Why Would You Avoid Probate?

Why Would You Avoid Probate

Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person’s Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries. The purpose of probate is to prevent fraud after someone’s death. Not all estates must go through probate though. First, if an estate falls below a certain threshold, it is considered a “small estate” and doesn’t require court supervision to be settled. Second, not all assets are subject to probate.

Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:
• Joint Tenancy assets: When one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called “right of survivorship
• Tenancy by the Entirety or Community Property with Right of Survivorship: These are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.
• Beneficiary Designations: Retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
• Payable on Death Accounts/Transfer on Death Accounts: Bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.

Informal Probate

Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court. Once you get the letters, you need to do these things:
• Send out formal notice to heirs, beneficiaries, and creditors that you know of
• Publish a notice in a local newspaper to alert other creditors
• Provide proof that you’ve mailed notices and published the notice
• Prepare an inventory and appraisal of the estate’s assets
• Keep all the property safe
• Distribute the property (when the estate closes)
Once the property’s been distributed, you close an informal proceeding by filing a final accounting with the court and a closing statement that says you’ve paid all the debts and taxes, distributed the property, and filed the accounting.

Unsupervised Formal Probate

A formal probate, even an unsupervised one, is a court proceeding. That means that a judge must approve certain actions taken by the Personal Representative, such as selling estate property, or distributing assets, or paying an attorney. The purpose of involving a judge is to settle disputes between beneficiaries over the distribution of assets, the meaning of a Will, or the amounts due to certain creditors. The informal probate process won’t work if there are disputes, so that’s when the court gets involved.

Supervised Formal Probate

A supervised formal probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property in such a proceeding.

The basic process for an executor is:
• Gather the full details of the estate’s assets and debts
• Apply for Grant of Probate (permission to administer the estate and pass out inheritance)
• Complete an inheritance tax return and pay any tax due
• You receive a Grant of Probate
• Repay any of the deceased’s outstanding debts
• Distribute the rest of the estate according to the instructions left in the Will.

This will take about a year for most estates. The exact amount of time will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years. Sometimes disputes can come up during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can delay you in administering the estate. Generally speaking, probate Attorney, also called estate or trust attorneys, help executors of the estate (or “administrators,” if there is no will) manage the probate process. They also may help with estate planning, such as the drafting of wills or living trusts, give advice on powers of attorney, or even serve as an executor or administrator.

What Does a Probate Attorney Do?

What a probate lawyer does will likely depend on whether or not the decedent has drafted a will prior to their death.

When There Is a Will

If an individual dies with a will, a probate lawyer may be hired to advise parties, such as the executor of the estate or a beneficiary, on various legal matters. For instance, an attorney may review the will to ensure the will wasn’t signed or written under duress (or against the best interests of the individual). Elderly people with dementia, for example, may be vulnerable to undue influence by individuals who want a cut of the estate. There are numerous reasons that wills may be challenged, although most wills go through probate without a problem.

When There Is No Will

If you die without having written and signed a will, you are said to have died “intestate.” When this happens, your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. For instance, if you are married, your surviving spouse receives all of your intestate property under many states’ intestate laws. However, intestacy laws vary widely from state to state. In these situations, a probate attorney may be hired to assist the administrator of the estate (similar to the executor), and the assets will be distributed according to state law. A probate attorney may help with some of the tasks listed above but is bound by state intestacy laws, regardless of the decedent’s wishes or the family members’ needs. A relative who wants to be the estate’s administrator must first secure what is called “renunciations” from the decedent’s other relatives. A renunciation is a legal statement renouncing one’s right to administer the estate. A probate attorney can help secure and file these statements with the probate court, and then assist the administrator with the probate process (managing the estate checkbook, determining estate taxes, securing assets, etc.). Most people, thankfully, don’t need to hire a attorney very many times in their lives. And even if you’ve gone to an attorney for a business matter, real estate transaction, or a divorce, working with a probate attorney is likely to be a different kind of experience. Some things are the same whenever you hire an attorney, though: to fully understand what’s going on, you will probably need to ask a lot of questions, and to keep costs down, you will have to take on some of the routine work yourself.

Claiming Property with a Simple (Small Estate) Affidavit

Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset. The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less.

Simplified Probate Procedures

Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement and provided them with a closing statement.

Can I avoid probate?

If you don’t own any land, and your estate is less than $100,000, no probate is required. It is possible to arrange your affairs so there is no estate to probate upon your death. For example, you can give all your property away the day before you die. You might also arrange that you own everything jointly with someone who you expect will survive you. “Joint tenancy with rights of survivorship” means simply that every person named on the title as your joint tenant who survives you will own the property without it becoming part of your estate. If you and your spouse own your home as “joint tenants”, upon your death (if you die first) your spouse will own the home without probate to transfer ownership. The same rule applies to ownership of all things you own, although the law does not usually include the power of joint ownership for such items of property as furniture or clothing or jewelry. Joint tenancy has disadvantages. If your child owns your bank account with you jointly, the child could take the money and spend it for herself. If a creditor gets a judgment against your child, the creditor could claim the account. If your child dies before you or gets divorced, the child’s spouse might become a part owner. If your child is a joint owner of your home, she could block you from selling it. There are also tax problems: if you give property away, you may be required to file a gift tax return; and if your child (to whom you deeded a joint tenancy) sells your home after your death, the child may have to pay capital gains tax. Probate of your estate including your home avoids the capital gains tax. Using a trust also avoids this tax. A safer method than joint ownership of monetary/depositary accounts is to designate the accounts to be “Paid on Death” (POD) to named beneficiaries. For example, you can make your spouse a co-owner of your accounts, and designate your children as POD beneficiaries on the account record. After you and your spouse’s deaths, any balance in the account will be paid to your children (who need only prove your death and their identities). Your children are not “owners” of the account while you are alive, so none of the children can make withdrawals, nor can their creditors.

Another option is to give all your property to a trust that manages the property for your benefit while you are alive and distributes the property as you direct when you die. Such a trust is often called a “living trust” because you establish it while you are alive. It is also called “revocable” because you ordinarily retain the right to revoke the trust. If you give your property to a trust, here are some things to think about:
• If the person who manages your trust is also one of your beneficiaries, that person may have conflicting interests. For example, your trust may have to pay for your medical care, which the trustee might not want to do because her inheritance would therefore be smaller.
• A trust does not receive the benefit of the statute of limitations created by publishing a notice to creditors in the same way a probated estate does. Such notices inform all your creditors to file claims within three months or be forever barred.
• If any of your property is not properly given to the trust, there may be an estate that must be probated anyway. Arranging a trust requires careful drafting of all necessary documents. It is helpful to have an attorney prepare the papers. This cost would come out of your pocket, while the cost of a probate is paid by your estate after your death.

What You Need for File A Formal Probate For An Estate

Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. A formal probate proceeding requires both written notice and publication notice before the allowance of the formal petition.


There are different forms you’ll need to file depending on whether or not the decedent (the person who has died) died with a will.
If the decedent died with a will, you’ll need to file:
• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• Devisees
• The original will if it’s available, or if not, a statement of the will’s contents
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service, which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond, if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• An authenticated copy of the will and appointment if it’s for an ancillary (additional) probate proceeding
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Witness to Will, Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Uniform Counsel Certification Form

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!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Can An Executor Withhold Money?

Can An Executor Withhold Money

The death of a loved one can open the door to a flood of so many different emotions, and grief can exhibit in various ways. You might find yourself impatient with or suspicious of the individual who has been appointed to manage your loved one’s estate through probate, even if you’ve never been a particularly impatient or suspicious person before. That individual, called the executor of the estate, might even be a family member with whom you normally have a close relationship. But now there are money, assets and debts on the line, and you find yourself wondering what exactly she’s doing with that money. Maybe you’re the primary beneficiary and it’s supposed to pass to you, but she’s whittling away at the balance. You can take comfort in knowing that there are some firm laws in place to monitor the activities of an executor.

The term “fiduciary” infers a great deal of responsibility. A fiduciary is legally bound to act in good faith to preserve the rights and well being of others, in this case the decedent’s estate and beneficiaries. This means putting their interests ahead of her own. If she doesn’t do so and you can prove it, you have legal recourse. One of the executor’s first responsibilities after opening the estate with the probate court is to gather all the decedent’s assets, but this doesn’t mean transferring bank and investment accounts into her own name. It means moving the funds into an account or accounts in the estate’s name. Probate is a process carried out under the watchful eye and supervision of the court. After the executor has identified and gathered all assets, she must submit a list of everything the decedent owned, including cash accounts and their values as of the date of death. Beneficiaries are entitled to copies of this report. If you notice that something is not on the list and you think it should be, you have a right to bring this to the court’s attention. The executor will almost certainly have to spend at least some of the money in the estate’s banks accounts, and she might have to liquidate or sell some or all of the decedent’s property to raise more money if the final bills are more than what was left in cash. They are also responsible for meeting the costs associated with managing the estate through probate. Appraisers might be necessary to value estate property, and they’ll expect payment. She might feel that she needs a lawyer’s assistance with certain estate matters, and the lawyer will expect to be paid as well. You might also notice checks made out to the executor, but this doesn’t necessarily mean she’s stealing from the estate. She’s entitled to make a claim to the estate for reimbursement if she spends her own personal money on estate-related expenses for things like postage, copying or even travel costs. In some states, she can simply take the money if she keeps proper receipts, but she might need court approval first in others. Executors are also typically entitled to compensation for all their hard work. In reality, many family members who act as executors waive this fee, but others might not. Executors can’t simply decide how much they’re entitled to receive for their services. Payment may require court approval, even if the decedents will states how much the executor should be paid. Some states have laws in place to determine how much an executor should be paid.

When you make a will you also need to name one or more people to be your executor. This is the person whose role it is to make sure that your wishes are carried out as you have set out after you die. It’s up to you who you choose but this is not a decision to be taken lightly. Here’s what you need to know about the role of the executor. An executor is legally responsible for carrying out instructions set out in a will after someone has died. It is not an easy job, practically or emotionally, and can take several months, if not longer. Specific duties may involve:
• Registering the death – if there is no one else to do it – and sending certified copies of the death certificate to financial institutions, such as banks, building societies and insurance companies
• Getting copies of the will
• Finding all financial documentation relating to the deceased person
• Working out all the money owed to and by the estate, and valuing the estate
• Applying for probate
• Preparing and sending off the documents required by the probate registry and HM Revenue & Customs (HMRC)
• Opening a bank account on behalf of the estate
• Ensuring all property and post is secure as soon as possible after death
• Collecting all assets and money due to the estate of the person who died
• Deciding when to sell property so the beneficiaries get the most money
• Distribute the estate to the beneficiaries as set out in the will
• Ensuring tax forms are completed and that the correct inheritance tax, capital gains tax (if an asset increases in value during probate between the time of death and when it is sold) and income tax is paid
• Arranging the funeral if specific instructions are stipulated in the will
If there is not enough money in the estate to cover any outstanding liabilities such as bills or tax, then it is best to seek legal advice as dealing with an insolvent estate can be complicated. In fact you can have up to four executors to share the responsibility out, but all decisions must be made jointly. It is a good idea to appoint at least two executors, or a main executor and a substitute. This could be a family member and a professional, such as a solicitor, an accountant or the bank. This will cover you if your first choice dies or is otherwise unable to carry out their duties. Executors must be 18 or over and of sound mind, but apart from that, it’s up to you who you pick. Close family and friends and those who stand to inherit from your will are eligible, indeed they are common, but you may also decide on a professional executor, or both. This way you could appoint, for example, a sibling to deal with family matters and a solicitor to handle the legal, tax and property issues. The role also requires them to be responsible, rational and fair-minded. It’s a bonus if they are also good at paperwork and managing legal issues.

