Here, we are going to address different aspects of estate planning, estate administration, probate, etc. As an estate planning lawyer, I have done hundreds, if not thousands of plans and administered hundreds more. Hopefully, this information will help you.
Probate is the process by which a writing that is a last will is validated by the court. In Utah there is a specific set of probate rules that attorneys and the public need to abide by. Typically, a last will is filed with the court for probate where a person who dies owns assets or property in his or her name alone.
Utah decedent’s estate lawyers know that preparing an effective estate plan is an important step to facilitate the probate process. A Will in Utah must be signed and witnessed according to the provisions of the Estates, Powers and Trusts Law. Wills are typically in writing and are signed by the testator at the end and are witnessed by at least two attesting witnesses. When a Will is prepared by a lawyer and the signing is supervised by an attorney, the law provides certain presumptions as to its validity. The witnesses customarily sign an affidavit at the signing that the will was properly executed. This self-proving affidavit helps expedite and simplify the probate process, Probate proceedings can become complicated and subject to contests when a person does not follow the proper Will execution procedure.
Once the probate process is completed the decedent’s affairs or his estate can be administered by the Executor appointed by the court in the probate proceeding. Decedent’s estates typically involve the collection of assets and the payment of bills and taxes. The probate process and the administration of the decedent’s estate can take many months or years and can involve complex tax, financial and other issues.
In most instances, probating a Will does not involve estate litigation. The typical situation concerns close family members such as a spouse and children all of whom cooperate with each to obtain the appointment of the Executor and the distribution of estate assets.
It should be pointed out that a decedent’s probate estate is different from his gross estate. The gross estate, which is used for estate tax purposes, includes assets that are held with others as joint tenant or are payable to designated beneficiaries such as life insurance or retirement funds. These assets that pass by operation of law are not part of the probate proceeding.
There may be occasions when a person’s estate plan indicates that it would be advisable to try and avoid the probate process. For example, if a person wants to disinherit a distributee such as a child, it is preferable not to subject a Last Will to a possible contest. In a probate case the decedent’s children must be given Court notice of the probate. However, no notification is required to distribute assets held in a living trust which does not have to go through probate. Thus, an estate plan might benefit from a living trust whereby all of the persons assets are transferred to the trust during the person’s lifetime. These living trusts are revocable and as the trustee, the creator can remain in full control of the trust until death.
Estate Administration Attorney
When a person dies, his or her assets must be collected, managed, and distributed. Typically an Administrator or Executor needs to be appointed to perform these tasks. An estate administration attorney will represent a client to obtain his or her appointment as Administrator or Executor.
A Utah estate administration attorney knows that it is important at the beginning of an estate administration to obtain as much information concerning the decedent as possible. Typically I ask a client who is applying to become the estate fiduciary to bring for review all the papers that are available regarding the estate. These papers include past income tax returns, bank statements, brokerage account reports, bills such as credit card debts and medical bills, mortgage bills, deeds, retirement fund items and life insurance papers. The preparation of the appropriate forms for the Surrogate’s Court is expedited and made more complete for having all of these items available for review.
The estate attorney typically prepares all of the Court papers for the proposed Executor or Administrator to review and then file them with the Court after they are approved and signed by the client. This process can be expedited if all of the necessary information is quickly located. The Surrogate’s Court review of complete and accurate papers can then lead to the probate of a Will or grant an appointment of an administrator in an intestate estate. In estate cases, the court wants to have an original certified copy of the decedent’s death certificate. Also, in Probate matters and Intestate Administration filings, there needs to be a petition. The petition, whether it is a Probate Petition or Petition for Letters of Administration, needs to contain information such as the names and addresses of the decedent’s next of kin. Also, the petition must specify the established value of the property which constitutes the estate. There are additional papers that may be needed. These can include a Kinship Affidavit or a Bond Affidavit that list the various outstanding debts such as funeral expenses, medical bills and credit card bills.
The estate administration attorney will then continue to represent the Executor or Administrator with respect to such duties as collecting assets and obtaining appraisals as required, filing inventories in a timely manner; paying creditors; filing estate and income tax returns and paying taxes, if any; distributing remaining assets to beneficiaries and finally closing the estate by filing a final account. Many of these tasks require that the estate attorney provide third parties with documents and authorizations properly signed by the fiduciary as well as certified copies of Letters of Testamentary and Letters of Administration.
Additional services that the estate fiduciary can benefit from is assistance with obtaining a proper tax identification number and opening an estate bank account for the deposit of estate assets.
Free Consultation with an Estate Lawyer
If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506