Utah Probate Code Disclaimer

A “Disclaimer” means any writing which declines, refuses, renounces, or disclaims any interest that would otherwise be taken by a beneficiary. As part of the Utah Uniform Probate Code, the beneficiary of an interest in property may renounce the gift, either in part or in full. Note that the option to disclaim is only available to beneficiaries who have not acted in any way to indicate acceptance or ownership of the interest. The disclaimer must be in writing and include a description of the interest, a declaration of intent to disclaim all or a defined portion of the interest, and be signed by the disclaimant. File the disclaimer within nine months of the transfer (e.g., the death of the creator of the interest) with the district court of the county that has jurisdiction over proceedings regarding the estate of the deceased donor. In addition, deliver a copy of the disclaimer in person or send it by registered mail to the personal representative of the decedent’s estate. If the transfer is enacted by an instrument other than a will, deliver a copy of the disclaimer to the person who has legal title to or possession of the property.

If real property is involved, record a copy of the disclaimer in the office of the county recorder in the county in which the property or interest disclaimed is located. A disclaimer is irrevocable and binding for the disclaiming party and his or her creditors, so be sure to consult an attorney when in doubt about the drawbacks and benefits of disclaiming inherited property. If the disclaimed interest arises out of jointly-owned property, seek legal advice as well. Usually a disclaimer is made by giving timely written notice in proper form to the person who is in control of the inherited asset (using the word “inherited” in a broad non-technical sense) within the time allowed by statute. You cannot disclaim once you have taken actions consistent with ownership or you have waived the right to disclaim in writing. The theory behind this harsh rule is to prevent people from “having it both ways.” You either inherit something or you decline to accept the inheritance. Once you have taken any action that reveals intent to do on or the other of these things, you aren’t allowed to change your mind.

What is a Probate Disclaimer?

A probate disclaimer is a document that is signed by someone entitled to receive an inheritance disclaiming (giving up) that inheritance. When this is done the person who disclaims is treated as having predeceased (i.e. died before) the person who has just died and whose estate is being probated. There are a couple of important rules to remember when it comes to disclaimers:

• It must be irrevocable and unqualified (i.e. there can be no conditions set on the disclaimer);

• It must be in writing;

• The writing must be delivered to delivered to the Personal Representative within 9 months of the later of: (1) the date on which the transfer creating the interest in the disclaimant is made (i.e. date of death); or (2) the day on which the disclaimant turns 21 years of age.

• The disclaimant must not have accepted the interest disclaimed or any of its benefits; and

• The interest disclaimed must pass either to the spouse of the decedent or to a person other than the disclaimant without any direction on the part of the person making the disclaimer.

There is ONE important thing to remember before you disclaim any assets. Make sure you know who is next in line for the assets if you disclaim. You don’t get to choose where the assets go, so it’s important to know all of the consequences of disclaiming before you do so.

Disclaiming an Inheritance – How to Do It

• A person in ill health and with an estate already likely to be taxed heavily who does not need the inheritance realizes that the person next in line in the Will or Trust can use the money and will not likely face large estate taxes in the near future.

• A person who wishes to claim a community property interest in a property is given twenty percent of it in the Will and, instead, will insist on taking fifty percent of the property due to its community property nature.

• A person facing personal bankruptcy, thus likely to lose the inheritance in any event, wishes the money to pass directly to his or her children, next in line in the Trust, and never to vest in him or her.

Procedure for Creating a Disclaimer

• Form Requirements: The disclaimer shall be in writing, and shall be signed by the disclaimant, and shall: Identify the creator of the interest, describe the interest to be disclaimed, State the disclaimer and the extent of the disclaimer.

• Time Requirements: In order to be effective, a disclaimer must be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest. In the case of any of the following interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later: An interest created under a will, An interest created by interstate succession, An interest created pursuant to the exercise or non-exercise of a testamentary power or appointment, An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account, An interest created under a life insurance of annuity contract, An interest created by surviving the death of another joint contract, An interest created under am employee benefit plan, An interest created under an individual retirement account, annuity or bond.

• In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivo gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occur latest: the time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property. The time of the first knowledge of the interest is acquired by the person able to disclaim. The time the interest becomes indefeasibly vested, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occur later: Nine months after the time the interest becomes an estate in possession. A disclaimer, when effective, is irrevocable and binding upon the beneficiary and all persons claiming by, through, or under the beneficiary, including creditors of the beneficiary. Keep this in mind: one cannot change one’s mind once the disclaimer is achieved and once it is achieved, the effect is usually equivalent to the person who otherwise would have received the asset never having received the asset in any manner. Whatever the purpose, it is absolutely vital for a person considering use of such a tool to both act with alacrity and seek experienced legal and tax advice before disclaiming any interest. Since they are irrevocable, this can be a decision that could very well alter one’s well being significantly and should only be undertaken with care and appropriate input.

How Do You Disclaim A Gift?

If a person chooses not to accept an inheritance, they are said to be disclaiming it. However, the disclaimer would have to be made after the death; if it was made before the testator’s death, it is not effective. If a gift is left to more than one person as joint tenants, a disclaimer can only be made by all of them acting together. A person disclaiming a gift cannot decide who receives the gift instead. If they want the gift to go to a specific alternative person, this should be done by a deed of variation. When a gift is disclaimed, the estate is distributed as if the will had not included the gift at all. A disclaimer cannot be revoked if any other person has acted on the basis of it: once a gift is disclaimed, the beneficiary cannot change their mind, except in very specific circumstances. Once a gift has been accepted, it cannot later be disclaimed. A disclaimer should be formal and made in writing, and the best way of doing this is by a deed of disclaimer. It will simply say, in legal language, that the beneficiary disclaims the gift – i.e. has decided not to accept it. A disclaimer made by deed cannot be revoked. As a deed, it will need to be signed by two competent witnesses. Good practice is that the witnesses should not be people mentioned in the will, or members of the family. A transfer of property from a donor to the receive is a gift, whether the transfer occurs during the donor’s lifetime (inter vivo gift) or after the donor’s death. There are 3 recognized elements to any gift:

• the intention to give a gift,

• its delivery,

• acceptance.

A disclaimer is a refusal to accept a gift of inheritance. When an heir or beneficiary disclaims an inheritance, it has the legal effect of the disclaimant predeceasing the decedent or before the property is distributed; the title to the property never passes to the disclaimant. There are 2 primary benefits to a disclaimer: to avoid or reduce taxes and to avoid the claims of creditors. If an heir first took title to the property then gave it to another, the heir may have to claim the inheritance as income and may also be liable for gift taxes after giving the inheritance to someone else. Furthermore, if the next in line after the disclaimant earns less income than the disclaimant and the property earns an income, then income taxes will be reduced for the recipient of the disclaimed property. Hence, disclaimers may reduce tax liability for both parties. Under common law, a disclaimer only applies to probate property, but the modern trend is to extend disclaimers to non-probate property as well. To avoid gift tax liability, the Internal Revenue Service also requires that the disclaimer be a qualified disclaimer, which must satisfy all the following conditions:

• a refusal to accept the disclaimed property by the disclaimant must be: irrevocable and unqualified; be in writing:

• the disclaimant has never accepted the disclaimed property or any of its benefits, and

• The disclaimer causes the disclaimed property to pass—without any direction from the disclaimant—to someone else.

• Without a disclaimer, an heir’s creditors could attach the estate property after a default by the heir, and if the heir transferred the property before the creditors attached it, the creditors could have the transfer reversed under fraudulent conveyance laws.

Because the disclaimant never takes legal title to the property, the disclaimant incurs no gift tax liability nor can most creditors of the disclaimant reach the property. However, there is an exception when the state or federal government is the creditor, either for taxes or for reimbursement for Medicaid, which is a state-federal cooperative program providing payment for required medical services for poor people. In Troy v. Hart, a Medicaid recipient disclaimed his inheritance, allowing it to pass to his sisters, so that he could continue to qualify for Medicaid. However, the court ruled that it was against public policy to allow such a disclaimer, so it created a constructive trust so that the state can file any claims for reimbursement of Medicaid benefits. A minority of states do not allow an insolvent debtor to disclaim property. Under federal bankruptcy law, a disclaimer is usually effective before the disclaimant files for bankruptcy, but after the filing of bankruptcy and within 180 days of the filing, any inherited property or rights thereof or any other received benefit because of the death of another, such as the proceeds of life insurance, belongs to the bankruptcy estate and not to the heir, and, thus, cannot be disclaimed.

Disclaimers and Variations

A beneficiary of an estate, whether by Will or the laws of intestacy is perfectly within their rights to reject their inheritance? Beneficiaries may wish to vary dispositions of property following death in order to redirect benefits to other family members who are more in need or less well provided for and to save tax. In order to do this there are three options:

• By Gift: A gift by a beneficiary has taxed consequences if the item has increased in value since the date of death and if the beneficiary dies within 7 years of making the gift.

• By Disclaimer: A Disclaimer is a simple deed in which the beneficiary gives up all rights to their inheritance. The inheritance then passes to the next person entitled under the will or on intestacy. With a disclaimer the original beneficiary has no control over who receives the asset.

• By Variation: A Variation is often preferred to a disclaimer because it allows the original beneficiary to choose who inherits.
Disclaimers and Variations are more tax efficient provided they contain a statement regarding the tax consequences of their decision. However Variations can cause problems for income tax which disclaimers can avoid so where possible a disclaimer by a parent is favourable to a variation where children minor are the next beneficiaries in line to inherit. It is possible that the variation can be drafted so that it doesn’t affect the Capital Gains Tax position of the original beneficiary. Here it would be drafted so that it affected the Inheritance tax position only. This means it is treated as a gift by the deceased for inheritance tax purposes but a gift by the beneficiary for Capital gains tax. This can be beneficial in circumstances where an asset has increased hugely in value since the date of death but the original beneficiary has brought forward losses, which would negate the gain here. It would be preferable to use this rather than force the original beneficiary to eventually pay more capital gains tax when they eventually dispose of it given that they would inherit at the value at the date of death otherwise.

Reasons for Disclaiming Property or Interest

Property may be disclaimed for several reasons: because it is unwanted, because it carries heavy liabilities, because of tax reasons or because the intended beneficiary wants to pass the property to another beneficiary. A disclaiming trust may be used as part of estate planning; for example, a married couple may set up a disclaiming trust so that the first spouse to die can pass on his or her assets to his or her originally selected beneficiaries, and not to the new spouse of the surviving spouse, while still providing for the livelihood of the surviving spouse. An heir may disclaim an inheritance in order to pass the bequest on to his or her children, or because he or she does not want the responsibilities of caring for the property, or to avoid paying creditors’ claims on an estate.

