October 10, 2012
Article on Non-Judicial Estate Settlements
John H. Martin (Visiting Professor of Law, Ohio Northern University College of Law) recently published an article entitled, Non-Judicial Estate Settlement, 45 U. Mich. J.L. Reform (forthcoming) (2012). The abstract from SSRN is provided below:
Estate settlement through probate procedures satisfies no one. The public is hostile to the delay, expense, and lack of privacy that accompanies probate. Attorneys respond to public dissatisfaction by counseling probate avoidance. Legislatures facilitate some settlement by enacting simplified procedures for low-value estates. In large measure, the Uniform Probate Copde (UPC) was a response to criticisms leveled at probate. Alternative settlement procedures are offered by the UPC, including informal testacy determinations and informal appointment procedures. These alternatives, however, remain imbedded in a judicial system, with its procedural rigidities.
The UPC informal settlement alternatives did not silence the criticism. The continued dissatisfaction with probate continues to breed devices to avoid probate and shortcut options for small estates. To address the ongoing hostility, this Article advocates that the UPC adopt an optional, non-judicial registration system for estate settlement. Patterned after small estate statutes, a registration system establishes the decedent's testate or intestate status by registering the will or an affidavit of heirship, identifies a personal representative when one is needed, and permits completion of settlement as rapidly as the unique circumstances of each estate permit.
A registration system is designed for the majority of estates, the ones that involve no controversy. Utilizing a registration system, the decedent's beneficiaries may collect assets, pay debts, and make distribution promptly with reduced expense, and without the publicity that judicial proceedings entail. A registration system would be a continuation of the UPC's intent to offer estate settlement modes that are both acceptable to the public and responsive to the purposes of estate settlement.
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