We are going to provide some information about the Uniform Probate Code (UPC) in this post, but before we do, we should share some general information about probate.
You have heard about family courts, criminal courts, and other courts that handle certain types of cases. The probate court has jurisdiction over estate matters and guardianship proceedings.
When you hear the term “guardianship,” you may think about guardians for minor children. This is one form of guardianship, but guardians are also appointed to act on behalf of incapacitated adults.
Estate Administration
If you use a will to express your final wishes, you would name an executor in the document to act as the administrator. The executor would admit the will to probate, and the court would provide supervision during the administration process.
A notice is posted to inform creditors about the passing of the decedent, and final debts are paid during probate. The assets are identified, inventoried, and prepared for distribution to the heirs, and the court will examine the will to confirm its validity.
When someone passes away without a will, a court-appointed personal representative will act as the administrator, and they would have the same responsibilities.
The assets are distributed when the estate has been probated and closed by the court. Obviously, when a will is used, the wishes of the decedent are honored. When there is no will, the assets are distributed under the Oklahoma intestate succession statutes.
Uniform Probate Code
At the beginning of the 1960s, probate laws in each state were different, and the statutes were outdated in many cases. The process was inefficient, and the legal community recognized the fact that action was required.
Work began on the Uniform Probate Code in 1963, and the initial completed version was released in 1969. It was created by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the Probate and Trust Law Section of the American Bar Association.
They envisioned all 50 states using the UPC, but it has never been universally embraced. The Uniform Probate Code was amended in 1990, and at this point, 19 states are using it in its entirety. Oklahoma is not one of them.
Probate Avoidance
Probate serves a purpose, but there is no getting around the fact that it comes with some drawbacks that negatively impact the rightful heirs to an estate. It will take at least eight or nine months to a year or more in most jurisdictions, and no inheritances can be distributed during this period.
Privacy is lost, because probate records are available to the general public. There are a number of expenses that accumulate as well, including legal fees, and these expenditures reduce the value of the estate.
We should point out the fact that some types of transfers are not subject to probate. A payable-on-death (“POD”) account is a bank or brokerage account with a beneficiary. After the death of the account holder, the beneficiary would inherit the account, and the court would not be involved. While sounding simple, there are issues with this type of account designation.
Property that is held in joint tenancy is transferred outside of probate, and life insurance proceeds are transferred in a probate-free manner. Transfers to individual retirement account beneficiaries fit into this category as well.
You can proactively implement a probate avoidance strategy when you are planning your estate. If you use a living trust, the trustee that you name in the document would be able to distribute the assets outside of probate.
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Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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