Utah Probate Code Disclaimer Lawyer

When you need legal help with estate administration, estate planning, probate, or a disclaimer, 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

4.9 stars – based on 67 reviews


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How Do Probate Records Show?

How Do Probate Records Show

Probate records are those records and files kept by a probate court. The word probate comes from Latin and means “to prove,” in this case to prove in court the authenticity of a last will and testament of someone who has died. In the absence of a will, inheritance laws have provided for the passing on of property, belongings, and assets.

Probate courts are under state purview. State probate laws have changed throughout the hundreds of years. The sorts of records to be found in probate documents have changed likewise. Probate laws can differ from state to state however will in general pursue certain general practices. The probate of the home of somebody who has kicked the bucket and has left a will is called testate. The probate of the domain of somebody who has kicked the bucket however has not leave a will is called intestate.
times, probate courts have likewise had ward over different procedures, for example, receptions, guardianships for minors, and name changes after separations. Presently different courts handle these capacities. Therefore analysts will find that the substance of probate documents change throughout the years.

Toward the finish of the twentieth century, almost all deaths are followed by probate, if just to set up that there is no requirement for probate procedures. In the event that there is a will, at that point there is an agent of the will. In the event that there is no will, at that point three is a chairman of the bequest.

Documents You Might Find in Probate Files

The documents found in a probate file will vary radically. They may range from a single letter to a sheaf of court and family documents.
If the file represents proceedings to settle the estate of a deceased, its contents might include

• a will, if there was one
• codicils (amendments) to the will
• a petition for an executor or administrator
• probate of the will
• a list of heirs or divisees
• an inventory of the deceased’s estate at time of death
• a report of the committee for partition when heirs cannot agree amongst themselves about how to divide the estate
• receipts from heirs and divisees
• a closing statement by the court
• an inventory of real estate and stocks and bonds held in joint tenancy, even though not part of the probate proceedings
If the file represents a name change, its contents might include…
• a petition for a name change
• a court decree
If the file represents adoption proceedings, its contents might include…
• a petition for adoption
• a deposition regarding the character of the prospective parents

• Most people who are called upon to probate a will have never done the task before.
• It can be intimidating to know that you may be held financially liable for any mistakes you might make in the process.
• Probate must begin soon after the death of a loved one, a time of stress and grief when you may not feel up to a new task.
• It’s not unusual for conflicts to arise among heirs, which require sensitivity and skill to navigate.

If you have been named the executor or administrator of an estate, you now have a legal duty to the estate’s heirs and beneficiaries. You can be held personally liable for errors and underpayments in the estate. By working with a Utah probate attorney at Ascent Law LLC you will have the guidance and support of experienced legal professionals on your side from the filing of the Petition for Letters Testamentary, which begins the process to the distribution of the assets to the named beneficiaries which ends the process.

Probate Law Information

1.Identification of Executor/Administrator: After a demise, a nearby relative will more often than not approach with a will. The will more often than not names the individual who is to be the agent of the domain. In the event that there is no will, ordinarily a relative petitions the Register of Wills to turn into the Estate’s Administrator.

2.Filing of Will with the Court: The agent or individual delegate will record a Petition for Grant of Letters Testamentary if there is a Will or Grant of Letters of Administration if there is no Will.

3.Notice of Probate Proceeding: The open must be advised of the passing with the goal that loan bosses can demand installment for obligations. This is finished by promoting the award of letters in a paper of general flow at or close to where the decedent lived, and in a lawful periodical.

4.Inventory and Appraisal of the Estate: The most tedious piece of the procedure for most agents is documentation of the home. This incorporates valuation and gathering of monetary resources, for example, ledgers, venture accounts, last checks and retirement accounts. It additionally incorporates archiving extraordinary obligations.

5.Payment of Outstanding Debts: It’s the activity of the agent to pay any exceptional bills out of the advantages of the bequest. This incorporates the expense of directing the home, memorial service costs, exceptional family unit and restorative costs, loan bosses and charges.

6.Preparation of the Pennsylvania Inheritance Tax Return: The Inheritance Tax Return must be documented and the duty paid inside 9 months from the decedent’s passing.

7.Transfer of property: Once the bills have been paid, and the legacy government form is affirmed and, on the off chance that vital, a bureaucratic Estate expense form documented and endorsed, at that point the rest of the benefits can be moved to the beneficiaries and recipients. A deed to a home might be moved to another proprietor, or a home might be sold.

Probate Notices in Newspapers

Think about the notification of probate activities. One of my companions was looking into her granddad who had kicked the bucket and left a will. Issue was, the province town hall serving the region where he kicked the bucket required installment for a pursuit of the probate record—and afterward, after she paid, reacted by advising her there was no court case. She knew there was a probate case since her dad had been the agent of the will. So what do you do when an official lets you know there isn’t a case?

I recommended she go to papers and search in the lawful notification area. Sure enough, she had the option to discover the probate case—and with a duplicate of that lawful notice, returned to the court assistants who were then ready to furnish her with the document.

Probate sees in papers can give you names, dates, and data that you can catch up with at the town hall. On account of these notification from 1908 in Minnesota, the name of the expired, the individual regulating the probate, the judge, and the following court date are recorded.

That a few resources, quite grain and steers were underestimated in Swedish inventories is a sign, yet to decide whether the all out estimation of the home was underestimated in the probates, we have to discover a strategy to look at the market costs of the benefits in the probate. The motivation behind why grain and cows have been examined is that it is similarly simple to discover appraisals of market costs for steers and grain individually, while it is significantly more hard for different sorts of things, which in any case could make up an extensive extent of the complete resources of the perished. We along these lines propose to utilize a similar technique found in investigations of US inventories, for example contrasting the probate esteem and the closeout deals cost of the extremely same thing.

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

Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Probate Court Search

Utah Probate Court Search

A probate court (sometimes called a surrogate court) is a court that has competence in a jurisdiction to deal with matters of probate and the administration of estates. In some jurisdictions, such courts may be referred to as Orphans’ Courts, or courts of ordinary in Utah they are call District Courts.

In some jurisdictions probate court functions are performed by a government, internal court or another court of equity, or as a part or division of another court.Probate courts administer proper distribution of the assets of a decedent (one who has died), adjudicates the validity of wills, enforces the provisions of a valid will (by issuing the grant of probate), prevents malfeasance by executors and administrators of estates, and provides for the equitable distribution of the assets of persons who die intestate (without a valid will), such as by granting a grant of administration giving judicial approval to the personal representative to administer matters of the estate.In contested matters, the probate court examines the authenticity of a will and decides who is to receive the deceased person’s property. In a case of an intestacy, the court determines who is to receive the deceased’s property under the law of its jurisdiction. The probate court will then oversee the process of distributing the deceased’s assets to the proper beneficiaries. A probate court can be petitioned by interested parties in an estate, such as when a beneficiary feels that an estate is being mishandled. The court has the authority to compel an executor to give an account of their actions.In some jurisdictions (e.g. Texas) probate courts also handle other matters, such as guardianships, trusts, and mental health issues (including the authority to order involuntary commitment to psychiatric facilities and involuntary administering psychiatric medication).

Understanding Probate Court

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. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person. Probate is multifaceted in that it covers the overall legal process of dealing with a deceased person’s assets and debt, the court that manages the process, and the actual distribution of assets itself.Individual states have specialized probate courts. Some states do not call it a probate court but instead refer to it as a surrogate’s court, orphan’s court or chancery court.

The Process of Probate Court

The process of probate is initiated when a person files a petition for probate with the state’s probate court system. This petition is normally filed by a family member of the deceased or by a designator of the deceased’s will. The probate court then issues an order that appoints a person to be the executor or administrator of the deceased’s estate. The executor or administrator is responsible for allocating the deceased’s estate to the proper beneficiaries, among other administrative duties. A probate lawyer is often hired to help deal with the intricacies of probate.

Probate Court with a Will

When a person dies, the probate court determines if that person left behind a will. If so, the court probates the will, meaning that it looks into the validity of the will itself. If the will is valid, the probate court appoints an executor to allocate the deceased person’s assets to the proper beneficiaries. If the will is not valid or if it’s contested, the court reviews and decides the matter.

Probate Court without a Will

When a person dies with no will, the probate court allocates the person’s assets to his or her next of kin. This is known as the law of intestate succession, and it outlines the allocation mix between surviving spouses, grandchildren, siblings, parents, aunts, and uncles.

Probate Records

Probate records are those records and files kept by a probate court. The word probate comes from Latin and means “to prove,” in this case to prove in court the authenticity of a last will and testament of someone who has died. In the absence of a will, inheritance laws have provided for the passing on of property, belongings, and assets.Probate courts are under state jurisdiction. State probate laws have changed over the centuries. The kinds of records to be found in probate files have changed accordingly. Probate laws can vary from state to state but tend to follow certain general practices. The probate of the estate of someone who has died and has left a will is called testate. The probate of the estate of someone who has died but has not leave a will is called intestate.At times, probate courts have also had jurisdiction over other proceedings such as adoptions, guardianships for minors, and name changes after divorces. Probate records can usually be found in the court records of the county where the deceased was last living. In some cases, early records have been moved to other depositories such as state archives, to allow for better security, temperature and humidity control, and more space for newer records. As storage space and available facilities change, so do the sites of probate records.Probate records can give the historian invaluable information. For example, genealogists value the lists of heirs and devisees that indicate familial relationships. People researching material culture can learn much from household inventories. Historians trying to learn more about particular buildings often find useful information in real estate inventories.

Probate Research Steps

• Determine where the deceased was living at time of death.
• Find out where the records for that probate court jurisdiction at that time are now housed. Remember that the boundaries and names of counties might have changed. If the county (or state) has changed, then the records will be filed with the records in the county at the time of death, not under the county’s name as it is now. For instance, in Maine, parts of Lincoln County of 1760 are now parts of Kennebec, Waldo, Washington, Hancock, Androscoggin, Sagadahoc and Knox counties. Save yourself steps by using the Internet and the telephone to ask for and find the archive that you want. States and counties often have Web home pages.
• Find the index of the probate records you want. This will be at the archive that holds the probate records. Look on-line for a Web site of the likely archive. Many archives now have Web home pages with holdings information, telephone numbers, and directions for getting there. The probate index you want might even be accessible on-line. Some indexes and abstracts are also published or are on microfilm. Archives and research libraries can help you find these.
• If necessary, go to the archive.
• Look in the index for the deceased’s name. This will usually be listed alphabetically by surname. Find and note the docket number. Usually the date of probate is also listed, and this is usually fairly close to the date of death.
• Be thorough. Look also under the names of relatives of the deceased — you might be surprised to find a file full of relevant documents.
• Make a list of files you wish to see and give these to the clerk, who will retrieve the files for you. If the files are old and are in a storage facility off-site, it might take several days for the request to be filled. This is all the more reason to make the request on-line or by telephone if you can.
• If files are missing, and they sometimes are, probate record books might give some evidence of the probate. Probate record books are not likely to contain all the information that is/was in the actual file, however.
• Examine the files and make notes. The cost of making photocopies will vary from archive to archive. It may be as little as 15 cents per page to a dollar or more per page.
• Return the original file, as you found it, to the clerk.
• Label and file your findings, being sure to note the name of the archive, address, telephone number, Web site address, and the date you did your research there. I also usually pick up an information pamphlet at the archive and file it in a dated folder of its own along with address information, driving directions, and helpful archivists’ names, for future reference.

