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25/09/2022. 03:37:43


Por y para profesionales del Derecho

2008 Amendments to Uniform Probate Code

es analista del Gertrude Ryan Law Observatory

The recent revision of the Uniform Probate Code responded, inter alia, to six objectives stated in this article. Among them, the most important is the opportunity for notarized wills as an alternative for attested wills.

2008 Amendments to Uniform Probate Code

The desire that the laws of several states of the United States should all be uniform first crystallized in 1878 with the creation of the American Bar Association. Years later in 1889, the American Bar Association appointed a Committee on Uniform State Laws with the purpose of drafting uniform laws. From this committee, the current National Conference of Commissioners on Uniform State Laws, also known as Uniform Law Commission, emerged in 1892 with the same purpose. This came to fruition from the annual meetings of these National Conference members, appointed by the state governors amongst them judges, lawyers and law professors, there are about eighty Uniforms Acts currently drafted and proposed to the States, many of which have not been yet undertaken by them.

The set of rules created by the Uniform Law Commission do not have legal value They are only unifying documents of the different laws, very valuable, but are not binding until they are enacted individually by each state -wholly or partially-. Then those rules became legislation directly applicable.

The Uniform Probate Code (UPC.), enacted in 1969, is the result of that unifying trend in the field of inheritance and it's a comprehensive revision of an earlier more limited version: the Model Probate Code. The Uniform Probate Code, therefore, is a modern code that standardizes various laws and comprehends all matters relating to wills and trusts. Currently, the Probate Code has been adopted, totally or substantially, by one third of the States and almost all have assumed some specific sections adapted to their own needs.

The original Uniform Probate Code of 1969 underwent a major revision in 1990, particularly in matters relating to its Article II, namely: intestacy, wills and donative transfers. Recently there has been another revision of the Uniform Probate Code, and one of the results of this are the 2008 Amendments to UPC. adopted on November, 10th 2008. These Amendments will probably adopted by individual states during this and the following years. This review was made in July at Big Sky (Montana) and responds, inter alia, to the following objectives. First, adjusting the amounts contained in the UPC. to inflation, because since 1990 the consumer price index has increased over the 50%. Secondly, reviewing the regulation of intestacy and dividing it into two parts, one concerning the general rules on intestate succession, and the other on parental relationships. Thirdly, reviewing class gifts. Fourthly: adapting certain sections of the UPC. to the content of the Uniform Trust Code (last revised or amended in 2005). Fifthly: changing the mode of calculating the elective share, which is the portion that many Statutes leave to the surviving spouse, to give more transparency and simplicity. And sixthly: adapting the Uniform Probate Code for the use of electronic signatures.

Along with this, the recent amendment of the Uniform Probate Code drawn up in late 2008 -not yet incorporated as law by the states- has given the opportunity for notarized wills. These wills are an alternative for attested wills characterized by, instead of being witnessed by witnesses, the acknowledgment of the will by the testator in the presence of a notary public, as stated in § 2-502 (a) (3) (B) of the UPC. "acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments". However, the text of the 2008 Amendments made it clear that the recognition by the notary public does not constitute a "signature guarantee." In fact, "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 ".

This acknowledgement before the notary public has been admitted by the Uniform Probate Code for two reasons. On the one hand, to respond to the increase of cases in which at the same act a client signs in the presence of witnesses several documents concerned to estate plans, including a the will, and no one advised that the testator or one of the witnesses had not signed the will, and because of this, it is therefore invalid. Therefore, as many documents relating to estate issues require to be notarized, in order to reduce confusion and mistakes it seemed logical that the will could also take place before the notary public. That is: with the same procedure as other property documents.

Moreover, another reason that led the National Conference of Commissioners on Uniform State Laws to allow the option of the notarized wills is the widespread misconception that it is possible to execute a will in the presence of a notary public. Given this fact, and to avoid the nullity of many wills thus executed -such this is the punishment according with the UPC. because the formal requirements were not completed, although in this case is known the will of the testator is known- and this has introduced has been given the commented opportunity.

Different from the previous question is that more States should join the uniform trend and therefore adopt the 2008 Amendments to UPC. totally or at least adopt local versions with similar effect. We will see!

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