Professional executors: a solicitor, bank or accountant will charge for their service. Look closely at the fees: it could be an hourly charge or a percentage of the estate, often between 1% and 5%. Think about whether you’re happy for a chunk of your money to be taken in this way, rather than going to your loved ones. Make sure you therefore understand how you will be charged and how much before you commit. On the other hand, if your financial affairs are complex having a professional executor will bring the benefit of independent, specialist knowledge. Family and friends; they will have to make the tough decisions demanded of the role, while also dealing with their grief. Many people refuse to take on the role for these reasons. However, loved ones will know you and how you would want your wishes to be carried out should disputes arise. Make sure that you discuss this with the family members you choose, and give their full names and addresses in the will, so they can be located easily. If an executor finds it too difficult to carry out their role, they can choose to appoint a solicitor to carry out the administration. If there really is no one else then, as a last resort, a government official called the public trustee will be your executor. This is most commonly employed when everything in a will is left to one person who can’t act as executor themselves, for example, a child or someone who has a disability which means they are unable to deal with financial affairs. What’s called letters of administration are granted by the probate registry to allow the deceased person’s estate to be divided up under intestacy rules if there is no will or no living executors. An executor may have to apply for probate, which gives them the legal right to deal with someone’s estate. It may not be necessary if the estate is quite small. If more than one person is named as an executor, you must all agree who makes the application for probate. To apply via post you’ll need to complete form PA1 and the relevant inheritance tax form or you can apply and pay online. When you receive a grant of probate, make several copies, as you will need them for asset holders. Inheritance tax must be paid before applying for the grant of probate. It is quite possible for someone to be named as an executor in a will who wasn’t told beforehand and doesn’t want to be held personally responsible for the job. There are also situations where someone accepts the role, but later changes their mind but doesn’t have the opportunity to discuss it with the person who appointed them. If this is the case you need to speak immediately after the death to the principal probate registry or to a legal professional for advice. You have a number of options:
• Completely give up your right to apply for probate (“renunciation”) by filling in a renunciation form and sending it to the probate registry
• Appoint an attorney to act on your behalf in administering the estate
If you’ve already started to deal with the estate after the person has died, you will need a good reason to step down, such as ill health or family emergency. You might want to change a will to:
• reduce the amount of inheritance tax or capital gains tax payable
• settle a new claim against the estate
• provide for someone who was left out of the will
• move the deceased’s assets into a trust
• clear up any uncertainty over the will
To change a will, you need to make a “variation”. You don’t need a formal document or deed, you can write a letter as long as it meets these conditions. If the variation means there’s more inheritance tax to pay, you must send a copy to HM Revenue and Customs (HMRC) within six months of making it. You don’t need to send a copy to HMRC if the variation doesn’t change the amount of inheritance tax due. Any changes to the will must be completed within two years of the death. The executor is also responsible for paying out to all beneficiaries and must follow the instructions in the will. However, there are some exceptional circumstances where an executor can “withhold” settlement, but this would need the approval of all fellow executors. Examples could include:
• If unknown/unspecified debtors arise, the executor can delay settlement for up to six months, whilst the debtor is settled.
• If the executor has concerns over the welfare of a child beneficiary, due to parental issues, they can apply to the court to withhold settlement, but ultimately must pay the child their entitlement from the will when the age of majority is attained by the child.
• In exceptional cases where the executor thinks that a beneficiary is vulnerable, for example maybe they have an alcohol or gambling addiction, then the executor can pay the benefits into a discretionary trust. If no trust exists, the beneficiaries have to be paid directly from the executor.
You can appoint a number of executors who can share the responsibility of dealing with the estate, but they must all agree on the final decisions. Sometimes disagreements arise, for example, about the correct time to sell a house to make the most money. Any issues need to be resolved in order for probate to move forward. If communication doesn’t work then one person can renounce their role as executor or they can head to the probate court to have the other removed. You will need to seek legal advice in this situation.

A beneficiary may wish to consider a claim against an executor in many situations, but common scenarios include:
• A delay in the administration of the estate or the distribution of money to beneficiaries;
• Disagreement about the sale of a house belonging to the estate. The house may be being sold too slowly or at the wrong price, or perhaps at a price which is too low, to someone closely associated with the executor;
• If an executor is rejecting or failing to seek sensible financial advice on financial issues, such as the sale of valuable items or shares at the right price;
• Failing to act quickly in respect of ‘volatile’ assets such as shareholdings. The value of shares might dramatically decrease, diminishing the value of a legacy of shares to beneficiaries;
• There may be disagreements between family members about where the deceased should be buried or about their headstone;
• There may be accusations that an executor is acting in an obvious ‘conflict of interest’ if they are also a beneficiary as well.
• It may be alleged, for example, that they are using the estate’s money to improve or repair a house that only one executor/beneficiary is due to receive under the will;
• There may be a refusal on the part of an executor to investigate financial losses or allegations arising before the deceased died, perhaps during a period of time when the deceased was mentally incapable or vulnerable. The value of an estate when someone dies may be considerably lower than the beneficiaries of the estate expected, due to some of the deceased’s funds being spent or diminished during their lifetime. This may occur where an executor has also been an attorney for the deceased person during the last phase of their life. Perhaps money has been gifted or misused by the attorney during this period;
• The executors may refuse to provide adequate information to beneficiaries about the estate (although there are limits in what a beneficiary can reasonably ask for information about);
• There may be an alleged failure to communicate with beneficiaries about what is happening or the administration of the estate may have halted due to an inability between executors to agree on what should be done;
• The executors may have to deal with claims against the estate from other people, for example under the Inheritance (Provision for Family & Dependents) Act 1975 or a challenge to the validity of a will itself.

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!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Estate Probate Process

Utah Estate Probate Process

Utah offers some probate shortcuts for “small estates.” These procedures make it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using simplified probate procedures or without any probate court proceedings at all — by using an affidavit. And that saves time, money, and hassle.

Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account — gets the affidavit and a copy of the death certificate, it releases the asset. The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less. An affidavit may also be used to transfer up to four boats, motor vehicles, trailers or semi-trailers if value of estate subject to probate, excluding the value of the vehicles, is $100,000 or less. There is a 30-day waiting period.

Simplified Probate Procedures

Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement and provided them with a closing statement.

Can I avoid probate?

If you don’t own any land, and your estate is less than $100,000, no probate is required. It is possible to arrange your affairs so there is no estate to probate upon your death. For example, you can give all your property away the day before you die. You might also arrange that you own everything jointly with someone who you expect will survive you. “Joint tenancy with rights of survivorship” means simply that every person named on the title as your joint tenant who survives you will own the property without it becoming part of your estate. If you and your spouse own your home as “joint tenants”, upon your death (if you die first) your spouse will own the home without probate to transfer ownership. The same rule applies to ownership of all things you own, although the law does not usually include the power of joint ownership for such items of property as furniture or clothing or jewelry. Joint tenancy has disadvantages. If your child owns your bank account with you jointly, the child could take the money and spend it for herself. If a creditor gets a judgment against your child, the creditor could claim the account. If your child dies before you or gets divorced, the child’s spouse might become a part owner. If your child is a joint owner of your home, she could block you from selling it. There are also tax problems: if you give property away, you may be required to file a gift tax return; and if your child (to whom you deeded a joint tenancy) sells your home after your death, the child may have to pay capital gains tax. Probate of your estate including your home avoids the capital gains tax. Using a trust also avoids this tax. A safer method than joint ownership of monetary accounts is to designate the accounts to be “Paid on Death” (POD) to named beneficiaries. For example, you can make your spouse a co-owner of your accounts, and designate your children as POD beneficiaries on the account record. After your and your spouse’s deaths, any balance in the account will be paid to your children (who need only prove your death and their identities). Your children are not “owners” of the account while you are alive, so none of the children can make withdrawals, nor can their creditors. Another option is to give all your property to a trust that manages the property for your benefit while you are alive and distributes the property as you direct when you die. Such a trust is often called a “living trust” because you establish it while you are alive. It is also called “revocable” because you ordinarily retain the right to revoke the trust.

If you give your property to a trust, here are some things to think about:
• If the person who manages your trust is also one of your beneficiaries, that person may have conflicting interests. For example, your trust may have to pay for your medical care, which the trustee might not want to do because her inheritance would therefore be smaller.
• A trust does not receive the benefit of the statute of limitations created by publishing a notice to creditors in the same way a probated estate does. Such notices inform all your creditors to file claims within three months or be forever barred.
• If any of your property is not properly given to the trust, there may be an estate that must be probated anyway. Arranging a trust requires careful drafting of all necessary documents. It is helpful to have an attorney prepare the papers. This cost would come out of your pocket, while the cost of a probate is paid by your estate after your death.
Trusts are more useful in some circumstances than others. For instance, if you own real estate in more than one state, probate may be required in each state, so a trust might save money. If your estate is large enough to be taxable, a trust might be used to avoid some or all of the tax. The law of “intestate succession” determines who gets the property of someone who has no testament. Here is what the legislature has provided:

• If only your spouse survives you, your spouse gets the entire estate.
• If only your children (issue) survive you, they get entire estate, split equally among them.
• If both spouse and children survive you:
• if all your children are children of your surviving spouse, your surviving spouse gets your entire estate. OR
• if any of your children are children of a person other than your surviving spouse, your surviving spouse gets the first $75,000 of your estate plus half of the remainder; all your children split the other half.
• If only your parent(s) survive you, your parent(s) get your entire estate.
• If neither spouse, nor issue, nor parents survive you, your estate goes (in the order listed) to: your brother(s) & sister(s) or their issue; your grandparents or their issue.
A basic estate plan in Utah will usually consist of several documents:
• a revocable trust
• a pour-over will
• a general assignment of assets to the revocable trust
• a financial power of attorney
• a health care directive

For simple estate plans, some attorneys prefer to use a traditional will rather than a revocable trust, a pour-over will and a general assignment. Using a traditional will requires that the estate go through probate. When a person dies without an estate plan, the first question to ask is whether any of her property was held in joint tenancy or had a valid beneficiary designation attached to it. At death, property held in joint tenancy automatically passes to the surviving joint tenant. Property that is subject to a valid beneficiary designation (such as a retirement plan, the proceeds under a life insurance policy or, in some cases, a bank or brokerage account) passes to the beneficiary designated. When a person dies without an estate plan, she is said to have died “intestate,” and any property that is not disposed of under a joint tenancy arrangement or under a beneficiary designation is distributed under the rules of intestate succession. In Utah, the rules of intestate succession provide as follows: If the deceased person was married when she died, and if she has no descendants (children, grandchildren, etc.), or if all of her descendants are also her surviving spouse’s descendants, then all of her property passes to her surviving spouse.

