UNIFORM LAW COMMISSION RPTE PROJECTS WINTER 2022 UPDATE (TRUST & ESTATE)

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

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

Drafting Committees:

Electronic Estate Planning Documents. The Uniform Electronic Wills Act, approved in 2019, provides rules for the electronic execution of wills. This committee will draft a statute to clarify that other types of estate planning documents, including trusts and powers of attorney, can also be executed electronically. The committee may also draft amendments to various uniform trust and estate acts to ensure the law is consistent and will allow estate planners and their clients to use teleconferencing and electronic signature technology. The committee will attempt to complete its work by summer 2022.

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 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 give careful consideration the issue of mental health decisions and whether different rules should apply.

Tenancy-in-Common Ownership Default Rules. The committee will draft uniform or model state legislation to resolve problems arising under common law tenancy-in-common ownership rules. The committee will attempt to develop default management rules for common real-estate interests (and the proceeds thereof) that balance the protection of individual property rights with the need to make management decisions efficiently. The law may permit less-than-unanimous decisions on at least some issues while also preserving the cotenants’ right to contract around those rules.

Determination of Death. 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. This committee was authorized in January 2022.

Redaction of Personal Information from Public Records. Last year, 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.

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WINTER 2022 - eReport