Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/mprc/prob2.asc

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/* Part 2 of 7 of the Uniform Probate Code. */

2--104. Requirement That Heir Survive Decedent for 120
Hours

Any person who fails to survive the decedent by 120 hours is
deemed to have predeceased the decedent for purposes of homestead
allowance, exempt property and intestate succession, and the
decedent's heirs are determined accordingly.  If the time of
death of the decedent or of the person who would otherwise be an
heir, or the times of death of both, cannot be determined, and it
cannot be established that the person who would otherwise be an
heir has survived the decedent by 120 hours, it is deemed that
the person failed to survive for the required period.  This
section is not to be applied where its application would result
in a taking of intestate estate by the state under Section 2-105.

/* This supplants the Uniform Simultaneous Death Act, and
attempts to avoid pointless multiple probates. This contingency
is more appropriately handled by estate planning if at all
possible. */


2--105.  No Taker

If there is no taker under the provisions of this Article, the
intestate estate passes to the [state].

2--106.  Representation

If representation is called for by this Code, the estate is
divided into as many shares as there are surviving heirs in the
nearest degree of kinship and deceased persons in the same degree
who left issue who survive the decedent, each surviving heir in
the nearest degree receiving one share and the share of each
deceased person in the same degree being divided among his issue
in the same manner.

2--107.  Kindred of Half Blood

Relatives of the half blood inherit the same share they would
inherit if they were of the whole blood.

2--108.  Afterborn Heirs

Relatives of the decedent conceived before his death but born
thereafter inherit as they would if they had been born in the
lifetime of the decedent.

2--109.  Meaning of Child and Related Terms


If, for purposes of intestate succession, a relationship of
parent and child must be established to determine succession by,
through, or from a person,

(1) an adopted person is the child of an adopting parent and not
of the natural parents except that adoption of a child by the
spouse of a natural parent has no effect on the relationship
between the child and that natural parent.

(2) In cases not covered by (1), a person born out of wedlock is
a child of the mother.

That person is also a child of the father, if:

 (i) the natural parents participated in a marriage
ceremony before or after the birth of the child, even though the
attempted marriage is void; or

 (ii) the paternity is established by an adjudication
before the death of the father or is established thereafter by
clear and convincing proof, except that the paternity established
under this subparagraph (ii) is ineffective to qualify the father
or his kindred to inherit from or through the child unless the
father has openly treated the child as his, and has not refused
to support the child.

2--110.  Advancements

If a person dies intestate as to all his estate, property which
he gave in his lifetime to an heir is treated as an advancement
against the latter's share of the estate only if declared in a
contemporaneous writing by the decedent or acknowledge in writing
by the heir to be an advancement.  For this purpose the property
advanced is valued as of the time the heir came into possession
or enjoyment of the property or as of the time of death of the
decedent, whichever first occurs.  If the recipient of the
property fails to survive the decedent, the property is not taken
into account in computing the intestate share to be received by
the recipient's issue, unless the declaration or acknowledgement
provides otherwise.

2--111.  Debts to Decedent

A debt owed to the decedent is not charged against the intestate
share of any person except the debtor.  If the debtor fails to
survive the decedent, the debt is not taken into account in
computing the intestate share of the debtor's issue.

2--112.  Alienage

No person is disqualified to take as an heir because he or a
person through whom he claims is or has been an alien.

[2--113.  Dower and Curtesy Abolished

The estates of dower and curtesy are abolished.]

Part 2
Elective Share of Surviving Spouse

2--201.  Right to Elective Share

(a) If a married person domiciled in this state dies, the
surviving spouse has a right of election to take an elective
share of one-third of the augmented estate under the limitations
and conditions hereinafter stated.

(b)  If a married person not domiciled in this state dies, the
right, if any, of the surviving spouse to take an elective share
in property in this state is governed by the law of the
decedent's domicile at death.

2--202.  Augmented Estate

The augmented estate means the estate reduced by funeral and
administration expenses, homestead allowance, family allowances
and exemptions, and enforceable claims, to which is added the sum
of the following amounts:

 (1) The value of property transferred by the decedent at
any time during marriage, to or for the benefit of any person
other than the surviving spouse, to the extent that the decedent
did not receive adequate and full consideration in money or
money's worth for the transfer, if the transfer is of any of the
following types:

 (i) any transfer under which the decedent retained at the
time of his death the possession or employment of, or right to
income from, the property;

 (ii) any transfer to the extent that the decedent
retained at the time of his death a power, either alone or in
conjunction with any other person, to revoke or to consume,
invade or dispose of the principal for his own benefit;

 (iii) any transfer whereby property is held at the time
of decedent's death by decedent and another with right of
survivorship;

 (iv) any transfer made within two years of death of the
decedent to the extent that the aggregate transfers to any one
donee in either of the years exceed $3,000.

Any transfer is excluded if made with the written consent or
joinder of the surviving spouse.  Property is valued as of the
decedent's death except that property given irrevocably to a
donee during the lifetime of the decedent is valued as of the
date the donee came into possession or enjoyment if that occurs
first.  Nothing herein shall cause to be included in the
augmented estate any life insurance, accident insurance, joint
annuity, or pension payable to a person other than the surviving
spouse.

