Utah Probate Code 75-3-401: Formal Testacy Proceedings–Nature–When Commenced
1. A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in Subsection 75-3-402 in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with Subsection 75-3-402 for an order that the decedent died intestate.
2. A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
3. During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
4. Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
Testacy refers to the condition of leaving a valid will. Pursuant to section 1 201 of the Probate Code, a testacy proceeding means a proceeding to establish a will or to determine intestacy. Dying without a legal will create intestacy. In intestacy, distribution is overseen by a probate court. A formal testacy proceeding is commenced by an interested person filing a petition for granting an order probating a will. Petition can be filed by a personal representative also. Additionally, testacy proceedings are initiated to set aside an informal probate of a will. Testacy laws are the laws that determine how the property of a person with a valid will in place is distributed upon their death. Someone having a valid will in place at the time of their death is said to have died “testate”. In contrast, a person who passes away without having a valid will in place is said to have died “intestate.”
Testacy laws are different for each state and determine several different legal issues associated with wills. They can cover issues like:
• Whether or not a will is actually valid;
• Clarifying the directions contained in the will, including how and to whom the property will be distributed; and
• Disputes that arise (e.g. someone feels they were unintentionally left out of a will, or that the distribution of property is unfair considering specific circumstances, etc.)
Testacy laws can vary greatly from one state to another, but an estate lawyer will know which set of rules should be applied.
Sometimes it’s actually difficult to tell whether a person died with a valid will or not. How is this possible? There may be questions raised about the authenticity of a document that is claimed to be the person’s will. Or, there may be more than one version of the person’s will floating around, especially if they created different versions of their will at different points in their life. In such cases, a “testacy proceeding” may need to take place before the estate is distributed. In a testacy proceeding, the court may address several petitions filed by persons interested in the outcome, such as:
• A petition from the deceased person’s representative, asking that the court probate (process) a will document;
• A petition to prevent informal probate processing of a will (e.g. if some family members wish to handle property distribution outside of state court proceedings); and
• A petition for an order stating that the deceased person did not actually have a valid will at the time of death.
If there was no valid will in existence, then the person would have died intestate and the person’s estate will be distributed according to the intestacy laws of that state. In terms of claiming property, spouses and children are almost always put first and get priority before distant relatives or anyone not related by blood or marriage in terms of claiming the deceased person’s property, even if that’s not necessarily what the deceased person would have wanted. Like testacy laws, intestacy laws vary greatly from state-to-state, and an estate lawyer can help determine what exactly someone is entitled to when someone is deemed to have died intestate. Sorting out exactly how property should be distributed according to intestacy laws can be a very long, drawn-out process through the courts. This is why it is almost universally recommended that a person have a valid will in place. A person who unexpectedly dies or becomes incapacitated without a valid will in place loses their opportunity to draft a will, and thus the opportunity to direct how they would like their property distributed after death. This can result in a number of unintended outcomes, such as the deceased person’s property being distributed to a spouse, child, or other relative that they chose to cut off all contact with. Dying intestate could also result in property being distributed to a distant relative that the deceased person did not even know. In rare situations where a person dies intestate and no next-of-kin can be found, the person’s entire estate will actually be taken by the state as a last resort. Creating a will can ensure that situations like these are avoided and, even if a person doesn’t have any close family, they can direct that their property be distributed to a friend or a favorite charity. Drafting a will takes time and money though, and most people are not familiar with the exact state-specific requirements for executing a valid will (e.g. Many states require a signature from two people who witness you sign your will, and are also not named in the will, in order for the will to be considered valid.) For this reason, drafting a will may require the expertise of a lawyer to ensure compliance with state law, especially for larger estates that have a higher net worth. If you ask how long a typical probate process takes, the answer is “it depends.” Every probate process varies by state and by individual case because of the different requirements and procedures that may apply. While there are ways to avoid probate, some states will require it in certain circumstances.
