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A Bill 3 Regular Session, 1995 HOUSE BILL 1020 4 By: Representatives Murphy, Townsend, M

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A Bill 3 Regular Session, 1995 HOUSE BILL 1020 4 By: Representatives Murphy, Townsend, M As Engrossed: 3/1/95 1 State of Arkansas 2 80th General Assembly A Bill 3 Regular Session, 1995 HOUSE BILL 1020 4 By: Representatives Murphy, Townsend, M. Wilson, Bryant, Cash, Malone, 5 Stewart, Wilkinson, Argue, Schexnayder, Ferrell, Vess, DeLay, Hudson, Purdom, 6 Choate, Fletcher, Laverty, and Booker 7 8 9 10 For An Act To Be Entitled 11 "The Uniform Probate Code." 12 13 Subtitle 14 "RELATING TO AFFAIRS OF DECEDENTS, 15 MISSING PERSONS, PROTECTED PERSONS, 16 MINORS, INCAPACITATED PERSONS AND 17 OTHERS; CONSOLIDATING AND REVISING 18 ASPECTS OF LAW RELATING TO WILLS AND 19 INTESTACY; FACILITATING ENFORCEMENT OF 20 TESTAMENTARY AND OTHER TRUSTS." 21 22 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 23 24 Article I 25 26 GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION OF COURT 27 Part 1 28 SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS 29 Section 28-1-101. Short Title. 30 This Act shall be known and may be cited as the Uniform Probate Code. 31 32 Section 28-1-102. Purposes; Rule of Construction. 33 (a) This Code shall be liberally construed and applied to promote its 34 underlying purposes and policies. 35 (b) The underlying purposes and policies of this Code are: 36 (1) to simplify and clarify the law concerning the affairs of 1207941118.jmb076 As Engrossed: 3/1/95 HB 1020 1 decedents, missing persons, protected persons, minors and incapacitated 2 persons; 3 (2) to discover and make effective the intent of a decedent in 4 distribution of his property; 5 (3) to promote a speedy and efficient system for liquidating the 6 estate of the decedent and making distribution to his successors; 7 (4) to facilitate use and enforcement of certain trusts; 8 (5) to make uniform the law among the various jurisdictions. 9 10 Section 28-1-103. Supplementary General Principles of Law Applicable. 11 Unless displaced by the particular provisions of this Code, the 12 principles of law and equity supplement its provisions. 13 14 Section 28-1-104. Severability. 15 If any provision of this Code or the application thereof to any person 16 or circumstances is held invalid, the invalidity shall not affect other 17 provisions or applications of the Code which can be given effect without the 18 invalid provision or application, and to this end the provisions of this Code 19 are declared to be severable. 20 21 Section 28-1-105. Construction Against Implied Repeal. 22 This Code is a general act intended as a unified coverage of its 23 subject matter and no part of it shall be deemed impliedly repealed by 24 subsequent legislation if it can reasonably be avoided. 25 26 Section 28-1-106. Effect of Fraud and Evasion. 27 Whenever fraud has been perpetrated in connection with any proceeding 28 or in any statement filed under this Code or if fraud is used to avoid or 29 circumvent the provisions or purposes of this Code, any person injured 30 thereby may obtain appropriate relief against the perpetrator of the fraud or 31 restitution from any person (other than a bona fide purchaser) benefitting 32 from the fraud, whether innocent or not. Any proceeding must be commenced 33 within 2 years after the discovery of the fraud, but no proceeding may be 34 brought against one not a perpetrator of the fraud later than 5 years after 35 the time of commission of the fraud. This section has no bearing on remedies 1207941118.jmb076 2 As Engrossed: 3/1/95 HB 1020 1 relating to fraud practiced on a decedent during his lifetime which affects 2 the succession of his estate. 3 4 Section 28-1-107. Evidence of Death or Status. 5 In addition to the rules of evidence in courts of general jurisdiction, 6 the following rules relating to a determination of death and status apply: 7 (1) Death occurs when an individual is determined to be dead under § 8 20-17-101. 9 (2) A certified or authenticated copy of a death certificate purporting 10 to be issued by an official or agency of the place where the death 11 purportedly occurred is prima facie evidence of the fact, place, date, and 12 time of death and the identity of the decedent. 13 (3) A certified or authenticated copy of any record or report of a 14 governmental agency, domestic or foreign, that an individual is missing, 15 detained, dead, or alive is prima facie evidence of the status and of the 16 dates, circumstances, and places disclosed by the record or report. 17 (4) In the absence of prima facie evidence of death under paragraph (2) 18 or (3), the fact of death may be established by clear and convincing 19 evidence, including circumstantial evidence. 