If the person was married, and if she has descendants who are not the surviving spouse’s descendants, the surviving spouse receives $75,000 off the top, plus one-half of the balance of the deceased person’s property. The balance of the deceased person’s property passes to her descendants. If the deceased person was not married when she died, the property passes to her descendants. If the deceased person has no descendants, it passes to her parents, and if her parents are not living, it passes to her brothers and sisters or to the children of deceased brothers and sisters. Some people with very simple estates are content to rely upon joint tenancy arrangements, beneficiary designations and the rules governing intestate succession. However, one should consult with one’s attorney before deciding to go that route. At the very least, a person with minor children should have a simple will that nominates guardians for the children in the event the person dies while the children are still minors.

It is generally advisable to have a revocable trust rather than a traditional will. Where a revocable trust is used, the dispositive terms of the estate plan (i.e. the “who gets what” provisions) are contained in the revocable trust. A revocable trust accomplishes two important things. First, it avoids the need for probate of one’s estate after one dies, and probate is generally something to be avoided. Second, a revocable trust avoids the need for a court-supervised conservatorship in the event one becomes incapacitated. In Utah, the probate process is not as inconvenient as it is in many other states, which means the need to avoid probate is not as pressing in Utah as it is in some other states. However, a court-supervised conservatorship is always a burdensome process, and avoidance of that alone may be a sufficient reason to have a revocable trust. Note that a revocable trust avoids probate and a conservatorship only to the extent that a person’s assets are transferred into the trust. If the assets are not transferred into the trust, the revocable trust serves no purpose. As noted above, some Utah attorneys prefer to use a traditional will rather than a revocable trust for small, simple estates. Their reasoning is that probate in Utah is relatively easy; clients often do not transfer their assets to the revocable trust, in which case the assets must pass through probate anyway; and the preparation of a revocable trust, a pour-over will, a general assignment and the deeds to transfer real estate to the trust will cost more than the preparation of a traditional will.

The primary arguments in favor of using a revocable trust are that even with stream-lined probate procedures, it is still better to avoid probate; a probated will is a matter of public record, while a revocable trust is private; a revocable trust is helpful to avoid a court-supervised conservatorship; if the client owns real property in another state, a revocable trust will avoid the need for (and cost of) an ancillary probate in the other state; a revocable trust will avoid the need for probate if the client moves to a state that has very cumbersome probate procedures and most clients can and will get their assets transferred to their revocable trusts if they are given the appropriate guidance. Ultimately, a Utah client should discuss with his or her attorney whether a traditional will or a revocable trust best suits the client’s individual needs, and what the respective cost will be of each option.

How does a revocable trust avoid probate?

Property must pass through probate if it is held in the decedent’s name at the time of death, unless it was held in joint tenancy with another person or has a valid beneficiary designation. Property that is held in a revocable trust is not titled in the name of the decedent. It is titled in the name of the trustee of the trust. It is therefore not subject to probate. Property held in a revocable trust avoids probate even if the decedent was the trustee of her own revocable trust. Indeed, in most cases, a person will serve as trustee of her own revocable trust. What matters is that title to the property was held by her in her fiduciary capacity, as trustee of the revocable trust, and not in her own name as an individual. Merely having a revocable trust does not avoid probate. The decedent’s property must be held in the revocable trust. Only property that is held in the revocable trust will escape probate. Property that is not held in the revocable trust will have to pass through probate, unless it is held in joint tenancy or has a beneficiary designation. Once a person signs a revocable trust, she should immediately transfer her property to the trust. For real estate, this is accomplished by signing a deed transferring the property from her name, as an individual, to her name as trustee of the trust. If a person acquires real estate or opens new bank or brokerage accounts after the revocable trust is created, title to that newly-acquired property should also be taken by her in her capacity as the trustee of the trust, not in her individual capacity. Some property, such as property that is held in joint tenancy and property that has a beneficiary designation need not, and should not, be held in a revocable trust. Property that is held in joint tenancy escapes probate. On the death of one joint tenant, it passes outside probate to the surviving joint tenant. One would not, therefore, hold joint tenancy property in a revocable trust. Similarly, property that has a valid beneficiary designation escapes probate. On death, it passes, outside probate, to the beneficiary designated. One would not, therefore hold a life insurance policy, a retirement plan or a bank or brokerage account in a revocable trust if the policy, plan or account has a beneficiary designated. Indeed, one cannot transfer ownership of a retirement plan to a revocable trust because only the employee may be the owner of the plan during her lifetime.

How does a revocable trust operate?

While the creator of a revocable trust is alive and mentally competent, she has complete control over the revocable trust and the property held in the trust. She can amend or revoke the trust at any time; she can withdraw property from the trust at any time; and she has complete control over how the trust assets are invested. If the creator of the revocable trust becomes incapacitated, the successor trustee identified in the trust will immediately step in and begin to manage the trust property. No court involvement will be needed. Similarly, when the creator of the trust dies, the successor trustee assumes control of the trust property and begins the process of paying creditors, paying taxes and distributing the property to the persons who are entitled to it under the terms of the trust, without the need for court involvement. Frequently, a husband and wife will create a revocable trust together. Most often, they will serve as co-trustees of the trust. They will have the power, acting together, to amend the trust at any time, and either spouse, acting alone, will be able to revoke the trust at any time. If one spouse becomes incapacitated, the other spouse will serve as sole trustee. Upon the death of one spouse, the trust may divide into several new trusts, as described under “Basic Estate Tax Planning” on this website.

What is the Probate Process in Utah?

To distribute the assets of the estate, the probate process in Utah must be completed. It can be quick and easy with informal probate or a lengthier process with formal probate. In either case, certain steps must be taken.
• An executor or administrator must be selected by the court if not named in the will. The job of this person is to contact all parties interested in the estate and managing the estate until probate is completed.
• The executor will open probate either with a formal petition to the court or an application to the court for informal probate. They must present the will to the court which will review it to determine if it is valid.
• An inventory must be conducted by the executor which includes the dollar value of all assets.
• The executor will notify creditors in writing and by publishing a notice in the newspaper.
• All debts, including taxes, must be paid out of the estate.
• The court will make a decision on any disputes over the will. It is the job of the executor to provide financial statements regarding all actions to the court for approval.
• Assets will be distributed or sold and the funds disbursed between the heirs. Once this process is finished, the case will be closed.
It is important to note that while the executor does carry power in this position to make decisions regarding the estate, they do not own the estate. They are limited to only the powers granted to them by the courts.

Probate Lawyer and Estate Attorney

When you need to speak to a probate lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah

84088 United States
Telephone: (801) 676-5506

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Utah County Probate Records

Utah County Probate Records

When you need legal help with Utah County Probate Records, please call Ascent Law LLC. We want to help you with Utah County Probate Records.

A county is a geographical region of a country used for administrative or other purposes, in certain modern nations. A county may be further subdivided into districts, hundreds, townships or other administrative jurisdictions within the county. A county usually, but not always, contains cities, towns, townships, villages, or other municipal corporations, which in most cases are somewhat subordinate or dependent upon county governments. Depending on the nation, municipality, and local geography, municipalities may or may not be subject to direct or indirect county control — the functions of both levels are often consolidated into a city government when the area is densely populated. Probate is the process for handling a person’s property after their death, including transferring title. It begins when a person, usually a family member, petitions the court to probate the estate and appoint a personal representative. The personal representative then administers the estate. This includes paying debts and claims against the estate, selling property (if required), and distributing assets. A court creates probate records after a person’s death based on the contents of the deceased person’s will. Probate records dictate the distribution of the estate and the care of any dependents. 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.

Probate Records

Probate records are court records created after an individual’s death that relate to a court’s decisions regarding the distribution of the estate to the heirs or creditors and the care of dependents. This process took place whether there was a will (testate) or not (intestate). Various types of records may be found in probate files. These may include wills, bonds, petitions, accounts, inventories, administrations, orders, decrees, and distributions. These documents are extremely valuable to genealogists and should not be neglected. In many instances, they are the only known source of relevant information such as the decedent’s date of death, names of his or her spouse, children, parents, siblings, in-laws, neighbors, associates, relatives, and their places of residence. You may also learn about the adoption or guardianship of minor children and dependents. Additional clues often found in probate records are an ancestor’s previous residence, occupation, land ownership, household items, former spouse(s), religion, and military service. Probate records relate to a deceased person’s estate, whether that estate is “testate” (through a will) or “intestate” (without a will). Whether the decedent left a large estate or just some personal property, there’s a good chance that a probate file exists in a local court that oversaw distribution of property, the guardianship of a minor, or payment of debts. The contents of a probate file can vary from case to case, but certain details are found in most probates, most importantly, the names and residences of beneficiaries and their relationship to the decedent. An inventory of the estate assets can reveal personal details about the deceased’s occupation and lifestyle. There may also be references to debts, deeds, and other documents related to the settling of the estate. Probate records are essential for research because they often pre-date the birth and death records kept by civil authorities. Estates were probated for approximately 25 percent of the heads of households in the United States before 1900, whether or not the individual left a will. The percentage was higher for rural areas than for urban areas because of the greater likelihood of land ownership for farmers. Because wills often list the names of many family members, as much as half the population either left a will or was mentioned in one. While probate records are one of the most accurate sources of genealogical evidence, they have limitations.
Types of Probate Records
Here are some of the types of documents you may run across in this collection:
• Wills: Wills direct the distribution of the estate according to the wishes of the testator. When the testator dies, the executor or executrix petitions the court for letters testamentary to prove (probate) the will. If the will is judged to be valid, it will be recorded in the will books of that court. The recorded will may include affidavits of witnesses attesting to the authenticity of the will and the competence of the testator at the time it was written. A copy of the will may also be found in the loose papers of a probate packet.
• Letters of Administration: In cases of intestate estates, letters of administration are requested to grant an administrator (usually the widow/widower or eldest son) the right to oversee the distribution of the estate in accordance with prevailing laws.

