recorded
before the transferor’s death. This would unfairly disadvantage the transferor’s creditors and
inter vivos transferees. The other extreme would provide that transactions during the transferor’s
life always supersede the beneficiary’s interest, even if the recording act would provide
otherwise. Between these two positions is the rule of subsection (b).

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Subsection (b) provides that the beneficiary’s interest is subject to all conveyances,
encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property
is subject at the transferor’s death. “Liens” includes liens arising by operation of law, such as
state Medicaid liens.

The only exception to this rule arises when the state recording act so provides. The state
recording act will so provide only when two conditions are met: (1) the inter vivos conveyance
or encumbrance is unrecorded throughout the transferor’s life (the legal fiction in this subsection
protects persons who transact with the transferor and record any time before the transferor’s
death); and (2) the beneficiary is protected by the recording act. These two conditions will be
met only in rare instances. Most beneficiaries of transfer on death deeds are gratuitous, whereas
state recording acts typically protect only purchasers for value. See Powell on Real Property §
82.02.

Subsection (c) provides that the survivorship right of a joint owner takes precedence over
the transfer on death deed. This rule is consistent with the law of joint tenancy and wills: the
right of survivorship takes precedence over a provision in a joint tenant’s will.

Subsection (d) states the mandatory rule that a transfer on death deed transfers the
property without covenant or warranty of title. The rule is mandatory for two reasons: first, to
prevent mishaps by uninformed grantors; and second, to recognize that a transfer on death deed
is a will substitute. The rule of this section is consistent with the longstanding law of wills. As
stated by Sir Edward Coke, “an express warranty cannot be created by will.” Coke on Littleton
386a.

SECTION 6-414. DISCLAIMER. A beneficiary may disclaim all or part of the

beneficiary’s interest as provided by [cite state statute or the Uniform Disclaimer of Property

Interests Act (1999/2006) (UPC Article II, Part 11)].

Comment

A beneficiary of a transfer on death deed may disclaim the property interest the deed
attempts to transfer. While this section relies on other law, such as the Uniform Disclaimer of
Property Interests Act (1999/2006), to govern the disclaimer, two general principles should be
noted.

First, there is no need under the law of disclaimers to execute a disclaimer in advance.
During the transferor’s life, a designated beneficiary has no interest in the property. See Section
6-412. Nothing passes to the designated beneficiary while the transferor is alive, hence there is
no need to execute a disclaimer during that time.

Second, an effective disclaimer executed after the testator’s death “relates back” to the
moment of the attempted transfer, here the death of the transferor. Because the disclaimer
“relates back,” the beneficiary is regarded as never having had an interest in the disclaimed

775
property. The Uniform Disclaimer of Property Interests Act (1999/2006) reaches this result,
without using the language of relation back. See Section 2-1106(b)(1): “The disclaimer takes
effect as of the time the instrument creating the interest becomes irrevocable....” As the
Comment to Section 2-1106 explains, “This Act continues the effect of the relation back
doctrine, not by using the specific words, but by directly stating what the relation back doctrine
has been interpreted to mean.”

SECTION 6-415. LIABILITY FOR CREDITOR CLAIMS AND STATUTORY

ALLOWANCES.

Alternative A

A beneficiary of a transfer on death deed is liable for an allowed claim against the

transferor’s probate estate and statutory allowances to a surviving spouse and children to the

extent provided in Section 6-102.

Alternative B

(a) To the extent the transferor’s probate estate is insufficient to satisfy an allowed claim

against the estate or a statutory allowance to a surviving spouse or child, the estate may enforce

the liability against property transferred at the transferor’s death by a transfer on death deed.

(b) If more than one property is transferred by one or more transfer on death deeds, the

liability under subsection (a) is apportioned among the properties in proportion to their net values

at the transferor’s death.

(c) A proceeding to enforce the liability under this section must be commenced not later

than [18 months] after the transferor’s death.

End of Alternatives

Comment

Alternative A defers to Section 6-102 to establish the liability of a beneficiary of a

transfer on death deed for creditor claims and statutory allowances.

