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Probate Trusts and Estates

estates and trusts: an overview


During the early 1500's in England landowners found it advantageous to convey the legal title of their land to third parties while retaining the benefits of ownership. Because they were not the real "owners" of the land, and wealth was primarily measured by the amount of land owned, they were immune from creditors and may have absolved themselves of some feudal obligations. While feudal concerns no longer exist and wealth is held in many forms other than land (i.e., stocks, bonds, bank accounts), the idea of placing property in third party hands for the benefit of another. This is the idea of a trust which has survived and prospered.

Generally, a trust is a right in property (real or personal) which is held in a fiduciary relationship by one party for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust. To understand the laws governing trusts a good starting point is the Restatement (2nd) of Trusts.

Many trusts are created as an alternative to or in conjunction with a will and other elements of estate planning. State law establishes the framework for determining the validity and limits for both.

The Uniform Probate Code has shaped state law in this field. It includes provisions dealing with affairs and estates of the deceased and laws dealing with specified nontestamentary transfers, like trusts and their administration. The theory behind the Code is that wills and trusts are in close relationship and thus in need of unification. Since its creation, over thirty percent of states have adopted the Code substantially in whole.

Since many individuals neither set up trusts nor execute wills, state intestate succesion laws are an important complement to trust and estate law. They determine where an individual's assets go upon death in the absence of a will.

Uniform Probate Code Locator

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The Uniform Probate Code has been adopted, at least in part, by 18 states. Although the text of the uniform code is not per se available on the Internet, you can access a typical state's version of the code (Montana). Montana has adopted the most recent version of the full code without significant modifications.

Locators are also available for the Uniform Commercial Code, Uniform Code of Evidence, and uniform laws in the areas of: matrimonial and family law and business and finance. If you are unclear about what Uniform Laws are see the LII "Uniform Laws" page.

Uniform Probate Code - A Typical State (Montana Code Annotated 72-1-101 to 72-6-311)
Article I - General Provisions, Definitions and Probate Jurisdiction of Court
Article II - Intestate Succession and Wills
Article III - Probate of Wills and Administration
Article IV - Foreign Personal Representatves; Ancillary Administration
Article V - Protection of Persons Under Disability and Their Property
Article VI - Non-Probate Transfers
Article VIII - Effective Date and Repealer

Amendments to Articles V and VI of the Uniform Probate Code are under consideration by the National Conference of Commissioners on Uniform State Laws.

The following states have adopted the Uniform Probate Code in its entirety (in some cases with significant modifications) State Codes
  • Alaska - Adopted 1990 Revision of Article II and 1989 Revision of Article VI-- Title 13, Chapter 6, Section 5 to Title 13, Chapter 36, Section 100
  • Arizona - Adopted 1990 Revision of Article II and 1989 Revision of Article VI-- 14-1101 to 14-7308
  • Colorado - Adopted 1990 Revision of Article II and 1989 Revision of Article VI-- 15-10-101 to 15-17-102
  • Florida - Adopted 1989 Revision of Article VI-- 655.82, 711.50 - 711.512, 731.005 - 731.302, 735.101 - 735.302, 737.101 - 737.512
  • Hawaii - Adopted 1990 Revision of Article II and Part 3 of 1989 Revision of Article VI-- 539-1 to 539-12, 560:1-101 to 560:8-101
  • Idaho - Adopted Part 3 of 1989 Revision of Article VI-- 15-1-101 to15-7-307
  • Maine - Adopted Part 3 of 1989 Revision of Article VI-- 1-101 to 8-401
  • Michigan - Adopted Part 3 of 1989 Revision of Article VI-- 700.1101 to 700.8102, 701.1 to 713.6
  • Minnesota - Adopted 1990 Revision of Article II-- 524.1-101 to 524.8-103
  • Montana - Adopted 1990 revision of Article II and 1989 Revision of Article VI-- 72-1-101 to 72-6-311
  • Nebraska - Adopted 1989 Revision of Article VI-- 30-2201 - 30-2902
  • New Mexico - Adopted 1990 Revision of Article II and 1989 Revision of Article VI-- 45-1-101 to 45-7-522
  • North Dakota (PDF) - Adopted 1990 Revision of Article II and 1989 Revision of Article VI-- 30.1-01-01 to 30.1-35-01
  • South Carolina - Adopted Part 3 of 1989 revision of Article VI-- 35-6-10 to 35-6-100, 62-1-100 to 62-7-604
  • South Dakota - Adopted 1990 Revision of Article II and Part 3 of 1989 Revision of Article VI-- 29A-1-101 to 29A-8-101
  • Utah - Original 1969 version still in effect-- 75-1-101 to 75-8-101
In addition, numerous states have adopted the Uniform Probate Code in an incomplete form.


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