Documents You Might Find in Probate Files

The documents found in a probate file will vary radically. They may range from a single letter to a sheaf of court and family documents.
If the file represents proceedings to settle the estate of a deceased, its contents might include…
• a will, if there was one
• codicils (amendments) to the will
• a petition for an executor or administrator
• probate of the will
• a list of heirs or devisees
• an inventory of the deceased’s estate at time of death
• a report of the committee for partition when heirs cannot agree amongst themselves about how to divide the estate
• receipts from heirs and devisees
• a closing statement by the court
• an inventory of real estate and stocks and bonds held in joint tenancy, even though not part of the probate proceedings
If the file represents a name change, its contents might include…
• a petition for a name change
• a court decree
If the file represents adoption proceedings, its contents might include…
• a petition for adoption
• a deposition regarding the character of the prospective parents
Where do you find probate records?

County Courthouses

County courthouses can contain probate records going back centuries. Once they are recorded at the county level, they never leave it, unless something happens to the courthouse and the records are destroyed. Burned courthouses were an issue in many counties across the nation in the 19th and early 20th centuries, and the bane of genealogists everywhere who want to access the records that were in them.Assuming the courthouse where your ancestor lived is still intact, you should be able to go there and look up their probate records in the court’s index, or get a court employee to help you find it. You will be finding the original probate records by going in person. If you can’t make the trip in person, such as with a courthouse that is far away, you can call or write the court to see if they will look up your ancestor in their records and send you any information they find in the probate files.Of course, not every person is going to leave a probate record behind, but a lot of people did. It is extremely worth it, genealogically speaking, to check to see if a probate record exists for your ancestor.

Using Ancestry

Ancestry.com just added a huge new collection of probate records from around the United States this year. These are the same probate records you would find in county courthouses. Ancestry.com sent representatives out to county courthouses across the country to get the courthouses to allow them to digitize their probate records. While not every courthouse complied, most of them did. You can now look up most of your ancestors’ probate records on Ancestry.com, rather than traveling to or writing a courthouse. The images are scans of the originals, and you can download and save them to your computer to add to your own genealogy records, and to refer to whenever you need to in your research.

Older Relatives

If you have older relatives who have collected a large amount of family information over the decades, you should visit them and see what they have in their boxes, chests, and files, if they will let you. They may have records of wills and probate proceedings that go back generations. Even if they only have these records for their own parents and/or grandparents, you are still finding some genealogical gold. Bring a scanner with you to capture the images, to make sure they are preserved for posterity. Your relative may have probate records that do not exist anywhere else, thanks to burned courthouses. These rare documents could open up whole new avenues of research for you.

State or Local Archive Buildings

Probate records from colonial times may be found in county courthouses, but are more often found in archive buildings. If you are looking for the probate records for an ancestor who lived in America before the American Revolution, visit or write to the historical society in the city, town, or county in which they lived. Their probate documents may have been preserved and made their way there. You might even be allowed to handle an original document from the 1600s or 1700s with remnants of red wax seals still on them. Even if you don’t get to handle the original, you will still be shown a copy or a microfilmed version of it. Probate records are incredibly valuable genealogical documents. They are well worth searching for on every branch of your family. The more of them you discover, the more you will learn about your family history, and about your ancestors as individual human beings. That is a real treasure in the study of genealogy.

Probate Lawyer Free Consultation

When you need legal help with probate court 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

Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Probate Code 75-2-206

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Utah Probate Code 75-2-206

Utah Probate Code 75-2-206

Excluding property passing to the surviving spouse under the federal Social Security system, any death benefits paid to the surviving spouse under any state workers’ compensation law, and property excluded under Section 75-2-208, the value of the augmented estate includes the value of the decedent’s non-probate transfers to the decedent’s surviving spouse, which consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:

• the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant;

• the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner; and

• all other property that would have been included in the augmented estate under Subsection 75-2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Surviving Spouse Rights Utah

Utah provides surviving spouses with guaranteed widow’s rights and entitlements to the deceased’s estate, including:
• Intestate Share
• Spousal Allowance
• Homestead Allowance
• Exempt Property
• Elective Share

Surviving Spouse Rights in Utah When There Is No Will?

When a decedent dies without a will, they have died intestate. In an intestate estate, Utah law governs the distribution of decedent’s assets, including the widow’s share. The surviving spouse in Utah receives the entire estate if there are no living descendants, or all of the living descendants of the deceased are also descendants of the surviving spouse. If the deceased has living descendants who are not also descendants of the surviving spouse, the surviving spouse is entitled to $75,000, plus one-half of the balance of the estate. Any money or property that the surviving spouse receives outside of probate, for example jointly titled accounts, are added to the probate estate in determining its total value, and the property received by the surviving spouse outside of probate are treated as partially satisfying the one-half of the probate estate that the spouse is entitled to receive.

Spousal Allowance and Exempt Property

The surviving spouse in Utah is entitled to: (a) homestead allowance of $22,500, (b) exempt property not exceeding $15,000 in value, household furnishings, automobiles, and personal effects.The surviving spouse in Utah is also entitled to a reasonable maintenance allowance during the period of administration, for up to one year if the estate is insolvent. All allowances are chargeable against elective share.

Utah Elective Share

In Utah, a surviving spouse has a right to a share of the deceased spouse’s estate unless the surviving spouse has specifically waived that right. Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share. If both spouses’ children are mutual to each other (meaning the deceased spouse has no children from a prior marriage or relationship) the surviving spouse receives the entire deceased spouse’s estate.If both spouses’ children are not mutual to each other (meaning they have a blended family and at least one of the deceased spouse’s children is not also the surviving spouse’s child) the surviving spouse receives a certain percentage of the deceased spouse’s estate. This percentage is an augmented share based on a calculation involving a somewhat complex formula including a homestead, family allowance, and exempt property as factors. It is intended, depending on the size of the estate, that the surviving spouse will receive up to $75,000.00 and then a percentage of the remaining estate and the deceased person’s children will receive the other percentage.A probate will likely need to be filed to formally determine the decedent’s heirs and the amount of the elective share. As noted, the calculation for how much a surviving spouse will receive is somewhat complicated and depends on the size and type of property in the estate. It is best to have an experienced attorney discuss these matters with you in detail and help determine the amount of the elective share.

A surviving spouse in Utah may take an elective share amount equal to the value of either;

• 1/3 of the augmented estate or,
• a supplemental elective share amount equal to $75,000 less amounts passing from the augmented estate to the spouse outside of probate and the homestead, exempt property, and family allowances.

Property Subject to Elective Share

The elective estate includes the sum of the value of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute;

• decedent’s “net probate estate”;
• decedent’s non-probate transfers to others and to spouse,
• spouse’s property and non-probate transfers to others.
The Net Probate Estate is the decedent’s probate estate reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable creditor claims against the estate.

Satisfaction of Elective Share

Satisfaction of the elective share is done in layers. Each layer is exhausted before moving to the next layer. The layers are listed by the order in which the elective share is satisfied. Amounts included in the estate passing to spouse by testate or intestate succession and non-probate transfers to spouse

• spouse’s property and non-probate transfers to others included in the augmented estate

• decedent’s separate property passing to spouse at death

• spouse’s homestead allowance, exempt property, and family allowance

• the probate estate and non-probate transfers to others Liability is equitably apportioned among recipients of probate estate and non-probate transfers. If the foregoing is insufficient, balance is paid from remaining portion of decedent’s non-probate transfers, and equitably apportioned among the recipients.

Deadline for Election

The surviving spouse must make the elective share election within nine months after the date of decedent’s death, or within six months after the probate of decedent’s will, whichever occurs later. If an elective share petition is filed later than nine months after death, decedent’s non-probate transfers to others are excluded from the elective estate. The court may extend the deadline for making the elective share election upon the spouse’s petition for additional time and for good cause; if court award’s spouse additional time to elect, decedent’s non-probate transfers to others is included in the elective share estate.

How is the Elective Share Election Made in Utah?

The petition for elective share must be filed in the court and mailed or delivered to the personal representative, if any. The elective share petition must be filed during the surviving spouse’s lifetime by the spouse, personally, or by spouse’s conservator, guardian, or attorney-in-fact. If the elective share election is exercised on behalf of incapacitated spouse, elective share is set aside in trust for the spouse’s benefit.

Spouses in Utah Inheritance Law

If you die intestate in Utah, which is an equitable distribution state, and leave a surviving spouse, your spouse’s inheritance depends on whether or not you have living descendants. Descendants can be children, grandchildren, or great-grandchildren. Your spouse will inherit all of your intestate property if you die without descendants, or if all surviving descendants are from you and your surviving spouse. If you have a spouse and no descendants, your spouse will inherit everything. In Utah, a surviving spouse has a right to a share of the deceased spouse’s estate unless the surviving spouse has specifically waived that right. Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share. If both spouses’ children are mutual to each other (meaning the deceased spouse has no children from a prior marriage or relationship) the surviving spouse receives the entire deceased spouse’s estate. If both spouses’ children are not mutual to each other (meaning they have a blended family and at least one of the deceased spouse’s children is not also the surviving spouse’s child) the surviving spouse receives a certain percentage of the deceased spouse’s estate.