Section 6-102 was added in 1998 to establish the principle that recipients of nonprobate
transfers can be required to contribute to pay allowed claims and statutory allowances to the

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extent the probate estate is insufficient. The fundamental rule of liability is contained in Section
6-102(b): “Except as otherwise provided by statute, a transferee of a nonprobate transfer is
subject to liability to any probate estate of the decedent for allowed claims against the decedent’s
probate estate and statutory allowances to the decedent’s spouse and children to the extent the
estate is insufficient to satisfy those claims and allowances. The liability of a nonprobate
transferee may not exceed the value of nonprobate transfers received or controlled by that
transferee.” The other provisions of Section 6-102 implement this liability rule.

For states not favoring the comprehensive approach of Section 6-102(b) or the
equivalent, Alternative B provides an in rem liability rule applying to transfer on death deeds.
The property transferred under a transfer on death deed is liable to the transferor’s probate estate
for properly allowed claims and statutory allowances to the extent the estate is insufficient.

One of the functions of probate is creditor protection. Section 6-102, referenced in

Alternative A, attempts to provide comprehensive creditor protection within the realm of
nonprobate transfers. In addition, this part in Alternative B provides more creditor protection
than is typically available under current law. For many transferors, the transfer on death deed
will be used in lieu of joint tenancy with right of survivorship. Under the usual law of joint
tenancy, the unsecured creditors of a deceased joint tenant have no recourse against the property
or against the other joint tenant. Instead, the property passes automatically to the survivor, free
of the decedent’s debts. See Comment 5 to Section 6-102. If the debts cannot be paid from the
probate estate, the creditor is out of luck. Under Alternative B, in contrast, the property
transferred under a transfer on death deed is liable to the probate estate for properly allowed
claims and statutory allowances to the extent the estate is insufficient.

[SECTION 6-416. OPTIONAL FORM OF TRANSFER ON DEATH DEED. The

following form may be used to create a transfer on death deed. The other sections of this [part]

govern the effect of this or any other instrument used to create a transfer on death deed:

(front of form)
REVOCABLE TRANSFER ON DEATH DEED

NOTICE TO OWNER

You should carefully read all information on the other side of this form. You May Want

to Consult a Lawyer Before Using This Form.

This form must be recorded before your death, or it will not be effective.

IDENTIFYING INFORMATION

Owner or Owners Making This Deed:

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___________________________ _________________________________________
Printed name Mailing address

___________________________ __________________________________________
Printed name Mailing address

Legal description of the property:

________________________________________________________________________

PRIMARY BENEFICIARY

I designate the following beneficiary if the beneficiary survives me.

___________________________ __________________________________________
Printed name Mailing address, if available

ALTERNATE BENEFICIARY – Optional

If my primary beneficiary does not survive me, I designate the following alternate

beneficiary if that beneficiary survives me.

__________________________ __________________________________________
Printed name Mailing address, if available

TRANSFER ON DEATH

At my death, I transfer my interest in the described property to the beneficiaries as

designated above.

Before my death, I have the right to revoke this deed.

SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED

_________________________________________ [(SEAL)]_________________
Signature Date

_________________________________________ [(SEAL)]_________________
Signature Date

ACKNOWLEDGMENT
(insert acknowledgment for deed here)

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(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM

What does the Transfer on Death (TOD) deed do? When you die, this deed transfers the
described property, subject to any liens or mortgages (or other encumbrances) on the property at
your death. Probate is not required. The TOD deed has no effect until you die. You can revoke
it at any time. You are also free to transfer the property to someone else during your lifetime. If
you do not own any interest in the property when you die, this deed will have no effect.

How do I make a TOD deed? Complete this form. Have it acknowledged before a notary
public or other individual authorized by law to take acknowledgments. Record the form in each
[county] where any part of the property is located. The form has no effect unless it is
acknowledged and recorded before your death.

Is the “legal description” of the property necessary? Yes.

