The Uniform Probate Code (UPC) was originally promulgated by the Uniform Law Com-missioners (ULC) in 1969. It is the first effort, ever, at comprehensive codification and reform of the law of estates and probate. Its major substantive divisions are Intestate Succession and Wills; Pro-bate of Wills and Administra-tion; Foreign Personal Representa-tives; Ancillary Administration; Protection of Persons Under Disability and Their Property; Nonprobate Transfers on Death; and Trust Administration. The substantive divisions suggest the comprehensive nature of the whole of the UPC.

In the twenty-plus years since its origination, portions of it have been revised. But, also, portions of the UPC have been turned into free-standing Uniform Acts that can be enact-ed without adopting the entire UPC. Included in that array of free-standing Uniform Acts are the Uniform Guardianship and Protective Proceedings Act and the Uniform Nonprobate Trans-fers on Death Act, each of which exists, also, as a major article in the UPC. In 1990, the Uniform Law Commissioners completed a major revision of Article II of the UPC, Intes-tacy, Wills, and Donative Tran-sfers. In 1991, Article II of the UPC has been turned into the free-standing UNIFORM ACT ON INTESTACY, WILLS, AND DONA-TIVE TRANSFERS (UAIWDT). The major benefits of this impor-tant part of the UPC are now available, separately, from the UPC.

A discussion of the UAIWDT inevitably leads to some discussion of the original Article II of the UPC and comparing that original with the revisions of 1990. In order to understand the full impact of UAIWDT on the law of any state, it is important to see the progression of innovation. UPC II contained, originally, some significant advances over the prevailing law in most states. UAIWDT, embodying the revisions of 1990, moves the law of intestacy, wills, and donative transfers ever further.

UAIWDT provides governing rules for making transfers of property at death. Included are the rules for intestate succession, which are the rules that apply when there is no will or other instrument estab-lishing where property goes when a person dies. The law of wills, itself, is covered. But, also, the rising use of revocable trusts and contractual death benefits has reduced reliance on wills in the United States. However, like wills, these instruments must have appropriate rules of construc-tion. Therefore, UAIWDT contains rules that strongly parallel rules for construction of wills, to guide construction of beneficiary provisions in life insurance contracts, revocable trusts and other will substitutes.

If an individual does not make a will or make any other provision for transferring property at death, any property owned during life will pass by intestate succession to that person's heirs. Statute desig-nates who are heirs, and the line of succession has always included spouse, children, parents, and blood relations in some order of priority. The 1969 UPC II proposed some drastic changes in the law of intestate succession. The traditional intestate succession statute divided the property among close relatives by set fractions of the total. In most traditional intestate suc-cession schemes, the spouse took one-third, at most, if there were children or parents of the deceased spouse. There were (and continue to be in most states) variations upon the method for determining the fractional percentage heirs would receive, generally allocating shares in some fashion by generation. The terms "per capita" and "per stirpes" describe these variations for the most part.

The initial reform in the intestate succession provisions of original UPC II provides for greater spousal protection. Original UPC II provides what has come to be called "the law's estate plan." It had been long observed that the average will leaves the estate primarily to the surviving spouse, and that most people make their wills in the favor of spouses because that best serves family interests. Orig-inal UPC II seeks to duplicate that kind of choice in favor of the spouse in the law of intestate succession. Under original UPC II, even if there are children or the deceased person has living parents, the spouse takes all of the estate up to a specified dollar amount ($50,000 in the original ver-sion) plus one-half of the remainder, if there is any.

UAIWDT even more dramatically protects the spouse in "the law's estate plan." The spouse takes the first $200,000 of the estate if there are living parents of the decedent, plus three-fourths of the balance; the first $150,000 of the estate if there are children who are descendants of both spouses, plus one-half of the balance; and the first $100,000 if there are children who are descendants of the deceased spouse but not of the surviving spouse, plus one-half of the balance. The distinction be-tween children who are descend-ants of both spouses and those who are descendants of the de-ceased spouse reflects the growing incidence of multiple marriages and children from more than one marriage.

UAIWDT also establishes a different representation system for heirs than the 1969 UPC II provides and the law of most states provides. The objective is to provide equal shares to those equally related. Origi-nal UPC II provides for a "by representation" (per stirpes) share system. That is, generations take on the basis of the share the previous generation would have received, if it had survived. For example, grand-children receive shares in the share a child/parent would have received if the child had sur-vived his or her parent (grand-parent to the surviving grand-children). If one child has six children, who are grand-children of the deceased, and another child has two children who are the grandchildren of the deceased, and both children predecease their parent, the estate share to each of the children is one-half. But the grandchildren would take, in one case, one-sixth of the one-half, and, in the other case, one-half of the one-half. The grandchildren of the deceased do not get equal shares under original UPC.

UAIWDT provides for a per-capita at each generation system of representation. The eight grandchildren in the above example would each re-ceive one-eighth of the total, or equal shares, in contrast to their unequal shares under or-iginal UPC II.

State law has long contained provisions that limit a spouse's ability to disinherit a spouse, rooted in common law notions such as dower, but, be-fore the original UPC, these provisions had limited effect. One of the proposed reforms in original UPC II is a greatly increased elective share. The elective share is that share a spouse can elect to take in an estate as an alternative to the share provided by will. That elective share in the original UPC II is one-third of the "augmented" estate. The elec-tive share concept is the an-chor for a set of provisions that provide for family protection in UPC II.

The augmented estate is an innovative concept in UPC II. The estate that is available for probate is augmented for determining the estate from which the elective share is taken by adding those assets that were transferred to others during life or as nonprobate transfers that otherwise would not be a part of the probate estate. Any amounts that the surviving spouse actually received from the decedent is also added to the augmented estate.

