UPC and UTC Provisions 1. Intestacy a. UPC 2-101. Intestate Estate i.

. (a) Any part of a decedents estate not effectively disposed of by will passes by intestate succession to the decedents heirs as prescribed in this Code, except as modified by the decedents will. ii. (b) A decedent by will may expressly exclude or limit the right of an individual 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 decedents intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share. b. UPC 2-102. Share of Spouse i. The Intestate share of a decedents surviving spouse is: 1. (1) the entire intestate estate if: a. No descendant or parent of the decedent survives the decedent; or b. All of the decedents surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.; c. The first $300,000, plus three-fourths of any balance of the intestate estate, if not descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; d. The first $225,000, plus of any balance of the intestate estate, if all of the decedents surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; e. The first $150,000, plus of any balance of the intestate estate, if one or more of the decedents surviving descendants are not descendants of the surviving spouse. c. UPC 2-105. No Taker i. If there is no taker under the provisions of this article, the intestate estate passes to the state. d. Advancements i. Section 2-109. Advancements. 1. (a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

2. (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. 3. (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. e. Disclaimers i. UPC 2-1106(b)(3)(C)- if by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution. 2. Execution of Wills Comparison of Statutory Fomalities for Formal Wills Statute of Wills Act Uniform Uniform Frauds (Land) (1836) Probate Code Probate Code (1967 (1990) (Rev. 2008) Writing Writing Writing Writing Signature Subscription Signature Signature Attestation & Attestation & Attestation & Attestation & Subscription subscription signature by 2 signature by 2 by 3 by 2 witnesses witnesses or witnesses witnesses notarization a. Uniform Probate Code 2-502: Execution; Witnessed or Notarized Wills; Holographic Wills i. (a) [Witnessed or Notarized Wills.] Except as otherwise provided in subsection ii. (b) and in Sections 2-503, 2-506, and 2-513, a will must be: 1. in writing; 2. signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and 3. either: a. signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will; or acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. b. [Holographic Wills.] A will that does not comply 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 2. Revocation a. UPC 2-507. Revocation by Writing or by Act i. A will or any part thereof is revoked: 1. (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or 2. (2) by performing a revocatory act on the will, if the testator 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. Revival i. UPC 2-509: Revival of Revoked Will 1. 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. 2. 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 effect as executed. 3. If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect. 3. Ademption a. UPC (1990) 2-606- Nonademption of Specific Devises; Unpaid Proceeds of Sale, Condemnation, or Insurance; Sale by Conservator or Agent i. (a) A specific devisee has a right to specifically devised property in the testator's estate at the testator's death and to: 1. (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. (2) any amount of a condemnation award for the taking of the property unpaid at death; 3. (3) any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;

4. (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. (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. (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. (later amended to put the burden on the party opposing ademption, that is, the party seeking the pecuniary value of specifically devised property not in the estate). ii. (b) If specifically devised property is sold or mortgaged by a conservator or 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 the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. iii. (c) The right of a specific devisee under subsection (b) is reduced by any right the devisee has under subsection (a). 4. Revocable Trusts a. Uniform Trust Code 603- Settlors Powers; Powers of Withdrawal i. (a) While a trust is revocable [and the settlor has capacity to revoke the trust], rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor. ii. (b) During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power. b. Uniform Trust Code 604- a person may bring suit to challenge a revocable trust, but only after the trust becomes irrevocable by reason of the settlors death. c. UTC 603- provides that while the settlor is alive the trustee of a revocable trust owes duties only to the settlor. 5. Multiple Party Accounts a. The UPC authorizes a joint tenancy account with the right of survivorship, an agenct account, and a POD account. b. Under UPC, joint accounts belong to the parties during their joint lifetimes, in proportion to the net contribution of each to the sums on deposit, unless there is clear and convincing evidence of a different intent. UPC 6-211(b). c. Extrinsic evidence is admissible to show that a joint account was opened solely for the convenience of the depositor. UPC 6-203, 204, 212. d. UPC imposes a requirement of survivorship on beneficiaries of a POD bank account (6212) as well as on beneficiaries of securities in TOD registration (6-307), bur nor on beneficiaries of POD contracts generally.