• Inventories: An inventory of the estate lists the assets with appraisals so an accurate accounting can be made and probate fees accurately levied. Inventories can give you some insights into your ancestor’s relative wealth, lifestyle, and occupation.
• Distributions and Accounting: You may find documents relating to the distributions paid out of the estate for administrative costs, allowances for heirs prior to settlement, and the final distribution of the estate. You may also find receipts and documents relating to the sale of estate assets.
• Bonds: Administrators, and at times executors, of estates may have been required to post a bond that would cover the value of the estate to protect the heirs from misconduct. Bondsmen were typically close family members, so these are important documents.
• Guardianships: If a minor child or a family member deemed incompetent and dependent had an interest in the estate, you may find guardianship papers included in the probate file. In addition, the guardian may have needed to post a bond equaling the value of the inheritance.
Probate records include petitions, inventories, accounts, decrees, oaths of executors, forms about guardians and other court documents. Information in entries includes:
• Name of testator or deceased
• Names of heirs such as spouse, children, and other relatives or friends
• Names of witnesses
• Residence of testator
• Lists of belongings, property, and so forth
• Document and recording dates (Sometimes the date of death will be given. Recording dates are also used to approximate event dates, i.e. a letter of administration was usually written shortly after the time of death
Probate functions (testate and intestate proceedings; guardianships for males under age twenty-one and females under age eighteen and those incompetent to handle their legal affairs) were shared by county probate courts and territorial district courts between 1852 and 1896. Records for these are generally at the county seat, though some probate records have been microfilmed and are accessible through the FHL and/or the Utah State Archives. Microfilm coverage varies between counties.
After 1896, jurisdiction for probate matters became the sole responsibility of the District Court that operated for the county. There are now eight judicial districts encompassing twenty-nine counties.
There are 29 counties in the U.S. state of Utah.
• Beaver county
• Box Elder county
• Cache county
• Carbon county
• Daggett county
• Davis county
• Duchesne county
• Emery county
• Garfield county
• Grand county
• Iron county
• Juab county
• Kane county
• Millard county
• Morgan county
• Piute county
• Rich county
• Salt Lake county
• San Juan county
• Sanpete county
• Sevier county
• Summit county
• Tooele county
• Uintah county
• Utah county
• Wasatch county
• Washington county
• Wayne county
• Weber county

Types of Probate Court Records
Case Files
• Contain copies of each document filed in a probate action.
• In an estate action, the case file normally contains documents requesting an appointment of an administrator; filing and proving of the will, authorizing the payment of valid claims on the decedent’s estate; inventorying the assets and liabilities of the estate; and determining the appropriate disposition of the assets to heirs or legatees.
• In an insanity action, the case file may contain a petition asking the court to declare an individual insane, medical testimony bearing on the individual’s mental capacity, a determination by the court of the individual’s mental state, the possible commitment to a state hospital or other facility, and the appointment of a guardian for the individual.
• Guardianship files for minors or for adults who were unable to handle their affairs may contain a petition to appoint a guardian, reports from social service or other agencies requested by the judge, and reports on any assets that the minor child or incapacitated adult may be entitled to.

• In a juvenile delinquency action, the case file may contain criminal complaints against the individual, investigatory reports ordered by the court, sentences imposed by the court, and follow-up reports ordered by the court.
Case files are normally filed in numerical order according to numbers assigned at the time of the opening of the casein some counties a single numerical sequence includes all types of cases. In other counties separately numbered series of files exist for estate cases, insanity cases, guardianship cases, or other special case types.
Registers of Actions
• Contain a record of the opening of each case and a notation of each document filed in the case.
• Brief records that provide a framework for the history of each case and its participants.
Each volume usually includes an index to the cases in that volume. The registers usually include the case file number thereby providing an alternative to a separate index to the case files.
Will Books
• Contain a verbatim transcript of each will approved entered into the court record.
• Contain only the last will approved by the court. They will not contain earlier versions of wills that were later superseded.
• The original will is normally part of the probate case file.
• The will recorded in the will book will not contain original signatures of its creator or witnesses.
Will books are normally arranged chronologically according to the date in which the will was entered into the court record, usually shortly after the death of the individual. Researchers should be aware that the date the will was made might have been many years before the will was entered into the court record. .
Final Decrees of Distribution of Estates
• Contain a transcription of the final decree distributing the assets of a decedent
• Original final decree normally is filed in the case file
• Will normally list which heir or legatee received what portion of the decedent’s real or personal property.
• Researchers should note that this document does not necessarily include a listing of what happened to all the property of the deceased.
• Will show how much cash each heir received if the estate administrator converted many of the estate’s assets into cash during the probate process
Final decrees are usually arranged within each volume in rough chronological order according to the date that the final decree was issued. Final decrees also may be arranged in several different series depending on the nature of the estate case and the type of decree. Frequently, some final decree records also were included in miscellaneous order books. For certain time periods, final decrees may be separated by testate (decedent died with a valid will) or intestate (decedent died without a valid will) case type.
Insanity Record Books
• Summary of the mental competency cases that came before the court
• Frequently include a detailed medical evaluation of the individual whose competency was being questioned.
• If declared to be not competent to conduct one’s own affairs, an individual may have been committed to a state hospital.
Insanity records are mostly dated before 1920. Access to certain information may be restricted.
Additional Record Books
• Inventories of the assets of estates, frequently termed “inventory and appraisement records”;
• Letter records, appointing specific individuals as administrators of an estate;
• Appointment books, appointing administrators or guardians;
• Order books, reproducing administrative orders filed in a case file;
• Guardianship records, appointing guardians for minor children or for an adult with diminished mental capacity; and
• Minute books, containing brief entries of the daily proceedings before the court.

The information contained in a probate record generally shows:
• Name of the estate
• Date of filing
• Case number
• Name of the deceased
• Date of death
• Description of real and personal property
• Value of the estate and tax liability due
• Names of next of kin

Probate Lawyer Free Consultation

When you need legal help with a probate in Utah County, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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Utah Estate Probate Forms

Utah Estate Probate Forms

When a person dies, their assets are distributed in the probate process. Probate is a general term for the entire process of administration of estates of deceased persons, including those without wills, with court supervision. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent’s assets according to the state’s laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn’t own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.

Duties of an Executor or Personal Representative

The executor’s obligations are generally to:
• Safeguard the property and assets of the estate;
• Inventory (or make a list of) the property;
• Submit accounts or inventories to the court as required (these could be waived);
• Pay the debts and expenses of the deceased (such as funeral and burial expenses, medical expenses, and credit card bills);
• Pay any federal or state death taxes, if any; and
• Distribute the estate to those named in the will or, if no will exists, to your heirs as designated by statute.

How Can Probate Be Avoided?

All property of a decedent may not be subject to the probate process. Some assets, such as insurance policies or cd’s may name a beneficiary or pass automatically to a surviving joint owner outside the probate estate of the will. Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process. Property held in trust is distributed according to the terms of the trust. It is possible to write a “pourover” clause in a will, so that property “pours over” into the trust, which is exempted from probate. The involvement of the court to transfer such property is not required. A bank account or motor vehicle title may also specify a death beneficiary and thus be exempt from the probate process.

Claiming Property with a Simple (Small Estate) Affidavit

Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset. The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less. An affidavit may also be used to transfer up to four boats, motor vehicles, trailers or semi-trailers if value of estate subject to probate, excluding the value of the vehicles, is $100,000 or less. There is a 30-day waiting period.

Simplified Probate Procedures

Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, and family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement and provided them with a closing statement.

Probate Litigation

• Personal representatives: Estate executors may be sued for allegedly improper notification, obfuscation or misuse of estate funds, failing to properly preserve assets during probate, failing to observe the testator’s wishes or otherwise failing to comply with state probate law.
• Beneficiaries: Beneficiaries may contest the will’s validity, their share of the estate, the estate’s administration or the inclusion of other beneficiaries. Challenging a will can be an all-or-nothing process, however: it is not uncommon or a will to stipulate that beneficiaries who contest and lose their argument forego their right to an inheritance.
• Creditors: As in personal bankruptcies, Fillmore Spencer LLC represents the rights of creditors to claim what is owed them from an estate. A creditor has three months from the executor’s first publication of the Announcement of Appointment and Notice to Creditors to make a claim. If the executor disallows their claim, the creditor may appeal by filing a petition with the probate court.
• Trustee: In the case of revocable trusts and testamentary trusts, where trust assets are subject to probate or estate taxation, trustees may be involved in probate litigation. As with non-probate trustees, Fillmore Spencer LLC handles litigation alleging failure to observe the trust’s mission and the intentions of the trust’s grantor, trust mismanagement and other breaches of fiduciary responsibility.

Avoiding probate and estate taxes

There are several ways property can avoid probate, including:
• Assets owned as joint tenants with rights of survivorship: All property left to a surviving spouse avoids probate and federal estate tax. This includes assets such as a bank account or a home or other real estate that are owned as joint tenants with rights of survivorship.
• Pay-on-death bank accounts or transfer-on-death stock brokerage accounts: The proceeds from these accounts go to the beneficiary you name probate free, as long as that doesn’t conflict with other components of your estate plan.
• Insurance proceeds, including life insurance and accidental death benefits: These proceeds bypass probate but will be subject to estate taxation unless the insurance policy is held by an irrevocable trust.
• Property held by a trustee of a living trust: If the living trust is revocable, its assets may bypass probate and go directly to beneficiaries, but those assets will be subject to estate taxation. If the living trust is irrevocable, then the assets are not part of the estate and may bypass not only probate but also estate taxation.
• Property held by a charitable, special-needs or other irrevocable trust: As with the irrevocable living trust, property that belongs to an irrevocable charitable or special-needs trust is free from probate and estate taxation.

• Death benefits of annuities, pension plans and retirement accounts: Money inherited from company pensions and 401(k)s, and even individual retirement accounts (IRAs), is not subject to probate, but is subject to estate tax consideration. Because the IRA has been funded with pre-tax dollars, IRA beneficiaries are also liable for income taxes due when the funds are withdrawn.

What are some of the most common forms used for Probate?

The most popular forms or packages for probate are the state specific probate packages, Disclaimer of Right to Inherit or Inheritance – All Property from Estate or Trust, Affidavit of Domicile, Sample Letter for Initiate Probate Proceedings regarding Estate – Renunciation of Executorship, and Sample Letter for Initial Probate Proceedings – Request to Execute Documents.
Some probate legal forms include:

• Affidavit of Subscribing Witnesses for Probate of Will/Codicil to Will
• Affidavit for Probate of Will Witness Not Available
• Affidavit for Probate of Holographic Will/Holographic Codicil
• Application for Probate and Petition for Summary Administration
• Certificate of Probate
• Probate Cover Sheet
• Demand for Notice of Proceedings for Probate of Will or Appointment of Personal Representative
• Application for Informal Probate of Will and Appointment of Personal Representative
• Statement of Informal Probate of Will and Informal Appointment of Personal Representative
• Summons
• Petition for Appointment of Probate Conservator
• Order Appointing Probate Conservator
• Petition and Order for Appointment of Guardian Ad Litem Under the Probate Code
• Letter – Complaint to Probate Will and Appoint Executrix and Issuance of Letters Testamentary
• Letter – Instructions to Execute Complaint to Probate Will
• Letter – Withdrawal of Probated Claim
• Letter – Estate Probate Proceedings
• Letter – Initiate Probate Proceedings for Estate (Complaint to Probate Will)
• Letter – Initiate Probate Proceedings for Estate (Request to Execute Waiver and Consent)
• Letter – Initial Probate Proceedings (Request to Execute Documents)
• Letter – Complaint to Probate Will and Appoint Co-Executrixes and Issuance of Letters Testamentary
• Letter – Complaint to Probate Will and Appoint Executrix and Issuance of Letters Testamentary
• Letter – Notification to Creditor to Probate and Register Claim
• Letter – Initiate Probate Proceedings Regarding Estate (Renunciation of Executorship)
• Letter – Payment of Probated Claim
• Letter – Claim Probated
• Probate of Will Administration with the Will Attached
• Probate of Will with-without Sureties
• Notice of Final Report – Independent Administration Probate
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Appointment of an Administrator
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Allowance of a Foreign Will (Testate)
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Allowance of Will (Testate)
• Petition for Probate of Will and Appointment of Personal Representative
• Power of Attorney – Health Care – Living Wills
• Statutory Form of Advance Health Care Directive
• Petition for Probate of Self Proving Will and Waiver
• Creditors Claim in Probate
• Consent by Personal Rep to Extend Claimants Time to Commence Proceedings on Claim in Probate
• Notice of Allowance or Disallowance of Claim in Probate
• Petition for Family Allowance in Probate & Approval by Personal Representative
• Instrument of Distribution from Probate Estate – Per. Rep.
• Petition for Supervised Administration in Probate
• Objection to Probate of Will
• Order of Probate of Will
• Petition and Order for Appointment of Guardian Ad Litem Under the Probate Code
• Order Appointing Guardian Ad Litem – Probate

What Happens During the Probate Process?