 (2) The value of property owned by the surviving spouse
at the decedent's death, plus the value of property transferred
by the spouse at any time during marriage to any person other
than the decedent which would have been includable in the
spouse's augmented estate if the surviving spouse had predeceased
the decedent, to the extent the owned or transferred property is
derived from the decedent by any means other than testate or
intestate succession without a full consideration in money or
money's worth.  For purposes of this subsection:

 (i) Property derived from the decedent includes, but is
not limited to, any beneficial interest of the surviving spouse
in a trust created by the decedent during his lifetime, any
property appointed to the spouse by the decedent's exercise of a
general or special power of appointment also exercisable in favor
of others than the spouse, any proceeds of insurance (including
accidental death benefits) on the life of the decedent
attributable to premiums paid by him, any lump sum immediately
payable and the commuted value of the proceeds of annuity
contracts under which the decedent was the primary annuitant
attributable to premiums paid by him, the commuted value of
amounts payable after the decedent's death under any public or
private pension, disability compensation, death benefit or
retirement plan, exclusive of the Federal Social Security system,
by reason of service performed or disabilities incurred by the
decedent, and the value of the share of the surviving spouse
resulting from rights in community property in this or any other
state formerly owned with the decedent.  Premiums paid by the
decedent's employer, his partner, a partnership of which he was a
member, or his creditors, are deemed to have been paid by the
decedent.

 (ii) Property owned by the spouse at the decedent's death
is valued as of the date of death.  Property transferred by the
spouse is valued at the time the transfer became irrevocable, or
at the decedent's death, whichever occurred first.  Income earned
by included property prior to the decedent's death is not treated
as property derived from the decedent.

 (iii) Property owned by the surviving spouse as of the
decedent's death, or previously transferred by the surviving
spouse, is presumed to have been derived from the decedent except
to the extent that the surviving spouse establishes that it was
derived from another source.

2--203.  Right of Election Personal to Surviving Spouse

The right of election of the surviving spouse may be exercised
only during his lifetime by him.  In the case of a protected
person, the right of election may be exercised only by order of
the court in which protective proceedings as to his property are
pending, after finding that exercise is necessary to provide
adequate support for the protected person during his probable
life expectancy.

2--204.  Waiver of Right to Elect and Other Rights

The right of election of a surviving spouse and the rights of the
surviving spouse to homestead allowance, exempt property and
family allowance, or any of them, may be waived, wholly or
partially, before or after marriage, by a written contract,
agreement or waiver signed by the party waiving after fair
disclosure.  Unless it provides to the contrary, a waiver of "all
rights" (or equivalent language) in the property or estate of a
present or prospective spouse or a complete property settlement
entered into after or in anticipation of separation or divorce is
a waiver of all rights to elective share, homestead allowance,
exempt property and family allowance by each spouse in the
property of the other and a renunciation by each of all benefits
which would otherwise pass to him from the other by intestate
succession or by virtue of the provisions of any will executed
before the waiver or property settlement.

2--205.  Proceeding for Elective Share; Time Limit

 (a) The surviving spouse may elect to take his elective
share in the augmented net estate by filing in the Court and
mailing or delivering to the personal representative a petition
for the elective share within 6 months after the first
publication of notice to creditors for filing claims which arose
before the death of the decedent.  The Court may extend the time
for election as it sees fit for cause shown by the surviving
spouse before the time for election has expired.

 (b) The surviving spouse shall give notice of the time
and place set for hearing to persons interested in the estate and
to the distributees and recipients of portions of the augmented
net estate whose interests will be adversely affected by the
taking of the elective share.

 (c) The surviving spouse may withdraw his demand for an
elective share at any time before entry of a final determination
by the Court.

 (d) After notice and hearing, the Court shall determine
the amount of the elective share and shall order its payment from
the assets of the augmented net estate or by contribution as
appears appropriate under Section 2-207.  If it appears that a
fund or property included in the augmented net estate has not
come into the possession of the person representative, the Court
nevertheless shall fix the liability of any person who has any
interest in the fund or property or who has possession thereof,
whether as trustee or otherwise.  The proceeding may be
maintained against fewer than all persons against whom relief
could be sought, but no person is subject to contribution in any
greater amount than he would have been if relief had been secured
against all persons subject to contribution.

 (e) The order or judgment of the Court may be enforced as
necessary in suit for contribution or payment in other courts of
this state or other jurisdiction.

2--206.  Effect of Election on Benefits by Will or Statute

 (a) The surviving spouse's election of his elective share
does not affect the share of the surviving spouse under the
provisions of the decedent's will or intestate succession unless
the surviving spouse also expressly renounces in the petition for
an elective share the benefit of all or any of the provisions.
If any provision is so renounced, the property or other benefit
which would otherwise have passed to the surviving spouse
thereunder is treated, subject to contribution under subsection
2-207(b), as if the surviving spouse had predeceased the
testator.

 (b) A surviving spouse is entitled to homestead
allowance, exempt property and family allowance whether or not he
elects to take an elective share and whether or not he renounces
the benefits conferred upon him by the will except that, if it
clearly appears from the will that a provision therein made for
the surviving spouse was intended to be in lieu of these rights,
he is not so entitled if he does not renounce the provision so
made for him in the will.

2--207. Charging Spouse With Gifts Received; Liability of
Others For Balance of Elective Share

 (a) In the proceeding for an elective share, property
which is part of the augmented estate which passes or has passed
to the surviving spouse by testate or intestate succession or
other means and which has not been renounced, including that
described in Section 2-202(2), is applied first to satisfy the
elective share and to reduce the amount due from other recipients
of portions of the augmented estate.

 (b) Remaining property of the augmented estate is so
applied that liability for the balance of the elective share of
the surviving spouse is equitably apportioned among the
recipients of the augmented estate in proportion to the value of
their interests therein.

 (c) Only original transferees from, or appointees of, the
decedent and their donees, to the extent the donees have the
property or its proceeds, are subject to the contribution may
choose to give up the property transferred to him or to pay its
value as of the time it is considered in computing the augmented
estate.