At the Probate Registry of every state, there are certain procedures that must be followed before a grant of probate or letters of administration is issued to an applicant. Testate succession involves the issuance of a grant of probate to persons appointed by a deceased person in his Will. The workflow for the process of issuing a grant of probate upon the discovery of a Will and after an application has been submitted to the Probate Registry is outlined as follows:
• Upon the discovery of the Will of the deceased person, whether lodged at the High Court or found in a safe place where the deceased person kept it before passing away, the family members or solicitor representing the family members will apply to the Probate Registry for the official reading of the Will.
• Probate Registrar shall, based on information supplied by the applicant/s and upon production of an official copy of the death certificate of the deceased person, cause a letter or a series of letters to be issued to the interested members of the deceased’s family, inviting them for an opening and reading of the Will, which shall take place at the Will-reading section of the High Court’s Probate Registry.
• At the date of the Will-reading exercise, the delegated officer shall cause to be opened, in the presence of all the invited and present family members, an envelope containing the Will of the deceased person, which would have been sealed upon the lodgment of same. After the public opening of the Will, the reading of same shall be done by the delegated officer.
• It is only after the Will has been read that the appointed Executors can proceed to apply for a set of application forms to be issued for the purpose of applying for the grant of probate to the Will, in the absence of any opposition to the validity of the Will.
• After the Executors have filled and signed the forms, they or their appointed solicitor shall submit the set of forms with accompanying requirements/documents which will include the photographs and means of identification of the Executors as well as other affidavits and documents that may be required by the Probate Registry. These requirements may vary because each application for a grant of probate is unique.
• After the submission of the application, either online or physically at the Probate Registry, a document known as a Bank certificate shall be issued. The purpose of the Bank certificate is to capture all liquid assets such as shares/stock and monies in Bank accounts which hold funds belonging to the deceased person. This Bank certificate could also be obtained at the time the application forms are obtained.
• This Bank certificate will be taken to all the Banks and Registrars of the Companies where the deceased person owned accounts and shares, where the information relating to such accounts and shareholding will be filled and endorsed on the Bank certificate. Such information includes the Bank balances and share portfolio.
• Where real property forms part of the Estate’s assets, the Valuation Unit of the Registry may be required to conduct an inspection of the property for the purpose of ascribing a value thereto, after which an assessment for the payment of estate duty shall issue. This is usually calculated as a certain percentage of the value of the Estate. The sum contained in the assessment sheet/probate pay sheet shall constitute the money to be paid as probate fee/estate duty.
• After the assessment has been issued by the Probate Registry, the applicant shall collect same and proceed to a designated collection Bank to make the payment after which an official government receipt, acknowledging payment will be issued to the applicant/s for submission at the Probate Registry.
• After submission and verification of payment, the file shall be passed to the department in charge of the marking of the Will. The appointed Executors are expected to attend the Registry for the Will-marking exercise which entails the Executors attesting that they shall do as expected by the Will and by law. They will also be required to sign against their names as stamped on the original Will.
• After the Will has been marked, the file shall be passed to the typing pool for the preparation of the Minutes and Order, which the Probate Judge is expected to approve before the preparation of the Grant of Probate.
• After this, the file is sent back to the Registry and the Grant of Probate is prepared, checked and sent to the office of the Probate Registrar for approval. The Probate Registrar, after verifying that due process has been followed, will append her/his signature to the Grant of Probate and the file shall be returned to the Probate Registry for the sealing of the Grant of Probate and delivery of same to the applicant/s or the applicant/s’ representative.
Understanding the Probate Process
Probate, which is a court-supervised of sorting and administering a person’s estate, begins upon a person’s death. A person can pass away either intestate or testate. If the person passes away testate, the property will be transferred to the beneficiaries named in the decedent’s will. If the person passes away without a valid will, the property will be distributed according to state’s intestate succession laws. Either way, the probate court will be in charge of supervising, distributing, and administering the decedent’s estate. The court will also be in charge of settling any legal disputes regarding the estate or the validity of a will. In a will, a person usually names a specific person as an executor, who will be responsible for managing the decedent’s affairs. If the decedent fails to name an executor or dies intestate, the probate court will appoint a personal representative to fulfill the executor duties.
When you need legal help from a probate lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
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West Jordan, Utah
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