Each state has specific laws in place to determine what’s required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will. In cases where there is no will, probate is still required to pay the decedent’s final bills and distribute their estate. The steps involved are generally very similar, regardless of whether a will exists—even though laws governing probate can vary by state.

Authenticating the Last Will and Testament

Most states have laws in place that require anyone who is in possession of the deceased’s will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it’s necessary to file the death certificate as well, along with the will and the petition. Completing and submitting the petition doesn’t have to be a daunting challenge. Many state courts provide forms for this. If the decedent left a will, the probate judge will confirm it is valid. This may involve a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the will as well as the heirs—those who would inherit by law if no will existed. The hearing gives all concerned an opportunity to object to the will being admitted for probate—maybe because it’s not drafted properly or because someone is in possession of a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate. To determine if the submitted will is the real deal, the court relies on witnesses. Many wills include so-called “self-proving affidavits” in which the decedent and witnesses sign an affidavit at the same time the will is signed and witnessed. Lacking this, however, one or more of the will’s witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will and that the will in question is indeed the one they saw signed.

Probate Lawyer Free Consultation

When you need legal help with a probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Utah Uniform Probate Code

Utah Uniform Probate Code

Uniform Probate Code ideally standardizes the various state laws relating to wills and trusts. It also ideally simplifies the probate process. However, only a handful of states have used it. Probate can be a time-consuming process, and Uniform Probate Code, might shorten probate time. Here’s how it works. Probate is the process by which a court confirms and finalizes the contents of a will. It deals with the legal validity of wills, the probate process, creation of trust, and other related concept. Each state writes its own probate law, so it varies by state. The probate laws in each state often contain titles with wording like “Trust and Fiduciaries,” “Decedent’s Code,” Estate Administration,” and the “Uniform Probate Code.” In general, the probate process in each state is fairly similar.

First, you open an estate, submit a will, and determine heirs. You also appoint a personal representative or executor. Secondly, the executor then takes possession and control of the decedent assets during the probate process. The executor can sell assets, if necessary, to satisfy claims. Then, if necessary, the estate can protect surviving family members. Maybe a family receives an allowance, fixes homestead rights or has personal property exempted. The executor must pay taxes and creditors. However, they also can deny creditors’ claims. Meanwhile, the executor must file any applicable tax returns, namely decedent’s final income tax return, estate and fiduciary tax returns. Estate assets typically pay off all taxes. Finally, the executor distributes assets among all beneficiaries. However, they must first pay the administration expenses, creditors’ claims, and taxes. Probate begins when the testator or decedent (person who died and is presumably leaving their assets to someone else) dies. Some states have a deadline of a few years for probating a decedent’s will.

Meanwhile, other states have no deadline. The impact of this is that if a will is not found until after the deadline has passed, the will is invalid and cannot undo the probate process. For example, if a parent of three living children dies and no one can find a will, the probate process occurs with the assumption that there is no will. The probate process occurs and is completed, and the parent’s money is then split equally among the children. If a will is found after the deadline passes, willing all the money to just one of the three children, the will is invalid because the deadline has passed. In states with the statute of limitations, it runs up to three years after the decedent’s death.

States that Have Adopted Uniform Probate Code

Uniform Probate Code was first created in 1969 by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and was amended in 1990 as a model code that states could adopt to standardize probate laws. The entire Uniform Probate Code has been adopted by eighteen states. Other states have adopted parts of the Uniform Probate Code, but it has not become a standardized law across all fifty states. They are:

• Alaska
• Arizona
• Colorado
• Florida
• Hawaii
• Idaho
• Maine
• Massachusetts
• Michigan
• Minnesota
• Montana
• Nebraska
• New Jersey
• New Mexico
• North Dakota
• South Carolina
• South Dakota
• Utah

Uniform Probate Code

The Uniform Probate Code (UPC) is a set of model laws drafted and regularly reviewed by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The NCCUSL was created in 1892 to promote uniformity in state law on all subjects where uniformity is desirable and practical. The UPC was first drafted in 1969 to provide a common set of rules state legislatures may adopt to govern how probate courts decide issues involving inheritances, guardianship of minors or incompetent persons, durable powers of attorney, and trust administration. Revisions to the UPC were adopted by the NCCUSL in 1989–1990; some states have not adopted the revisions at all and some have adopted it only in part. Therefore, although the UPC has been adopted, at least in part, by 18 states, there still may be a great deal of variation between the statutes of those states. One section of the UPC contains a set of rules for determining who is entitled to receive a deceased individual’s “probate” property.

The Uniform Probate Code (UPC) is a comprehensive statute that unifies, clarifies, and modernizes the laws governing the affairs of decedents and their estates, certain transfers accomplished other than by a will, and trusts and their administration. The UPC was originally approved by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the AMERICAN BAR ASSOCIATION in 1969. The purpose of the UPC is to modernize probate law and probate administration and to encourage uniformity through the adoption of the code by all fifty states. The UPC, which has been amended numerous times, has been adopted in its entirety by sixteen states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other thirty-four states have adopted parts of the UPC, but in general the UPC has not succeeded in providing a uniform body of substantive and procedural probate law.

The UPC contains seven substantive articles. Article I contains general provisions, definitions, and jurisdictional topics. Article II governs wills and intestate succession, which occurs when a person dies without leaving a will. Article III deals with the probate of wills and the administration of estates, article IV concerns the probating of estates in states other than the domicile of the decedent, article V extends protection to persons under disability and their property, and article VI governs non probate transfers of property. Article VII contains comprehensive provisions on trust administration. The prime objective of the UPC is to simplify the probate process. For example, article III provides for supervised and unsupervised administration of probate. For estates with few assets and no disputes among the beneficiaries, the UPC allows unsupervised administration. In this case the executor of the will, who is called a PERSONAL REPRESENTATIVE in the UPC, handles the probating of the estate without direct supervision by the probate court. The personal representative handles every step of the probate process by filing a series of simple forms with the probate court. Unsupervised administration reduces the cost of probate and speeds up the process. Probate courts are freed from dealing with routine matters and may concentrate their efforts on estates with substantial assets or contested matters, where supervised administration is necessary. The adoption of the UPC by state legislatures has been fought both by attorneys, who are opposed to unsupervised administration and to the overturning of current state laws governing probate, and by bonding companies, which stand to lose business because unsupervised probate does not require the posting of a bond. In light of this opposition, the Commissioners on Uniform State Laws have developed freestanding acts from similar provisions integrated into the UPC. This technique permits provisions, such as those involving powers of attorney and guardianship, to become law without disturbing other parts of a state’s probate code.

Probate Process in Uniform Probate Code (UPC) States

UPC states offer three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each, keeping in mind that each UPC state is a little different because each one has modified the UPC. Most probates in UPC states are informal, with no court hearings. You can use informal probate whether or not the deceased person left a will and whether the estate is big or small. But if anyone wants to contest the proceeding, you cannot use informal probate. Your first step is to get permission from the probate court to serve as the personal representative (the term that UPC states use instead of executor or administrator). You can probably get a fill-in-the-blanks application from the court. You must apply within three years after the deceased person’s death. A court employee usually called a “probate registrar” or “register,” will approve or deny your application. It should be approved unless someone objects, you missed the three-year deadline, or the will (if there is one) does not appear to be valid. Your authority to act on behalf of the estate will be granted in a document that’s usually titled Letters Testamentary or Letters of Administration. People commonly refer to it, though, just as “letters.” You will need to send formal written notices of the probate to heirs, will beneficiaries, and creditors that you know about. You may also need to publish a notice in the local newspaper (in some states, before the court actually appoints you as personal representative). One of your first tasks is to prepare an inventory and appraisal of the deceased person’s assets. For some assets, you may be able to estimate of the market value; for others, you’ll need an appraisal from an expert. In some states, you file this inventory with the probate registrar; in others, you can show it to the registrar and mail it to interested parties, but it doesn’t have to become part of the public records.

When it’s clear that the estate has enough assets to pay debts, taxes, and expenses of administration (court and lawyer fees, for example), you can start distributing property to the inheritors. As a practical matter, this means that you should wait until the deadline for creditors to file claims has passed—usually three or four months from the time you publish the notice to creditors. First, you’ll prepare a document called a final accounting, to show how you handled the estate assets. Your state may provide a fill-in-the-blanks form. The accounting lists any income the estate assets received during probate and any losses to the estate—for example, if an asset declined in value. It also shows the amounts you paid to creditors and how much you distributed to beneficiaries. You’ll file the accounting with the court and will probably be required to send copies to interested parties, including beneficiaries and creditors. Then, you need to file a form called a “Closing Statement” (or a similar name) stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting. You may also need to send a copy to each person who received property from the estate and to any creditor who hasn’t been paid. Unless someone comes forward to argue about something, your job is done. If you wish, you can choose to have a formal closing to your informal probate. The court will review your accounting and then, if everything is satisfactory, issue an order officially approving how you handled the estate. Some personal representatives want a formal closing because they have an accounting question for the court to resolve, or because they want court approval to help protect themselves from possible claims that they mishandled something. For example, if you paid yourself a good-sized but fair fee for serving as executor, you might want the court to approve it so that beneficiaries will know you handled the matter properly.