This percentage is an augmented share based on a calculation involving a somewhat complex formula including a homestead, family allowance, and exempt property as factors.It is intended, depending on the size of the estate, that the surviving spouse will receive up to $75,000.00 and then a percentage of the remaining estate and the deceased person’s children will receive the other percentage. A probate will likely need to be filed to formally determine the decedent’s heirs and the amount of the elective share. As noted, the calculation for how much a surviving spouse will receive is somewhat complicated and depends on the size and type of property in the estate. Probate and Second There is a truism in the realm of probate and estate planning that where you fail to plan, the State will plan for you. The law offers everyone the opportunity to dictate how their property and assets will be administered at their death. These options range from simple to complex, from a basic will to a detailed trust or family limited partnership. Regardless of what option you choose, the best advice is to do something rather than nothing, because doing nothing only ensures that you have no say in how your estate is administered and distributed. Doing nothing means your estate will be distributed as dictated by the legislature and the courts. For traditional families (i.e., husband, wife and children), a typical estate plan usually mirrors the distribution scheme provided for by the Utah Probate Code.Specifically, the estate passes to the surviving spouse, and then to the children. Many families do not fit the traditional mold, even if they start out that way. Much probate litigation occurs in the context of non-traditional, blended families and stepchildren.

We all hope that our families will be able to handle our passing, get along, and work together, but experience shows that the lack of an estate plan often results in people looking out for their own interests rather than honoring the deceased’s wishes.Two commonly misunderstood issues in probate litigation involve either the “spousal elective share” or the “spousal intestate share.” The spousal elective share allows a surviving spouse to receive a specified amount from the estate even though he or she was omitted from the will or was intentionally disinherited. The exact amount is the subject of a complex calculation, but, generally, it is one third of the augmented estate with a minimum of $75,000. Similarly, the spousal intestate share provides that where you are survived by your spouse as well as children who are not descendants of your spouse (e.g., your spouse’s stepchildren, including your own children from a prior marriage) the surviving spouse is entitled to the first $75,000 from the estate as well as one half of the remaining property of the estate. Disputes often arise in connection with estates that are valued at less than a hundred thousand dollars, which may leave much less for your children than you intended, or might result in more going to someone you might have intended get little or nothing. In addition to these special spousal provisions, the law also dictates to whom property will pass in the event you die without a will. Generally, property passes in the following order:

• spouse;
• descendants;
• parents;
• siblings;
• grandparents;
• aunts/uncles;
• Cousins.

A Utah decedent has the ability to dispose of all property that is titled in his or her name at the time of death. Utah is not a community property state. Utah does draw a distinction between marital property and separate property, but the distinction is relevant only for divorce. The distinction is not relevant for determining what property the decedent may dispose of at death. The one exception to this rule is that the distinction between marital and separate property is used in calculating the surviving spouse’s elective share. Real estate held by a married couple “as husband and wife” is deemed to be held in joint tenancy with right of survivorship.

Real estate held by a married couple without such a designation is deemed to be held as tenants in common. If the decedent is survived by a spouse, and if all of the decedent’s descendants are also the surviving spouse’s descendants, the surviving spouse is entitled to all of the property that passes under the rules of intestacy. If the decedent is survived by a spouse, and if the decedent is survived by one or more descendants who are not the surviving spouse’s descendants, the surviving spouse is entitled to $75,000 plus one-half of the balance of the intestate property. Adjustments are made for non-probate transfers to the surviving spouse. Property not passing to a surviving spouse is distributed to the decedent’s descendants per capita at each generation. If the decedent is not survived by either a surviving spouse or any descendants, the intestate property passes to the decedent’s parents. If neither of the decedent’s parents survives the decedent, the intestate property passes to the descendants of the decedent’s parents per capita at each generation.If the decedent is not survived by any parents or descendants of parents, one-half of the intestate property passes to the decedent’s maternal grandparents or to their descendants per capita at each generation, and one-half passes to the decedent’s paternal grandparents or to their descendants per capita at each generation. If the decedent is survived by none of the foregoing persons, the property passes to descendants of the decedent’s predeceased spouse. Adjustments are made for non-probate transfers to such heirs.

Probate Attorney Free Consultation

When you need legal help from 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

Ascent Law LLC

4.9 stars – based on 67 reviews


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Can I Get A Copy Of Grant Of Probate?

Can I Get A Copy Of Grant Of Probate

Yes, call Ascent Law LLC for help.

A Grant of Probate is the District Court’s accreditation that the Will presented by the Executor meets the formal necessities of a Will as set out in the Wills and Succession Act and is the last Will executed by the perished. The Grant of Probate gives the Executor the specialist to manage the perished’s property and direct/disseminate the expired’s Estate as per the Will. In principle, the Executor’s power to act is found in the Will yet as a reasonable issue, the money related foundations that hold the expired’s speculations necessitate that a Grant of Probate be issued before discharging or moving advantages for the Executor. The Land Titles Office will not offer impact to any exchanges of land, or release any home loans, admonitions, liens, and so on., enlisted against title to the expired’s property except if gave an affirmed duplicate of the Grant of Probate – regardless of whether the money related estimation of the perished’s enthusiasm for property is ostensible. This is to guarantee they are not held at risk for dispensing reserves or moving property to somebody named as the Executor of a Will that is false, inadequate, or was disavowed by a resulting Will.

In certain circumstances, for instance when there is no Will, the Will is invalid or does not manage the majority of the expired’s property, testaments like the Grant of Probate might be issued. These incorporate Grants of Administration, Administration with Will Annexed, Administration of Unadministered Property, Administration until Will is Found, Administration for Preservation of Property, Administration with the end goal of Litigation, Administration when the legitimacy of a Will is in Question, Administration During the Minority, Absence, or Mental Incapacity of the Personal Representative(s), Supplemental Probate of Administration or a Re-fixed Grant from another purview. It isn’t constantly important to acquire a Grant of Probate (or different Grants). This emerges frequently when two or three has made a domain arrangement wherein their own benefits are held in joint names and genuine property is held in joint tenure. Joint proprietorship conveys a “right of survivorship” – the enduring record holder or land proprietor naturally procures full responsibility for together held resources.

Commonly the organization holding the benefit will evacuate the name of the perished after getting a demise testament issued by Alberta Vital Statistics or a Funeral Director’s Statement of Death. The Land Titles Office will evacuate the name of the perished from endless supply of an Affidavit of Surviving Joint Tenant, to which a passing testament of Funeral Director’s Statement of Death must be connected. A Grant of Probate is granted when a will exists and the individual making the application for the grant is the individual agent named in the will. On the off chance that the general population named as close to home agents in the will can’t or will not acknowledge the arrangement, a Grant of Administration with Will Annexed can be granted to another person. In the event that there is no will, the court can issue a Grant of Administration.

To get a Grant of Probate (in Utah we call is an appointment as the Personal Representative of the Estate). One should apply for it through the District Court:

• Enormous financial balances
• Land
• Speculation portfolios
• RRSPs, RRIFs, or protection cash that goes into the home (you needn’t bother with a Grant of Probate if these have their very own beneficiaries)

• Anything that requires legitimate proof of your entitlement to deal with the advantage

• One needn’t bother with a Grant of Probate for resources in a trust that the expired individual set up while living or for overseeing joint property that goes to the next joint proprietor or proprietors.
On the off chance that there is no disagreement regarding the will, the individual delegate must record various non-quarrelsome (NC) archives. The following is a rundown of regularly utilized structures. Only one out of every odd structure must be utilized for each situation.

• Application
• Affirmation
• Perished
• Will
• Individual Representative
• Beneficiaries
• Stock
• Affirmation of Witness to Will
• Affirmation of Handwriting
• Renunciation of Probate
• Renunciation of Administration with the Will Annexed
• Renunciation of Administration
• Affirmation to Dispense with a Bond
• Agree to Waive Bond
• Notice to Beneficiaries (Residuary)
• Notice to Beneficiaries (Non-residuary)
• Notice to Beneficiaries (Intestacy)
• Notice to Spouse (Matrimonial Property Act)
• Notice to Spouse/Adult Interdependent Partner of Deceased
• Notification to Dependent Child of the Deceased
• Notice to Public Trustee

In the State of Utah probate records are among the most profitable records accessible for American family history yet can be trying to get to in light of the fact that firsts are kept in town halls the nation over. These records originate from an accumulation of microfilm that took a very long time to assemble. They have been united from numerous town halls after some time to give you a solitary source to look. A few areas and timeframes may not be incorporated in light of the fact that they were not accessible to be obtained as a component of this gathering, or the records may have been lost or wrecked before the push to gather them all started. On the off chance that you are searching for a probate record and trust it to be from a region or year run that is excluded in this gathering, you can have a go at reaching the fitting region town hall to check whether the records are accessible. For subtleties on which regions and records are incorporated into this accumulation, it would be ideal if you investigate the peruse menu.

Probate records identify with an expired individual’s home, regardless of whether that home is “testate” (through a will) or “intestate” (without a will). Regardless of whether the decedent left a huge bequest or simply some close to home property, there’s a decent possibility that a probate document exists in a nearby court that managed appropriation of property, the guardianship of a minor, or installment of obligations. The substance of a probate document can fluctuate from case to case, yet certain subtleties are found in many probates, above all, the names and homes of beneficiaries and their relationship to the decedent. A stock of the domain resources can uncover individual insights concerning the expired’s occupation and way of life. There may likewise be references to obligations, deeds, and different archives identified with the settling of the bequest. Note: Some of the records in this accumulation are sorted out in bundles. As you peruse these pictures we have incorporated a chapter by chapter guide to enable you to explore. In the event that nothing is given in the list of chapters, that proposes the record comprises of a solitary report.

Wills direct the circulation of the bequest as per the desires of the departed benefactor. At the point when the departed benefactor bites the dust, the agent or executrix petitions the court for letters testamentary to demonstrate (probate) the will. In the event that the will is made a decision to be substantial, it will be recorded in the will books of that court. The recorded will may incorporate testimonies of observers bearing witness to the legitimacy of the will and the skill of the departed benefactor at the time it was composed. A duplicate of the will may likewise be found in the free papers of a probate bundle. In instances of intestate homes, letters of organization are mentioned to grant an administrator (typically the widow/single man or oldest child) the privilege to manage the appropriation of the home as per winning laws. A stock of the domain records the advantages with examinations so a precise bookkeeping can be made and probate expenses precisely demanded. Inventories can give you a few bits of knowledge into your precursor’s relative riches, way of life, and occupation. You may discover archives identifying with the conveyances paid out of the bequest for managerial costs, stipends for heirs preceding settlement, and the last circulation of the home. You may likewise discover receipts and records identifying with the closeout of home resources. Administrators, and now and again executors, of bequests may have been required to post a bond that would cover the estimation of the home to shield the heirs from wrongdoing. Bondsmen were ordinarily close relatives, so these are significant records. On the off chance that a minor kid or a relative esteemed awkward and ward had an enthusiasm for the bequest, you may discover guardianship papers incorporated into the probate document. Moreover, the watchman may have expected to post a bond rising to the estimation of the legacy.
For records held by the Supreme Court from 1977 to exhibit, the stock of property is just accessible to executors, administrators, lingering beneficiaries, and candidates who have started procedures in contested family arrangement claims (case number must be exhorted). The stock of property isn’t accessible to different candidates, including lenders and potential inquirers. An individual or organization holding resources of the home are qualified for confirm that the significant resource was unveiled in the stock of property previously permitting the exchange of that benefit.

