Utah Probate Code 75-3-310: Informal Appointment Proceedings–Notice Requirements
1. The moving party must give notice as described by Section 75-1-401 of his intention to seek an appointment informally:
a) To any person demanding it pursuant to Section 75-3-204.
b) To any person having a prior or equal right to appointment not waived in writing and filed with the court.
2. Upon receipt of an application for an informal appointment the clerk shall give written notice of the application to the heirs and devisees who have not waived notice. The notice shall include the name and address of the person whose appointment is sought, the name and location of the court in which the application was filed, the date on which the application was filed, and a statement to the effect that the appointment will be made after the elapse of ten days from the date of the notice. The notice shall be delivered or sent by ordinary mail to each of the heirs and devisees at his address as shown on the application. The failure of an heir or devisee to object to the appointment within the prescribed period of time shall not affect his right to petition the court to set the appointment aside under Section 75-3-414.
A notice to creditors refers to a public notice that is published in newspapers with a wide circulation, and it is addressed to creditors and debtors of the estate of a deceased person. The notice may run for several days or weeks, depending on the state requirements. The notice serves as a formal notification of all creditors and debtors of the deceased’s estate, and it requires them to appear in court to file claims or make corresponding payments to the estate. Any person with claims in the estate of the deceased individual is required to file their claims within a specified period after the date when the notification is published. If a creditor fails to file their claim before the specified date, they will be barred from making any claims to the deceased’s estate. Notice to creditors is also used in bankruptcy proceedings to invite creditors to submit their claims. A notice to creditors is a public notice filed by the appointed estate executor and is used to facilitate probate proceedings. The court appoints the executor named in the will, and the individual acts as the personal representative of the deceased’s estate. The executor is responsible for settling the outstanding debts owed by the deceased and collecting money owed to the deceased. Also, the executor uses the notice to inform the public about the death of an individual and to alert potential creditors and debtors of the deceased’s estate. The notice gives creditors limited time to respond to the notice, and the notice period is usually indicated.
In the Utah there is usually a probate process of a deceased’s estate that is overseen by an executor. A probate process is the administration of the estate of an individual who died with or without a will. If the deceased wrote a will before his/her death, the custodians of the will are required to produce the will to the court within 30 days of the individual’s death. The court will then review the will to determine its authenticity and if it is admissible in court. The court appoints an executor to collect the assets of the deceased, pay any liabilities that remain unpaid, and distribute the assets of the deceased to the beneficiaries named in the will. If the deceased did not write a will, the executor is charged with determining the beneficiaries and estimating the value of the estate using the date of death valuation or alternative valuation date. When probate is opened, creditors are given a limited period of time to file their claims against the deceased’s estate. The executor can accept or reject creditor claims against the estate. If the executor rejects a creditor’s claim, the creditor can file the claim in court, and the probate judge will determine if the rejected claims will be accepted or rejected.
The executor is the personal representative that is appointed by the probate court to oversee all the deceased’s assets and determine their value using an accepted method specified in the Internal Revenue Code. The assets of the deceased individual that are subject to probate administration are placed under the supervision of the court, with the exemption of real estate. Real estate properties are administered according to the probate laws of the state where they are located. Apart from receiving claims from creditors, the executor is required to settle any taxes owed to the government. For example, the executor is required to determine the final, personal income tax returns of the deceased for the tax year. After determining the actual value of the estate, and all taxes and debts owed to creditors settled, the executor seeks authorization from the probate court to initiate the distribution of the remaining assets of the deceased’s estate to the identified beneficiaries. If the deceased individual did not leave a will, the executor is responsible for identifying all the potential legal heirs of the estate, including spouses, children, and parents of the deceased. The probate court will determine how the remaining assets will be distributed to the legal heirs. A notice to creditors is also used to invite potential creditors when a person files for bankruptcy with the bankruptcy court. The notice is filed before the creditors’ first meeting, where all creditors with pending payments are invited to present their claims to the bankruptcy court. The notice to creditors provides information on the creditors’ meeting and the requirement that creditors must provide proof of claim on or before the first meeting. Creditors who do not file their claims on or before the specified date are not allowed to make any claims on the assets of the debtor.
Waiver Of Notice
A waiver of notice is a document individuals sign which legally waives their rights to receive formal notices regarding certain probate issues. Probate courts mainly deal with vital and sensitive issues such as wills, estates and trusts. For this reason, generally speaking, interested parties are entitled to receive adequate notice about any probate hearings. But waivers of notice allow a representative to attend, which can save both time and money in proceedings that would normally subject heirs to lengthy waits and high legal fees. There are potential downsides to waivers of notice. Namely, by signing one, it will be difficult for an heir to later contest the estate by challenging the validity of a will or choice of executor. In the probate process, a hearing is required to make these challenges. Waivers of notice don’t solely apply to the process of probating a will. These legal documents can also be useful when a corporate board of directors or similar governing group needs to hold an emergency meeting. The notice allows them to do so, even if every board member isn’t available to attend at a moment’s notice. But more importantly, a notice provides an assurance that the proceedings of a meeting where notice is waived will be considered legal and valid if it is later challenged. In these cases, corporate attorneys recommend all directors sign a waiver of notice ahead of the meeting or a waiver of notice for future meetings. Copies of the signed waivers should be attached as evidence to the minutes of the meeting in question.
