Synchronizing the will and will substitute via the Uniform Probate Code and the Uniform Trust Code: Whatever for and how is it coming along?

Charles E. Rounds, Jr.

One common policy theme of the Uniform Probate Code and the Uniform Trust Code is that rules applicable to the will and will substitute should be the same. We law academics, particularly the non-practitioners among us, love conceptual symmetry. Symmetry for the sake of symmetry. Hence UTC’s §112: “The rules of construction that apply in this State to the interpretation of [sic] and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.” What about pretermission? The Supreme Court of New Hampshire has determined that N. H.’s pretermitted heir statute applicable to wills has not been abrogated by UTC §112’s enactment. See In re Teresa E. Craig Living Trust, 194 A.3d 967 (N.H. 2018). As a practical matter, is partial symmetry when it comes to the disposition of property by will and will substitute preferable to a total absence of symmetry? Are the attendant complexities worth the candle? And what are the practical advantages of total symmetry, assuming such a state could ever be achieved in the U.S., which lacks a federal probate jurisprudence? Pretermission is covered generally in §8.15.89 of Loring and Rounds: A Trustee’s Handbook (2019), which section is reproduced in its entirety in the appendix below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Charles E. Rounds, Jr.

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