Utah Probate Code 75-3-403: Formal Testacy Proceeding–Notice Of Hearing On Petition
1. Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by Section 75-1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 75-3-204. Notice shall be given to the following persons: the surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.
2. If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:
a) By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
b) By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;
c) By engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
A Notice of Hearing is a prepared legal document that invokes all parties to hear a motion and may be emitted by any party. Most notably the notice contains a time and date for the court clerk to amend schedule for and what motion will be attempted. Permission to schedule is not required since making motions are protected right. This kind of motion comes after the commencement of action and summons and until final judgment. One example is a motion to rule a defendant is not responding to summons (to rule against the defendant automatically). Another example is a defendant’s motion to object to the summons. Motions require both sides to be present. A “Notice of Hearing” must be delivered to all parties concerning: the court clerk, the plaintiff, and the defendant. The date requested must allow all parties due time to prepare. Whether proof of delivery is required is a particular. Local rules determine many particulars of what must be on the notice. Some particulars are the time needed for defendant to react to receiving the notice (e.g., two weeks), estimated time taken in court, and what legal disclaimers and warnings are necessary.
Probate Process without a Will
People sometimes mistakenly believe that they can avoid probate if there’s no will. Unfortunately, that generally isn’t true. A person can die either intestate (without a will) or testate (with a valid will). If a person passes away intestate, the property will be distributed according to the state’s intestate succession laws.
Probate for Intestate Succession
The probate process is supervised by a probate court that has jurisdiction over the estate at issue. The court will hold hearings on petition for probate and determine how to distribute the assets. If there’s a valid will, the probate process will proceed as a testate estate. However, if there’s no will or if a will is found to be invalid, the probate will proceed as an intestate estate. Every state has its own laws on intestate succession, which refers to the process of transferring property or property interests to the appropriate heirs when there is no valid will.
Appointing a Personal Representative
If there’s an existing will, it usually names an executor, who manages the estate affairs after the testator’s death. However, when there’s no will, the probate court will appoint a person to manage the probate process. The probate process for an intestate estate begins by appointing a personal representative (also called an administrator). The personal representative appointed by the court has the same responsibilities and duties as an executor named in a will. The personal representative has to determine the value of the estate, collect probate assets, handle any legal disputes and claims against the estate, pay debts and taxes, and manage other expenses owed by the estate. State laws on intestate succession will determine who gets the property when there’s no will. There are usually classes of heirs, which determine the order of distribution and the share of the estate. The most common and easily identifiable heirs are surviving spouses, children, parents, and any blood relatives. The closer relatives (usually a surviving spouse and the decedent’s children) will inherit the property rather than distant relatives. Distant relatives will take the assets only if there are no surviving spouse and children. Friends and charities do not receive anything under intestate succession. If there are no surviving family members, most states will make the entire estate go to the state.
Distributing the Estate Assets
After appointing a personal representative and identifying the heirs, the probate court will determine what assets to distribute and how to distribute them. The laws on how to distribute the estate assets vary greatly by state and by the type of property. Some types of property will be transferred to someone else without probate upon the decedent’s death. For example, the decedent’s portion of a joint property with right of survivorship will automatically go to the surviving joint owner. In most cases, distribution of the remaining assets will be shared among a surviving spouse and the decedent’s children. Or, as mentioned above, distant relatives will take the assets if there are no surviving spouse, children, and parents. The probate court will hold a hearing on petition for final distribution and accounting. Upon the court’s approval of final distribution, the heirs will receive the assets.
How to File to Be Executor of an Estate without a Will
Your will has an important function beyond providing instructions for the distribution of your property. It also names the person who will serve as the executor your estate. The executor has the job of paying your final bills, and distributing any remaining assets. When someone dies without a will, it’s called dying “intestate.” In these situations, no one may have legal authority to close the deceased’s estate. Probate court can step in to select someone to perform these duties or a loved-one can volunteer to fill the vacancy. This court-appointed representative is known as an administrator. The duties performed by an administrator are essentially the same as an executor.
Determine Your Priority for Appointment
Probate rules are established by your state and include identifying who can serve as an administrator and the priority of appointment. A surviving spouse usually is given first choice at filling this role. If they decline, the deceased’s children are next in line. When there is no spouse or children, a family member may be selected. If more than one person with priority wants to serve as administrator, and the heirs can’t agree, then the court will choose. Many states have laws prohibiting certain classes of people from serving as an administrator / executor. In Utah, for example, a person who is a non-resident can’t be appointed. Neither can someone found guilty of a felony, even if it occurred 30 years prior. In some states, when no family member has come forward to administer the estate, then a creditor of the deceased may serve as administrator.