In Utah State the oath of agent is certainly not an open record and access isn’t typically granted. A beneficiary may anyway apply for access however would need to set out solid explanations behind why access ought to be granted. Access to this report will be considered. You will need to finish a non-party access to court document structure to demand get to. A representation is a fixed, court approved duplicate of the grant. It has the expert of a unique grant and can be utilized by the executors or administrators if the first is lost, in an application for a reseal or where a court approved duplicate is required. After a grant has been made all beneficiaries are qualified for a representation of the grant, which incorporates the Will. The stock of property will possibly be connected if the candidate is a residuary beneficiary. An agent or administrator might be asked by some advantage holders, for example, banks, to give an affirmed duplicate of the grant. An approved signatory, for example, a specialist or equity of the harmony may confirm a duplicate of a grant. In the event that a representation or court approved duplicate is required an application will should be made to the Court.

To apply for a representation complete the application for epitome and mail it to the Supreme Court or record it in the library. A charge is payable for this administration. For the most part it takes the Court 14 days to process your solicitation.

To probate records with the accompanying extra data:

• Access to a probate record is accessible to a gathering (an agent or administrator of an individual’s domain, involved with any related continuing, a lawful professional on the record, or an individual approved recorded as a hard copy by any of them) to the probate procedures, aside from any archive that has been regarded to be secret by a Judge or Registrar.

• A lingering beneficiary of a will, to which probate has been granted, must look for leave to get to the Court document and supply sound reasons. All beneficiaries named in the Will are entitled, when a grant has been made, to an epitome of the grant with the Will attached. Residuary beneficiaries are additionally qualified for a duplicate of the stock of property.

• Other candidates will just be granted access as per statement 7 and in the standard course:

In the event that entrance is looked to a contested probate record, access will be constrained to the pleadings, any archive read in open Court and a duplicate of the judgment. It does exclude the stock of property, or the sworn statement of agent or candidate (or any archive that incorporates a duplicate of the stock). On the off chance that entrance is looked to an uncontested probate record, access will just be given to the request, the first page of the grant and a duplicate of the will. Access to other material will possibly be permitted if a Registrar or Judge finds that extraordinary conditions exist.

Probate Attorney 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

Ascent Law LLC

4.9 stars – based on 67 reviews


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Are Death Records Public Record?

Probate and Estate Attorney

Public records are any information or documents that are made by a government agency or officer and are required by law to be kept and maintained. They are also any records that are filed with a government agency or office. Most public records are available to anyone that requests them but some have eligibility requirements or are confidential. There are many types of public records that are available for free at the federal, state, county and city level. Some examples of free public records are census data, property information, tax liens and judgments, criminal records, bankruptcies and court records. Even though these types of records are free they can often be difficult to find as they are typically available at a local government agency. There are many private companies and websites that aggregate public records from a wide variety of sources and charge a fee to provide access to all of them from one search.
It would appear that, from beginning to end, all of the biggest events in your life are also part of public records. New births are always reported by the hospitals or professionals who deliver the child, while coroners’ offices assign death certificates. These records assist with census data and other commonly used statistics. Additionally, birth and death records help states avoid having unidentified residents in their records or on their social programs. Marriage licenses are also kept as a matter of public record.

These types of documents can be extremely helpful when researching your family tree and history, as tracking down past family members and their spouses would be a real challenge without them. Birth, death, marriage and divorce records are typically managed and made available at the local county clerk’s office where the event took place. States will also often have a department of health that can provide access to older vital records. In addition to physical locations, many states are putting or have put their databases online for ease of access.

Death records are included with birth records under the category of “vital records.” These records are created by local authorities throughout the States and may also be created overseas by the military. There are many reasons why you may need a death record. For example, you may be an executor of an estate. You may be a surviving spouse who needs a death record to gain access to your spouse’s real estate assets. Regardless of the reason, there are many ways to gain access to a death record. Vital records have been kept by most states since the early 1900s. However, some states have had death records as early as the 1600s. It is now required by federal law for all states to keep death records, but what must be included in a death record can vary. In the 21st century, certain forms of death records have become much more accessible than others.

Types Of Death Records

There are two types of death records: official death certificates and death indexes. The official death certificate is issued at the time of one’s death and includes vital information about the deceased. This includes the: Full name, Cause of death and Time of death.

The information included in these records can be more sensitive, so they are sometimes restricted by the state. The restriction expires within 50 to 100 years, depending on the state. To obtain an official death certificate, begin by contacting the state in which the individual resided. The state may refer you to a local agency or may have possession of the certificate.
Death indexes are more readily accessible. They provide basic information about the deceased and do not include sensitive information. While there are often costs associated with obtaining death certificates, death indexes can usually be downloaded for free.

Obtaining Death Records Online

Depending on the state in which the death certificate was issued, it may be possible to obtain a death certificate online. State agencies sometimes maintain their death records online and there are also various websites which aggregate death records online. While these websites are convenient, the death records are not official. If you need an official death certificate then it is best to contact the county in which the death took place and/or the place in which the person who died had lived. Marriage licenses, birth certificates, warrants/arrests, court cases, and obituaries are just a few of the records available to the public. Many government agencies are now digitizing these records and making them publicly available online. There are many reasons to search for public records. Whether you’re trying to compile a family genealogy, prepare for an employment background check on your own arrest record, or are just curious about someone in your family, there are many free resources online that can help you easily locate public records.

• Find birth records: Birth records are one of the most commonly searched for vital records. Most online vital records websites do not let you view the actual birth certificate. However, many free sites will allow you to at least see the person’s name, date of birth, and their county or city of birth.

• Acquire a Death Certificate: There are many ways to find death records online. Some genealogy websites list death records with their birth record information. But the most accurate way to get official information is to search for your local secretary of state’s website. If you’re looking for a relative, be sure to know the person’s full name. It may be helpful to know the individual’s date of birth as well. If you don’t know the exact year of death, you may at least need to know the range of the individual’s year of death. This can help narrow your search, and ensure that you get accurate results. To conduct a search, all you need to do is type in an individual’s name and a range of years within which you think they died. If a record matches your search, you can click on it and you will be given a reference number, the name, the date of death, the county of death, and the gender of the individual.

• Find Marriage Records and divorce records: Much like birth and death records, you will not be able to find the actual marriage or divorce licenses online. However, you can search online for records of marriages and divorces, which are generally maintained at either the state or county level. Many states manage marriage and divorce records online through the Department of Health. In the State of Utah, for example, the Department of Health oversees the Office of Vital Statistics. This office maintains an index of marriages and divorces, but for actual copies of a marriage license or a divorce decree you would need to contact the county probate court or the county clerk of courts, respectively.

• Records remain confidential for 72 years from the date of the census. For example, records from the 1950 Census will be available to the public in 2022. Once records become public, they are transferred from the Census Bureau to the National Archives. Therefore, if you want to search public census records, you will usually do it through the National Archives website.

Obtaining Obituaries

In addition to finding a death record, there are many websites that aggregate obituaries. Obituaries should not be treated as official death records because it is possible to submit an obituary that contains information that is not factual. A death certificate is considered a much more official record of an individual’s death. When someone dies, the death must be registered with the local or state vital records office within a matter of days. The vital records office can then issue copies of the death certificate, which you may want or your personal records or to handle a deceased person’s affairs.

The funeral home, cremation organization, or other person in charge of the deceased person’s remains will prepare and file the death certificate. Preparing the certificate involves gathering personal information from family members and obtaining the signature of a doctor, medical examiner, or coroner. The process must be completed quickly within three to ten days, depending on state law. A death certificate contains important information about the person who has died. Details vary from state to state, but often include:

• full name
• address
• birth date and birthplace
• father’s name and birthplace
• mother’s name and birthplace
• complete or partial Social Security number
• veteran’s discharge or claim number
• education
• marital status and name of surviving spouse, if there was one
• date, place, and time of death, and
• the cause of death.

In many states, you can get either informational or “certified” copies of a death certificate. Informational copies are for personal records and are usually available to anyone who requests them. Certified copies bear an official stamp, and are necessary to carry out many tasks after a death from obtaining a permit for burial or cremation to transferring the deceased person’s property to inheritors.

In an increasing number of states, certified copies are available only to members of the deceased person’s immediate family, the executor of the estate, or someone who can prove that they have a direct financial interest in the estate. The simplest way to get certified copies of a death certificate is to order them through the funeral home or mortuary at the time of the death. If you are in charge of winding up the deceased person’s affairs, you should ask for at least ten copies. You will need one each time you claim property or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable on death accounts, veterans benefits, and many others. If the time of death has passed and you need to order death certificates yourself, contact the county or state vital records office. For deaths that occurred within the past few months, you should start with the county office, because it is more likely to have the certificate on file. After a few months have passed, the state office will probably have it, too. You will have to pay for each copy of the death certificate. The cost depends on your state. If you order additional copies at the same time, they will probably be less expensive. If you’re serving as the executor of the deceased person’s estate and you pay for the death certificates yourself, you can later reimburse yourself from the estate.

Although public records are records of public business, they are not necessarily available without restriction, although Freedom of Information legislation (FOI) that has been gradually introduced in many jurisdictions since the 1960s has made access easier. Each government has policies and regulations that govern the availability of information contained in public records. A common restriction is that data about a person is not normally available to others; for example, the Public Records Act (PRA) states that “except for certain explicit exceptions, personal information maintained about an individual may not be disclosed without the person’s consent”. In some state, Cabinet papers were subject to the thirty-year rule: until the introduction of FOI legislation, Cabinet papers were not available for thirty years; some information could be withheld for longer. As of 2011 the rule still applies to some information, such as minutes of Cabinet meetings. Some companies provide access, for a fee, to many public records available on the Internet. Many of them specialize in particular types of information, while some offer access to different types of record, typically to professionals in various fields. Some companies sell software with a promise of unlimited access to public records, but may provide nothing more than basic information on how to access already available and generally free public websites.