The elective share taken from the augmented estate is first satisfied from those as-sets that the surviving spouse has already received. The concept preserves the effect of intentional transfers to a sur-viving spouse for the purpose of estate planning. The surviving spouse cannot use the elective share to increase a fair share already received. But the augmented estate concept obviously prevents use of transfers during life or non-probate transfers to reduce the estate intentionally against the surviving spouse's interest.

UAIWDT retains elective share and augmented estate, but the theory and effect are different. The elective share notion in UAIWDT is based upon principles of marital property as developed in the Uniform Marital Property Act. The marital property principle regards all property obtained in mar-riage as property of the marriage in which each spouse has an undivided one-half interest. The marriage is viewed as an absolutely shared economic relationship.

The elective share and augmented estate provisions in original UPC II inherently serve a marital property notion, but not fully. In UAIWDT the elective share is increased for long-term marriages to simulate the entitlements that a spouse might have in a marital property jurisdiction. The share is increased to one-half for marriages that last 15 years or longer.

The shorter the marriage, however, the less the percentage available as an elective share. For example, a marriage of one year only en-titles a spouse to an elective share of 3%. For each year up to 15, the percentage increases. At year 15, the surviving spouse's share reaches a full 50%. This staged increase signifies the increased contribution by the surviving spouse in the accumulation of property by the deceased spouse. It also recognizes the fact of second marriages in which there may be other familial obligations with a better claim upon the deceased spouse's property until the marriage has sufficient longevity to merit a full 50% share for the surviving spouse.

The augmented estate, also, changes in the reckoning based upon marital property principles. In a pure marital property regime, each spouse has an undivided one-half interest in the property acquired during the marriage, (with some limited exceptions) no matter which spouse brings that property to the marriage. UPC II only simulates a marital property regime, but, to simulate it completely, the augmented estate must take net assets of the surviving spouse into account, instead of just the property that the surviving spouse receives from the decedent. In order to determine the elective share in UAIWDT, therefore, the entire array of assets in the marriage have to be included. As in original UPC II, the actual elective share takes into account property received and held by the surviving spouse to assure fair distribution of assets.

UAIWDT maintains the provisions on unintentionally omitted spouses and children in a will, family allowances, and exempt property from original UPC II, for the most part. Amounts are increased where dollar limits are imposed. Where omitted children are con-cerned, a devise of all the estate to the spouse/parent of the child precludes the child from taking an intestate share. This is consistent with the intestate succession provisions of UAIWDT.

Wills and will construction occupy the largest portion of original UPC II, and continue to do so in UAIWDT. A will is a formally executed document that establishes who owns a person's property at death. But for the entitlements inherent in family noted above, the law favors wills and honors the intent of the person who makes one. The consistent policy of UPC II from its ori-gins through revision is to validate testamentary documents and to eliminate technical determinations of invalid-ity, where and when possible. The holographic will (carried over from original UPC II to UAIWDT) is a primary example of this policy.

In UAIWDT, there is a new provision that develops the basic policy even further. It permits a document or writing added upon a document, that is not executed in accordance with the rules of execution for wills, to be given testamentary effect if it can be established by clear and convincing evi-dence that it was intended to be a will or to modify in some way a pre-existing will. Any instrument might become a will under this provision. Any effort to make a formal will that would otherwise fail because of an error in execution would have the protection of this provision. It reduces formalistic decisions to discard such documents, and gives real meaning to the notion of testator's intent. This would be an ex-traordinary improvement in the law of wills in almost every jurisdiction.

The rules pertaining to the construction of wills are comprehensively covered in original UPC II. There is a need for rules of construction because the drafting of these documents does not always take into account every contingency - even when drafting is careful and proper. There are some un-derlying principles that commonly link such rules. One such principle is the principle of the testator's intent. Insofar as possible wills are construed to carry out the intent of the persons who make them.

An important rule of construction provides for lapsed devises. A lapsed devise is one to a person who predeceases the person who makes the will. The law has struggled with the problem of terminating such a devise as opposed to saving it by extending it to the next surviving generation. Generally, the debate has been re-solved in the favor of statu-tory antilapse provisions for devises within a family that preserve the devise in the fav-or of those who are descendants of the deceased devisee.

Original UPC II had an antilapse provision. But UAIWDT contains a major effort to resolve, once and for all, the problems of antilapse statutes. There are two cases, individual devises and class devises. If an individual devise is to a grandparent, descendant of a grandparent, or a stepchild of the testator, then predeceasing the testator means that the devise will carry to the next generation of descendants who survive the deceased devisee. For class gifts, which are gifts to an unnamed but described common group, the predecease of all class members allows descendants to succeed to the shares the class members would have taken, if alive.

Of course the above pre-supposes that there is no express substitute devisee in the will. In that case, the substitute will take the gift if there is a lapse.

Construction rules, such as antilapse provisions, are extended beyond wills in UAIWDT. This, perhaps, is the most important innovation to be found in UAIWDT. There are rules of construction for other donative instruments, i.e., trusts, insurance contracts, POD provisions in account con-tracts, and TOD provisions on investment securities. An enormous quantity of property passes in the United States, at death, in transfers that are nonprobate in character. Non-probate transfers of various kinds, sometime called will substitutes, are favored because they avoid the time and expense of probate. But rules of construction must necessarily be connected to the documents of nonprobate transfer. And UAIWDT includes the rules of construction. One of the rules, again, involves anti-lapse. UPC II provides anti-lapse rules, very like those for devises in wills, for the documents of nonprobate transfer. Antilapse is also dealt with for future interests.

There is more innovation in UAIWDT, but it is beyond the limits of a short summary to include everything contained in this Act. This summary highlights the major aspects and indicates their breadth. Adopting these revisions will forward the law of intestate succession and wills for the benefit of all with property that must pass to future generations upon death.