Historically, state law has governed issues relating to wills, trusts, and estates which include the laws and procedures that apply to the probate of an estate. While probate remains under state jurisdiction, the Uniform Probate Code, or UPC, has helped to standardize the probate process and create a more uniform set of laws and procedures among the states.
The UPC was originally drafted in 1964 by the National Conference of Commissioners on Uniform State Laws, or NCCUSL. The goals of the UPC were to streamline the probate process and to create a more uniform set of laws governing wills, trusts, and estates that could be used by all of the states across the United States. The final version of the UPC was promulgated in 1969 and presented to all 50 states for their approval and adoption. The UPC is not a federal law, meaning the states are not required to adopt and follow the UPC. The intention, of course, was to create an act that would be adopted and followed by all of the states; however, in 1969 when the UPC was finalized only 16 states adopted the act and its entirety. Texas is not one of the 16 states that adopted the UPC in its entirety. States that chose not to adopt the UPC in its entirety have adopted various sections of the act and left out others. Even to states that have adopted the same section of the UPC may interpret the section differently, causing confusion even among states that utilize all or part of the UPC.
Confusion, and potential conflict, often arises when the laws of more than one state are involved in the probate of an estate. This can happen in a variety of ways. You might, for example, own property or other assets in a state other than your state of legal residence. More often, an individual creates an estate plan in one state and then moves to another state and fails to update his or her estate plan. This can create a number of problems if, for example, the states where the estate plan was created has not adopted any of the UPC but the state where the deceased was a resident at the time of death adopted the UPC in its entirety. Because the laws the state where the deceased was considered to be a resident at the time of death will govern the probate process this can create a conflict if all of the estate planning documents and strategies were created in another state. This should also serve as a reminder to have your estate plan reviewed by an estate planning attorney and make any necessary revisions if you move your legal state of residency.
Stephen A. Mendel, Estate Planning Attorney
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