20 (5) An individual whose death is not established under the preceding 21 paragraphs who is absent for a continuous period of 5 years, during which he 22 or she has not been heard from, and whose absence is not satisfactorily 23 explained after diligent search or inquiry, is presumed to be dead. His or 24 her death is presumed to have occurred at the end of the period unless there 25 is sufficient evidence for determining that death occurred earlier. 26 (6) In the absence of evidence disputing the time of death stated on a 27 document described in paragraph (2) or (3), a document described in paragraph 28 (2) or (3) that states a time of death 120 hours or more after the time of 29 death of another individual, however the time of death of the other 30 individual is determined, establishes by clear and convincing evidence that 31 the individual survived the other individual by 120 hours. 32 33 Section 28-1-108. Acts by Holder of General Power. 34 For the purpose of granting consent or approval with regard to the acts 35 or accounts of a personal representative or trustee, including relief from 1207941118.jmb076 3 As Engrossed: 3/1/95 HB 1020 1 liability or penalty for failure to post bond, to register a trust, or to 2 perform other duties, and for purposes of consenting to modification or 3 termination of a trust or to deviation from its terms, the sole holder or all 4 co-holders of a presently exercisable general power of appointment, including 5 one in the form of a power of amendment or revocation, are deemed to act for 6 beneficiaries to the extent their interests (as objects, takers in default, 7 or otherwise) are subject to the power. 8 PART 2 9 DEFINITIONS 10 Section 28-1-201. General Definitions. 11 Subject to additional definitions contained in the subsequent Articles 12 that are applicable to specific Articles, parts, or sections, and unless the 13 context otherwise requires, in this Code: 14 (1) "Agent" includes an attorney-in-fact under a durable or nondurable 15 power of attorney, an individual authorized to make decisions concerning 16 another's health care, and an individual authorized to make decisions for 17 another under a natural death act. 18 (2) "Application" means a written request to the Registrar for an order 19 of informal probate or appointment under Part 3 of Article III. 20 (3) "Beneficiary," as it relates to a trust beneficiary, includes a 21 person who has any present or future interest, vested or contingent, and also 22 includes the owner of an interest by assignment or other transfer; as it 23 relates to a charitable trust, includes any person entitled to enforce the 24 trust; as it relates to a "beneficiary of a beneficiary designation," refers 25 to a beneficiary of an insurance or annuity policy, of an account with POD 26 designation, of a security registered in beneficiary form (TOD), or of a 27 pension, profit-sharing, retirement, or similar benefit plan, or other 28 nonprobate transfer at death; and, as it relates to a "beneficiary 29 designated in a governing instrument," includes a grantee of a deed, a 30 devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a 31 donee, appointee, or taker in default of a power of appointment, or a person 32 in whose favor a power of attorney or a power held in any individual, 33 fiduciary, or representative capacity is exercised. 34 (4) "Beneficiary designation" refers to a governing instrument naming a 35 beneficiary of an insurance or annuity policy, of an account with POD 1207941118.jmb076 4 As Engrossed: 3/1/95 HB 1020 1 designation, of a security registered in beneficiary form (TOD), or of a 2 pension, profit-sharing, retirement, or similar benefit plan, or other 3 nonprobate transfer at death. 4 (5) "Child" includes an individual entitled to take as a child under 5 this Code by intestate succession from the parent whose relationship is 6 involved and excludes a person who is only a stepchild, a foster child, a 7 grandchild, or any more remote descendant. 8 (6) "Claims," in respect to estates of decedents and protected persons, 9 includes liabilities of the decedent or protected person, whether arising in 10 contract, in tort, or otherwise, and liabilities of the estate which arise at 11 or after the death of the decedent or after the appointment of a conservator, 12 including funeral expenses and expenses of administration. The term does not 13 include estate or inheritance taxes, or demands or disputes regarding title 14 of a decedent or protected person to specific assets alleged to be included 15 in the estate. 16 (7) "Court" means the Probate Court in this State having jurisdiction 17 in matters relating to the affairs of decedents.
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