e. UPC includes an Antilapse provision for POD designations, which substitutes the descendants of the named beneficiary who does not survive the benefactor. UPC 2-706, which parallels the UPC Antilapse provision for wills in 2603. f. Under the UPC, the Totten Trust is abolished as a formal category and is instead treated as a POD account. 6. Pour-Over Wills a. UPC (1990) 2-511- Testamentary Additions to Trusts i. (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 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. ii. (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. iii. (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. 7. Trusts a. UPC 2-703- provides that the testator may select the state law to govern the meaning and legal effect of his will, including trusts created by the will, unless that law is contrary to the domiciliary states law protecting the surviving spouse or any other public policy of the domiciliary state. This provision aligns with testamentary choice of law rules with those generally used for inter vivos trusts, and, where adopted, it lessens the need to create an inter vivos trust to achieve a benefit in another state. b. A trust must have one or more ascertainable beneficiaries. UTC 402(a)(3); RST of Trusts 44. Exception for charitable trust. Beneficiaries of a private trust may be unborn or unascertained when the trust is created. c. Note- Extended Discretion i. When the instrument purports to free the trustee from some or all of these limitations by use of adjectives such as sole, absolute, or uncontrolled, problems arise. ii. But a discretionary power to be exercised in the trustees sole or absolute or uncontrolled discretion is not in fact absolute or uncontrolled.--> must not disregard the interests of the beneficiary, then the court will intervene. iii. RST (2d) of Trusts, 187- subjective standard of whether the trustee has acted ion a state of mind which it was contemplated by the settlor that he would act. . . . The trustee will not be permitted to act dishonestly, or from some motive

other than the accomplishment of the purposes of the trust, or ordinarily to act arbitrarily without an exercise of his judgment. iv. UTC 814- trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. v. RST (3d) Trusts 50, cmt. c- words such as absolute or unlimited or sole and uncontrolled are not interpreted literally. Trsutee must act honestly and in a state of mind contemplated by the settlor. No bad faith. d. Note: Exculpatory Clauses i. Exculpatory (exoneration) clause- excuses the trustees from liability except for willful neglect or default. ii. UTC 1008(b)- an exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee provides that the exculpatory term is fair under the circumstances and that its existence and contents were adequate communicated to the settlor. iii. RST (3d) of Trusts 96, cmt. d- supports the UTC position iv. A settlor who names a third party as trustee is perhaps less vulnerable to abuse if represented by a lawyer who doesnt have a personal stake in the exculpatory provision. v. UTC 1008 cmt- if the settlor was represented by independent counsel, the settlors attorney is considered the drafter of the instrument even if the attorney used the trustees form. Because the settlors attorney is an agent of the settlor, disclosure of an exculpatory term to the settlors attorney is disclosure to the settlor. vi. A trust in which there is no legally binding obligation on a trustee is a trust in name only and more in the nature of an absolute estate or fee simple grant in property. e. Note: Mandatory Arbitration Clauses i. Some trust instruments provide that all disputes between the trustee and the beneficiary must be resolved by arbitration. ii. Schoneberger v. Oelze (2004)- court allowed the beneficiary to litigate in court in spite of the trusts mandatory arbitration provision (settlor may not unilaterally strip trust beneficiaries of their right to access the courts absent their agreement). iii. Florida statute takes the opposite view, mandating the enforcement of a provision requiring arbitration of disputes. f. Discretionary Trusts i. UTC 504- provides that, subject to an exception for claims by children and spouses for child support and alimony, a creditor of a beneficiary cannot compel a discretionary distribution even if the beneficiary could compel such a distribution. ii. UTC 504- Discretionary Trusts; Effect of Standard 1. (a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another State. 2. b) Except as otherwise provided in subsection (c), whether or not a trust contains a spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if:

a. 1) the discretion is expressed in the form of a standard of distribution; or b. (2) the trustee has abused the discretion. 3. (c) To the extent a trustee has not complied with a standard of distribution or has abused a discretion: a. (1) a distribution may be ordered by the court to satisfy a judgment or court order against the beneficiary for support or maintenance of the beneficiary's child, spouse, or former spouse; and b. (2) the court shall direct the trustee to pay to the child, spouse, or former spouse such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion. 4. (d) This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution. 5. (e) If the trustee's or cotrustee's discretion to make distributions for the trustee's or cotrustee's own benefit is limited by an ascertainable standard, a creditor may not reach or compel distribution of the beneficial interest except to the extent the interest would be subject to the creditor's claim were the beneficiary not acting as trustee or cotrustee. g. Spendthrift Trusts i. UTC 502- Spendthrift Provision 1. (a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest. 2. (b) A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust," or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest. 3. (c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this [article], a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary. ii. UTC 503- Exceptions to Spendthrift Provision 1. (a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another State. 2. (b) A spendthrift provision is unenforceable against: a. (1) a beneficiary's child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance; b. (2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust; and c. (3) a claim of this State or the United States to the extent a statute of this State or federal law so provides.

3. (c) A claimant against which a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances. h.