Part 3
Spouse and Children Unprovided for in Wills

2--301.  Omitted Spouse

 (a) If a testator fails to provide by will for his
surviving spouse who married the testator after the execution of
the will, the omitted spouse shall receive the same share of the
estate he would have received if the decedent left no will unless
it appears from the will that the omission was intentional or the
testator provided for the spouse by transfer outside the will and
the intent that the transfer be in lieu of a testamentary
provision is shown by statements of the testator or from the
amount of the transfer or other evidence.

 (b) In satisfying a share provided by this section, the
devises made by the will abate as provided in Section 3-902.

2--302.  Pretermitted Children

 (a) If a testator fails to provide in his will for any of
his children born or adopted after the execution of his will, the
omitted child receives a share in the estate equal in value to
that which he would have received if the testator had died
intestate unless:

 (1) it appears from the will that the omission was
intentional;

 (2) when the will was executed the testator had one or
more children and devised substantially all his estate to the
other parent of the omitted child; or

 (3) the testator provided for the child by transfer
outside the will and the intent that the transfer be in lieu of a
testamentary provision is shown by statements of the testator or
from the amount of the transfer or other evidence.

 (b) If at the time of execution of the will the testator
fails to provided in his will for a living child solely because
he believes the child to be dead, the child receives a share in
the estate equal in value to that which he would have received if
the testator had died intestate.

 (c) In satisfying a share provided by this section, the
devises made by the will abate as provided in Section 3-902.

Part 4
Exempt Property and Allowances

2--401.  Homestead Allowance

A surviving spouse of a decedent who was domiciled in this state
is entitled to a homestead allowance of [$5,000].  If there is no
surviving spouse, each minor child and each dependent child of
the decedent is entitled to a homestead allowance amount to
[$5,000] divided by the number of minor and dependent children of
the decedent.  The homestead allowance is exempt from and has
priority over all claims against the estate.  Homestead allowance
is in addition to any share passing to the surviving spouse or
minor or dependent child by the will of the decedent unless
otherwise provided, by intestate succession or by way of elective
share.

[2--401A.  Constitutional Homestead

The value of any constitutional right of homestead in the family
home received by a surviving spouse or child shall be charged
against that spouse or child's homestead allowance to the extent
that the family home is part of the decedent's estate or would
have been but for the homestead provision of the constitution.]

2--402.  Exempt Property

In addition to the homestead allowance, the surviving spouse of a
decedent who was domiciled in this state is entitled from the
estate to value not exceeding $3,500 in excess of any security
interests therein in household furniture, automobiles,
furnishings, appliances and personal effects.  If there is no
surviving spouse, children of the decedent are entitled jointly
to the same value.  If encumbered chattels are selected and if
the value in excess of security interests, plus that of other
exempt property, is less than $3,500, or if the spouse or
children are entitled to other assets of the estate, if any, to
the extent necessary to make up the $3,500 value.  Rights to
exempt property and assets needed to make up a deficiency of
exempt property shall abate as necessary to permit prior payment
of homestead allowance and family allowance.  These rights are in
addition to any benefit or share passing to the surviving spouse
or children by the will of the decedent unless otherwise
provided, by intestate succession, or by way of elective share.

2--403.  Family Allowance

In addition to the right to homestead allowance and exempt
property, if the decedent was domiciled in this state, the
surviving spouse and minor children whom the decedent was
obligated to support and children who were in fact being
supported by him are entitled to a reasonable allowance in money
out of the estate for their maintenance during the period of
administration, which allowance may not continue for longer than
one year if the estate is inadequate to discharge allowed claims.
The allowance may be paid as a lump sum or in periodic
installments.  It is payable to the surviving spouse, if living,
for the use of the surviving spouse and minor and dependent
children; otherwise to the children, or persons having their care
and custody; but in case any minor child or dependent child is
not living with the surviving spouse, the allowance may be made
partially to the child or his guardian or other person having his
care and custody, and partially to the spouse, as their needs may
appear.  The family allowance is exempt from and has priority
over all claims but not over the homestead allowance.

The family allowance is not chargeable against any benefit or
share passing to the surviving spouse or children by the will of
the decedent unless otherwise provided, by intestate succession,
or by way of elective share.  The death of any person entitled to
family allowance terminates his right to allowance not yet paid.

2--404.  Source, Determination and Documentation

If the estate is otherwise sufficient, property specifically
devised is not used to satisfy rights to homestead and exempt
property.  Subject to this restriction, the surviving spouse, the
guardians of the minor children, or children who are adults may
select property of the estate as homestead allowance and exempt
property.  The personal representative may make these selections
if the surviving spouse, the children or the guardians of the
minor children are unable or fail to do so within a reasonable
time or if there are no guardians of the minor children.  The
personal representative may execute an instrument or deed of
distribution to establish the ownership of property taken as
homestead allowance or exempt property.  He may determine the
family allowance in a lump sum not exceeding $500 per month for
one year, and may disburse funds of the estate in payment of the
family allowance and any part of the homestead allowance payable
in cash.  The personal representative or any interested person
aggrieved by any selection, determination, payment, proposed
payment, or failure to act under this section may petition the
Court for appropriate relief, which relief may provide a family
allowance larger or smaller than that which the personal
representative determined or could have determined.

Part 5
Wills

2--501.  Who May Make a Will

Any person 18 or more years of age who is of sound mind may make
a will.

2--502.  Execution

Except as provided for holographic wills, writings within Section
2-513, and wills within Section 2-506, every will shall be in
writing signed by the testator or in the testator's name by some
other person in the testator's presence and by his direction, and
shall be signed by at least 2 persons each of whom witnessed
either the signing or the testator's acknowledgement of the
signature or, of the will.

