During a person’s lifetime, the only way to discover if he has a will is to ask. The existence of a will becomes public information, however, when the testator dies. The executor files the last will and testament with the court where a probate judge determines the validity of the will and supervises will administration. Probate documents are open to the public for viewing. Once you determine which court probates a deceased person’s estate, a look in the court probate file confirms or disproves the existence of a will.
• Determine where the deceased testator resided. Generally, the court in the county in which the deceased spent his last years has probate jurisdiction. Call the court clerk’s office in that county and ask how to check probate status. Some courts maintain automated phone lines where you input the deceased’s name and date of death to learn the probate file number. Others update an Internet site with probate information. Many jurisdictions require you to go to the court itself. If this is the case, obtain the street address of the court and its business hours.
• Go to the probate court and find the court clerk’s office. Give the clerk the name and date of death of the deceased and request the probate file. The clerk locates the file and allows you to read it at the window or in a separate file review area. Look for the will among the early filings. The executor’s initial filing generally consists of a Petition for Probate, the last will and testament and the death certificate. Confirm that the will testator is the person whose will you seek by comparing date of birth and street address information.
• Review subsequent documents to ascertain whether the court ruled the will valid. The executor must “prove” the will by establishing proper signing and execution in conformity with state law; all states require at least two adult witnesses. If the court ruled the will invalid either because of improper execution or after a will challenge the executor probates an earlier will. Locate and review that will later in the probate file. If no earlier will exists, the estate passes to blood kin under the intestate distribution statutes.
• Look in other counties if the court clerk does not locate probate under the name of the deceased. “Place of primary residence” is a legal concept, turning largely on a person’s intent, and sometimes people manipulate their residence for tax purposes. Determine whether the deceased maintained a residence in another county and check with that county’s probate court. You must find the will of a deceased person to start probate the legal proceedings used to settle a person’s final affairs and divide his estate. Ideally, the testator should always provide a copy of the will to his named executor, but if this wasn’t done, you may need to be creative in where you start looking.
Don’t expect to see your grandfather’s will while he is alive, unless he decides to show it to you. While the testator the person making a will is alive, his last testament is private and completely revocable. Your grandfather can change it on whim by writing a codicil or drafting a superseding will. However, when the testator dies, his will becomes effective and public. The court opens probate on the will and any member of the public can view and copy the document in the clerk’s office.
• Ask a living testator for a copy of his will. He may but need not agree. Some states permit residents to file a last will and testament with the court for safekeeping, but even a filed will remains private during the testator’s life. In most jurisdictions, a testator seals a will before filing it, and it remains sealed until his death. On the other hand, the testator provides copies to anyone he wishes, so you lose nothing by asking.
• Obtain the probate file number to view the will of a deceased testator. Ask the executor if you know her. Alternatively, call the superior court in the jurisdiction in which the testator lived. Ask about their probate file procedures. Some courts operate a special automated probate telephone line. Call the number and provide the name of the deceased and date of death to obtain probate file information. Other courts list probate information on the Internet. Still others require a visit to the courthouse during business hours.
• Go to the courthouse. Some courts have separate probate clerks but many combine all civil files. Ask if you are not sure. Find the appropriate court clerk and present the probate file number if you obtained it from a dedicated telephone line or the Internet. Alternatively, present the name and date of death of the deceased. The court clerk retrieves the file and permits you to review it either at the clerk’s window or in a separate reviewing area. The will is one of the first documents in the file. Request a copy and pay the small per-page copying fee.
• Search through probate records in the courthouse to find older wills. The court clerk will explain the procedure for locating the archived will. In some courts, the clerk locates the will for you. In others, the clerk sends you to an index generally alphabetical or by date and you access the information for yourself. The will may be in original form or in microfilm. Review it and request copies.
A person either dies with a will (testate) or without a will or a valid will (intestate).The estate of a person who dies testate will be distributed according to their wishes as set down in their will, and the estate of a person who dies intestate will be distributed according to the rules of intestacy. When a will is prepared by a lawyer for a client, the attorney will always recommend that the client tell someone that they have made a will, and with whom, and will offer them a copy of the will to take with them if they wish. The original will is usually kept by the lawyer who drafted it. The person making the will must appoint an executor or executors to their will. This is a person who will administer the estate of the deceased. The will must also be witnessed by two independent witnesses who are not beneficiaries of the will. Sometimes, the executors will have been advised by the deceased of where their will is located.