If you are like most people, you might not have been aware that public records even exist. However, if you are working on legal matters, genealogy research, government policy, or getting a copy of a marriage certificate you might find yourself looking for public records. In fact, virtually everyone will end up looking for them at some point in their life. There are a wide variety of documents and information that can be unearthed through public records requests. While the methods for retrieving documents from the government differ for the various agencies, there are some common traits that apply to all public records. Imagine, if you will, that you lived in a dystopian state where all government action is kept secret. You have no way to know what the government has been doing and how its activities may positively or negatively affect your life.

As the old cliché goes, knowledge is power. A government that keeps all the information locked up tight exerts a high degree of power over its citizens. The importance of public records really can’t be overstated because it helps ensure transparency and accountability in government. Records can be in tangible forms, such as paper, photographs, and maps, or stored on electronic media, such as CDs, DVDs, and computer databases. How the information is stored doesn’t really matter, it’s the nature of the information that determines whether it’s a public record.
Typical public records include, but are not limited to:
• Court records
• Birth records
• Death records
• Marriage records
• Licensing records
• Statistical data
• Business records, such as articles of incorporation
• Meeting minutes
• Voting records
• Correspondence
• Budgets
• Government financial records
• Manuals
• Statutes and regulations and interpretations regarding the same
• Directives, orders, and interpretations regarding the same
• Studies and reports
• Transcripts of hearings and meetings
• Administrative policies and procedures
• Government contracts and leases
• Historical records
• Research records

Obtain Death Certificate

A Death Certificate is a document issued by the Government to the nearest relatives of the deceased, stating the date, fact and cause of death. It is essential to register death to prove the time and date of death, to establish the fact of death for relieving the individual from social, legal and official obligations, to enable settlement of property inheritance, and to authorize the family to collect insurance and other benefits. A death can be reported and registered by the head of the family, in case it occurs in a house; by the medical in charge if it occurs in a hospital; by the jail in-charge if it occurs in a jail; and by the headman of the village or the in-charge of the local police station in case the body is found deserted in that area. To apply for a Death Certificate, you must first register the death.

The death has to be registered with the concerned local authorities within 21 days of its occurrence, by filling up the form prescribed by the Registrar. Death Certificate is then issued after proper verification. If a death is not registered within 21 days of its occurrence, permission from the Registrar/Area Magistrate, along with the fee prescribed in case of late registration, is required. The application form in which you are required to apply is usually available with the area’s local body authorities, or with the Registrar who maintains the Register of Deaths. You might also need to submit proof of birth of the deceased, an affidavit specifying the date and time of death, a copy of the ration card, and the required fee in the form of court fee stamps.

Estate and Probate Lawyer Free Consultation

When you need legal help with Estate and Probate Law in Utah, please 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

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How Do I Get A Copy Of My Father’s Will?

How Do I Get A Copy Of My Father's Will?

At the point when an individual dies, his advantages go to his recipients as indicated by the terms laid out in his will. On the off chance that he didn’t desert a will, he kicked the bucket “intestate,” and the probate court in the district where he lived circulates his residual resources as per state law. As the offspring of the perished, you might be qualified for a legacy paying little mind to whether your dad deserted a will. The will’s agent or the probate court must tell you of any legacy you are planned to get after your dad’s demise. The probate procedure, be that as it may, isn’t immaculate and recipients don’t generally get legitimate notice of their legacy. In the event that you speculate you might be qualified for a bit of your perished dad’s domain, you have a few choices, contingent upon whether your dad left a will.

Visit the district court in the district where your dad’s will was probated. On the off chance that the probate procedure is finished, your dad’s will involves open record. You can look through the open records held at the town hall for your dad’s will to decide if he left you any benefits. On the off chance that you don’t live in or close to the area that holds your dad’s will on record, that does not imply that you can’t get to it. Some probate courts keep up an open records database on the web. This enables you to scan for your dad’s will – and your potential legacy – while never leaving your home

Visit your state’s unclaimed property database and direct a pursuit under your dad’s name. On the off chance that any advantages he abandoned after his passing went unclaimed, the state deals with the cash until the legitimate beneficiary approaches. Albeit a few states try to find the legitimate recipients of unclaimed resources, not constantly and assets to do as such. In this way, it’s occasionally dependent upon you to find your unclaimed legacy.

Contact the executor of your father’s estate. The executor of your father’s will is responsible for managing his assets and debts following his death. This responsibility includes notifying beneficiaries of their inheritances. Because the executor has a copy of your father’s will, the executor will know how much of an inheritance, if any, your father set aside for you.

Contact the administrator of your father’s estate if he died without a will. An administrator’s responsibilities are similar to an executor’s. When an individual dies without leaving behind a will, the court appoints an administrator to ensure the deceased’s assets are distributed according to state law. The administrator of your father’s estate can explain the contents of your father’s estate and how much of that estate you are entitled to under your state’s intestate succession laws.

At the hearing, you will have to present the original will, not a photocopy, to the probate judge. The judge will examine it to determine if it appears to be valid. If the will is not obviously invalid, he will issue an order admitting it to probate. He will also formally appoint the estate executor. In almost all cases, the judge will appoint the executor named in the will. The judge will then issue documents to the executor that establish his authority to perform duties such as withdrawing money from your father’s bank account or selling estate assets. He may authorize the executor to distribute a stipend to your father’s dependents to cover their living expenses during the probate process. Finally, the judge will set another hearing date.

Would I be able to Sue My Stepmother for a Duplicate of My Dad’s Will?
On the off chance that your dad is alive, you can’t sue your stepmother for a duplicate of his will. On the off chance that your dad has passed on and your stepmother won’t give you a duplicate of his will, you can compose your stepmother a letter officially requesting a duplicate. In the event that she doesn’t react, you can begin lawful procedures with the probate court in your dad’s geographic region requesting that the court request her to create the will and submit it to the court. You would then be able to get a duplicate of the will from the court.

An English law, the Theft Demonstration of 1861, expressed that any individual who stole, devastated or hid a will during a deceased benefactor’s lifetime or after his demise could be sent to imprison for a term enduring from two years to life. In that equivalent time, American states started creating laws making different punishments for agents and beneficiaries who did not deliver a will for probate, including losing executorship and different rights under the will.

Current State Laws

In spite of the fact that state probate laws contrast starting with one state then onto the next, they each have arrangements in their resolutions that address when an individual possessing a will ignores or won’t create the will for the neighborhood probate court. In such cases, the probate court can, after accepting a request from you, request that individual to create the will or face court sanctions.

Your initial step is to contact the nearby probate court in your dad’s geographic territory and inquire as to whether a duplicate of his will was documented there previously or after his passing. In the event that the will was documented with the probate court, request that the court give you a duplicate. On the off chance that no duplicate of the will has been documented, send your stepmother a considerate, marked and dated letter requesting that her give you a duplicate of the will. Keep a duplicate of the letter for your records. You may wish to send the letter by guaranteed mail to guarantee that you have a record of having sent the letter.

On the off chance that your stepmother disregards your letter or won’t send you a duplicate of the will, you can send her a second legitimate letter, normally titled “Request to Deliver Will.” In the subsequent letter, recognize yourself as a beneficiary of your dad, express that you have not gotten a duplicate of the will as you mentioned, demand that none of your dad’s property be sold or given away until the will has been submitted to a probate court, and approach again for a duplicate of the will. Send the letter by affirmed mail and keep a duplicate of the letter for your documents.

On the off chance that you get no answer to your subsequent letter or your stepmother rejects your solicitation, you would then be able to contact the probate court and request the court to force your stepmother to record the will with the court. Requesting of the court to arrange your stepmother to create the will begins a common suit. Most trust and bequest lawyers prescribe that you employ an attorney to lead the case since probate law is perplexing. You likewise need to remember that your state may have a legal time limit, giving you only a couple of years wherein to document the case, and on the off chance that you don’t begin lawful procedures inside that time span, you will most likely be unable to force your stepmother to deliver your dad’s will

At the point when guardians pass away, and desert a last will and confirmation, their beneficiaries must explore the regularly mind boggling procedure of probate. On the off chance that your dad selected a lawyer to deal with his home, that delegate will know the systems for telling the agent, or individual agent, and getting the will exhibited to the probate court. On the off chance that there is no lawyer included, at that point as an immediate beneficiary you may have obligation regarding beginning the procedure. You should pursue a few significant strides to guarantee that the will is probated without superfluous legitimate inconveniences.

Letters of Administration

On the off chance that the individual delegate can’t do the undertaking, or if no close to home agent is named in the will, you should display the will and an appeal for probate to the state court that will deal with the procedure; this obligation is generally completed by the individual delegate. You can demand that the court name you, as your dad’s immediate beneficiary, as close to home delegate. On the off chance that the court consents to this, it will outfit you with letters of organization, otherwise called letters testamentary; this is an authoritative report that enables you to continue for your dad’s benefit to do the conditions of the will.

Probate

In the conventional course of a probated will, the court opens the case, allocates a case number, selects the individual agent of the bequest and issues the letters of organization. The individual delegate at that point makes a vow to reliably do the conditions of the will and pursue the applicable laws and methods. The court officially concedes the will into probate, as long as it meets the lawful rules set somewhere around the state for wills.

Notice

In certain states, you or the individual delegate must distribute an open notice of your dad’s demise in the paper. This lawfully tells people in general of the passing, enabling anybody with cases to the home to approach and record their cases with the probate court. At the point when a will is confessed to probate, it ends up open record; loan bosses have a restricted timeframe, be that as it may, to document any cases against the domain.

The last advance is to guarantee that a stock of the bequest exists or is drawn up. You father may have set one up as of now; if not, the court will require a total rundown of every one of his benefits including ledgers, ventures, land, vehicles, pontoons, and resources, for example, work of art, adornments, accumulations, collectibles, and so forth. The individual delegate named in the will can complete this undertaking, however by and large, he will require your help, or that of another relative, to guarantee the stock is exceptional and precise.

Will Validity

A valid will is necessary to distribute estate assets in accordance with your father’s wishes. It should be printed and signed by your father or by someone authorized to sign on your father’s behalf. Some states accept handwritten wills but not all so know your state’s restrictions. Many states require at least two witnesses to sign the will as well. The will must contain original signatures — in other words, it can’t be a photocopy of the will your father actually signed. If your father’s will doesn’t appear to meet these requirements, search his belongings to see if he executed another will that does meet these requirements.

Preliminary Procedures

The probate process is initiated when someone, whether or not the estate executor, delivers a copy of the will and a certified copy of your father’s death certificate to the clerk of the county probate court along with an application for probate. The county coroner or the mortuary where your father’s body was taken prior to the funeral should have access to a copy of the death certificate; the clerk of the county probate court should have access to applications for probate. Alternatively, you might be able to download an application for probate from the county probate court’s website. The application for probate will probably request only basic information such as your father’s name and the name of the estate executor he appointed. Once you have delivered these documents to the probate court clerk, the court will set a hearing date and notify the executor. The executor and the probate court handle all further probate administration. If you are not the executor, you will have no further duties.

