A comprehensive estate plan typically consists of a number of legal documents. While the issues involved in probating an estate may make them from other areas of the law, such as real estate tax law, the probate process itself is covered by probate law. It is important to understand the relevant laws relating to wills, trusts, estates, and other probate matters when you are creating your estate plan. This may not be as easy as it sounds because the laws can change from one state to the next. The Uniform Probate Code was intended to create a uniform set of laws relating to probate law and administration; however, that rather lofty goal has yet to be realized.
In the United States individual states have the authority to pass their own laws. In general, as long is a state law does not violate the U.S. Constitution the law will stand. The concept of state sovereignty was very important to the forefathers of our country; however, it has created a situation where laws can vary significantly from one state to another. Sometimes an attempt is made to rectify the conflict of laws. In 1969 the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association approved the UPC. No one had the authority to mandate the individual states adopt the UPC; however, the hope was that each of the states would voluntarily adopt the UPC. Unfortunately today only 16 states have adopted the UPC in its entirety. The remaining states have adopted parts, or articles, of the code without adopting it in its entirety. In essence, this means that probate law and probate administration is not much more uniform throughout the states that it was almost 40 years ago when the UPC was created.
The obvious question may be “what does all of this have to do with me and my estate plan?” The simple answer to that is that conflicting state laws often wreck havoc on a well-thought-out estate plan in that conflicting laws were not taken into account at the time of the plan creation. Unless you have lived in the same state for your entire life, and plan to remain there for the rest of your life, own no property in another state, and have no beneficiaries or heirs who live outside of your state of residence you need to consider the impact that the UPC and conflicting state laws could have on your estate plan. Although Illinois has not adopted the UPC you must consider what will happen if you retire to Florida where the UPC has been adopted in its entirety. Be sure to consult with your estate planning attorney to determine how the UPC will impact your estate plan now, and in the future.
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