Probate Lawyer West Jordan Utah
Ease of administration and predictability of results are not the only important goals of Utah probate law. Fairness—including concern for the decedent’s wishes and the needs of his family—immediately comes to mind as another goal. If you want to probate a will or you want a share in the estate of a deceased relative, speak to an experienced West Jordan Utah probate lawyer.
Each marriage is unique. Some couples consider themselves equal partners in the marital endeavor; others clearly do not. Some couples view the husband as head of the household, on whom the family, including the wife, relies for support. No objective inheritance statute can possibly please all married couples.
Utah intestate succession statutes provide not only for the decedent’s surviving spouse but also for his children. Like the spouse, children are part of the family that the decedent created. Legislators generally presume that a decedent viewed members of his created family as the principal objects of his love and affection—in probate terms, as the natural objects of his bounty. The preference for the created family over the family into which one was born means that the surviving spouse and children are typically favored over parents, other ancestors, and collateral relatives, including siblings and their issue. Although this statutory preference for spouse and children is a legislative guess concerning the desires of citizens, the preference also parallels the principal legal support obligations that a decedent is likely to have during his lifetime— those toward his spouse and his children. In short, including the decedent’s spouse and children in intestacy laws reduces the likelihood that the state will have to support them when the decedent dies. Before you make a will, consult with an experienced West Jordan Utah probate lawyer.
Yet potential problems arise when the child receiving an inheritance award is a minor. Because a young child is typically incapable of managing substantial assets, a court is likely to appoint a guardian to manage the child’s inheritance until she is older. One of the most likely candidates to serve as guardian of the inheritance award is the child’s surviving parent. The surviving parent, however, may not be the surviving spouse of the decedent. In fact, the surviving parent may be someone whose relationship with the decedent was strained—perhaps an ex-spouse or ex-girlfriend who frequently sued him to obtain child support. In such instances, someone whom the decedent did not like or trust may wind up managing assets from his estate for the benefit of his child. If the decedent would clearly not want the surviving parent to serve as guardian for the child’s inheritance award, the estate can perhaps successfully petition to have someone else manage the assets— particularly if reliable evidence shows that the surviving parent is likely to mismanage the assets or engage in self-dealing.
A guardian is in a special or fiduciary relationship with the child whose assets she manages. Because of that relationship, the guardian is legally responsible if she uses the inheritance award for her own benefit. Unfortunately, by the time the mismanagement or self-dealing becomes apparent, the guardian may have wasted the child’s inherited assets and have none of her own with which to indemnify the child for the loss. To help protect the child, the court can (or may be required by statute to) demand a periodic accounting from the guardian concerning the child’s inheritance. These accountings, however, can be cumbersome and time-consuming, and preparation may require the assistance of an attorney or other professional. Thus, even when the problems of guardian mismanagement and self-dealing are not a serious concern, the costs of the guardianship—including compensation to the guardian for her services—can diminish the child’s inheritance.
With the passage of time, the natural objects of the bounty of the surviving spouse may differ from those of the decedent. When this occurs and the surviving spouse has received the decedent’s entire intestate estate, the decedent’s children are likely to suffer. Also, laws may protect the surviving spouse’s new family in a way that prevents her from passing her estate to the children of her prior marriage as she wishes. For those parents in nuclear families who would like a guarantee that some part of their estate will wind up in the hands of their children and not in the hands of the surviving spouse’s later created family, the “all to spouse” approach offers no comfort.
Utah law intuitively recognize that, along with the decedent’s surviving spouse, children are most likely to be the closest objects of the decedent’s bounty. Although the parent-child relationship differs from the spousal relationship in obvious ways, both relationships are fundamental to society. In fact, for increasing numbers of people—particularly mothers—the parent-child relationship is the most significant relationship in life.
Children can sometimes use a pretermitted child statute to obtain a distribution that the testator very clearly did not intend. This is particularly true in states that refuse to consider anything other than the will itself in determining the validity of the child’s claim.
A Will Contest
A pretermission statute is not the only way in which a child may be able to alter his parent’s will. Because we consider a child to be an object of the testator’s bounty, a child who takes little or nothing from his parent’s estate may elicit our sympathy. Disinheritance of a child often seems unnatural, particularly when the testator favors more distant relatives or nonfamily members in his will.
In response to being disinherited, a child may contest the validity of the will. By doing so, the child may hope to receive an intestate share or a legacy under an earlier will of the parent. If evidence indicates that the testator lacked capacity, was unduly influenced by others, or was the victim of fraud, the beneficiaries named in the contested will must weigh the chances of the child’s success. Sometimes the beneficiaries will conclude that a settlement with the child is the best solution, even if they believe the settlement terms conflict with the testator’s true intent.