Receive Written Waivers From Other Candidates
You need to receive a written waiver from other candidates for administrator that have higher priority. For example, if you are the brother of the deceased, you may need to get a written waiver from the deceased’s spouse and children before you can be appointed administrator.
Contact Court in the County Where Deceased Resided
In most states, probate will occur in the county where the deceased had residence. You need to contact that court to understand their filing requirements and timelines. Frequently you will need to file a Petition for Probate along with the Notice of Petition to Administer Estate.
File the Petition for Administration
The Petition will require you to supply a certified copy of the decedent’s death certificate, an estimate of the gross value of the estate, and the names and addresses of the decedent’s heirs. You will pay a fee to petition for administration.
Attend the Probate Hearing
Many states do not require a formal hearing unless there is a contest to select the administrator, or the administrator in not next of kin. Administrators and executors are commonly given an oath recognizing their fiduciary duties to the estate and the court.
Secure a Probate Bond
It is common court practice to require a bond to protect the interest of the deceased’s estate, its heirs and creditors. The bond also protects the administrator to ensure they fulfill their duties responsibly.
How to Probate a Will Without an Attorney
Petition The Court To Be The Estate Representative
The court will require the petitioner (person asking the court to appoint an official representative) to fill out specific forms. These forms can (with the help of EZ-Probate) be filled out by you. It will be the basic “Who, What, When, Where,” types of questions.
When would you need an attorney: When filling out the court forms, there is most likely no need for an attorney unless you don’t understand what the will is instructing the executor to do.
Notify Heirs And Creditors
The court will provide you with forms to fill out to notify heirs (listed in a will, or if no will state law dictate who the heirs are). Additionally, the representative is also responsible to find out what debts the deceased had and devise a plan to pay those debts. Remember, only assets that pass through probate are liable to pay debts.
What you will need: a clear understanding of who the heirs are (will or state succession laws), and a reasonable attempt to uncover debts.
When would you need an attorney: If you don’t understand the will or need help determining who the heirs are. Note that all states post the “succession laws” and you can google them by searching: (state) succession law, or (state) intestate succession.
Change Legal Ownership Of Assets
This may be the most straightforward part. With the court appointment, you will now be able to change assets owned by the deceased to the “estate of…”
What you will need: Court appointment and knowledge of what the deceased owned.
When you would need an attorney: There may be assets that have complicated ownership, businesses, royalties, mineral rights etc. If you are unsure how to transfer ownership, then an attorney is needed. For most common assets (bank accounts, investments, property) you will be able to do it yourself.
Pay Funeral Expenses, Taxes, Debts And Transfer Assets To Heirs
Note the order that you will need to prioritize payments. The court places a priority on payment of funeral, taxes, and debts before any payments to heirs.
What you will need: A good accounting of all assets, debts, and likely tax liability. The executor is responsible (personally) to ensure that all attempts are made to pay funeral expenses and taxes.
When would you need an attorney: If you don’t have enough money to pay for all of the estate expenses, particularly the taxes.
Tell The Court What You Have Done And Close The Estate
This is when you report to the court and show proof that you have done everything needed to close the estate.
What you will need: Good documentation of what you have done and the court will provide you with a template to use to report your actions.
When would you need an attorney: We recommend that at this point everyone should consult with an attorney to review your taken actions. Although not necessary, it is wise to have an expert’s eye on your actions to avoid any costly (personally to you) mistakes.
Probate court is a segment of the judicial system that primarily handles such matters as wills, estates, conservatorships, and guardianships, as well as the commitment of mentally ill persons to institutions designed to help them. When wills are contested, for example, the probate court is responsible for ruling on the authenticity of the document and the mental stability of the person who signed it. The court also decides who receives which portion of the decedent’s assets, based on the instructions in the will or – barring that – other laws in place. The role of the probate court is to make sure that a deceased person’s debts are paid and assets are allocated to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person. Probate is multifaceted in that it covers the overall legal process of dealing with a deceased person’s assets and debt, the court that manages the process and the actual distribution of assets itself. Individual states have specialized probate courts. Some states do not call it a probate court but instead refer to it as a surrogate’s court, orphan’s court or chancery court.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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