Estate Assets

The executor must catalog all estate property. He must pay off all of your father’s creditors before distributing any property to heirs, even if this means selling estate assets to raise cash to pay debts. He must also collect any money owed to the estate such as your father’s last paycheck or a tax refund. The court will set a waiting period during which a hearing will be held to allow estate creditors or heirs to challenge the distribution of property under the will — and to allow interested parties such as would-be heirs to contest the validity of the will. If the will is fiercely contested, several hearing may be necessary. After the waiting period expires, the probate court makes a final determination as to how estate property is to be distributed and to allow the executor to distribute it.

Probate Lawyer Free Consultation

When you need legal help with probate, estate planning, or wills 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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Does A 401k Go Through Probate?

Does A 401k Go Through Probate

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was:
• owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or
• a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment.
This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary.
Here are kinds of assets that don’t need to go through probate:
• Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named
• Life insurance proceeds (unless the estate is named as beneficiary, which is rare)
• Property held in a living trust
• Funds in a payable-on-death (POD) bank account
• Securities registered in transfer-on-death (TOD) form
• U.S. savings bonds registered in payable-on-death form
• Co-owned U.S. savings bonds
• Real estate subject to a valid transfer-on-death deed (allowed only in some states)
• Pension plan distributions
• Wages, salary, or commissions (up to a certain amount) due the deceased person
• Property held in joint tenancy with right of survivorship
• Property owned as tenants by the entirety with a spouse (not all states have this form of ownership)
• Property held in community property with right of survivorship (allowed only in some community property states)
• Cars or boats registered in transfer-on-death form (allowed only in some states)
• Vehicles that go to immediate family members under state law
• Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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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Duties Of A Utah Probate Personal Representative

Duties Of A Utah Probate Personal Representative

A Personal Representative commonly referred to as an Executor, of an estate is an individual or institution designated to administer the estate of a decedent. As a fiduciary, a Personal Representative must settle and distribute the estate of the decedent as efficiently as possible by adhering to the directions outlined in the decedent’s Last Will and Testament and the probate laws of the state where the estate is being administered. The primary duty is to protect the estate in a manner consistent with the decedent’s wishes. Although this may appear relatively simple, it is important that the Personal Representative understand the responsibilities associated with the position. As a word of caution, failure to adhere to these duties and responsibilities can result in the filing of lawsuits against the Personal Representative of the estate for breach of fiduciary duty.

Generally speaking, a Personal Representative is responsible for collecting the assets of the estate, protecting the estate property, preparing an inventory of the property, paying various estate expenses, paying valid claims (including debts and taxes) against the estate, representing the estate in claims against others, and eventually distributing the estate property to the beneficiaries. In the event the decedent passed away with a Will, the Will may often impose additional duties on the Personal Representative that are not required by law.

DUTIES

In Utah, a personal representative has a duty to administer the decedent’s estate and distribute it to the decedent’s lawful heirs and beneficiaries in accordance with Probate law and with the decedent’s Will. The personal representative should act as quickly and efficiently as is consistent with the best interests of the estate and must use his or her authority for the best interests of the decedent’s heirs and beneficiaries. The personal representative has many additional duties, including the following.

• Take possession, manage, and preserve the decedent’s property: The personal representative has a duty to take possession of the decedent’s property unless the decedents will provide otherwise. The personal representative may, however, leave the decedent’s real property or tangible personal property with a person who is presumed to be entitled to the property until the personal representative needs possession of the property to administer the decedent’s estate.

• Manage, protect, and preserve, and pay taxes on, the estate in the personal representative’s possession.

• Prepare an inventory of the decedent’s property: The personal representative has a duty to prepare within three months after being appointed an inventory of property owned by the decedent at the time of death. Each item of property listed on the inventory should be described in reasonable detail. For each item, the inventory should also indicate its fair market value on the date of the decedent’s death and the type and amount of any mortgage, lien, or other encumbrance. If an item was appraised, the inventory should indicate the name and address of the appraiser. Send a copy of the inventory to each interested person who requests it. Also, the personal representative may file the inventory with the court.

• Prepare a supplemental inventory that lists any property not included in the original inventory that comes to the personal representative’s knowledge, shows the correct description and fair market value of any property listed in the original inventory which the personal representative has since learned was incorrectly described or valued, and indicates appraisers or other data relied upon.

• Furnish a copy of any supplemental inventory to persons interested in the new information. Also, if the original inventory was filed with the court, the supplemental inventory should also be filed with the court.

• Publish a notice to creditors: The personal representative has a duty to publish a notice to creditors in a newspaper of general circulation in the county where the probate is filed. The notice should be published once a week for three successive weeks. The notice should announce the personal representative’s appointment and address and state that creditors of the estate should present their claims within three months after the date of the first publication of the notice or be forever barred. As part of the administrative duties, the Personal Representative must give legal notice of the decedent’s death to known creditors and potential creditors. Creditors generally have a prescribed time in which to file claims against the decedent’s estate. Upon the expiration of this period, the Personal Representative must pay all legitimate claims against the estate. Failure to file a claim against the estate within the prescribed time frame forever bars future claims of more creditors. It should be emphasized that prior to payment, the Personal Representative should consider the validity of all claims against the estate.

Pay creditors’ claims and applicable taxes: With respect to claims filed by creditors, the personal representative has a duty to provide for homestead, family, and support allowances before paying creditors’ claims and decide which creditors’ claims to allow or disallow.

Pay allowed creditors’ claims in the following order:

• Reasonable funeral expenses;
• Costs and expenses of administering the estate
• reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;
• debts and taxes with preference under other law

The personal representative also has the duty to file any applicable tax returns and pay any applicable taxes. Applicable tax returns will include the decedent’s final income tax returns and may also include, depending on the circumstances, income tax returns for the decedent’s estate, gift tax returns, or estate tax returns.

Preparation and Filing of Tax Returns

In addition to the accounting, the Personal Representative is responsible for preparing and filing all applicable income tax returns on behalf of the decedent for the period of time the decedent was alive and on behalf of the decedent’s estate. It is important to remember that death terminates the decedent’s tax year and thereafter the decedent’s estate is a separate taxpayer. The Personal Representative is also responsible for paying all applicable state and federal estate taxes. These responsibilities may include at least four separate sets of tax returns:

• the decedent’s final income tax returns;
• applicable federal and state income tax returns of the trust or estate;
• applicable federal and state estate tax returns; and
• any gift tax returns

Each return has a specific due date and in some instances a tax return may be required to be filed even when no taxes are due.

Distribution of Assets and Closing the Estate

Once all of the assets are collected and the claims are satisfied, the Personal Representative must distribute the assets consistent with the terms of the Will or the state’s probate laws. When the court approves the final account and the assets have been distributed, the estate is considered closed. At this point, the responsibilities of the Personal Representative end. Generally, the standard of care required of the personal representative with respect to management of the assets of an estate is the same as required of a Trustee, exercising reasonable skill and caution and acting as a prudent investor.

POWERS

A personal representative in Utah has many powers some of which are listed below. Among his or her powers, the personal representative may:
• Employ a qualified, disinterested appraiser to ascertain the fair market value of an asset of the decedent if the value is unclear.
• Receive reasonable compensation for services to the estate.
• Petition the court for an order that determines, if the decedent left a Will, the validity of the Will and the beneficiaries under the Will, or that determines, if the decedent did not leave a valid Will, the decedent’s lawful heirs, that approves a final account by the personal representative of the estate’s property and finances, that determines a final distribution of the estate.
• Petition the court, after the estate has been distributed, for an order approving the final distribution of the estate and discharging the personal representative from further liability.
• Informally close the estate, no earlier than four months after being appointed, by filing a sworn statement with the court that complies with Utah Code

How to Be the Personal Representative of an Estate

To become the personal representative, you must file an Application for Administration for an intestate estate. The application must be filled out with the required information, including your priority for being appointed personal representative and the names and addresses of the surviving spouse and all beneficiaries. Probate rules are established by your state and include identifying who can serve as an administrator and the priority of appointment. A surviving spouse usually is given first choice at filling this role. If they decline, the deceased’s children are next in line. When there is no spouse or children, family members may be selected. If more than one person with priority wants to serve as administrator, and the heirs can’t agree, then the court will choose.

These basic steps will show you how to file for executor of an estate without a will

Normally an executor is named in a will, but when someone dies without a will, the court must appoint an executor to administer the estate. Executor (or executrix if female) is the traditional term for the person named in a will and subsequently appointed by the probate court to oversee the estate of a person who has died with a will. Some states have now adopted statutes that replace the term executor with personal representative so the terms are often used interchangeably.
A testator, or person making a will, often names someone he trusts in the will to manage his affairs after his death. This person is referred to as a personal representative or executor. Since family members are often the most trusted people in the testator’s life, one or more of them are frequently named as personal representatives even though they may also be devisees, or beneficiaries, under his will.

Receive Written Waivers From Other Parties or Candidates

You need to receive a written waiver from other candidates for administrator that have higher priority. For example, if you are the brother of the deceased, you may need to get a written waiver from the deceased’s spouse and children before you can be appointed administrator. In most states, probate will occur in the county where the deceased had residence. You need to contact that court to understand their filing requirements and timelines. Frequently you will need to file a Petition for Probate along with the Notice of Petition to Administer Estate.

Selection

If no executor is named in the will or the executor is unable to serve, the probate court appoints an administrator. By law, the selection of this individual is based on his legal relationship to the deceased person. This is referred to as the priority ladder and at the top is the surviving spouse, provided she stands to inherit under the will. If she will not inherit, then the priority goes to any other person who will. If these individuals are unable or unwilling to serve or if there is no will, then priority goes to the surviving spouse. If there is no surviving spouse, all other living heirs have priority. If no heirs can be found, a public administrator will be appointed.

Disqualification

Regardless of priority, there are some certain legal restrictions on who may accept an appointment as an administrator. First, no administrator can be under the age of 18 or be under the custody of a guardian or conservator. Also, if the administrator feloniously and intentionally killed the deceased person, this conviction results in an immediate disqualification. The administrator cannot be the decedent’s former spouse or a relative of the former spouse. The probate court also has wide discretion to deny any appointment if found to be in the best interests of the estate.