2--503.  Holographic Will

A will which does not comply with Section 2-502 is valid as a
holographic will, whether or not witnessed, if the signature and
the material provisions are in the handwriting of the testator.

2--504.  Self-proved Will

An attested will may at the time of its execution or at any
subsequent date by made self-proved, by the acknowledgment
thereof by the testator and the affidavits of the witnesses, each
made before an officer authorized to administer oaths under the
laws of this State, and evidenced by the officer's certificate,
under official seal, attached or annexed to the will in form and
content substantially as follows:

THE STATE OF _____________________
COUNTY OF ____________________
We, __________ __________, and _________, the testator and the
witnesses, respectively, whose names are signed to the attached
or foregoing instrument, being first duly sworn, do hereby
declare to the undersigned authority that the testator signed and
executed the instrument as his last will and that he had signed
willingly or directed another to sign for him, and that he
executed it as his free and voluntary act for the purposes
therein expressed; and that each of the witnesses, in the
presence and hearing of the testator, signed the will as witness
and that to the best of his knowledge the testator was at that
time 18 or more years of age, of sound mind and under no
constraint or undue influence.
 ________________________
 Testator
 ________________________
 Witness
 ________________________
 Witness
Subscribed, sworn to and acknowledge before me by _________, the
testator, and subscribed and sworn to before me by ________ and
_________ witnesses, this _____ day of __________.

____________________
 (SEAL) (Signed) ________________________

 ________________________
 (Official capacity of officer)

2--505.  Who May Witness

 (a) Any person generally competent to be a witness may
act as a witness to a will.

 (b) A will or any provision thereof is not invalid
because the will is signed by an interested witness.

/* One of the ideas of the UPrC was to avoid intent defeating
rules, like invalidating wills where one of the beneficiaries was
a witness. Many persons (and reasonably so) think that to make a
will effective they must even give the will to the personal
representative or let the beneficiaries know (a good idea in any
event) that it was prepared. This rule provides for this
contingency. Quite obviously if the will is invalid for some good
reason then the challenge may still be heard, even if a
beneficiary witnessed it. */


2--506.  Choice of Law as to Execution

A written will is valid if executed in compliance with Section
2-502 or 2-503 or if its execution complies with the law at the
time of execution of the place where the will is executed, or of
the law of the place where at the time of execution or at the
time of death the testator is domiciled, has a place of abode or
is a national.


2--507.  Revocation by Writing or by Act

A will or any part thereof is revoked

 (1) by a subsequent will which revokes the prior will or
part expressly or by inconsistency; or

 (2) by being burned, torn, canceled, obliterated, or
destroyed, with the intent and for the purpose of revoking it by
the testator or by another person in his presence and by his
direction.

2--508. Revocation by Divorce; No Revocation by Other Changes of
Circumstances

If after executing a will the testator is divorced or his
marriage annulled, the divorce or annulment revokes any
disposition or appointment of property made by the will to the
former spouse, any provisions conferring a general or special
power of appointment on the former spouse, and any nomination of
the former spouse as executor, trustee, conservator, or guardian,
unless the will expressly provides otherwise.  Property prevented
form passing to a former spouse because of revocation by divorce
or annulment passes as if the former spouse failed to survive the
decedent, and other provisions conferring some power or office on
the former spouse are interpreted as if the spouse failed to
survive the decedent.  If provisions are revoked solely by this
section, they are revived by testator's remarriage to the former
spouse.  For purposes of this section, divorce or annulment means
any divorce or annulment which would exclude the spouse as a
surviving spouse within the meaning of Section 2-802(b).  A
decree of separation which does not terminate the status of
husband and wife is not a divorce for the purposes of this
section.  No change of circumstances other than as described in
this section revokes a will.

/* A new addition to the laws. This one may not be obvious to
even those experienced in estate planning. */

2--509.  Revival of Revoked Will

 (a) If a second will which, had it remained effective at
death, would have revoked the first will in whole or in part, is
thereafter revoked by acts under Section 2-507, the first will is
revoked in whole or in part unless it is evident from the
circumstances of the revocation of the second will or from
testator's contemporary or subsequent declarations that he
intended the first will to take effect as executed.

 (b) If a second will which, had it remained effective at
death, would have revoked the first will in whole or in part, is
thereafter revoked by a third will, the first will is revoked in
whole or in part, except to the extent it appears from the terms
of the third will that the testator intended the first will to
take effect.

2--510.  Incorporation by Reference

 Any writing in existence when a will is executed may be
incorporated by reference if the language of the will manifests
this intent and describes the writing sufficiently to permits its
identification.

2--511.  Testamentary Additions to Trusts

A devise or bequest, the validity of which is determinable by the
law of this state, may be made by a will to the trustee of a
trust established or to be established by the testator or by the
testator and some other person or by some other person (including
a funded or unfunded life insurance trust, although the trustor
has reserved any or all rights of ownership of the insurance
contracts) if the trust is identified in the testator's will and
its terms are set forth in a written instrument (other than a
will) executed before or concurrently with the execution of the
testator's will or in the valid last will of a person who has
predeceased the testator (regardless of the existence, size, or
character of the corpus of the trust).  The devise is not invalid
because the trust is amendable or revocable, or because the trust
was amended after the execution of the will or after the death of
the testator. Unless the testator's will provides otherwise, the
property so devised (1) is not deemed to be held under a
testamentary trust of the testator, but becomes a part of he
trust to which it is given and (2) shall be administered and
disposed of in accordance with the provisions of the instrument
or will setting forth the terms of the trust, including any
amendments thereto made before the death of the testator
(regardless of whether made before or after the execution of the
testator's will), and, if the testator's will so provides,
including any amendments to the trust made after the death of the
testator.  A revocation or termination of the trust before the
death of the testator causes the devise to lapse.

