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Introduction to the Uniform Probate Code INTRODUCTION TO THE UNIFORM PROBATE CODE RicHAR V. WEL mAN* INTRODUCTION The advent of the Uniform Probate Code is bound to be traumatic for practitioners and judges who must forget much of what they know and learn to live with the new law. No one knows this better than the residents of the state of Nebraska, the scene of the noisest enactment battle that has yet been waged in relation to the Code. The debate in 1973 and 1974 in Nebraska over the enactment of the Uniform Probate Code was more vigorous, more emotional and more protracted than comparable discussions in any other state. It drew national notice as the bar representatives of Nebraska journeyed to the American Bar Association's annual meeting in 1973 in an unsuccessful effort to persuade the Assembly of the Bar to withdraw the ABA's endorsement of the Code. UPC critics in other states, particularly California, gave aid and comfort to the anti- Code Nebraska contingent in the hope that Nebraska might be the place where the Code would suffer its first political defeat, thus weakening its prospects elsewhere. It almost happened. Even after the Nebraska Legislature acted affirmatively, there were predictions of veto, legislative inquiries into the propriety of the lobbying efforts that accompanied the bill and predictions of mas- sive amendments in 1975, as well as of repeal. In the time-honored way of lawyers, we put the battle behind us and consider how we can live with the results. The large turn- out at the Introduction to the Nebraska Probate Code Institute at the Creighton University School of Law 14 months in advance of the effective date was a very good sign, for me at least, that the lawyers of Nebraska will like the results very much. I know the Code works well and that lawyers like it once they become familiar with it. This is the way it is in Idaho where the Code is into its fourth year of operation. One well-seasoned practitioner from Boise told me that the UPC was absolutely the best new statute * Alston Professor of Law, University of Georgia; Educational Director, Uniform Probate Code. 19761 NEBRASKA PROBATE CODE that Idaho had ever enacted. That may be putting it a bit too strongly, but it is very clear, that though the Idaho Bar Association waged a vigorous batttle against the Code, now that it is in effect and familiar, the initial negative attitude of practitioners has turned around almost completely. The story from Arizona and Colorado where the experience to date with the Code is shorter, is less clear, but it tends to be the same, particularly since some Colorado deviations that caused title problems have been cleared away by 1975 amendments. I am confident that any distaste for the Code will go away as soon as it is known better. HISTORY OF THE UNIFORM PROBATE CODE The history of the Uniform Probate Code goes back many years, almost 40 in fact, to the late 1930's when Thomas E. Atkinson, Lewis Simes, R.G. Patton, Paul Basye, and others stimulated and worked on an American Bar Association project to prepare a model probate code. The result, never more exalted in official terms than a received committee report, eventually was published by the Michigan Law School along with the statutory notes and reprints of several explanatory articles. This volume, entitled the Model Probate Code, served as the point of departure for UPC draftsmen who used sections of the earlier work without change where they fitted with the new format and had not *been improved upon by more recent state laws. It might be helpful to make note of the Model Probate Code, and to dig it out of the library in case litiga- tion necessitates deep research concerning a UPC provision. The genesis of the UPC project was a 1962 move in the ABA Real Property, Probate and Trust Law Section to update the Model Probate Code and to adjust it so as to make it more acceptable for widespread enactment. The driving motivation, which prodded many lawyers from many states to support the project, was to do something about diverse and cumbersome old probate laws that served more to impede than to facilitate the work of estate planners who frequently must cope with cases involving two or more states. In addition to growing concern about interstate estates, many lawyers were beginning to believe that traditional court-oriented probate procedures were more harmful than helpful to law office concerns about economics and public relations. The price of young lawyers, secretaries, document production and reproduction equip- ment was increasing. The size of probate estates and fees, as affected by the growing use of revocable trusts, joint tenancies and other probate-avoiding devices, coupled with increasing resistance CREIGHTON LAW REVIEW [Vol. 9 on the part of clients to any but the