Unsupervised formal probate in UPC states is a traditional court proceeding, much like regular probate in other states. Because it is lengthier and more expensive than informal probate, generally unsupervised formal probate is used only if there’s a good reason, such as disagreements among family members or creditors, possible complaints from beneficiaries about your handling of the estate, or not enough money to pay all the creditors. Before the court appoints you as personal representative, you will have to schedule a hearing and send written notice to all interested persons ahead of time. Interested persons include beneficiaries named in the will, the deceased person’s heirs (relatives who would inherit under state law if there were no valid will), and anyone who has formally asked the court to receive notices connected with the case. You’ll also need to publish a notice of the proceeding in a local newspaper. Anyone who objects to your appointment can speak at the hearing. You may need to get the court’s permission before you sell the deceased person’s real estate (unless the will authorizes it), distribute property to beneficiaries, or pay a lawyer—or yourself—for work done on behalf of the estate.

Probate Lawyer Free Consultationr

When you need legal help with a Utah probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you with the Utah Uniform Probate Code.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Utah County Probate

Utah County Probate

Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person’s Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries. The purpose of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the Lord dies. It’s a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed. Not all estates must go through probate though.

First, if an estate falls below a certain threshold, it is considered a “small estate” and doesn’t require court supervision to be settled. Click here to find out Utah’s small estate threshold and procedure. Second, not all assets are subject to probate. Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:

• Joint Tenancy assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called “right of survivorship.” For example, if a house is owned this way, “Jane Sage and John Sage, as joint tenants,” and Jane dies, John owns the entire house.

• Tenancy by the Entirety or Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.

• Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.

• Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.

Third, if a decedent had created a Living Trust to hold his or her largest assets, than that estate, too, won’t go through probate, unless the assets left outside of the trust add up to more than Utah’s small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust’s Grantor. But for estates in Utah that exceed the small estate’s threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate will be required before an estate can be transferred to the decedent’s heirs or beneficiaries. The general procedure required to settle an estate via probate in Utah is set out in a set of laws called the Uniform Probate Code, a set of probate procedures that has been adopted, with minor variations, in 15 states, including Utah. In Utah, under the UPC there are three kinds of probate proceedings: informal, unsupervised, and supervised formal.

Informal Probate In Utah County

Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court.

Once you get the letters, you need to do these things:

• Send out formal notice to heirs, beneficiaries, and creditors that you know of
• Publish a notice in a local newspaper to alert other creditors
• Provide proof that you’ve mailed notices and published the notice
• Prepare an inventory and appraisal of the estate’s assets
• Keep all the property safe
• Distribute the property (when the estate closes)

Once the property’s been distributed, you close an informal proceeding by filing a “final accounting” with the court and a “closing statement” that says you’ve paid all the debts and taxes, distributed the property, and filed the accounting.

Unsupervised Formal Probate In Utah County

A formal probate, even an unsupervised one, is a court proceeding. That means that a judge must approve certain actions taken by the Personal Representative, such as selling estate property, or distributing assets, or paying an attorney. The purpose of involving a judge is to settle disputes between beneficiaries over the distribution of assets, the meaning of a Will, or the amounts due to certain creditors. The informal probate process won’t work if there are disputes, so that’s when the court gets involved.

Utah County Supervised Formal Probate

A supervised formal probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property in such a proceeding.

When Is Probate Necessary In Utah County?

If the decedent owned assets (such as a home or other real property, bank accounts, or investments) titled solely in his or her name and without a valid beneficiary designation, probate is necessary to sell these assets or distribute them to the beneficiaries or heirs. With the decedent gone, only a personal representative has authority to sign the deed or other document transferring title to these assets. The one exception is when the estate is under $100,000, and therefore a small estate affidavit can be used to collect the decedent’s assets.

What property can be transferred without a probate?

Any of the decedent’s untitled property, such as personal and household possessions, valuables, or money, can be transferred without a probate. Doing so, however, may subject such property to the claims of the decedent’s creditors. In addition, several types of property pass outside of probate because they have a built-in transfer mechanism that does not involve probate. Such property includes:

• Jointly owned assets, such as a joint bank account or a home or other real estate owned as joint tenants with rights of survivorship
• POD (Pay on Death) bank accounts or TOD (Transfer on Death) stock brokerage accounts
• Insurance proceeds, including life insurance and accidental death benefits
• Death benefits of annuities, pension plans, and retirement accounts, including IRAs and 401(k)s
• Property held by a trustee of a living trust
When else should probate be considered?
Even if the decedent did not own titled property that requires a probate to be transferred, you should still consider a probate if:
• The decedent left unpaid debts, and you want to cut off potential claims of the decedent’s creditors.
• There is a dispute over who is entitled to the decedent’s property.
• The decedent had a last will, which you want to be able to enforce in court. A will that is not probated is not legally enforceable.
• The decedent’s estate needs to make an income tax or estate tax election. (Usually, only a personal representative can make this election.)
• The person dealing with the decedent’s property wants to be discharged from liability to the heirs and beneficiaries after the property is distributed.
Letters testamentary is a one-page document issued by the court stating that the personal representative has been duly appointed. If someone tells you they will not release an asset of the decedent without letters testamentary, it means they want to deal only with a personal representative.

What Are My Probate Options?

• Small Estate Affidavit: You may be able to avoid filing a probate by signing a small estate affidavit, which can be used to collect a decedent’s Utah property, except real estate, if the net value of the decedent’s property subject to probate does not exceed $100,000. A small estate affidavit is not legally available, however, until 30 days after the decedent’s death.

• Filing Options: If filing a Utah probate cannot be avoided, the most common filing options are: Informal probate, which is generally appropriate for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. In some circumstances, the decedent’s relatives may be required to sign written consents to this process. Formal probate, which is appropriate for estates in which the right of the person seeking appointment as personal representative is contested or in which some other dispute may arise. Formal probate requires an in-court hearing, which the attorney (but not the client) is required to attend.

• Ancillary probate for out-of-state decedents: This option can be used when (a) the decedent resided outside Utah at the time of death, (b) a probate has been filed there, and (c) the decedent owned Utah real estate or other property that needs to be sold.

Avoiding Probate and Estate Taxes

There are several ways property can avoid probate, including:
• Assets owned as joint tenants with rights of survivorship: All property left to a surviving spouse avoids probate and federal estate tax. This includes assets such as a bank account or a home or other real estate that are owned as joint tenants with rights of survivorship.
• Pay-on-death bank accounts or transfer-on-death stock brokerage accounts: The proceeds from these accounts go to the beneficiary you name probate free, as long as that doesn’t conflict with other components of your estate plan.
• Insurance proceeds, including life insurance and accidental death benefits: These proceeds bypass probate but will be subject to estate taxation unless the insurance policy is held by an irrevocable trust.
• Property held by a trustee of a living trust: If the living trust is revocable, its assets may bypass probate and go directly to beneficiaries, but those assets will be subject to estate taxation. If the living trust is irrevocable, then the assets are not part of the estate and may bypass not only probate but also estate taxation.
• Property held by a charitable, special-needs or other irrevocable trust: As with the irrevocable living trust, property that belongs to an irrevocable charitable or special-needs trust is free from probate and estate taxation.
• Death benefits of annuities, pension plans and retirement accounts: Money inherited from company pensions and 401(k)s, and even individual retirement accounts (IRAs), is not subject to probate, but is subject to estate tax consideration. Because the IRA has been funded with pre-tax dollars, IRA beneficiaries are also liable for income taxes due when the funds are withdrawn.

Do I need to apply for grant of probate?

In the vast majority of cases, you’ll need to apply for grant of probate before you can settle someone’s affairs. However, it may not be necessary if the deceased’s estate was worth less than £15,000, or if their assets were held jointly and are passing to a surviving spouse or civil partner.

What if probate is contested?

There are several ways which probate could be contested, which could prevent you from being given a grant of probate. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if there are questions about the legitimacy of the will. Otherwise, it is a matter for the courts to resolve, so that probate can be granted to whichever party it deems appropriate.

Who is responsible for handling probate?

In most circumstances, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person’s assets. If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.

Should I plan to avoid probate?

Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can’t easily be paid from the property you leave. Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. If you’re young and in good health, adopting a complex probate-avoidance plan now may mean you’ll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state’s simplified probate procedure. Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries.

When Is The Probate Process Required?

Each state has specific laws in place to determine what’s required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will. In cases where there is no will, probate is still required to pay the decedent’s final bills and distribute their estate. The steps involved are generally very similar, regardless of whether a will exists—even though laws governing probate can vary by state.

Utah County Probate Lawyer Free Consultation

When you need legal help with Utah County Probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Utah Probate Code 75-7-811

Utah Probate Code 75-7-811

Duty to inform and report

• Except to the extent the terms of the trust provide otherwise, a trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, and unless otherwise provided by the terms of the trust a trustee shall promptly respond to a qualified beneficiary’s request for information related to the administration of the trust.

• Except to the extent the terms of the trust provide otherwise, a trustee:

• upon request of a qualified beneficiary, shall promptly furnish to the beneficiary a copy of the portions of the trust instrument which describe or affect the beneficiary’s interest;

• within 60 days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee’s name, address, and telephone number;

• within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settler or otherwise, shall notify the qualified beneficiaries of the trust’s existence, of the identity of the settler or settlers, of the right to request a copy of the trust instrument, and of the right to a trustee’s report as provided in Subsection (3); and

• shall notify the qualified beneficiaries in advance of any change in the method or rate of the trustee’s compensation.

• A trustee shall send to the qualified beneficiaries who request it, at least annually and at the termination of the trust, a report of the trust property, liabilities, receipts, and disbursements, including the amount of the trustee’s compensation or a fee schedule or other writing showing how the trustee’s compensation was determined, a listing of the trust assets and, if feasible, their respective market values. Upon a vacancy in a trusteeship, unless a co-trustee remains in office, a report must be sent to the qualified beneficiaries by the former trustee, unless the terms of the trust provide otherwise. A personal representative, conservator, or guardian may send the qualified beneficiaries a report on behalf of a deceased or incapacitated trustee.

• A qualified beneficiary may waive the right to a trustee’s report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given.

What Is a Trustee?

A trustee is a person or firm that holds and administers property or assets for the benefit of a third party. A trustee may be appointed for a wide variety of purposes, such as in the case of bankruptcy, for a charity, for a trust fund, or for certain types of retirement plans or pensions. Trustees are trusted to make decisions in the beneficiary’s best interests and often have a fiduciary responsibility to the trust beneficiaries. The trustee acts as the legal owner of trust assets, and is responsible for handling any of the assets held in trust, tax filings for the trust, and distributing the assets according to the terms of the trust. Both roles involve duties that are legally required.

The Trustee’s Duty to Inform and Report

Given the technical complexities of irrevocable trust administration, including the administration of irrevocable life insurance trusts (“ILITs”), trust litigation over breaches of fiduciary duty continues to rise. A trustee’s compliance with the duty to inform and report can be critical to avoiding liability. Most states impose a fiduciary duty on trustees of irrevocable trusts to inform and report to the beneficiaries regarding the trust accounts and administrative. Depending on the trust agreement and the applicable state law, this duty may range from mandating that the trustee notify beneficiaries of a trust’s existence and provide annual reports, to leaving all such disclosure and reporting activities in the trustee’s sole discretion.