2--512.  Events of Independent Significance

A will may dispose of property by reference to acts and events
which have significance apart from their effect upon the
dispositions made by the will, whether they occur before or after
the execution of the will or before or after the testator's
death. The execution or revocation of a will of another person is
such an event.

/* An unusual provision when one considers the common law which
required wills to be complete, in and of themselves. */

2--513. Separate Writing Identifying Bequest of Tangible
Property

Whether or not the provisions relating to holographic wills
apply, a will may refer to a written statement or list to dispose
of items of tangible personal property not otherwise specifically
disposed of by the will, other than money, evidences of
indebtedness, documents of title, and securities, and property
used in trade or business.  To be admissable under this section
as evidence of the intended disposition, the writing must either
be in the handwriting of the testator or be signed by him and
must describe the items and the devisees with reasonable
certainty.  The writing may be referred to as one to be in
existence at the time of the testator's death; it may be prepared
before or after the execution of the will; it may be altered by
the testator after its preparation; and it may be a writing which
has no significance apart from its effect upon the dispositions
made by the will.

/* Another rule making a significant change from the common law.
Even in states which have not adopted the UPrC the right to refer
in a will to a separate list for the disposal of personal effects
is now common. */

Part 6
Rules of Construction

2--601.  Requirement That Devisee Survive Testator by 120 Hours

A devisee who does not survive the testator by 120 hours is
treated as if he predeceased the testator, unless the will of
decedent contains some language dealing explicitly with
simultaneous deaths or deaths in a common disaster, or requiring
that the devisee survive the testator or survive the testator for
a stated period in order to take under the will.

/* To avoid multiple probates in the case in which there is a
common disaster and it can be proven which person died first.
Similar to the Uniform Simultaneous Death Act. */

2--602.  Choice of Law as to Meaning and Effect of Wills

The meaning and legal effect of a disposition in a will shall be
determined by the local law of a particular state selected by the
testator in his instrument unless the application of that law is
contrary to the public policy of this state otherwise applicable
to the disposition.

2--603.  Rules of Construction and Intention

The intention of a testator as expressed in his will controls the
legal effect of his dispositions.  The rules of construction
expressed in the succeeding sections of this Part apply unless a
contrary intention is indicated by the will.

2--604. Construction That Will Passes All Property After-Acquired
Property

A will is construed to pass all property which the testator owns
at his death including property acquired after the execution of
the will.

/* Giving property away in a manner not entirely desired by the
testator is better than a partial intestacy any day. */

2--605.  Anti-lapse; Deceased Devisee; Class Gifts

If a devisee who is a grandparent or a lineal descendent of a
grandparent of the testator is dead at the time of execution of
the will, fails to survive the testator, or is treated as if he
predeceased the testator, the issue of the deceased devisee who
survive the testator by 120 hours take in place of the deceased
devisee and if they are all of the same degree of kinship to the
devisee they take equally, but if of unequal degree than those of
more remote degree take by representation.  One who would have
been a devisee under a class gift if he had survived the testator
is treated as a devisee for purposes of this section whether this
death occurred before or after the execution of the will.

2--606.  Failure of Testamentary Provision

 (a) Except as provided in Section 2-605 if a devise other
than a residuary devise fails for any reason, it becomes a part
of the residue.

 (b) Except as provided in Section 2-605 if the residue is
devised to two or more persons and the share of one of the
residuary devisees fails for any reason, his share passes to the
other residuary devisee, or to other residuary devisees in
proportion to their interests in the residue.

2--607.  Change in Securities; Accessions; Nonademption

 (a) If the testator intended a specific devise of certain
securities rather than the equivalent value thereof, the specific
devisee is entitled only to:

 (1) as much of the devised securities as is a part of the
estate at time of the testator's death;

 (2) any additional or other securities of the same entity
owned by the testator by reason of action initiated by the entity
excluding any acquired by exercise of purchase options;

 (3) securities of another entity owned by the testator as
a result of a merger, consolidation, reorganization or other
similar action initiated by the entity; and

 (4) any additional securities of the entity owned by the
testator as a result of a plan of reinvestment if it is a
regulated investment company.

 (b) Distributions prior to death with respect to a
specifically devised security not provided for in subsection (1)
are not part of the specific devise.

2--608. Nonademption of Specific Devises in Certain Cases; Sale
by Conservator; Unpaid Proceeds of Sale, Condemnation or
Insurance

 (a) If specifically devised property is sold by a
conservator, or if a condemnation award or insurance proceeds are
paid to a conservator as a result of condemnation, fire, or
casualty, the specific devisee has the right to a general
pecuniary devise equal to the net sale price, the condemnation
award, or the insurance proceeds.  This subsection does not apply
if subsequent to the sale, condemnation, or casualty, it is
adjudicated that the disability of the testator has ceased and
the testator survives the adjudication by one year.  The right of
the specific devisee under this subsection is reduced by any
right he has under subsection (b).

/* This requires that the will be changed within a year to allow
this section to take effect. */

(b) A specific devisee has the right to the remaining
specifically devised property and:

 (1) any balance of the purchase price (together with any
security interest) owing from a purchaser to the testator at
death by reason of sale of the property;

 (2) any amount of a condemnation award for the taking of
the property unpaid at death;

 (3) any proceeds unpaid at death on fire or casualty
insurance on the property; and of foreclosure, or obtained in
lieu of foreclosure, of the security for a specifically devised
obligation.