How do I find the “legal description” of the property? This information may be on the
deed you received when you became an owner of the property. This information may also be
available in [the office of the county recorder of deeds] for the [county] where the property is
located. If you are not absolutely sure, consult a lawyer.

Can I change my mind before I record the TOD deed? Yes. If you have not yet recorded
the deed and want to change your mind, simply tear up or otherwise destroy the deed.

How do I “record” the TOD deed? Take the completed and acknowledged form to [the
office of the county recorder of deeds] of the [county] where the property is located. Follow the
instructions given by the [county recorder] to make the form part of the official property records.
If the property is in more than one [county], you should record the deed in each [county].

Can I later revoke the TOD deed if I change my mind? Yes. You can revoke the TOD
deed. No one, including the beneficiaries, can prevent you from revoking the deed.

How do I revoke the TOD deed after it is recorded? There are three ways to revoke a
recorded TOD deed: (1) Complete and acknowledge a revocation form, and record it in each
[county] where the property is located. (2) Complete and acknowledge a new TOD deed that
disposes of the same property, and record it in each [county] where the property is located. (3)
Transfer the property to someone else during your lifetime by a recorded deed that expressly
revokes the TOD deed. You may not revoke the TOD deed by will.

I am being pressured to complete this form. What should I do? Do not complete this
form under pressure. Seek help from a trusted family member, friend, or lawyer.

Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended.
Secrecy can cause later complications and might make it easier for others to commit fraud.

I have other questions about this form. What should I do? This form is designed to fit

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some but not all situations. If you have other questions, you are encouraged to consult a lawyer.]

Comment

The form in this section is optional. The section is based on Section 4 of the Uniform
Health-Care Decisions Act.

The transfer on death deed is likely to be used by consumers for whom the preparation of
a tailored inter vivos revocable trust is too costly. The form in this section is designed to be
understandable and consumer friendly.

For examples of statutory forms containing answers to questions likely to be asked by

consumers, see the Illinois statutory forms for powers of attorney. 755 Ill. Comp. Stat. 45/3-3
(power of attorney for property); 755 Ill. Comp. Stat. 45/4-10 (power of attorney for health care).

[SECTION 6-417. OPTIONAL FORM OF REVOCATION. The following form may

be used to create an instrument of revocation under this [part]. The other sections of this [part]

govern the effect of this or any other instrument used to revoke a transfer on death deed.

(front of form)
REVOCATION OF TRANSFER ON DEATH DEED

NOTICE TO OWNER

This revocation must be recorded before you die or it will not be effective. This

revocation is effective only as to the interests in the property of owners who sign this revocation.

IDENTIFYING INFORMATION

Owner or Owners of Property Making This Revocation:

___________________________ _________________________________________
Printed name Mailing address

___________________________ _________________________________________
Printed name Mailing address

Legal description of the property:

_______________________________________________________________________

780
REVOCATION

I revoke all my previous transfers of this property by transfer on death deed.

SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION

_________________________________________ [(SEAL)]_________________
Signature Date

_________________________________________ [(SEAL)]_________________
Signature Date

ACKNOWLEDGMENT
(insert acknowledgment here)

(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM

How do I use this form to revoke a Transfer on Death (TOD) deed? Complete this form.
Have it acknowledged before a notary public or other individual authorized to take
acknowledgments. Record the form in the public records in [the office of the county recorder of
deeds] of each [county] where the property is located. The form must be acknowledged and
recorded before your death or it has no effect.

How do I find the “legal description” of the property? This information may be on the
TOD deed. It may also be available in [the office of the county recorder of deeds] for the
[county] where the property is located. If you are not absolutely sure, consult a lawyer.

How do I “record” the form? Take the completed and acknowledged form to [the office
of the county recorder of deeds] of the [county] where the property is located. Follow the
instructions given by the [county recorder] to make the form part of the official property records.
If the property is located in more than one [county], you should record the form in each of those
[counties].