Reasons why you should NOT sign the Waiver of Process to Consent to Probate
• The distributee wants to object to the person seeking to become an executor (some of the reasons may be incapacity, dishonesty, substance abuse or felony conviction).
• The distributee believes that the will is invalid.
• The distribute believes they should instead administer the distribution of assets as opposed to the nominated executor.
If you don’t sign the form, a citation will be issued with a court date. You need to appear on the court date and outline your objections to the Surrogate judge. Once you have signed, nothing else is needed on your part. Assuming that all other distributees (if any) have provided their consent, all necessary documents have been filed, and there are no issues with the will itself, the executor will shortly thereafter be appointed and will move forward with administering the estate. Do keep in mind that you waive your right to object to the will and cannot take back your consent later on. Any concerns you may concerning the will or about the executor must be addressed and resolved before you sign or at the citation hearing. Signing early on is sometimes in the best interests of the estate and your inheritance. If you stand to inherit under the will, and refuse to sign out of spite, lack of knowledge, or want to make things difficult for the executor, it may hurt your bottom line. Citation hearings can get costly for an estate by way of legal fees and service of process fees. It further delays the administration and distribution of the estate. A citation hearing will keep getting adjourned if service is unsuccessful, requiring the appearance of an estate lawyer at each hearing.
A form titled “Waiver of Citation, Renunciation and Consent to Appointment of Administrator” pertains to an estate where the decedent dies without a will. By signing this form, you essentially consent to the person petitioning Surrogate’s Court to be appointed as estate administrator and you forfeit your right to be an administrator. As a distributee (i.e. next of kin) you almost always have the right to be an administrator of the estate. There is no retracting the waiver once you have signed. A fiduciary can be removed later on in the proceeding but the grounds are primarily based on fraud, mismanagement of assets, conflict of interest and/or breach of fiduciary duty to the estate. Speak to an estate attorney if you wish to be appointed instead or if you have concerns with the person attempting to be appointed.
Steps in the Probate Process
You start by asking the probate court to name you executor or personal representative, whichever term is used in your state. If there’s no will, in some states you’ll ask to be the “administrator.” To make this request, you will probably need to file an application, death certificate, and the original will (if you haven’t deposited it with the court already) with the local probate court in the county where the deceased person was living at the time of death. The document in which you make your request will probably be called a petition or application. It must contain certain information, such as the date of death, names of surviving family members and of beneficiaries named in the will, and so on. Many courts provide fill-in-the-blanks forms; if yours doesn’t, you’ll have to type something up from scratch. (Every probate court has its own rules about the documents it requires.) If the deceased person owned real estate in more than one county in the same state, you can handle it all in one probate. There’s no need to conduct a separate probate proceeding in the other county.
The First Hearing
The court will schedule a hearing, to give interested parties a chance to object to your appointment as executor. Before the hearing, you’ll need to send formal legal notice to beneficiaries named in the will and to heirs under state law (the people who inherit if there’s no valid will). You’ll also send notices to creditors you know about, and publish a legal notice in a local newspaper to alert others. In most cases, the hearing is a formality; you probably won’t even need to show up. If your request is approved, the court will issue documents that authorize you to act on behalf of the estate. In most places, these papers are called Letters of Authority or Letters Testamentary, or Letters of Administration if there’s no will. They’re often referred to just as “letters.” If you live in another state, you may have some more requirements to fulfill. For example, you may need to file a document with the court in which you appoint a local resident as your “agent.” This person can accept legal papers on your behalf and is subject to the authority of the court.
Posting a Bond
The court may require you to post a bond—a kind of insurance policy that protects the estate from losses you cause it, up to a certain dollar amount. Many wills specifically say that no bond is required. If the will doesn’t address this issue, it’s up to the judge. If all the beneficiaries under the will agree, in writing, that it’s not needed, the judge is unlikely to order it. But some courts always require a bond if the executor lives out of state or if the person serving as executor isn’t the person named in the will. If bond is required, its amount will depend on the size of the estate. Bonding companies, most of which are divisions of insurance companies typically charge a fee of about 10% of the face amount of the bond. You can pay for the bond from estate funds.
Proving the Will’s Validity
If there’s a will, you must prove that it’s valid. Usually, all you need is the statement from one or more of the witnesses, in one of these forms:
• a notarized statement, called a “self-proving affidavit,” which witnesses signed when they witnessed the will
• a sworn statement signed by a witness now, or
• court testimony from a witness.
Managing Estate Property
While the probate case is pending, you can gather assets and open a bank account in the name of the estate, and use the account to pay creditors. Probate cases must stay open for several months about four to six, in most states to give creditors a chance to come forward. You’ll probably need to give the court a list of the deceased person’s property and, if necessary, get assets appraised. If you want to sell real estate or a business, you may need to get court permission. Many wills authorize executors to proceed under a law called the Independent Administration of Estates Act, which gives executors freedom to pay creditors’ claims and sell estate property without prior court approval.
Utah Probate Lawyer
When you need a Utah Probate Lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506