These variations in state laws and increasingly complex trust agreements can present unique compliance challenges and potential liability exposure, particularly for non-professional trustees who lack the necessary experience and administrative infrastructure. A trustee’s duty to inform and report protects the interests of trust beneficiaries and can limit the trustee’s liability. This duty applies to trustees of all irrevocable trusts, including ILITs, even if the trust creator (grantor) is still living. As there is no uniform set of rules for compliance, however, each trustee must review the applicable state law, the trust agreement, and the trust’s circumstances to determine the specific reporting obligations. Due to legal nuances in understanding state statutes and trust agreements, non-professional trustees should consult with legal counsel to determine the scope of, and ensure compliance with, their disclosure obligations. Even when not required, trustees also may want to consider non-mandatory disclosures to beneficiaries to take advantage of available liability and other protections under state law.

Holding the Trustee Accountable

The law imposes certain informational requirements on trustees. Trustees have a duty generally to keep beneficiaries fully apprised regarding the trust’s activities. For example, a trustee must send a notice to all trust beneficiaries within 60 days after the settler of a revocable trust dies, informing the beneficiaries that they have a right to receive a copy of the trust instrument. In addition, the trustee must provide an annual accounting to the beneficiaries on request, showing the trust assets and liabilities, and the receipts and disbursements made during the accounting period. While there is no express requirement that a trustee provide an inventory of the trust assets to the beneficiaries within a specific period of time, the trustee should certainly do so in a timely manner. A trustee’s failure to keep the beneficiaries informed constitutes a breach of the trustee’s fiduciary duties for which the trustee can be removed, with court approval.

Reasons to Inform & Report For Compliance

State law may require a trustee to disclose the existence of a trust and other information to the beneficiaries, as well as provide written accounts of the trust’s assets, liabilities, receipts, and disbursements on a periodic basis and/or upon the occurrence of certain events (such as a change in trustee).

Protection

Generally, the duty to inform and report serves numerous practical considerations for both trustees and beneficiaries, which, depending on state law, include:

• Providing trust beneficiaries with sufficient information to enforce the trustee’s duties, preserve the trust, and protect their beneficial interests;

• Providing trustees with protection and closure with regard to specific transactions or for a certain time frame, particularly if no court approval is sought for the transaction or accounting;

• For changes in trustees, clearly delineating the actions and decisions of the prior trustee and providing full knowledge to the new trustee of the trust’s assets and activities;

• Evidencing good faith in trust administration and management (often, individual trustees will not be liable for breaches of fiduciary duty if they acted in good faith); and

• Starting the statute of limitations to run for actions again the trustee for breaches of fiduciary duty or other causes related to the matters disclosed or accounted for.

No Single Set of Rules

There is no single set of rules governing the duty to inform and report. The scope of the duty has developed over time, state-by-state, based on case law and the Uniform Trust Code (“UTC”),[i] a model code used by many states to develop their specific trust laws.[ii] Thus, state rules vary considerably and include both mandatory provisions and default rules, which a trust agreement can modify or delete. Also the specific requirements for disclosure and reporting, including the forms to use and the protections available, will depend on the trust’s terms, the interest, age, and capacity of a beneficiary, and the size, type, and complexity of trust assets or transactions.

Some Commonalities

Despite variations, the reporting and disclosure rules generally fall into several broad categories. Accordingly, using the UTC as a guide, many trustees could find themselves subject to one or more of the following obligations:

• Keep Beneficiaries Reasonably Informed: The trustee must actively report to “qualified” beneficiaries regarding the trust’s administration and material facts necessary for them to protect their interests. Generally, “qualified beneficiaries” are current beneficiaries, those next in line as beneficiaries after the current beneficiaries’ interests terminate, and anyone entitled to income or principal if the trust terminates.

• Provide Periodic Reports (Accounts): The trustee must send to current beneficiaries and permissible beneficiaries of trust income or principal, and to other beneficiaries who request it, a written report that includes the trust property, liabilities, receipts, and disbursements, the source and amount of the trustee’s compensation, and a list of the trust assets and, if feasible, their market values. The reports must be sent at least annually and at trust termination.

• Respond to Beneficiary Requests for Information: The trustee must promptly respond to any beneficiary’s request for information related to the trust’s administration, unless unreasonable under the circumstances and furnish a copy of the trust agreement to any beneficiary who requests a copy. For these purposes, a “beneficiary” is essentially anyone with any interest in the trust, whether present, future, contingent, or vested.

• Notify Beneficiaries of Trust’s Creation and Related Information: Within 60 days after a trustee learns of the creation of an irrevocable trust or a change in a revocable trust to an irrevocable trust, the trustee must notify the qualified beneficiaries of the trust’s existence, the identity of the grantor(s), and the beneficiaries’ right to request a copy of the trust instrument and to receive a trustee’s report.

• Notify Beneficiaries of Acceptance of Trusteeship: Within 60 days after accepting a trusteeship, the trustee must notify qualified beneficiaries of the acceptance and trustee’s name, address, and telephone number.

• Notify of Changes in Trustee’s Compensation: The trustee must notify qualified beneficiaries in advance of any change in the method or rate of the trustee’s compensation.

Trust Limits on Reporting Obligations

Despite the benefits offered by making trust disclosures, many grantors wish to keep trust information confidential, due to privacy concerns and the worry that the disclosure of information to a beneficiary may create disincentives for him or her to attain an education, obtain employment, or achieve other social and professional milestones. To address these concerns, the trust disclosure laws of most states consist primarily of default rules, which a grantor may waive or modify in the trust agreement. For example, under the UTC, the trust agreement can modify or waive the duty to (1) respond to a beneficiary’s request for a copy of the trust, (2) provide annual reports to qualified beneficiaries, and (3) advise a beneficiary under age 25 of the trust’s existence, the trustee’s identity, and the beneficiary’s right to request trustee reports. The UTC, however, makes mandatory the duty to respond to a qualified beneficiary’s request for trustee reports and other information reasonably related to the trust’s administration (with an option to make this mandatory only for beneficiaries who have attained age 25).

Other “optional” provisions the UTC would make mandatory include the duty to notify qualified beneficiaries of the trust’s existence, the trustee’s identity, and their right to request trustee reports (can be made mandatory only for beneficiaries age 25+), as well as the duty to notify beneficiaries of the acceptance of a trusteeship (again, can be mandatory only for beneficiaries age 25+). However, even among states that have adopted the UTC, there has been a significant lack of uniformity regarding enactment of the UTC’s mandatory disclosure requirements. Some states permit “quiet” or “silent” trusts, which allow the grantor to waive all or almost all disclosures to the beneficiaries, perpetually or for some period of time (such as until after the grantor passes, or a beneficiary attains a desired age). Other states allow the grantor to designate a “designated representative”, surrogate, or alternate person to receive certain or all mandatory or other disclosures on behalf of the trust beneficiaries, which attempts to balance the need for disclosure and the desire for privacy.

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When you need legal help with Utah Probate Code 75-7-811, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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Utah Probate Code 75-3-204

Utah Probate Code 75-3-204

Demand for notice of order or filing concerning decedent’s estate.
Any interested person desiring notice of any order or filing pertaining to a decedent’s estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant’s address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in Section 75-1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.

Order for Probate

After the initial Probate hearing the Judge will sign Judicial Council Form DE-140, Order for Probate. The Order for Probate is used to appoint the Executor or Administrator of the Estate and should be issued at the same time as the Letters of Administration which are issued so the Administrator can begin managing the estate.

Contents Of Probate

The Order for Probate will list the date, time, department and Judge who heard the case and will indicate what the Judge ordered. The Court must find that all required notices were given at the correct times and all interested parties were served. The Order will list the date the decedent died, indicate if they were or were not a resident of California and of the county in which the Probate case was opened, if the decedent died with or without a Will, the date of the Will and any codicils that were executed. The Court will then indicate on the Order for Probate that the Petitioner is appointed the Personal Representative as either executor of the decedent’s Will, administrator with Will annexed, administrator or special administrator and will determine if the special administrator will have general powers, special powers or can continue without notice of hearing.

Authority of the Personal Representative

The Judge will give authority to the Personal Representative by either giving full authority, which is governed under the Independent Administration Estates Act and allows the Personal Representative to manage the estate (i.e., sell property, manage assets and make distributions) without obtaining a Court order. The Judge can grant limited authority where nothing can be done without Court supervision and a Court order would be needed to sell, purchase, exchange or borrow money against any real property. At this time the Judge will determine if it is necessary for the Personal Representative to obtain a bond. If bond is required the Judge can determine a fixed amount to be obtained by a surety company or for the Personal Representative to make a deposit into a blocked account. Lastly, the Judge will order whether or not the Personal Representative is or is not authorized to take any money or property without a further Court order and depending on your county’s local rules, a Probate Referee will be appointed. The Judge will then date and sign the Order for Probate and you will take the Order and the Letters for Administration to the Clerk of the Court to have the documents certified.

Probate In Utah

Probate is the court-supervised process of gathering a deceased person’s assets and distributing them to creditors and inheritors. As an executor, your probate process will depend on whether your state has adopted the Uniform Probate Code (UPC), which is a set of probate laws written by a group of national experts. The UPC’s goal is to make the probate process simpler, especially for small estates, and to give executors more flexibility in how they proceed.

The Probate Process in Non-UPC States

Every probate court has its own detailed rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here is an outline of the probate process states that do not use the entire UPC. (Almost all states have enacted bits of the UPC.)

Getting Started

You begin the probate process by asking the court to officially make you executor. If you end up acting as executor, you’ll need to:

• File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and the original will (if there is one) with the court.

• Publish a notice of the probate in local newspaper according to court rules. Mail notices to creditors you know about.

• Mail the notice to beneficiaries and heirs, as required by the court.

• File proof that you properly published and mailed the notice.

• Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.

• Prove the will’s validity by providing statements from one or more witnesses to the will. This is often done by submitting the “self-proving affidavit” that was signed by the witness in front of a notary at the time the will was signed.

• File other documents required by the court.

Administering the Estate

As executor, you’re in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person’s assets and, if necessary, get assets appraised. You’ll need to:

• Get an employer identification number for the estate from the IRS.

• Notify the state health or welfare department of the death, if required by state law.

• Open an estate bank account.

• Arrange for preparation of income tax returns.

• Prepare and file an inventory and appraisal of estate assets.

• Mail a notice to creditors and pay debts (state law may impose a deadline on you).

• If the court requires it, file a list of creditors’ claims you have approved and denied.

• If required, file a federal estate tax return within nine months after death. (Most estates are not large enough to owe federal estate tax).

• If required, file a state estate tax return, usually within nine months after death. (Fewer than half the states impose their own tax.)

Closing the Estate

When the creditor’s claim period has passed, you’ve paid debts and filed all necessary tax returns, and any disputes have been settled, you’re ready to distribute all remaining property to the beneficiaries. You’ll need to:

• Mail a notice to heirs and beneficiaries that the final hearing is coming up. (This must be done a certain period of time before the hearing; the court will have a rule.)

• File proof that you mailed the notice as required.

• Get the court’s permission to distribute property.

• Transfer assets to the new owners and get receipts.

