Document Type

Article

Publication Date

Winter 1993

Abstract

Recent years have witnessed a dramatic increase in probate avoidance. Revocable trusts, joint-and-survivor or pay-on-death (“POD”) bank accounts, transfer-on-death (“TOD”) security registrations and other will substitutes have proliferated and emerged as successful competitors of the probate system. In response to this “nonprobate revolution,” the drafters of the Uniform Probate Code (“UPC”) have begun to reconsider the scope and direction of probate reform. The 1989 and 1990 UPC revisions reflect a new emphasis on integrating the law of probate and nonprobate transfers.

Nevertheless, the nonprobate revolution remains incomplete. Although the revised UPC establishes uniform constructional rules for wills and will substitutes, its approach to validating will substitutes requires rethinking. The failure to address creditors' rights with respect to nonprobate assets other than multiple-person accounts represents another serious gap in the present UPC. Solutions for these and other problems call for a careful balancing of the respective formal and functional characteristics of wills and will substitutes.

This Article explores the impact of the revised UPC on will substitutes and recommends further revisions in the areas of validation and creditor protection. Part I examines the problem of defining and validating nonprobate transfers. Part II discusses the background and operation of specific constructional rules for will substitutes under the revised UPC. Part III analyzes the need to protect the rights of creditors and other third parties while preserving flexibility and efficiency in implementing will substitutes. Finally, the Article concludes with a brief summary and recommendations for further reform.

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