Will Substitutes under the Revised Uniform Probate Code

Recent years have witnessed a dramatic increase in probate avoidance. Revocable trusts, joint-and-survivor or pay-on-death (“POD”) bank accounts, transfer-on-death (“TOD”) security registrations and other will substitutes have proliferated and emerged as successful competitors of the probate system. In response to this “nonprobate revolution,” the drafters of the Uniform Probate Code (“UPC”) have begun to reconsider the scope and direction of probate reform. The 1989 and 1990 UPC revisions reflect a new emphasis on integrating the law of probate and nonprobate transfers. Nevertheless, the nonprobate revolution remains incomplete. Although the revised UPC establishes uniform constructional rules for wills and will substitutes, its approach to validating will substitutes requires rethinking. The failure to address creditors\u27 rights with respect to nonprobate assets other than multiple-person accounts represents another serious gap in the present UPC. Solutions for these and other problems call for a careful balancing of the respective formal and functional characteristics of wills and will substitutes. This Article explores the impact of the revised UPC on will substitutes and recommends further revisions in the areas of validation and creditor protection. Part I examines the problem of defining and validating nonprobate transfers. Part II discusses the background and operation of specific constructional rules for will substitutes under the revised UPC. Part III analyzes the need to protect the rights of creditors and other third parties while preserving flexibility and efficiency in implementing will substitutes. Finally, the Article concludes with a brief summary and recommendations for further reform

A Comment on Unification

This Article discusses recent proposals aimed at unifying the law of wills and nonprobate transfers. The author notes that default rules of construction present the strongest case for unification, but contends that distinctions between wills and nonprobate transfers remain important in the areas of formalities and restrictions affecting third-party rights. The author concludes that the policy goal should be to allow wills and nonprobate transfers to operate smoothly as complementary methods of deathtime wealth transmission

A Comment on Unification

This Article discusses recent proposals aimed at unifying the law of wills and nonprobate transfers. The author notes that default rules of construction present the strongest case for unification, but contends that distinctions between wills and nonprobate transfers remain important in the areas of formalities and restrictions affecting third-party rights. The author concludes that the policy goal should be to allow wills and nonprobate transfers to operate smoothly as complementary methods of deathtime wealth transmission

The Empty Promise of Estate Tax Repeal

The terms of the debate over the estate tax have been framed largely by abolitionists who have propounded an antitax message that portrays the estate tax as unambiguously harmful and threatening to ordinary families and small businesses. The attack on the estate tax is linked to a larger agenda of eliminating taxes on capital and capital income and dismantling the progressive elements of the federal tax system. The slogan of estate tax repeal, while effective in mobilizing antitax sentiment, makes no sense as a matter of tax policy because it downplays revenue costs, distributional effects, administrative concerns, and consequences for the rest of the tax system. The 2001 Act illustrates the gap between the abolitionists\u27 simplistic antitax agenda and the complex reality of tradeoffs among competing tax and spending priorities. The estate tax cuts enacted in 2001 imply large revenue losses as well as a shift in tax burdens from the very rich to the middle class and from current taxpayers to future taxpayers. This appears to be a step in precisely the wrong direction, given growing inequalities of income and wealth and a looming fiscal gap