• After you distribute assets and all matters are concluded, file receipts and ask the court to release you from your duties.

The Probate Process in UPC States

Although the law is very similar in the states that have adopted the entire UPC for probate, it isn’t identical. You’ll need to learn your own state’s (and sometimes your own county’s) particular rules. Under the UPC, there are three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each.

Informal Probate

Most probates in UPC states are informal. This relatively simple process is used when inheritors are getting along and you don’t expect problems with creditors. If anyone wants to contest the proceeding, you cannot use informal probate. The whole process is just paperwork — there are no court hearings.

The first step is to file an application with the probate court to begin an informal probate and serve as the “personal representative” (the term UPC states use instead of “executor” or “administrator”).Once your application is approved, you will have official authority — often in the form of a document called “letters testamentary” or “letters” — to act on behalf of the estate. You will need to do the following:

• Send out formal written notices of the probate to heirs, beneficiaries, and creditors that you know about.
• Publish a notice in the local newspaper to alert other creditors.
• Provide proof that you’ve properly mailed and published the notices.
• Prepare an inventory and appraisal of the deceased person’s assets.
• Keep all estate property safe during the probate.
• Properly distribute the property.
• After you have distributed the property, you can close the estate informally by preparing and filing a “final accounting” with the court.
Finally, you’ll file a “closing statement,” stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting.

Unsupervised Formal Probate

Unsupervised formal probate in UPC states is a traditional court proceeding, much like the regular probate described above. It is generally used when there is a good reason to involve the court — for example, if there’s a disagreement over the distribution of the estate’s assets, the heirs need to be determined (if there is no valid will), or minors are inheriting significant property. You may need to get the court’s permission before you sell the deceased person’s real estate, distribute property to beneficiaries, or pay a lawyer — or yourself — for work done on behalf of the estate. To close the estate, file an accounting that shows how you handled the estate’s assets.

Supervised Formal Probate

Supervised formal probate is the rarest form of probate. It’s used only if the court finds it necessary to supervise the probate procedure — for example, because a beneficiary can’t adequately look after his or her own interests and needs the court’s protection. As you might expect, you must get court approval before distributing any property in this case.

What is meant by “written notice of filing” of an order?

Filing occurs when the district court administrator officially makes the order part of the record. The administrator will stamp the order with the date of filing. The administrator may file the order on the same day that the district court judge signs it, but sometimes the order is not filed until later. A “notice of filing” is a separate document that must, at a minimum, notify the recipient what it is that has been filed and the date of filing. An appeal from an appealable order must be filed and served within 60 days after service by any party of written notice of the filing of the order. A “party” is a person or entity who participated in the district court proceeding. The district court administrator is not a party, so generally a notice from the court administrator about the filing of an order does not start the appeal time. An important exception to this rule is that in appeals from child-support orders in the expedited support process, the court administrator’s service of notice of filing of the order does start the appeal time.

You do not need to wait until a party serves written notice of filing of an appealable order to file your appeal, but if any party serves a written notice of filing of the order, then the appeal period will end in 60 days. Service of a document may be made personally or by United States mail. The parties may agree to service by facsimile or other electronic means. If the appeal period is counted from a party’s service of notice of filing (as it is with most orders), and the notice of filing is served by mail, three days are added to the prescribed period, but the time must be counted from the date the notice was mailed, not the date of receipt. Therefore, in most types of civil cases, if any party serves written notice of filing of an appealable order by mail, the appeal period expires 63 days after the date the notice was mailed. If the appeal is not served and filed within that time, it cannot be considered by the court. Another appellate timing rule states that no order made before entry of judgment shall be appealable after the time to appeal the judgment has expired.

Lawyer For Probate Free Consultation

When you need legal help with a probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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Ascent Law LLC
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West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Utah Probate Code 75-2-101

Utah Probate Code 75-2-101

Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively, this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the “intestate estate”. Intestacy law, also referred to as the law of descent and distribution, refers to the body of law (statutory and case law) that determines who is entitled to the property from the estate under the rules of inheritance.When a person dies without having a valid will in place, his or her property passes by what is called “intestate succession” to heirs according to state law. In other words, if you don’t have a will, the state will make one for you. The purpose of intestate succession statutes is to distribute the decedent’s wealth in a manner that closely represents how the average person would have designed his or her estate plan, had that person had a will. However, this default can differ dramatically from what the person really would have wanted. Even where it is known what the person intended, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.

Will in Utah

Adult residents of Utah may make a will disposing of their estate after death. The freedom to control where your property goes is subject to certain limitations if you are married or have children. Your spouse is entitled to one third of the estate as well as a $15,000 homestead allowance and $10,000 in furniture, furnishings and personal effects. If you have no surviving spouse, but have surviving children, they will be entitled to these benefits. The remainder of your property will pass according to your will, or according to the state’s laws of intestate succession if no valid will is present.

Surviving Spouse

If you die without a valid will in Utah, the law directs that your estate be distributed to your relatives without regard to the quality of your relationships. If you leave a surviving spouse, but no children, or the children are also the children of your spouse, your spouse will be awarded the entire estate. If you leave a surviving spouse and children not of the surviving spouse, the spouse is entitled to $75,000 plus one-half of the estate.

Surviving Children

If you leave no surviving spouse, your surviving children will share equally in all of the estate in Utah. Likewise, if the children are not of the surviving spouse, they will share equally in one-half of the estate, minus the additional $75,000 award to the spouse. However, if some of your children are deceased but have living children, these grandchildren share equally in their parents’ share. For example, assume you have five children, each with three children of his own. If only four of your children survive you, each of the surviving children is entitled to one-fifth of the estate. The remaining one-fifth is then split equally among the children of your deceased child.

1990 Uniform Probate Code

The 1990 Uniform Probate Code (the Code) serves as the starting point for many states’ laws. Nevertheless, the laws of different states can vary greatly from each other and from the Code itself. However, the Code represents the best reference for a general discussion.Under the Code, close relatives take property instead of distant relatives. The classes of relatives whose members receive property under the Code include the decedent’s surviving spouse, descendants (children, grandchildren, etc.), parents, descendants of decedent’s parents (siblings, nieces and nephews), grandparents, and descendants of grandparents (aunts and uncles and cousins). Adopted descendants are treated the same as biological descendants. If none of the above-named classes of relatives include any persons qualified to take the estate, the property “escheats” (goes by default) to the state.

75-2-101 Intestate Succession

Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as provided in this title, except as modified by the decedent’s will. A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.

What Happens When Someone Dies Without Heirs

When residents of Utah pass away without a valid will their estate is subject to the laws of intestacy. Intestate succession can be a complicated process. The way the court distributes property depends on the type of assets and the number of relatives. We’ll take a look at some of the major aspects of intestate succession in Utah.

The Typical Intestate Distribution

As stated, all jurisdictions have intestacy laws that come in to play when a person dies without a will. It helps to understand how intestacy works when heirs do exist. Utah Codes 75-2-101, 75-2-102 and 75-2-103 work in conjunction to determine who should receive the property.First, the entire estate goes to a surviving spouse if no children outside of the marriage exist. If the decedent has descendants outside of the marriage, the spouse is only entitled to $50,000 of the estate plus half of anything that remains. Another code section, 75-2-206, states that the surviving spouse’s share can be charged for any death benefits (such as workers’ compensation) which are received. This would reduce the amount that the spouse can claim and preserve funds for the descendants.When an estate goes directly to surviving descendants, there is a particular order mandated by law. There will be a per capita distribution for each generation of the decedent’s lineal descendants. If no descendants exist, the estate may be given to the decedent’s parents. In a situation without parents, the descendants of the decedent’s parents may get the estate. This includes a parent’s children outside of the marriage that produced the decedent.In situations where neither parents nor descendants exist, the estate will go to any living grandparents of the decedent. The estate may then pass to equally to the paternal and maternal grandparents of the decedent. For further information on this ordering system, it is a wise idea to speak to an estate attorney.

When There Is No One

In Utah, if you leave no spouse and no descendants, your estate will pass to your parents. If you left no parents, your property will pass to any of your surviving siblings. If you have no surviving siblings, one-half of the estate will pass to your maternal grandparents or their descendants, and the other half will pass to your paternal grandparents or their descendants. If no living relatives can be found, the property escheats to the state to be placed in an education fund.However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before you do.

Property Subject To Intestacy Laws

Under Utah Code § 75-2-101 any property that would have been included in a will can be passed through intestate succession. In most cases this means any assets that are solely owned by the decedent. Most high value items are not subject to the rules of intestacy. This includes life insurance, 401k accounts, joint tenancies in real property and payable-on-death financial accounts. A probate lawyer is your best source of information regarding the types of property that are affected by intestacy.

Divvying Up Assets

Utah Code § 75-2-102 provides the instructions on how to divide intestate property among living relatives. In the typical case where a spouse dies and the surviving spouse remains with children from the marriage the spouse will receive everything. If the neither spouse has children the estate will also pass to the surviving spouse.If the decedent is married and only has children outside the marriage (i.e. from a prior relationship) the surviving spouse will get 75% of the estate and half of the estate balance. The children will receive all the other property.In the situation where a person dies and has no spouse or children the court will look to his or her parents. The decedent’s parents will inherit the entire estate. It’s a similar situation for a person who dies without a spouse, children, or parents. In this case the decedent’s siblings will receive the estate.Of course it is possible for many other types of family relations to exist. The Utah code tries to account for each possible situation. Half-relatives will inherit as if they were full-blood relatives. Adopted children are entitled to a full share while stepchildren (not adopted) are not. Children of the decedent who were legally adopted by another family do not receive a share. Yet, a male decedent’s children born outside of marriage can inherit if paternity was recognized by the decedent.

Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples:
• property you’ve transferred to a living trust
• life insurance proceeds
• funds in an IRA, 401(k), or other retirement account
• securities held in a transfer-on-death account
• real estate held by a transfer-on-death or beneficiary deed
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

Who Gets What in Utah?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with here’s what happens:
• children but no spouse – children inherit everything
• spouse but no descendants – spouse inherits everything
• spouse and descendants from you and that spouse – spouse inherits everything
• spouse and descendants from you and someone other than that spouse – spouse inherits the first $75,000 of your intestate property, plus 1/2 of the balancedescendants inherit everything else
• parents but no spouse or descendants – parents inherit everything
• siblings but no spouse, descendants, or parents – siblings inherit everything

Survivorship period

To inherit under Utah’s intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.

Half-relatives

“Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.

Posthumous relatives

Relatives conceived before but born after you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth.

Immigration status

Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.

Advancements

Utah considers non-probate transfers as advancements on a relative’s share. So, if your spouse receives life insurance proceeds or funds from a payable on death account, these amounts are included when calculating your spouse’s share. Additionally, if you make a gift during your lifetime to your relative and put in writing that this should be an advancement at the time of making the gift or your relative states this in writing, the value of the property is subtracted from your relative’s share.

Utah Code 75-2-101 Attorney

When you need legal help with Utah Code 75-2-101, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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