The death of a family member or friend can present challenges both emotionally and legally. Clearly, the personal impact of the loss cannot be immediately remedied.
Moreover, business and financial decisions must be made and action taken to settle the decedent’s estate with the assistance of a Utah estate settling lawyer. These include the collection of assets and the payment of bills and taxes. Handling the Court process involved with the appointment of an Executor or Administrator can be complex. There may be many different types of issues relating to kinship, asset protection, Will interpretation, estate taxes and other factors that require resolution before a decedent’s estate can be settled.
Initially, it is essential to determine whether a decedent had prepared a Last Will or died intestate (without a Will). This is necessary because the Surrogate’s Court procedure on disposition of estate assets will be different in each instance. It is also a good idea at the outset to obtain advice from an experienced estate settling lawyer in Utah who is familiar with the estate laws and Court requirements.
Both probate and administration proceedings in the Surrogate’s Court require the preparation and filing of petitions and other papers that support the appointment of an estate fiduciary. The petition contains information consisting of the names and addresses of the decedent’s distributees, Will beneficiaries and named executors and trustees as well as an estimate of the value of the estate.
Preparing and filing papers for the Court and then actually handling the estate can be complicated. The petitioner and the fiduciary that is finally appointed assume a large responsibility for the proper administration of all of the decedent’s affairs. This may include representing the estate’s interest in a Will contest if third parties claim that the Will that is offered for probate is not valid. A Will Contest can involve claims of undue influence, lack of testamentary capacity and lack of due execution.
Petitions for probate or administration are typically filed in the Surrogate’s Court in the county where the decedent was domiciled. Thus, if the person who died had his primary home in Manhattan, the estate proceedings would be filed in the Utah County Surrogate’s Court.
All of these Courts are controlled by the same laws and rules as contained in the Surrogate’s Court Procedure Act and Estates, Powers and Trusts Law. Sometimes, each individual Court may have slightly different procedural rules regarding the filing of documents and Court calendars and procedure. An experienced estate settling attorney in Utah can usually assist with determining the appropriate rules.
Naming a Beneficiary of Estate
Naming the beneficiary of an estate is an important part of any estate plan. When a person dies without a last will or intestate, the statutes provided by the person’s domicile or home state generally determine who inherit his or her assets. A Utah estate planning lawyer can help you draft the appropriate documents.
It is not always easy to determine the location of a person’s domicile. Domicile is the primary place where a person lives and intends to be their home. A person can have many residences but only one domicile. Utah Estates, Powers and Trusts Law Section 103(15) provides a definition for Domicile. When helping a client to develop an estate plan, an estate lawyer will seek to determine a person’s domicile. Factors that show a person’s domicile include income tax returns, a driver’s license, and other documents like asset ownership records.
Problems arise when a person dies intestate and the laws of his domicile must be looked to for the rules which select the persons entitled to inherit the estate. Where the intestate estate beneficiaries cannot easily be figured out, a Kinship Hearing may be needed. Hearings on kinship are held in the Utah Surrogate’s Courts. In Utah, there is a Queens Surrogate’s Court and a Salt Lake City Surrogate’s Court. These hearings involve the presentation of evidence such as marriage records, death certificates and birth records. It may be difficult to obtain copies of these papers especially where the records are many decades old and were on file in other states or countries throughout the world.
When a person creates a last will or trust, he or she has the opportunity to designate the persons who will be the beneficiaries and contingent beneficiaries of assets. Thus, designating beneficiary of estate allows a person to fulfill their wishes and desires regarding the disposition of their assets and estate. A Utah lawyer may provide helpful advice during this process.
Sometimes if domicile or kinship issues appear to complicate planning and the potential probate process, a person may want to consider establishing a Living Trust. These trusts are created during a person’s lifetime. All of a person’s assets are then transferred into the trust. The grantor or creator of the trust can retain complete control over the assets during life and can even revoke the trust or transfer assets into or out of the trust without any restriction. Upon the person’s death, the trust assets are distributed to the named beneficiaries without the need to probate the document. Thus, issues regarding domicile and kinship can be avoided. Also, the trust agreement can specify which state’s law is to control the interpretation of the trust terms. While the Grantor can be the primary trustee and act alone, the document can designate a successor trustee to take over if the Grantor dies or becomes disabled. This aspect allows Living Trusts to provide lifetime property management even where a person becomes incapacitated which may avoid the need for the appointment of an Article 81 Guardianship by a Court.
Free Consultation with a Utah Estate Lawyer
If you are here, you probably have an estate issue you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506