2--609.  Non-Exoneration

A specific devise passes subject to any security interest
existing at the date of death, without right of exoneration,
regardless of a general directive in the will to pay debts.

/* This is because of the horrendous possibility of the entire
estate being consumed by the payment of liens on mortgaged
property. */

2--610.  Exercise of Power of Appointment

A general residuary clause in a will, or a will making general
disposition of all of the testator's property, does not exercise
a power of appointment held by the testator unless specific
reference is made to the power or there is some other indication
of intention to include the property subject to the power.

2--611. Construction of Generic Terms to Accord with
Relationships as Defined for Intestate Succession

Halfbloods, adopted persons and persons born out of wedlock are
included in class gift terminology and terms of relationship in
accordance with rules for determining relationships for purposes
of intestate succession, but a person born out of wedlock is not
treated as the child of the father unless the person is openly
and notoriously so treated by the father.

2--612.  Ademption by Satisfaction

Property which a testator gave in his lifetime to a person is
treated as a satisfaction of a devise to that person in whole or
in part, only if the will provides for deduction of the lifetime
gift, or the testator declares in a contemporaneous writing that
the gift is to be deducted from the devise or is in satisfaction
of the devise, or the devisee acknowledges in writing that the
gift is in satisfaction.  For purpose of partial satisfaction,
property given during lifetime is valued as of the time the
devisee came into possession or enjoyment of the property or as
of the time of death of the testator, whichever occurs first.

Part 7
Contractual Arrangements Relating to Death

2--701.  Contracts Concerning Succession

A contract to make a will or devise, or not to revoke a will or
devise, or to die intestate, if executed after the effective date
of this Act, can be established only by (1) provisions of a will
stating material provisions of the contract; (2) an express
reference in a will to a contract and extrinsic evidence
providing the terms of the contract; or (3) a writing signed by
the decedent evidencing the contract.  The execution of a joint
will or mutual wills does not create a presumption of a contract
not to revoke the will or wills.

Part 8
General Provisions

2--801.  Renunciation of Succession

A devisee, person succeeding to a renounced interest, beneficiary
under a testamentary instrument or person designated to take
pursuant to a power or appointment exercised by testamentary
instrument may renounce in whole or in part the succession to any
property or interest therein by filing a written instrument
within the time and at the place hereinafter provided.  The
instrument shall (i) describe the property or part thereof or
interest therein renounced, (ii) be signed by the person
renouncing and (iii) declare the renunciation and the extent
thereof.

/* Why would someone do this? There may be tax advantages, or the
residuary gift may be to that person's children etc. One other
good reason- if the property is a tax waste dump, you wouldn't
want to hold title. */

 (b) The writing specified in (a) must be filed within [6]
months after the death of the decedent or the donee of the power,
or if the taker of the property is not then finally ascertained
not later than [6] months after the event by which the taker of
the interest is finally ascertained.  The writing must be filed
in the Court of the county where proceedings concerning the
decedent's estate are pending, or where they would be pending if
commenced.  A copy of the writing also shall be mailed to the
personal representative of the decedent.

 (c) Unless the decedent or donee of the power has
otherwise indicated by his will, the interest renounced, and
future interest which is to take effect in possession or
enjoyment at or after the termination of the interest renounced,
passes as if the person renouncing had predeceased the decedent,
or if the person renouncing is one designated to take pursuant to
a power of appointment exercised by a testamentary instrument, as
if the person renouncing has predeceased the donee of the power.
In every case the renunciation relates back for all purposes to
the date of death of the decedent of the donee, as the case may
be.

 (d) Any (1) assignment, conveyance, encumbrance, pledge
or transfer of property therein or any contract therefor, (2)
written waiver of the right to renounce or any acceptance of
property by an heir, devisee, person succeeding to a renounced
interest, beneficiary or person designated to take pursuant to a
power of appointment exercised by testamentary instrument, or (3)
sale or other disposition of property pursuant to judicial
process, made before the expiration of the period in which he is
permitted to renounce, bars the right to renounce as to the
property.

 (e) The right to renounce granted by this section exists
irrespective of any limitation on the interest of the person
renouncing in the nature of a spendthrift provision or similar
restrictions.

 (f) This section does not abridge the right of any person
to assign, release, or renounce any property arising under any
other section of this Code or other statute.

 (g) Any interest in property which exists on the
effective date of this section, but which has not then become
indefeasibly fixed both in quality and quantity, or the taker of
which has not then become finally ascertained, may be renounced
after the effective date of this section as provided herein.  An
interest which has arisen prior to the effective date of this
section in any person other than the person renouncing is not
destroyed or diminished by any action of the person renouncing
taken under this section.

2--802.  Effect of Divorce, Annulment and Decree of Separation

(a) An individual who is divorced from the decedent or whose
marriage to the decedent has been annulled is not a surviving
spouse unless, by virtue of a subsequent marriage, he is married
to the decedent at the time of death.  A decree of separation
which does not terminate the status of husband and wife is not a
divorce for purposes of this section.


 (b) For purposes of Parts 1, 2, 3 & 4 of this Article, a
surviving spouse does not include:

 (1) a person who obtains or consents to a final decree or
judgment of divorce from the decedent or an annulment of their
marriage, which decree or judgment is not recognized as valid in
this state, unless they subsequently participate in a marriage
ceremony purporting to marry each to the other, or subsequently
live together as man and wife.

 (2)  a person who, following a decree or judgment of
divorce or annulment obtained by the decedent, participates in a
marriage ceremony with a third person; or

 (3) a person who was a party to a valid proceeding
concluded by an order purporting to terminate all martial
property rights.

