Writing Wisconsin's New Probate Code
By David W. Reinecke
With the passage of legislation
drafted by the UPC Article II Committee of the State Bar Real Property,
Probate and Trust Law Section, the new code culminates almost seven
years of study and drafting by numerous dedicated and talented
practitioners and others from all over the state. |
When the new Probate Code takes effect on Jan. 1, 1999, it will have
been 30 years since the substantive law of probate received a thorough
review and revision in Wisconsin. The new code is the culmination of
almost seven years of study and drafting by numerous dedicated and
talented practitioners and others from all over the state.
The project began in 1992 when Jackson Bruce, a prominent Milwaukee
estate planning and probate attorney, contacted U.W. Law School Prof.
Howard S. Erlanger to suggest that he spearhead an effort to adopt the
1990 Uniform Probate Code (UPC) in Wisconsin. Bruce served as a member
of the UPC Joint Editorial Board, which had just completed the revised
UPC on behalf of the National Commissioners on Uniform Laws.
Bruce also contacted the State Bar Real Property, Probate and Trust
Law Section to elicit its support and to obtain legislation drafting
authority for this project. The section appointed David W. Reinecke to
chair what came to be known as the UPC Article II Committee, which Prof.
Erlanger refers to as the "Drafting Committee." Other committee members
included: R. Christian Davis, vice president of the Trust Division for
Firstar Bank Madison; Kathleen A. Gray, partner with Quarles &
Brady, Milwaukee; Brent E. Gregory, partner with Wrenn, Wille, Gregory
& Lundeen, Milwaukee; Robert L. Kamholz Jr., partner with Godfrey
& Kahn, Milwaukee; and Diane K. O'Connor, partner with O'Connor
& Sachs, Mequon. Prof. Erlanger served as reporter and academic
liaison to the committee, and Ann J. Flynn provided research assistance.
Before drafting the legislation, the committee's proposed revisions were
approved by the Wisconsin Practitioner's Review Committee, a group of
more than 20 prominent Wisconsin probate practitioners. In addition, the
final draft of the legislation was approved by the Real Property,
Probate and Trust Law Section Board of Directors.
The person most responsible for the successful conclusion of the
project is Prof. Erlanger. He worked countless hours consulting with and
researching for the committee and worked tirelessly in drafting the
legislation needed to enact the substantive changes adopted by the
committee. He also prepared the committee's commentary to the new
code.
Prof. Erlanger also has authored a book entitled Wisconsin's New
Probate Code, which will be available for purchase very soon. The
book will be used as course materials for a State Bar CLE seminar to be
held live on Nov. 18, 1998, in Brookfield, with video replays statewide
on Dec. 22. Prof. Erlanger's book is a very readable, yet comprehensive
explanation of Wisconsin's new Probate Code. It explains in an
easy-to-understand manner all aspects of the new law, how it differs
from prior law, and why the changes were needed or desired. Attorneys
who practice estate planning and probate will find the book to be an
essential and invaluable reference.
Obviously, much has happened in the 30 years since Wisconsin's prior
Probate Code was enacted. The committee, with Prof. Erlanger and Ann
Flynn's assistance, spent countless hours comparing the 1990 UPC to the
law in Wisconsin and crafting new substantive provisions that use the
best aspects of each. To illustrate the need to update the prior Probate
Code, consider one of the more important aspects of this project:
"unification" of the law relating to the distribution and interpretation
of probate and nonprobate transfers.
By one account, when Wisconsin's old code was enacted in 1969,
approximately 80 percent of wealth that changed hands at death passed
via the probate process, with the remaining 20 percent passing under
various forms of nonprobate transfers. Today, with increased use of
revocable trusts and other nonprobate transfers and with larger amounts
of wealth being accumulated in retirement accounts, annuities, and
insurance products, those percentages have reversed; it is now estimated
that more than 80 percent of wealth that changes hands at death passes
outside the probate process, with this percentage projected to increase
even more in the future. (These statistics are taken from a presentation
by Prof. David English to the American College of Trust and Estate
Counsel in the Fall of 1997.)
With this reality, the committee asked: Although Wisconsin's prior
code had detailed statutory provisions regarding antilapse (where a
named beneficiary has died but no secondary beneficiary was named),
ademption (where a specific item is left to someone - for example, by a
provision in a revocable trust - but the item cannot be found at death),
abatement (relating to what property bears certain burdens when the
available assets are insufficient), and advancement (where a beneficiary
received a "down payment" on his or her inheritance by way of a lifetime
gift) in the context of probate transfers, why were there no parallel
provisions to deal with those same issues vis a vis nonprobate
transfers of wealth? Without such parallel provisions, the bulk of
wealth, almost four-to-one, went uncovered when these problems arose, a
paradox time will only exacerbate. Likewise, why did the prior code
automatically revoke probate transfers to a divorced spouse, but not
nonprobate transfers to the former spouse? Why did the old law have
defined terms, disclaimer rules, survivorship rules, and slayer rules
that differed as between probate and nonprobate property? The new code
removes these dichotomies so that such rules apply to all forms of
wealth transfers at death, probate and nonprobate. Similarly, why did
Wisconsin's old code require strict compliance with witnessing
formalities to create or change a will, whereas an effective revocable
trust - quickly becoming the centerpiece of estate planning - could be
scratched out on a napkin with no adherence to formalities? Although the
new code does not erase this particular dichotomy completely, it does
bring closer together the law regarding adherence to formalities in the
context of probate and nonprobate transfers.
Although the new code is modeled after the 1990 UPC, there are
several important differences. In this writer's opinion, many of the
departures from the 1990 UPC relate to differences between a
practitioner's view of the world as contrasted to an academic's point of
view. The committee's goal was to use the extensive knowledge,
expertise, and effort of the country's foremost experts on the law of
probate (such as David English, John Langbein, Richard Wellman, Lawrence
Waggoner, and many others of national reputation), by granting a
presumption in favor of the 1990 UPC, yet not lose sight of the fact
that the substantive law must be "user friendly" for practitioners and
the public. For example, the 1990 UPC would admit into probate any
written document shown to reflect the decedent's testamentary intent.
Although such a provision can be strongly supported from the standpoint
of achieving the decedent's intent, the committee believed it could
result in excessive litigation; as a result, the committee did not adopt
that particular UPC rule.
Finally, attorneys should keep one thing in mind as they study the
new code: No one will agree with every change enacted; indeed, no member
of the committee agrees with every change. However, there is little
doubt that, overall, the new code represents a substantial improvement
in Wisconsin's substantive law of probate.
Wisconsin Lawyer