Probate refers to the legal proceedings of winding up all the affairs of a deceased person. The affairs may include settling their debts and dividing their property to the surviving beneficiaries. The technical meaning of the word probate involves proving the validity of a will. However, the Utah Probate Code applies the word on a border spectrum to mean all the affairs related to a dead person, regardless of whether they had a will or not.
The sovereign authority of the county probate courts was established in 1851 by the Utah Territorial Legislature. Utah became a State in 1896 consequently abolishing the county probate courts. After the abolition of the county probate courts, probate authority was transferred to the respective district courts in every county. The authority granted was to create the guardianship of minor children and other parties, create a framework for the administration of the dead person’s property as well as probate wills.
Probate Process In Utah
Probate proceedings in Utah are guided by the legislation set out in the Utah Code section 75, subsection 1-101 all through to subsection 8-101. The laws became active when the state of Utah passed the Utah Uniform Probate Code. There are two types of the probate process in Utah, one is the formal process, and the other is the informal process. The informal process involves an agreement between all the parties involved; there is no court supervision as well as court orders.
On the other hand, the formal process involves the guidance and final decisions made by a judge. There are court orders and supervision as well as hearings. Being aware of which process to use helps to significantly cut down on the cost of the probate process. It also helps in saving time and other resources involved in the whole process.
The surviving beneficiaries of the deceased person are the ones to decide if the probate process will be informal or formal. The probate process is usually indispensable if the person left the property in his or her name, and the property has to be subdivided among the beneficiaries using a court order. If the deceased left a will, then the beneficiaries can use informal probate to dispose of the property. However, if the deceased died intestate (without a will), then formal probate becomes a necessity in which the court will use the provision of the intestacy laws to dispose of the estate.
There are three main stages regardless of whether the probate if formal or informal. The first stage is the commencement of the probate or introduction, followed by the disposal of the property and finally the conclusion. At each stage, the parties involved can choose to pursue either a formal or informal process.
Commencement of Probate
Probate can be opened informally by making an application to the district court. If the deceased died testate, then the process begins by writing an application to the respective district court in the county which the deceased resided in. If the deceased died intestate, then the informal process begins with the appointment of a Personal representative. This is done by filing an application for the same in the district court.
Any dispute arising after the appointment of personal representative necessitates formal proceedings. Formal probate begins with a petition to the district court. If the deceased died testate, then formal probate is initiated by filing a petition in the district court in the respective county of the deceased. If the deceased died intestate, then the process is initiated by filing a petition for appointment of the personal representative. The first stage ends if the court decides if the will is valid if at all, there is a will and the selection of the personal representative.
Disposal of Probate Property
The allocation of the deceased estate is the responsibility of the personal representative. If there is a will, the representative will subdivide the property to the beneficiaries according to the instructions of the will. If there is no will, then the representatives will dispose of the property according to the instructions given by the judge regarding intestacy laws. The process obliges the representative to collect all the necessary information pertaining to the deceased estate, identifying all the beneficiaries and heirs to the deceased as well giving notice to all the creditors and paying all the debts of the deceased. The representative may need to make a list of all the assets and all liabilities of the deceased to help in the administration.
An informal process can be done if all the parties agree with the personal representative with no objection. In case of a complaint from any interested party then formal probate process has to be followed. The formal process begins by the objecting party filing a motion in the court or hearing or court order. Depending on the weight of the issue at hand, the judge may need to review testimonies, evidence, and listen to the legal arguments from each contesting party. The stage ends after the personal representative has identified all the beneficiaries and heirs and their respective inheritance precisely measured. The heir’s inheritance is determined from what is left after all the creditors have been paid, and there is no outstanding debt.
Ending The Probate Case
This stage normally involves the personal representative paying all the costs associated with the probate process and all debts. The remainder of the estate or property is distributed among the beneficiaries. The representative must then prepare a final financial statement showing how the assets have been distributed.
If there was no objection by the way the property was disposed of by the personal representative, then the probate can be concluded informally. Section 75 subsection 3-1204 of the Utah Code requires that the personal representative dispose of the remainder of the estate to heirs and file a closing statement. The closing statement can be challenged in court by any interested party by filing a motion. If there is no dispute arising one year after the personal representative files for a closing statement, then the personal representative is discharged.
