Uniform Laws Update

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

The COVID-19 pandemic that shut down many state legislatures in 2020 had a reduced effect in 2021. The number of bills passed was still lower than the average for recent years but greater than in 2020 when many legislatures adjourned in mid-session to comply with social distancing restrictions.

Unsurprisingly, lawmakers responded to their constituents’ needs and prioritized bills that could help stimulate economic activity and mitigate pandemic-related hardships. The most enacted uniform law in 2021 was the Revised Uniform Law on Notarial Acts (RULONA), the latest version of which includes provisions for remote notarization. Estate planners and real estate practitioners alike benefitted from new options for clients to execute documents without exposing themselves to possible infection from close contact with other persons. More states are likely to follow suit in 2022 to accommodate the masses of people now working and conducting business remotely.

Arizona, Kansas, New Hampshire, New Jersey, New Mexico, Oregon, and Pennsylvania enacted RULONA last year, bringing the total number of enactments to 17. RULONA bills were also introduced in Connecticut, Delaware, and Rhode Island but failed to pass and may be reconsidered in 2022. Many states continued to operate under executive orders that temporarily permitted remote notarization, remote witnessing, or both. The sharp increase in demand for remote notarization services is likely to persuade the remaining states to authorize the procedure permanently. RULONA allows notaries licensed in the enacting state to offer remote notarization services with appropriate safeguards to ensure verification of the identity of the signer and the integrity of the parties’ documents.

The Uniform Electronic Wills Act (UEWA) was enacted in Colorado, North Dakota, and Washington last year, and UEWA bills were introduced in Idaho and Virginia. This act modernizes the law of will execution by permitting electronic documents and remote witnessing. The UEWA has now been adopted in four states, and four other states enacted non-uniform laws authorizing electronic wills before the Uniform Law Commission (ULC) approved UEWA in 2019.

Four states adopted the Uniform Fiduciary Income and Principal Act (UFIPA), which the ULC approved in 2018 as an update of the widely adopted Uniform Principal and Income Act of 1997. Last year Arkansas, Colorado, Kansas, and Washington joined Utah in modernizing their trust accounting laws by enacting UFIPA. UFIPA includes a new article governing unitrust conversion, which provides more flexibility and comprehensiveness than any previously existing unitrust statute.

The Uniform Partition of Heirs Property Act (UPHPA) continued to gain attention in 2021 as legislators attempted to address the issue of land loss through abusive partition actions. UPHPA provides procedural and substantive protections to the owners of “heirs property,” a form of ownership in which at least some of the owners inherited property as tenants in common, often without probate and with clouds on title from unknown heirs. Seven states and the District of Columbia introduced UPHPA bills, though only the California bill had been signed into law at press time. Eighteen states and the US Virgin Islands have adopted the UPHPA to date, and the number is likely to continue growing because the law has proved to function as intended to reduce land loss in the states that enacted it. In addition, the United States Department of Agriculture implemented a new loan program in 2021 for owners of heirs property to borrow the funds necessary for legal expenses to clear their title and return the property to productive use. The program gives a preference to applicants from states that have adopted the UPHPA.

The new Uniform Easement Relocation Act was approved by the ULC in July 2020 and introduced in five states in the first sessions after its publication: Colorado, Nebraska, Nevada, Utah, and West Virginia. Only the Nebraska bill has been signed into law, though the others are expected to be reintroduced or carried over to 2022.

The Revised Fiduciary Access to Digital Assets Act (RUFADAA) is nearing universal adoption. The District of Columbia City Council enacted a version in 2021, leaving only five states that have not yet adopted the act. RUFADAA allows fiduciaries to access online accounts for the persons or estates they represent while shielding the content of some personal communications unless the account owner expressly granted permission to the fiduciary to review the contents.

Oklahoma upgraded its financial power of attorney law by adopting the Uniform Power of Attorney Act, (UPOAA), which was also introduced in Massachusetts and the District of Columbia. UPOAA is now the law in the majority of the United States.

New Hampshire became the thirty-eighth state to adopt the Uniform Real Property Electronic Recording Act (URPERA) in 2021. URPERA authorizes local recording offices to accept deeds and related documents for recording electronically, following state-established standards.

Hawaii finished a years-long review of the Uniform Trust Code (UTC) and became the thirty-sixth UTC state in 2021. Three other recent trust acts continue to gain enactments: The Uniform Powers of Appointment Act was adopted in Nebraska and Washington, the Uniform Trust Decanting Act in Maine and Montana, and the Uniform Directed Trust Act in Florida and Montana.

The Uniform Commercial Real Estate Receivership Act (UCRERA) was adopted in Connecticut, culminating a two-year enactment effort, and was also introduced in neighboring Rhode Island. Ten states have adopted the UCRERA to date. The Uniform Assignment of Rents Act was introduced in Michigan last year and was awaiting a hearing at press time.

Three older uniform acts were adopted by states in 2021: North Dakota became the twenty-seventh state to enact the Uniform Environmental Covenants Act, New Hampshire became the twenty-sixth state to enact the Uniform Disclaimer of Property Interests Act, and Iowa was the twentieth state to enact the Uniform Custodial Trust Act.

A few other uniform RPTE acts were introduced but died on adjournment: The Revised Uniform Residential Landlord and Tenant Act in Oklahoma; the Uniform Real Property Transfer on Death Act in New Hampshire, North Carolina, and Tennessee; and the Uniform Transfers to Minors Act, adopted in 49 states plus the District of Columbia and the US Virgin Islands, again failed to pass in the fiftieth state – South Carolina.

All told, the Uniform Law Commission tracked 62 uniform bills to enact uniform RPTE acts last year, 30 of which were enacted into law. The enactment data includes activity from October 1, 2020, through September 30, 2021. Any bills enacted after September 30, 2021, will be counted as part of the Uniform Law Commission’s 2022 legislative statistics.

ULC Legislative Counsel provide support for the enactment of uniform laws in your state. For details, contact ULC Chief Counsel Ben Orzeske at (312) 4506621. More information about these acts and other ULC drafting projects is available from www.uniformlaws.com.

Uniform Laws Update Editor: Benjamin Orzeske, Chief Counsel, Uniform Law Commission, 111 N. Wabash Avenue, Suite 1010, Chicago, IL 60602.

Published in Probate & Property, Volume 36, No 1 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.