2--803. Effect of Homicide on Intestate Succession, Wills, Joint
Assets, Life Insurance and Beneficiary Designations

 (a) A surviving spouse, heir or devisee who feloniously
and intentionally kills the decedent is not entitled to any
benefits under the will or under this Article, and the estate of
decedent passes as if the killer had predeceased the decedent.
Property appointed by the will of the decedent to or for the
benefit of the killer passes as if the killer had predeceased the
decedent.

 (b) Any joint tenant who feloniously and intentionally
kills another joint tenant thereby effects a severance of the
interest of the decedent so that the share of the decedent passes
as to his property and the killer has no rights by survivorship.
This provision applies to joint tenancies [and tenancies by the
entirety] in real and personal property, joint accounts in banks,
savings and loan associations, credit unions and other
institutions, and any other form of co-ownership with
survivorship incidents.

 (c) A named beneficiary of a bond, life insurance policy,
or other contractual arrangement who feloniously and
intentionally kills the principal obligee or the person upon
whose life the policy is issued is not entitled to any benefit
under the bond, policy, or other contractual arrangement, and it
becomes payable as though the killer had predeceased the
decedent.

 (d) Any other acquisition of property or interest by the
killer shall be treated in accordance with the principles of this
section.

 (e) A final judgment of conviction of felonious and
intentional killing is conclusive for purposes of this section.
In the absence of a conviction of felonious and intentional
killing the Court may determine by a preponderance of evidence
whether the killing was felonious and intentional for purposes of
this section.

/* The statute allows for a civil determination to be made to a
preponderance standard so as to not hold up the administration of
the estate. */

 (f) This section does not affect the rights of any person
who, before rights under this section have been adjudicated,
purchases from the killer for value and without notice property
which the killer would have acquired except for this section. Any
insurance company, bank, or other obligor making payment
according to the terms of its policy or obligation is not liable
by reason of this section unless prior to payment it has received
at its home office or principal address wren notice of a claim
under this section.]

Part 9
Custody and Deposit of Wills

2--901.  Deposit of Will With Court in Testator's Lifetime

A will may be deposited by the testator or his agent with any
Court for safekeeping, under rules of the Court.  The will shall
be kept confidential.  During the testator's lifetime a deposited
will shall be delivered only to him or to a person authorized in
writing signed by him to receive the will.  A conservator may be
allowed to examine a deposited will of a protected testator under
procedures designed to maintain the confidential character of the
document to the extent possible, and to assure that it will be
resealed and left on deposit after the examination.  Upon being
informed of the testator's death, the Court shall notify any
person designated to receive the will and deliver it to him on
request; or the Court may deliver the will to the appropriate
Court.

2--902.  Duty of Custodian of Will; Liability

After the death of a testator and on request of an interested
person, any person having custody of a will of the testator shall
deliver it with reasonable promptness to a person able to secure
its probate and if none is known, to an appropriate Court.  Any
person who willfully fails to deliver a will is liable to any
person aggrieved for the damages which may be sustained by the
failure.  Any person who willfully refuses or fails to deliver a
will after being ordered by the Court in a proceeding brought for
the purpose of compelling delivery is subject to penalty for
contempt of Court.

ARTICLE III
Probate of Wills and Administration

Part 1
General Provisions

3--101.  Devolution of Estate at Death; Restrictions

The power of a person to leave property by will, and the rights
of creditors, devisees, and heirs to his property are subject to
the restrictions and limitations contained in this Code to
facilitate the prompt settlement of estates.  Upon the death of a
person, his real and personal property devises to the persons to
whom it is devised by his last will or to those indicated as
substitutes for them in cases involving lapse, renunciation, or
other circumstances affecting the devolution of testate estate,
or in the absence of testamentary disposition, to his heirs, or
to those indicated as substitutes for them in cases involving
renunciation or other circumstances affecting devolution of
intestate estates, subject to homestead allowance, exempt
property, surviving spouse, and to administration.

ALTERNATIVE SECTION FOR COMMUNITY PROPERTY STATES
[3--101A.  Devolution of Estate at Death; Restrictions

The power of a person to leave property by will, and the rights
of creditors, devisees, and heirs to his property are subject to
the restrictions and limitations contained in this Code to
facilitate the prompt settlement of estates.  Upon the death of a
person, his real and personal property devises to the persons to
whom it is devised by his last will or to those indicated as
substitutes for them in cases involving lapse, renunciation, or
other circumstances affecting the devolution of testate estate,
or in the absence of testamentary disposition, to his heirs, or
to those indicated as substitutes for them in cases involving
renunciation or other circumstances affecting devolution of
intestate estates, and upon the death of a husband or wife, the
decedent's share of their community property devolves to the
persons to whom it is devised by his last will, or in the absence
of testamentary disposition, to his heirs, but all of their
community property which is under the management and control of
the decedent but which is necessary to carry out the provisions
of his will is subject to administration; but the devolution of
all the above described property is subject to rights to
homestead allowance, exempt property and family allowances, to
renunciation to rights of creditors [elective share of the
surviving spouse] and to administration.]

3--102.  Necessity of Order of Probate for Will

Except as provided in Section 3-1201, to be effective to prove
the transfer of any property or to nominate an executor, a will
must be declared to be valid by an order of informal probate by
the Registrar, or an adjudication of probate by the Court, except
that a duly executed and unrevoked will which has not been
probated may be admitted as evidence of a devise if (1) no Court
proceeding concerning the succession or administration of the
estate has occurred, and (2) either the devisee or his successors
and assigns possessed the property devised in accordance with the
provisions of the will, or the property devised was not possessed
or claimed by anyone by virtue of the decedent's title during the
time period for testacy proceedings.

