Monday, April 20, 2015


SECTION 3-108 Uniform Probate Code
(a) No informal probate or appointment proceeding or formal testacy 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 three 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 before 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;
(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;
(4) an informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceedings concerning the succession or estate administration has occurred within the three year period after decedent’s death, but the personal representative has no right to possess estate assets as provided in Section 3-709 beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration may not be presented against the estate; and
(5) a formal testacy proceeding may be commenced at any time after three years from the decedent’s death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent’s death from one other than the decedent when the property is to be appointed by the terms of the decedent’s will or is to pass or be distributed as a part of the decedent’s estate or its transfer is otherwise to be controlled by the terms of the decedent’s will.
(b) These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate.
(c) In cases under subsection (a)(1) or (2), 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.
As originally approved and read with Section 3-102’s requirement that wills be probated before being admissible in evidence, this section created a three-year-from death time period within which proceedings concerning a succession (other than a determination of heirs, or will interpretation or construction) must be commenced. Unless certain limited exceptions were met, an estate became conclusively intestate if no formal or informal estate proceeding was commenced within the three year period, and no administration could be opened in order to generate a deed of distribution for purposes of proving a succession.
Several of the original UPC states rejected the three year bar against late-offered wills and the correlated notion that formal proceedings to determine heirs in previously unadministered estates were necessary to generate title muniments locating inherited land in lawful successors. Critics preferred continued availability of the UPC’s procedures for appointing ’personal representatives whose distributive instruments gave protection to purchasers. The 1987 technical amendment to Section 3-108 reduced, but failed to eliminate, instances in which original probate and appointment proceedings were barred by the three year limitation period. 

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