Current elective-share schemes in the United States require that the surviving spouse submit her claim to the estate executor. Objective rules determine her eligibility for the elective share and, assuming she is eligible, the probate court approves the award as a simple administrative matter. In contrast, the family maintenance system typically requires the court to receive and weigh carefully evidence regarding the survivor’s claim. If a knock-down-drag-out develops within the family, cost and delay will follow. The system’s structure provides an open invitation for the survivors to reveal very intimate details of the decedent’s private life.
Judicial discretion under the family maintenance system is not limited to whether an applicant’s request should be granted and how much the award should be. The court also must decide who will lose his legacy to pay the surviving spouse.
To be sure, American probate judges have some discretionary power under our current probate laws. That discretion, however, is quite limited. American probate statutes often give the probate judge discretion to determine the value of the spouse’s temporary “allowance” from the estate that will tide her over until she receives her final distribution when the estate administration concludes. The allowance is clearly not intended to sustain surviving family members over a long period of time. Although the allowance itself may deplete a very small estate or cause a redistribution of legacies under the testator’s will, this potential infringement on testamentary freedom is minuscule compared to the potential effects of complete judicial discretion under the family maintenance system.
When we hear of spousal disinheritance, we tend to think, “oh, that must have been a troubled marriage,” or “one of them must have been bad.” In fact, a happily married testator may disinherit the beloved surviving spouse for altruistic reasons. When the surviving spouse has ample assets of her own, the testator and the surviving spouse may think it best for him to leave his estate to others. Moreover, the testator’s decision to disinherit the surviving spouse does not affect the survivor’s rights to numerous benefits that flow to her outside probate. So-called “survivorship” interests—including interests in a joint tenancy or tenancy by the entirety—do not pass through probate and are not affected by will provisions. Thus, if the husband and wife own their home as joint tenants, the survivor takes the home even if the testator has disinherited her in his will. Similarly, the testator’s disinheritance provisions cannot deprive the surviving spouse of some important federal benefits the survivor may receive through the testator. Social Security is among the most important of these—if a widow’s maximum Social Security benefits are derived through the testator rather than through her own earnings record, she is entitled to those benefits despite a disinheritance provision in his will. In like manner, her eligibility for Medicare based on the decedent’s eligibility is unaffected by a disinheritance provision in his will. In some instances, disinheritance of the surviving spouse does not affect the survivor’s rights to pensions and private benefits derived through the testator—even if the will’s disinheritance provision explicitly appears to cover those benefits.
Utah property and probate laws also protect surviving spouses with laws other than the elective share. In virtually all states the surviving spouse is the first (and as a practical matter quite often the only) beneficiary of homestead laws that permit her continued residence in the family home or that provide her a monetary homestead payment from the decedent’s estate upon his death. State probate laws also entitle her to claim certain personal property from the estate and provide her an allowance from the estate for a period of time. The testator’s disinheritance of the spouse typically has no effect on the survivor’s ability to receive these awards.
Nonmarital Children in Probate History
The historical treatment of nonmarital children by society and by the legal system is a sad tale. Under early common law the child was filius nullius—the child of no one. Even the mother from whose womb the child came was not a legal parent of the child! Correspondingly, the child had no potential heirship rights from the estate of a parent. Of course, this early fiction that the nonmarital child had no parents is immediately disturbing: while the identity of the child’s father might be in doubt, the identity of mother was quite clearly ascertainable. The harsh early approach nonetheless reflected long-established mores regarding sex, gender, and marriage. In hindsight, it is easy to see the irrationality of this approach, which punished the innocent nonmarital child for the perceived transgressions of her parents. Eventually, the law relented somewhat and began to recognize the parent-child relationship between the mother and her nonmarital child. With this recognition, the nonmarital child became the mother’s potential heir.
The law’s continued reluctance to acknowledge the father-child relationship is more understandable, for until recent decades there was no foolproof method for establishing genetic fatherhood. On the other hand, providing the child with only a maternal line of inheritance hardly discouraged men from nonmarital dalliances, since the law did not divert the father’s assets from his “legitimate” family to the nonmarital children.
Ultimately—although, as we shall see, often only after judicial prompting—all states enacted parentage laws that in some circumstances permit a nonmarital child to establish a legal relationship with her father. For the nonmarital child to become a potential heir of her father, however, the child (or her proxy) must jump through various legal hoops. The requirements for establishing the legal relationship vary tremendously among the states and have been the subject of much litigation. If the child gets through the hoops successfully, however, she becomes a potential heir of her father.
Get Some Legal Help
Every will has to go through probate. Probate can be time consuming. Don’t try to save a few dollars by attempting to navigate the complex maze of Utah probate law without the assistance of an expert. Before you make a will, talk to an experienced West Jordan Utah probate lawyer. It’s important to make a will. By making a will, you can ensure that your estate is distributed to the persons you want and not according to Utah intestate laws.
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If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law 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