3--103.  Necessity of Appointment for Administration

Except as otherwise provided in Article IV, to acquire the powers
and undertake the duties and liabilities of a personal
representative of a decedent, a person must be appointed by order
of the Court or Registrar, qualify and be issued letters.
Administration of an estate is commenced by the issuance of
letters.

3--104.  Claims Against Decedent; Necessity of Administration
No proceeding to enforce a claim against the estate of a
decedent or his successors may be revived or commenced before the
appointment of a personal representative.  After the appointment
and until distribution, all proceedings and actions to enforce a
claim against the estate are governed by this Article.  After
distribution a creditor whose claim has not been barred may
recover from the distributees as provided in Section 3-1004 or
from a former personal representative individually liable as
provided in Section 3-1005.  This section has no application to a
proceeding by a secured creditor of the decedent to enforce his
right to his security except as to any deficiency judgment which
might be sought therein.

/* The bankruptcy laws for example, provide for administration to
be made under the probate laws solely for the deceased. */

3--105. Proceedings Affecting Devolution and Administration;
Jurisdiction of Subject Matter

Persons interested in decedents' estates may apply to the
Registrar for determination in the informal proceedings provided
in this Article, and may petition the Court for orders in formal
proceedings within the Court's jurisdiction including but not
limited to those described in this Article.  The Court has
exclusive jurisdiction of formal proceedings to determine how
decedents' estates subject to the laws of this state are to be
administered, expended and distributed.  The Court has concurrent
jurisdiction of any other action or proceeding concerning a
succession or to which an estate, through a personal
representative, may be a party, including actions to determine
title to property alleged to belong to the estate, and of any
action or proceeding in which property distributed by a personal
representative or its value is sought to be subjected to rights
of creditors or successors of the decedent.

3--106. Proceedings Within the Exclusive Jurisdiction of Court;
Service; Jurisdiction Over Persons

In proceedings within the exclusive jurisdiction of the Court
where notice is required by this Code or by rule, interested
persons may be bound by the orders of the Court in respect to the
property in or subject to the laws of this state by notice in
conformity with Section 1-401.  An order is binding as to all who
are given notice of the proceeding though less than all
interested persons are notified.

3--107.  Scope of Proceedings; Proceedings Independent; Exception

Unless supervised administration as described in Part 5 is
involved, (1) each proceeding before the Court or Registrar is
independent of any other proceeding involving the same estate; (2)
petitions for formal orders of the Court may combine various
requests for relief in a single proceeding if the orders sought may
be finally granted without delay.  Except as required for
proceedings which are particularly described by other sections of
this Article, no petition is defective because it fails to embrace
all matters which might then be the subject of a final order; (3)
proceedings for probate of wills or adjudication of no will may be
combined with proceedings for appointment of personal
representatives; and (4) a proceeding for appointment of a personal
representative is concluded by an order making or declining the
appointment.

3--108. Probate, Testacy and Appointment Proceedings; Ultimate
Time Limit

No informal probate or appointment proceeding, other than a
proceeding to probate a will previously probated at the
testator's domicile and appointment proceedings relating to an
estate in which there has been a prior appointment, may be
commenced more than 3 years after the decedent's death, except
(1) if a previous proceeding was dismissed because of doubt about
the fact of the decedent's death, appropriate probate,
appointment or testacy proceedings may be maintained at any time
thereafter upon a finding that the decedent's death occurred
prior to the initiation of the previous proceeding and the
applicant or petitioner has not delayed unduly in initiating the
subsequent proceeding; (2) appropriate probate, appointment or
testacy proceedings may be maintained in relation to the estate
of an absent, disappeared or missing person for whose estate a
conservator has been appointed, at any time within three years
after the conservator becomes able to establish the death of the
protected person; and (3) a proceeding to contest an informally
probated will and to secure appointment of the person with legal
priority for appointment in the event the contest is successful,
may be commenced within the later of twelve months from the
informal probate or three years from the decedent's death.  These
limitations do not apply to proceedings to construe probated
wills or determine heirs of an intestate.  In cases under (1) or
(2) above, the date on which a testacy or appointment proceeding
is properly commenced shall be deemed to be the date of the
decedent's death for purposes of other limitations provisions of
this Code which relate to the date of death.

3--109.  Statutes of Limitation on Decedent's Cause of Action
No statue of limitation running on a cause of action belonging
to a decedent which had not been barred as of the date of his
death, shall apply to bar a cause of action surviving the
decedent's death sooner than four months after death.  A cause of
action which, but for this section, would have been barred less
than four months after death, is barred after four months unless
rolled.

Part 2
Venue for Probate and Administration:  Priority to Administer;
Demand for Notice

3--201. Venue for First and Subsequent Estate Proceedings;
Location of Property

 (1) Venue for the first informal or formal testacy or
appointment proceedings after a decedent's death is:

 (1) in the [county] where the decedent had his domicile
at the time of his death; or

 (2) if the decedent was not domiciled in this state, in
any [county] where property of the decedent was located at the
time of his death.

 (b) Venue for all subsequent proceedings within the
exclusive jurisdiction of the Court is in the place where the
initial proceeding occurred, unless the initial proceeding has
been transferred as provided in Section 1-303 or (c) of this
section.

 (c) If the first proceeding was informal, on application
of an interested person and after notice to the proponent in the
first proceeding, the Court, upon finding that venue is
elsewhere, may transfer the proceeding and the file to the other
court.