most modest of charges, was not increasing nearly as fast. The later events of 1965-1966, after lawyer-haters like Dacey and Bloom published their books and bits in Readers Digest, proved the accuracy of the predictions of the early 60's. Suddenly, the public was urged to hate probate lawyers and their fees while probate-avoiding transfers were broadly urged. Probate judges, stung with criticism, began to tighten the screws, making probate procedures even more onerous and expensive in terms of practitioner time. The UPC project looked like the answer. Consequently, the impact of Bloom's 1966 Readers Digest article, "The Mess in Our Probate Courts" and Dacey's 1965 book How to Avoid Probate was to bring many more bar leaders into support of the UPC project. Suddenly, money to support acceler- ated drafting and evaluation efforts became available. The project, started in 1963 and 1964, picked up speed. The rest of the history can be briefly recounted. The UPC drafting team, consisting of ten law teachers from nine different schools, including six who had worked intensively on probate codes in particular states before becoming UPC reporters, worked prin- cipally in the summers of 1966, 1967 and 1968 on preliminary drafts which, by the time of final approval in 1969, had numbered six. Articles I through V, covering decedents' estates and guardian- ship, (which was the entire coverage ,of the Model Probate Code) were included in the first draft. Article VI's coverage of joint and related accounts and other transactions involving non-probate death benefits, came into the package in the second and third drafts, the latter being a widely-circulated, big-page, paper-back that emerged in late 1967. The next widely distributed draft was the fifth, which came out in November, 1968 and included Article VII, thus rounding out the entire package. After approval by the Uniform Law Commissioners and ABA in 1969, the two parent organizations formed the Joint Editorial Board for which I continue to serve as Educational Director. In July, 1972, the first issue of UPC Notes appeared and this newslet- ter, now 14 issues old, contains many discussions of theoretical and practical aspects of the Code and the politics of its reception in a total, as of now, of eleven states. Many law offices and law libraries have complete sets of this newsletter, current issues of which are still offered without cost to those interested in current develop- ments concerning the Code. Back issues are available for $1.00 per copy. All interested are invited to add their name to the mailing list. A postcard to me at the University of Georgia School of Law, in Athens, Georgia 30602, will do the trick. The Board, through 1976] NEBRASKA PROBATE CODE my office, also offers an up-to-date bibliography of published articles about the Code and an informal advisory service that attempts to respond to inquiries about the Code by practitioners and others that develop from time to time. In the remainder of this article I want to discuss two things. First, I want to comment on the background and rationale of a few of the Code's more noteworthy features. Second, I want to make predictions about your future practice under the Code. BACKGROUND AND RATIONALE OF THE UNIFORM PROBATE CODE At the heart of the Uniform Probate Code is the concept of unsupervised administration. This is the idea that, once appointed; an executor or an administrator, (referred to in the Code by the common term Personal Representative, or P.R. as I expect he will commonly be referred to) is a fiduciary, beholden only to the decedent's creditors and successors and not to the appointing court. He is directed by law to proceed with asset collection, management, sale, distribution and closing without being required to report to, or receive orders from, the court. The concept is qualified if the special procedure known as supervised administration is petitioned for and ordered, but otherwise unsupervised administration guides all P.R.s irrespective of whether the opening of the estate was ordered by the judge after notice to all interested persons, e.g. formal proceedings, or whether the opening was accomplished in informal proceedings. Keep in mind that an unsupervised P.R. can take the estate back to the court, or that interested persons can take him to the court, when a problem or need for protection arises, as will frequently be the case when a P.R. decides to petition the court for approval of his final accounting and proposal for distribu- tion. This easy access to the court, sometimes referred to as creat- ing an "in and out" relationship between decedents' estates and the court of probate, is facilitated by long-arm statutes and other devices for gaining jurisdiction over persons interested in a par- ticular estate matter.
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