When a person dies having taken a copy of the will home and having told someone where it is, matters are much simpler. If someone has made a will, it is likely that the executors of the will may know where the will is kept or which lawyer drew it up for the deceased. If a person has not taken a copy, and has not told a family member that they have made a will, the family will then generally contact the deceased’s lawyer, if they know who that is. If the lawyer of the deceased is unknown, the family should then contact estate planning lawyers in the area who can check with other attorneys whether they hold a will.
An advertisement can be published in the local newspapers. Think of the Deseret News or the Salt Lake Tribune, making enquiries as to whether the deceased left a will. If no will is found, and the families are satisfied that no will exists, the estate of the deceased will be distributed according to the rules of intestacy. On distributing the estate, there is a duty on legal personal representatives to distribute the estate as soon as is reasonably practicable. The process may however be a lengthy one.
• Where a person dies testate, the executor or executrix takes out a grant of probate in order to administer the estate.
• When a person dies intestate, the legal personal representatives will administer the estate.
Probate is the procedure that gives the appointed executor the authority to carry out the testator’s wishes per the will. To administer the estate, the executor must apply to the Probate Office for a grant of probate. The executor must file the original will and full details of the assets in the deceased’s estate with the Probate Office.
Sometimes the estate of a deceased person must be distributed as soon as is reasonably practicable after the date of death. Beneficiaries under a will cannot, however, demand that the estate be distributed until one year has passed from the date of death. Where the person who dies has several bank accounts, life insurance policies and owns a number of properties, it will take considerable time to gather the information and valuations required to complete the forms to be filed with the Probate Office. It may also take time to collect the necessary information from beneficiaries, which includes details of any prior gifts and inheritances given to them.
In some cases it can take considerable time to locate all the beneficiaries entitled. Once the relevant grant is issued, the executor or administrator distributes the estate. This may involve selling shares and property, or vesting title in beneficiaries’ names, both of which have the potential to be very lengthy processes. The executor or administrator is also obliged to give notice of three months of their intention to distribute the estate to the Department of Social Protection, so that any overpayments of social welfare, such as pensions, are paid back. If you are a beneficiary under a will, and an executor of the will has not done anything about administering the will, it is advisable that you consult your own elder law attorney.
Wills in Utah are not registered. However, some jurisdictions do have registration or recordation of wills. This is how it works in some places:
• The Will Registry documents the location (Attorney, Home, Financial Institution, Other) of your will/trust.
• Once registered, you will receive a certificate to store with your important documents that will inform your family that you are registered.
• Your registered information is not released until a death certificate is received, and ID is provided to our legal department.
• Once verified, the information is then released to an attorney.
How to locate a missing Will
• A missing Will is searchable by the name and birthdates of the individual who made the Will.
• Registered wills are dated as far back to when the state started recordations.
Make sure you (and your loved ones) register your will and estate planning documents with The Utah Will Registry. This will give you, and all family members, peace of mind knowing your Last Will contents and location remains private, secure and protected as well as accessible when needed.
When someone dies, you might not always know whether they had a will, or where the will is kept, especially if they passed unexpectedly. You might also want to find a will if the executor isn’t willing to share the details with you and you’re concerned that you might need to challenge them in court.
How to find a will before probate
• Check their home: Your first port of call should be to check the home of the person who’s died for either the document itself or, if a lawyer helped to create the will, their contact details. Be aware that going though their belongings can be emotionally difficult ask someone to help you look if you need support.
• Check with local lawyers in your area: If the person who’s died has had any other legal help in the years before their death for example, if they divorced or moved house then a lawyer may have been involved. Try contacting them first; if they don’t have the will, try contacting other estate planning and estate administration attorneys near the home of the person who has died.
• Check the files and records of your loved one. Keep in mind that not everyone has a will or a trust. Many people never get around to doing one.
How to find a will after probate
If the will is being held by a probate lawyer, you will only be able to see it if you’ve been named as an executor. However, a grant of probate is often needed before anyone can start settling the estate once the grant is applied for, a copy of the will is stored by the government and can be seen by anyone who applies. A ‘grant of representation’ gives someone the legal right to deal with a deceased person’s estate. This right is called ‘probate’.
Not all grants of representation contain a will.
• Probate or Grant and Will – a will exists and will be provided
• Administration with Will or Grant and Will – a will exists and will be provided
• Administration or Grant – a will does not exist and will not be provided
Probate Lawyer Free Consultation
When you need legal help with an estate in Utah, probate, or litigation, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help with last will and testaments. Revocable Living Trusts. Irrevocable Trusts. Estate Lawsuits. Asset Protection Trusts. Estate Planning. Asset Protection. Probate Law. Estate Administration. Probate Mediations. Trust Distribution To Beneficiaries. And Much More. We want to help you.
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