What is the Uniform Probate Code?

The Uniform Probate Code was drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to govern inheritance and estate law in the United States.  The code is commonly abbreviated as “UPC.” The purpose of the code was to streamline the probate process and standardize laws governing wills, trusts and intestacy. The Uniform Probate Code addresses what is commonly referred to as the law of wills, intestate succession and donative transfers, but it also covers a substantial portion of the law regarding gratuitous wealth transfer.

Article I of the UPC contains general provisions, definitions and jurisdictional issues. Article II governs wills and intestate succession, which is the procedure to be followed when someone dies without a will. Article III discusses wills in more depth, as well as the administration of estates. Article IV governs the probating of an estate located in a state other than the home of the decedent.  Article V deals with protecting disabled persons and their property. Article VI addresses transfers of property that are not related to probate. Finally, Article VII governs trust administration.

In our legal system, both federal and state governments have the power to enact statutes or laws, as long as they comply with constitutional mandates.  Although the UPC was drafted in the hope that it would be adopted by all 50 states, the original 1969 version was only adopted in its entirety by sixteen states.  Arkansas was not one of them.  Currently, only approximately one-third of the states have adopted the UPC as amended. Even among those jurisdictions that adopted the code, some significant variations remain. Therefore, the UPC has not really achieved its purpose of standardizing probate.

Where does Arkansas’ probate law come from?

Arkansas has not adopted the Uniform Probate Code.  Therefore, like most other states, Arkansas has specific laws that apply to the passing down of property when someone passes away.  Arkansas’ probate laws are found at AR Code § 28-1-101 (2012) et seq., known as the Arkansas “Probate Code”.  Much like the UPC, Arkansas’ Probate Code defines terms related to probate law and it also describes the probate court proceedings for Arkansas county probate courts.  The Probate Code also addresses issues such as wills, intestate succession and donative transfers.

Are Estate Planning Attorneys knowledgeable about probate law?

Attorneys who are experienced in probate law are able to draft and file the last will and testament of a deceased individual as well as address, if necessary, any disputes that arise regarding the will.  Legally, you do not have to hire a lawyer to write a will or handle an estate.  However, because this area of law can be complicated and confusing, it is not advisable to handle it on your own.  There are many serious legal consequences that can result if certain legal documents are not properly drafted or executed.   The same is true when required court procedures are not followed.  Although most people do not consider finding an estate planning attorney until someone has passed away, it is always better to plan ahead.  Allowing an experienced attorney to get involved early on can make a huge difference.