If a dispute arises during the administration of the property after the representative files a closing statement, a formal probate process has to be followed. The disputing party will have to file for petition prompting a judge to listen to the case. If any issues need to be corrected, the judge will give orders to the representatives to rectify as required. After all the issues have been rectified, the judge will then give orders to the representative to rectify as needed. After all the issues have been corrected, the judge will then give orders to close the administration of the estate. The orders can be appealed at the Utah appellate court. If there are no pending appeals, the conclusion probate stage ends with the personal representative being discharged.
Objectives of Probate in Utah
Several objectives necessitate probate. Some of the objectives include;
● To collect all the information and records of the deceased person’s property or estate. The deceased is usually referred to as the “decedent” according to probate laws in Utah
● Reveal the identity of all the beneficiaries and heirs of the decedent.
● To appoint a person who will be in charge of the administration of the decedent property known as a personal representative. In some State personal representatives are also called executors.
● Notify all the interested party about the winding up of the affairs of the deceased. This is a legal requirement by probate laws in Utah.
● Identify and control all the property and estate owned by the decedent.
● Ascertain if the deceased left any valid will that expresses his or her wishes on how their property will be divided among his or her dependents.
● To determine valid beneficiaries or heirs of the deceased property if he or she died intestate.
● To identify and validate any creditors of the deceased as well as validate all outstanding debts that they may have left.
● In case the deceased had minor children, then probate will help in identifying and appointing a guardian to the children. This happens if the children have no surviving parent.
● Probate would assist in settling the deceased debts if he or she had any at the time of death. The process may constitute selling of the deceased property to cover all the debts owed at the time of death.
● The process also helps in settling any dispute that may arise during the administration of the deceased property. Such disputes include challenging the validity of the will, agreement on how should be the executor or personal representative as well as any other dispute that may arise after the death.
● The probate process also allows the personal representatives to report all the necessary information and their decisions during the administration process to the court and the beneficiaries of the deceased
● The objective of the probate may as well be to distribute the remainder of the deceased property after the costs and debts have been paid to the beneficiaries.
How to prevent probate in Utah
Probate is usually a long and tedious process that involves a lot of expenses. Avoiding such a process not only gives your dependents peace of mind but also allows them to save on excessive costs that can significantly reduce their inheritance. There are several ways in which a person can prevent probate after they depart from this world. Before deciding which method, you are comfortable with, it is important you speak to a lawyer first. This is crucial because each method has its advantages and disadvantages. Your attorney will guide you on which of the methods listed below can be used to avoid probate in your case. Some of the methods include;
Use of annuities and life insurance
The premiums paid to annuities or insurance companies for life insurance are not regarded as personal property. Since the premiums are not part of the deceased estate, they will not be a subject of probate proceedings. After the death of the policyholder, the payable amount is given directly to beneficiaries.
The advantage of such a program is that it is easy to predict and understand. However, life insurance premiums are normally expensive for older people. Once the amount has been paid to the insurance company, it cannot be refunded. Only the insurance amount that is not subject to probate proceedings. The process is also applicable to the rest of the assets.
Establishing a trust
This is one of the most suitable methods of avoiding probate. The method entails you establishing a trust with property transfer clause. The trust can be revoked any time depending on the present circumstances. The creator of the trust known as the grantor or settlor continues to be in charge of the trust until he/she dies. After the death of the grantor, the trust will continue to be managed with another trustee without any probate.
Joint ownership of property
In Utah, the most preferred method of joint ownership is joint tenancy. This mandates the surviving joint tenant to take over the property after the death of one joint tenant. The other method of joint ownership known as “tenants in common” necessitates probate in case the other tenant dies. Other jointly owned properties such as bank accounts, stocks, and property are transferred to the surviving joint owner without probate.
Use Transfer on Death Ownership (T.O.D)
Many assets, such as shares and business interests, have transfer on death clauses. In such a case, the assets are immediately transferred to the beneficiaries and heirs upon the death of the owner. The advantage is that the transfer will not cost anything, and no probate will be necessary.
Use Payable on Death Accounts
Many businesses such as banks, brokerage firms, and other financial institution present a certificate to be signed by the owner making the accounts “payable on death” to the surviving heir. When the owner of the account dies all the money in the account is then transferred to the listed heir due to the binding contract signed by the owner. These kinds of accounts are normally suitable for married couples. Their disadvantage is that only the amount of money in the accounts is not going to be a subject of probate. However, probate may still be necessary to other assets owned by the deceased.
Probate Attorney Free Consultation
When you need legal help with a probate in Utah, please 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