Law professor helps draft revision to probate code

A UW–Madison law professor helped draft a sweeping revision to the state laws that dictate the transfer of wealth and property through wills and estates.

The update of Wisconsin’s probate code, based on extensive work by Howard Erlanger, Voss-Bascom Professor of Law, was signed into law April 27 by Gov. Tommy Thompson after being approved by the Legislature last month.

Erlanger has worked on the probate code revision since 1992, when the State Bar of Wisconsin’s real property, probate and trust law section began examining the statute. The 103-page piece of legislation is considered non-partisan and was sponsored by Democrats and Republicans in the Assembly and Senate.

“This is first and foremost a piece of consumer legislation,” says Erlanger, who specializes in wills and estate planning at the Law School and also has an appointment in the department of sociology.

The probate code addresses situations such as the signing of wills and gaps in estate planning, such as the transfer of property after a divorce or death of an intended beneficiary. Among other changes, the code’s revisions will allow witnesses to sign wills separately; currently, all witnesses must be present at the same time in the same room at the will signing.

This change was prompted by a 1995 state appellate court decision, which declared a will invalid because one witness had momentarily left the room while the other witness was signing the document.

“There was no allegation of fraud,” Erlanger says. “This was just a pure technicality. It’s an example of how formalistic the signing of wills is under traditional law.”

Another major change addresses the transfer of property to former spouses upon a person’s death. The existing statute says that if a person neglects to change his or her will after divorce, transfers to the former spouse are nullified. But transfers of wealth or property outside of wills – as life insurance policies, jointly held property and retirement plans – are not covered under the current law.

The updated version will generally nullify all transfers of property to former spouses at death, not just those spelled out in wills. “We’ve modernized the rules,” says Erlanger.

Law School Dean Kenneth Davis says Erlanger’s expertise in law and sociology gives him unique insight into the effect of rules governing the transmission of wealth – insight he shares with his students, the legal profession and society as a whole through projects such as the probate code update.

“Professor Erlanger’s work is in the great tradition of this law school, which combines the Wisconsin Idea with an attention to how legal institutions function in society, often using perspectives from the various social sciences,” Davis says. “We call it ‘law in action.’ ”

The update of the probate code is patterned after revisions made to the Uniform Probate Code in 1990. The UPC was first developed in 1969 by the National Commission on Uniform State Laws.

“(The update) does not adopt the UPC itself but draws on its general principles and language to meld the UPC to this state’s situation,” says an analysis of the legislation by the state’s Legislative Reference Bureau.