Laws About Wills

By Carrie Ferland

Laws governing the format, contents and execution of wills are defined by each individual state. This lack of uniformity prompted the enactment of the Uniform Probate Code, or UPC. Unfortunately, while the initial purpose of the UPC was for all states to adopt it in full, as of November 2010, it is only formally adopted in 16 states. However, the remaining states and the District of Columbia have defined similar laws, utilizing the UPC as a base standard for determining testator capacity, structure and probating procedures for a valid will.

Laws governing the format, contents and execution of wills are defined by each individual state. This lack of uniformity prompted the enactment of the Uniform Probate Code, or UPC. Unfortunately, while the initial purpose of the UPC was for all states to adopt it in full, as of November 2010, it is only formally adopted in 16 states. However, the remaining states and the District of Columbia have defined similar laws, utilizing the UPC as a base standard for determining testator capacity, structure and probating procedures for a valid will.

Uniform Probate Code

The Uniform Probate Code is a uniform act governing the structure, contents and execution of valid wills, as well as rules governing the process of intestate succession. The National Conference of Commissioners on Uniform State Laws first drafted the UPC in 1964 to establish uniformity in probate procedures across the states. The UPC continues to undergo regular revision, the last addendum occurring in 2006.

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Uniform Intestacy, Wills, and Donative Transfers Act

The Uniform Intestacy, Wills and Donative Transfers Act is a standalone section -- Article II -- of the Uniform Probate Code. The UIWDT specifically develops a uniform standard “…for making, interpreting and revo[king] wills” by defining, among other things, the minimum capacity requirements for testators, the topics a will should address and how administrators should carry out a testator’s wishes. The UIWDT also includes the Uniform Simultaneous Death Act, which explains how the courts should treat two separate wills belonging to spouses who pass simultaneously and a line of intestate succession for estates that name multiple administrators or beneficiaries who pass simultaneously prior to or during probate.

State Probate Code

All 50 states and the District of Columbia have developed their own statewide probate code that establishes laws governing wills, probate and intestate succession. Of the states that adopted the Uniform Probate Code, six have enacted additional laws, while nine have enacted a standalone probate code as a supplement. Though specific probate laws can vary considerably between the states, most define very similar guidelines governing testator capacity, will formats, execution, witnesses and the like. Additionally, most states will acknowledge and probate wills devised by testators who lived in another state prior to passing.

Federal Estate Laws

Probate matters are a right of the state and thus -- as of 2010-- there is no federal law that addresses the creation, execution of probating of wills. The only federal law that even mentions private estates is the Estate Tax Code -- under the Internal Revenue Code -- which imposes a federal estate tax upon every estate at the owner’s passing. Though the Uniform Probate Code was intended to be one, there will likely never exist a federal code that requires all states to adopt a nationwide standard for wills, administration or probate.

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Last Will & Testament Requirements

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Rules for Last Will & Testament

A last will and testament is a legal document that conveys the final wishes of an individual -- called a testator -- concerning the management and division of his estate and assets after his passing. State probate law defines the rules for drafting, executing and probating a will, and although these laws vary between each state, many of the requirements are similar.

Newly Discovered Assets After the Close of Probate

A decedent's assets may be found after the estate executor has submitted his final accounting to the probate court and the estate is closed. The Uniform Probate Code, approved by the National Conference Of Commissioners On Uniform State Laws, and recommended for adoption by all states, outlines how post-probate discovery of the decedent's assets could be handled. States are not required to adopt the Uniform Probate Code; states that have not adopted the code have statutes that address newly found assets of the decedent.

Limited Liability Company Act

In 1977, Wyoming enacted the first Limited Liability Company Act in the United States. Because of the Internal Revenue Service’s wavering on the classification of LLCs for tax purposes, the remaining states hesitated to adopt similar statutes, seeking a definitive ruling from the IRS regarding the tax treatment of a noncorporate entity providing limited liability to its owners. In 1997, the IRS declared that any noncorporate entity could “self classify,” or choose to be taxed either as a corporation or as a partnership.

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