I am being pressured to complete this form. What should I do? Do not complete this
form under pressure. Seek help from a trusted family member, friend, or lawyer.

I have other questions about this form. What should I do? This form is designed to fit
some but not all situations. If you have other questions, consult a lawyer.]

Comment

The form in this section is optional. The section is based on Section 4 of the Uniform
Health-Care Decisions Act.

The aim of the form in this section is to be understandable and consumer friendly.

781
ARTICLE VII: TRUST ADMINISTRATION

Historical Note: Article VII of the Uniform Probate Code addressed selected issues of
trust administration, including trust registration, the jurisdiction of the courts concerning trusts,
and the duties and liabilities of trustees. Article VII of the UPC was superseded by the Uniform
Trust Code, approved in 2000, and was withdrawn in 2010 following the widespread enactment
of the UTC.

ARTICLE VIII: EFFECTIVE DATE AND REPEALER

SECTION 8-101. TIME OF TAKING EFFECT; PROVISIONS FOR

TRANSITION.

(a) This [code] takes effect on January 1, 20__.

(b) Except as provided elsewhere in this [code], on the effective date of this [code]:

(1) the [code] applies to governing instruments executed by decedents dying

thereafter;

(2) the [code] applies to any proceedings in court then pending or thereafter

commenced regardless of the time of the death of decedent except to the extent that in the

opinion of the court the former procedure should be made applicable in a particular case in the

interest of justice or because of infeasibility of application of the procedure of this [code];

(3) every personal representative including a person administering an estate of a

minor or incompetent holding an appointment on that date, continues to hold the appointment but

has only the powers conferred by this [code] and is subject to the duties imposed with respect to

any act occurring or done thereafter;

(4) an act done before the effective date in anyproceeding and any accrued right is

not impaired by this [code]. If a right is acquired, extinguished or barred upon the expiration of a

prescribed period of time which has commenced to run by the provisions of any statute before

the effective date, the provisions shall remain in force with respect to that right;

782
(5) any rule of construction or presumption provided in this [code] applies to

governing instruments executed before the effective date unless there is a clear indication of a

contrary intent;

(6) a person holding office as judge of the court on the effective date of this

[code] may continue the office of judge of this court and may be selected for additional terms

after the effective date of this [code] even though the person does not meet the qualifications of a

judge as provided in [Article] I.

Legislative Note: States that have previously enacted the Uniform Probate Code and are
enacting an amendment or amendments to the Code are encouraged to include the following
effective date provision in their enacting legislation. The purpose of this effective date provision,
which is patterned after Section 8-101 of the original UPC, is to assure that the amendment or
amendments will apply to instruments executed prior to the effective date, to court proceedings
pending on the effective date, and to acts occurring prior to the effective date, to the same
limited extent and in the same situations as the effective date provision of the original UPC.

TIME OF TAKING EFFECT; PROVISIONS FOR TRANSITION.

(a) This [act] takes effect on January 1, 20__.

(b) On the effective date of this [act]:

(1) the [act] applies to governing instruments executed by decedents dying thereafter;

(2) the [act] applies to any proceedings in court then pending or thereafter commenced
regardless of the time of the death of decedent except to the extent that in the opinion of the court
the former procedure should be made applicable in a particular case in the interest of justice or
because of infeasibility of application of the procedure of this code;

(3) an act done before the effective date of this [act] in any proceeding and any accrued
right is not impaired by this [act]. If a right is acquired, extinguished, or barred upon the
expiration of a prescribed period of time which has commenced to run by the provisions of any
statute before the effective date of this [act], the provisions shall remain in force with respect to
that right; and
(4) any rule of construction or presumption provided in this [act] applies to governing
instruments executed before the effective date unless there is a clear indication of a contrary
intent.

SECTION 8-102. SPECIFIC REPEALER AND AMENDMENTS.

783
(a) The following [acts] and parts of [acts] are repealed:

(1)

(2)

(3)

(b) The following [acts] and parts of [acts] are amended:

(1)

(2)

(3)

784