NEW UNIFORM ACTS - TRUST & ESTATE

Uniform Law Commission RPTE Projects

Fall 2022 Update

By: Benjamin Orzeske1

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Benjamin Orzeske, counsel to the Uniform Law Commission, provides an update on current projects of interest to Trust and Estate practitioners.

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The following Uniform Law Commission projects may be of interest to members of the ABA Section on Real Property, Trust and Estate Law.

New Uniform Acts:

Uniform Electronic Estate Planning Documents Act.

This new uniform act will allow estate planning attorneys to offer online services to their clients. The drafting committee modeled this act on the very successful Uniform Electronic Transactions Act of 1999, which provided the legal underpinning for online commerce by validating the voluntary use of electronic documents and signatures by parties to a transaction. The Uniform Electronic Estate Planning Documents Act provides similar authorization for the execution of nontestamentary estate planning documents, including inter vivos trusts, powers of attorney, powers of appointment, and advance directives. A complementary act, the Uniform Electronic Wills Act of 2019, governs testamentary documents, including wills and testamentary trusts. A state may combine both acts into a single bill to enact a comprehensive law governing electronic estate planning.

Drafting Committees:

Conflict of Laws in Trusts and Estates.

This committee will attempt to clarify and resolve the many conflicts of existing state laws governing trusts and estates. The scope of the project is broad, and will likely address trusts, wills, will substitutes, intestacy, estate administration, fiduciary powers and duties, powers of appointments, powers of attorneys, jurisdictional claims, and statutes of limitations. The drafting committee is collaborating with the American Law Institute reporters who are drafting the Restatement (Third) of Conflict of Laws.

Revisions to the Uniform Health-Care Decisions Act.

The Uniform Health-Care Decisions Act governs living wills and powers of attorney for health care. It was last updated in 1993. The committee will draft a revision to better address issues including the determination of capacity; default surrogates (including the priority list of those who can act as surrogate, un-befriended patients, and disagreement among surrogates); and barriers to use and execution (including electronic documents, the statutory form, and oral designations). The committee will also add provisions applicable to mental-health advance directives.

Tenancy-in-Common Ownership Default Rules.

The committee will draft an act to help alleviate the gridlock that can result from the common-law rule requiring unanimity among cotenants for property management decisions. The committee will attempt to balance the protection of individual property rights with the need to make management decisions more efficiently. The law may permit less-than-unanimous decisions on certain some issues while also protecting minority interests and preserving the cotenants’ right to contract around those rules.

Revisions to the Uniform Determination of Death Act.

Another new drafting committee will revise the Uniform Determination of Death Act. This widely adopted act, originally approved in 1980, provides a simple two-prong test to determine when an individual is legally dead. A physician must verify that an individual has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem. The second prong that defines brain death needs updating to ensure conformity with recent advances in medical science and evolving standards of practice.

Study Committees:

Transfers to Minors Act.

This committee will study the need for and feasibility of updating the Uniform Transfers to Minors Act, last updated in 1986, to address issues including optional extension beyond age 21, successor custodians, minor beneficiaries of qualified retirement accounts, and the relationship between UTMA accounts and other types of investment accounts intended to benefit minors, such as 529 and 529A accounts.

Redaction of Personal Information from Public Records.

In 2020, a New Jersey federal judge’s husband and son were shot at their front door by a disgruntled former litigant who targeted the judge’s family by getting her home address from public records. In the wake of this horrific act of violence, states are beginning to pass legislation allowing the redaction of personal information of judges and other public officials from public records. However, there is no consistent approach. A new study committee on redaction of personal information from public records will determine whether a uniform or model act on the subject is feasible, and the scope of any potential drafting project.

The RPTE Section appoints at least one Advisor to each uniform law commission project involving the law of real property, trusts and estates. All uniform law drafting committees are open to any interested observer and members of the RPTE Section are encouraged to join and contribute their relevant expertise. Visit www.uniformlaws.org to find more information on these committees and on other ULC projects.

Endnote

1. Ben is Chief Counsel at the Uniform Law Commission. He supervises a staff of legislative attorneys who work to enact uniform laws in all fifty United States, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Ben provides legislative support for the Uniform Commercial Code and for uniform laws in the areas of real property, trusts and estates, investment management, and elder law. He also serves as the ULC’s internal Legal Counsel.

FALL 2022 eReport