16 Jan Scanning the UPC… by Joshua D. Cochran

No, not the little barcode.  The Uniform Probate Code!

What is it?

The Uniform Probate Code (“UPC”) was released by the Uniform Law Commission in 1969 as an attempt to create a convenient and consistent procedure for handling estate administration across multiple states. The goal being to address the varying requirements and complexities associated with probating an estate.

Where is it used?

The UPC was intended to be utilized in all 50 states; however, only the following 15 states have adopted the original 1969 version in its entirety: Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah.

Where is it sometimes used?

Many states, including Florida and New York, have adopted select portions of the UPC while maintaining state-specific rules for various other aspects of estate administration.

Where is it ignored?

States such as California and Texas have not adopted the UPC and continue to rely on their own individual probate statutes.

Why does it matter?

The streamlined process available under the UPC is likely insufficient to properly probate an estate in a non-UPC jurisdiction.  Alternatively, the probate process in a non-UPC jurisdiction MAY or MAY NOT suffice as a starting point for completing probate in a UPC jurisdiction.

This becomes especially important when someone dies owning property in multiple states.

Can You Give an Example?

John Johnson owns ranches and mineral rights in Texas (non-UPC), New Mexico (UPC), and North Dakota (UPC).  He receives monthly royalty checks for numerous wells in all 3 states.  John Johnson dies, leaving a will that devises the entirety of his estate to his wife, Jane Johnson.

Jane knows that she should hire an attorney experienced in probate matters. However, her neighbor Dave Davidson, a criminal defense attorney, assures her that since John’s will is simple and straight-forward, it should be an easy process and offers to assist with having the will probated.

Despite Dave’s inexperience with handling probate matters, the court probates John’s will.  Dave closes the estate and advises Jane to file certified copies of the probate proceedings, including the last will and testament and the order admitting the will to probate in all counties in Texas, New Mexico, and North Dakota where John owned property.

A few months pass, and Jane receives royalty checks for Texas wells, but does not receive any royalty checks for the New Mexico or the North Dakota wells.  Jane assumes the delay is just part of the process, because after all, she probated John’s estate and filed certified copies of the probate proceedings in all counties where John owned mineral rights.

A few more months pass, and Jane still has not received royalty checks for the New Mexico wells or the North Dakota wells.  She decides to reach out to the operators of said wells, only to be informed that she has not met the requirements set forth in the UPC to prove up the probate of John’s estate, including the passage of title from John to Jane.  Until such requirements are met, Jane is told that the royalty checks will be held by the operator “in suspense.”

Jane asks Dave what she should do next, and what he knows about the UPC.  Dave admits that he has no idea and has never heard of the UPC.

What should Jane do now?

Jane should hire an experienced probate attorney to re-open John’s estate.  Luckily, for an experienced probate attorney, the UPC probate process is fairly straightforward and uncomplicated, provided the proper procedure is followed.  Jane hires Peter Probate, who is licensed in multiple states, including New Mexico and North Dakota.

With John’s estate previously probated in Texas, Peter Probate can handle the process and meet the UPC requirements for probate in both New Mexico and North Dakota entirely through the mail.  Following the probate in New Mexico and North Dakota, after meeting a few additional requirements and presenting the necessary documentation to the operators, the royalty checks resume.

What should Jane have done differently?

Jane should have initially hired an attorney with probate experience, who can navigate the different probate laws from state to state.  This is especially important when property is owned in both UPC states and non-UPC states.  In most cases, it is more efficient and cost-effective to probate the estate in the state which has NOT adopted the UPC, and then proceed to probate the estate in the UPC states.

In our example, because the estate was probated in Texas first, the subsequent process in both New Mexico and North Dakota were easier and more streamlined than if the estate had been probated in New Mexico or North Dakota first.

On the other hand, if Jane had not probated the estate in Texas at all and relied on an affidavit of heirship (which is often sufficient in Texas), she would still have been required to probate the estate in New Mexico or North Dakota to satisfy UPC requirements.

Final Thoughts

Due to the varying nature of probate laws across states, particularly when dealing with UPC states and non-UPC states, it is important to seek the advice of an experienced probate attorney, ideally licensed in or familiar with each state in which property is owned.

Kearney, McWilliams & Davis has several attorneys who have handled the probate process from the initial estate planning, all the way through the probate and closing of the estate.  With attorneys licensed in the majority of oil-and-gas-producing states, including Colorado, Louisiana, Montana, New Mexico, North Dakota, Oklahoma, Texas, Utah, and Wyoming, among others, KMD is well suited to serve our clients in all aspects of probate and estate administration.

Written by Joshua D. Cochran, Shareholder at KMD Law