Termination

The appointment of an administrator terminates when the administrator dies or becomes incapacitated. He also may resign voluntarily with the consent of the probate court. Also, a relative of the decedent may petition the court for removal of the administrator under certain circumstances. Grounds for involuntary removal include disregarding an order of the court, intentional misrepresentation of facts leading to the administrator’s appointment and mismanagement of the estate. Once removed, a successor administrator will be appointed in the same manner as the initial administrator.

Removal of an Executor of Estate’s Responsibilities

An estate executor is responsible for handling the decedent’s, or deceased people, estate including bill payment and property distribution. The executor is named in the decedent’s will; he receives his authority from court through legal proceedings known as probate. If an executor’s responsibilities are removed before he completes his duties, a new person must be appointed to finish settling the estate.

Probate Lawyer Free Consultation

When you need legal help with a probate in Utah, please call Ascent Law LLC for your free estate law 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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What Are Four Positive Outcomes Of Estate Planning?

What Are Four Positive Outcomes Of Estate Planning

One of the hardest times for any family is when a major pillar of the household has fallen through demise or being incapacitated. It is even harder when the particular individual has left wealth or estates unplanned for the descendants. This leads to squabbles among family members who each feel entitled to a part of the cake and so it is crucial that proper estate planning is done using a very good lawyer.

Some of the benefits of estate planning include:

• Peace For Everyone: This is perhaps the most important aspect of estate planning, something that a good lawyer well insists on. Ensuring that you have planned your wealth when it comes to inheritance ensures that you not only have a peace of mind but that there is peace in your family. This is of more value than the wealth itself working towards maintaining relationships. Peace in the family ensures that people are able to work in contentment even after you are gone.

• Having Goals Met: One of the many options when it comes to estate planning is creating a living trust that is flexible enough to have your goals met. It is an ideal time to ensure that some of the unfinished tasks in the family are done on your part. A living trust allows you to stipulate the conditions of an inheritance and provides a clause that only when a certain task, e.g. education, is fulfilled, can a person have access to wealth from the deceased. This allows you as the person making the will to have the upper hand when it comes to safeguarding the interests of the family as well as your own. The attorney has absolute power in making sure that the obligations are met before any part of the estate in disbursed to the mentioned successors.

• Best Decision-Making: Estate planning allows you to make very good decisions concerning your property since an estate planning lawyer is involved. It is the duty of the lawyer to take the client through all the available options and finally recommend the best for execution.

• Ensuring Growth in Posterity: This is also one of the best ways to ensure that your property is used and run by capable persons. A will like the living trust allows you absolute power to put a well capable person in charge of the estate in case you are not available in any way. It also ensures that you have total control of who gets the property.

There are four main elements of estate planning, which include drawing up a will, a living will and healthcare power of attorney, a financial power of attorney, and in some cases, a trust.

Wills

A will outline your wishes for the assets that you own at your passing. It allows you to name the people to whom you wish you give these assets, and without one, your assets will immediately go to your first family member. Having a will in place will give you peace of mind knowing that your assets (including electronic) are going to whom you want them to and knowing that your financial affairs are in order. It will also mitigate the risk of an administrative mess for those left behind. Be sure to discuss your plans with your heirs and to alleviate any issues or disagreements sooner than later.

Healthcare Directive and Living Will

A Healthcare Power of Attorney (HPOA) is a signed legal document in which you name a single person as your healthcare decision maker in the event that you can’t make decisions yourself. A living will, also known as an advanced medical directive, outlines your wishes regarding medical care in the event that you are incapacitated, terminally ill, or unable to communicate. This is a statement of your wishes as they relate to decisions about life support and any kind of life-sustaining medical intervention that you want or don’t want.

Financial Power of Attorney

Similar to the Healthcare Power of Attorney, a Financial Power of Attorney outlines who you want to make your financial decisions on your behalf should you become incapacitated. Without this document, no one will have the authority to step in and handle bill-paying, investment decisions, and other financial matters. You don’t want these things left up to the courts; therefore it’s imperative to give that authority to the person that you select. Like the Healthcare Power of Attorney, it’ best to get this document at the same time as your will. Or, if you have any discomfort in having your parents or spouse make all financial decisions for you, immediately. Online is suitable for a basic document, but if you have specific requirements that require detailed documentation, it’s best to see an estate attorney.

Trust

A trust is a legal entity that can own your assets (while living or at death) and be controlled based on your wishes outlined in the legal document that created the entity. For example, a trust would allow you to dictate how you wanted your child to benefit from your assets throughout his or her life. You may want to stipulate that they are used in a certain way or received at a certain time. A trust is a way to protect assets from being used in a way that you would not see fit if you were in control of them. There are several advantages to having a trust; however, it is not necessary unless you are worried about the oversight or care of your assets at your passing. Ultimately, you are trusting your heirs to manage and use your assets properly should you pass away. If you have a sizeable insurance policy or estate or children, a trust is worth discussing with an attorney to determine the right parameters and language for your situation.
Things that estate planning can do for you.

• The goal is to help educate you on the benefits of estate planning and give you a better idea of why you should get your estate plan taken care of as soon as possible.

• Provide For Your Family: Without an estate plan in place, your family will get less and it will take them longer to get it. This means your loved ones will be left in limbo and might end up without enough money to pay bills and other living expenses. It’s not uncommon for families with an unexpected death to nearly fall apart due to the financial strain in the weeks, months, and years to come. Good estate planning will make sure that your family is provided for and not left to face financial ruin once you’re gone.

• Keep Your Children Out Of The Department of Child And Family Services.

• Minimize Your Expenses: Do you know where most of the money goes when people don’t have a good estate plan? Attorney’s fees and court costs. When you die without an estate plan (and without a living trust, in particular) the courts are forced to handle everything: the distribution of your property, the guardianship of your children, the dissolution of your business. This is known as “probate,” and it gets very expensive — easily exceeding $10,000 for even modest estates. That’s money your family and kids could’ve used for living expenses and other bills, but instead it’s just lining the pockets of your attorney.

• Get Property To Loved Ones Quickly: You have two options here.
Option 1, your family has to wait anywhere from 3-9 months to get anything after you die. Option 2, your family gets money they need to pay bills, to pay for your funeral, to pay for your outstanding medical bills, and to pay for anything else they need right away and without delay. Which one would you choose? Good estate planning let’s you avoid the big delays that can put a real financial strain on your family.

• Save Your Family From The Difficult Decisions: Can you imagine trying to decide when to pull the plug on your spouse who is in a coma or similar condition? Or deciding how his or her remains should be handled? Those are heart breaking decisions that no one should have to face. You can ease this burden by thinking about this kind of thing in advance and planning ahead for it. You can specify in your estate plan how you want end-of-life care to be handled and what kind of disposal arrangements you want made for your remains. And there’s no one better to make those decisions than you.

• Reduce Taxes: Every single dollar that you pay in taxes is one less dollar that your family will have for paying bills and other expenses. There are numerous tax reduction strategies that you can use to keep as much money in the hands of your family as possible. The key is to start tax planning sooner rather than later and definitely not to wait until it’s too late.

• Make Retirement Easier: You might be surprised to hear that estate planning can actually benefit you while you’re alive, not just your families after you’re gone. Healthcare in particular is an area where estate planning can benefit you enormously down the road by making sure you’re eligible for government benefits like Medicare (that you’ve been paying into most of your working life anyways, so you might as well get something back), that can significantly reduce your healthcare costs and leave more money to your loved ones.

• Plan For Incapacity: Estate planning is not just about death. It’s very common for people to become incapacitated by an accident or sudden medical episode like a stroke that leaves them unable to manage their financial affairs. If this happens to you, who will take care of paying your bills or managing your healthcare? A power of attorney designation for both financial and healthcare decisions can save your family a lot of time and money and make sure everything is handled according to your wishes.

• Support Your Favorite Cause: You might have heard that Mark Zuckerberg (the founder of Facebook) decided to join Bill Gates and Warren Buffet in leaving the vast majority of his fortune to charity instead of his family. Even though you don’t have billions of dollars to leave to charity, you can still make a difference by supporting your favorite educational, religious, or other charitable cause. Even if it’s just a hundred dollars, that money can help others and make a difference in their lives.

• Make Sure Your Business Runs Smoothly: If you are a small business owner, then you absolutely must have an estate plan. It’s one of the most important things you can do and is really not optional. Without one, your business will likely fall apart quickly and completely if something happens to you, and that can cause incredible financial hardship on your family. You have the opportunity to provide for an orderly transition to someone else and continue the business by spelling out what happens if you become disabled or die. Don’t do a disservice to your family by leaving these kinds of ends untied.

It seems like many people devote more time to planning a vacation, which car to buy, or even where to eat dinner than they do to estate planning deciding who will inherit their assets after they’re gone. It may not be as fun to think about as booking a trip or checking out restaurant reviews, but without estate planning, you can’t choose who gets everything that you worked so hard for. Estate planning isn’t only for the rich. Without a plan in place, settling your affairs after you go could have a long-lasting and costly impact on your loved ones, even if you don’t have a pricey home, large IRA, or valuable art to pass on.

Advanced Estate Planning

Advanced estate planning—something more than a simple will or basic living trust can be critical for people with valuable, taxable estates. It goes above and beyond a basic foundation and provides options for minimizing or even eliminating estate taxes. Advanced estate planning can be used to perpetuate family values and protect assets for the benefit of future generations.

Advanced Estate Planning Can Reduce Estate Taxes

You can reduce or even eliminate estate taxes by gifting assets into an irrevocable trust for eventual transfer to your beneficiaries or even to charities. But the trust must be irrevocable. A simple revocable trust will allow your estate to avoid probate, but the Internal Revenue Service takes the position that you still own the assets you place into such a trust. You can revoke the revocable trust entity and take the assets back at any time. You remain in control of them. Not so with a more advanced irrevocable trust. Placing assets in an irrevocable trust is a permanent decision. You’re relinquishing ownership. Someone else not you must act as trustee. But if you can’t control them and you don’t legally own them at the time of your death, they don’t contribute to your taxable estate. It doesn’t have to be an all-or-nothing deal.

If you own some significantly valuable assets that you know you want to transfer to a certain beneficiary, you can place them alone into an irrevocable trust and maintain control over your other property. Many states allow trusts to continue for hundreds of years or even into perpetuity so you can establish dynasty trusts for their current and future family members. You can also create a legacy in your community by setting up charitable trusts or a private foundation that will provide a self-perpetuating endowment for years to come.

Estate Planning Attorney Free Consultation

If you are here, you probably have an estate issue you need help with, call Ascent Law LLC for your free estate law 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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