July 16, 2008
McCouch: Probate Law Reform and Nonprobate Transfers
The advent of widespread, large-scale probate avoidance has added a new dimension to the project of probate law reform. When the Uniform Probate Code made its debut in 1969, its primary goal was to modernize traditional probate procedures and make them more uniform, flexible, and efficient. The Code's reforms were in part a response to the rise of will substitutes which offered a ready means of transferring property at death outside the probate system. In the intervening years, however, will substitutes have continued to proliferate, while traditional probate procedures have resisted comprehensive reform. The probate system has not become obsolete - it provides valuable safeguards in many cases and remains indispensable in dealing with residual assets and resolving disputes - but it now plays a relatively modest role in regulating deathtime wealth transfers. Today, wills operate side by side with an ever-expanding array of will substitutes, and it no longer makes sense for reformers to focus exclusively or even primarily on the probate system. Accordingly, they have taken the first tentative steps toward articulating a unified law of probate and nonprobate transfers. Ultimately, the success of the reformers' project will require a sustained and vigorous effort to maintain conceptual coherence and achieve practical implementation.
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