When a person dies, their assets are distributed in the probate process. Probate is a general term for the entire process of administration of estates of deceased persons, including those without wills, with court supervision. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent’s assets according to the state’s laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. All property of a decedent may not be subject to the probate process. Some assets, such as insurance policies or cd’s may name a beneficiary or pass automatically to a surviving joint owner outside the probate estate of the will. Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process.
If it is a survivorship account, or transfer on death account, it passes outside the probate process. Property held in trust is distributed according to the terms of the trust. It is possible to write a “pour over” clause in a will, so that property “pours over” into the trust, which is exempted from probate. The involvement of the court to transfer such property is not required. A bank account or motor vehicle title may also specify a death beneficiary and thus be exempt from the probate process. The trustee shall administer the trust in accordance with the following terms and such additional terms as the court determines appropriate: For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse exclusive of benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse shall qualify on the basis of need. During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
Utah Personal Representative Deed
A personal representative’s deed is a fiduciary instrument used in probate proceedings. Probate is the process of settling and distributing a decedent’s estate. The Utah Uniform Probate Code is codified at Title 75 of the Utah Code. Executed by a personal representative (PR), the PR deed transfers fee simple title to a purchaser following a sale of real property from an estate. When assets are insufficient to pay creditors’ claims, the PR may be required to sell assets from the estate. Transactions that the PR is authorized to enter are outlined in 75-3-714, and include the sale of real property. To transfer title following a sale of real property, the PR executes a deed. A personal representative’s deed is named after the executing officer, but typically carries the same covenants as a special warranty deed. A special warranty deed is a statutory form under 57-1-12.5. By including the specific language that the grantor “conveys and warrants against all who claim by, through, or under the grantor,” the PR covenants with the purchaser (grantee) that the property is free from encumbrances made by the grantor and that the grantor will defend the grantee’s title against valid claims from persons arising from the time the grantor obtained title, but none other.
PR deeds identify the personal representative as the granting party, reference the decedent by name, and cite information about the probated estate, including the district court in which probate is opened and the case number assigned to the estate. To properly convey title, include the grantee’s full name, mailing address, and vesting information. All documents must meet state and county recording standards for form and content. PR deeds have the same content requirements as any deed affecting title to real property, including a consideration statement of the value exchanged for the transfer, a legal description of the subject parcel, the tax identification number assigned by the taxing authority, and a recitation of the grantor’s source of title. Any restrictions on the property should also be noted on the face of the deed. The PR must sign the deed in the presence of a notary public before recording in the appropriate county. Include a water rights addendum under 57-3-109. This form must be completed and signed by the grantor. Submit the deed and any required supporting documents, such as a copy of the PR’s letters, to the recording office of the county where the real property is situated. Most probates in UPC states are informal, with no court hearings. You can use informal probate whether or not the deceased person left a will and whether the estate is big or small.
But if anyone wants to contest the proceeding, you cannot use informal probate. A court employee, usually called a “probate registrar” or “register,” will approve or deny your application. It should be approved unless someone objects, you missed the three-year deadline, or the will (if there is one) does not appear to be valid. Your authority to act on behalf of the estate will be granted in a document that’s usually titled Letters Testamentary or Letters of Administration. People commonly refer to it, though, just as “letters.”
Administering the Estate
You will need to send formal written notices of the probate to heirs, will beneficiaries, and creditors that you know about. You may also need to publish a notice in the local newspaper (in some states, before the court actually appoints you as personal representative). One of your first tasks is to prepare an inventory and appraisal of the deceased person’s assets. For some assets, you may be able to estimate of the market value; for others, you’ll need an appraisal from an expert. In some states, you file this inventory with the probate registrar; in others, you can show it to the registrar and mail it to interested parties, but it doesn’t have to become part of the public records. When it’s clear that the estate has enough assets to pay debts, taxes, and expenses of administration (court and lawyer fees, for example), you can start distributing property to the inheritors. As a practical matter, this means that you should wait until the deadline for creditors to file claims has passed—usually three or four months from the time you publish the notice to creditors. First, you’ll prepare a document called a final accounting, to show how you handled the estate assets.
Your state may provide a fill-in-the-blanks form. The accounting lists any income the estate assets received during probate and any losses to the estate—for example, if an asset declined in value. It also shows the amounts you paid to creditors and how much you distributed to beneficiaries. You’ll file the accounting with the court and will probably be required to send copies to interested parties, including beneficiaries and creditors. Then, you need to file a form called a “Closing Statement” (or a similar name) stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting. You may also need to send a copy to each person who received property from the estate and to any creditor who hasn’t been paid. Unless someone comes forward to argue about something, your job is done. If you wish, you can choose to have a formal closing to your informal probate. The court will review your accounting and then, if everything is satisfactory, issue an order officially approving how you handled the estate. Some personal representatives want a formal closing because they have an accounting question for the court to resolve, or because they want court approval to help protect themselves from possible claims that they mishandled something. For example, if you paid yourself a good-sized but fair fee for serving as executor, you might want the court to approve it so that beneficiaries will know you handled the matter properly. Because it is lengthier and more expensive than informal probate, generally unsupervised formal probate is used only if there’s a good reason, such as disagreements among family members or creditors, possible complaints from beneficiaries about your handling of the estate, or not enough money to pay all the creditors. Before the court appoints you as personal representative, you will have to schedule a hearing and send written notice to all interested persons ahead of time.
Interested persons include beneficiaries named in the will, the deceased person’s heirs (relatives who would inherit under state law if there were no valid will), and anyone who has formally asked the court to receive notices connected with the case. You’ll also need to publish a notice of the proceeding in a local newspaper. Anyone who objects to your appointment can speak at the hearing. You may need to get the court’s permission before you sell the deceased person’s real estate (unless the will authorizes it), distribute property to beneficiaries, or pay a lawyer—or yourself—for work done on behalf of the estate. Supervised formal probate is used only if the court finds it necessary—for example, because a beneficiary can’t look after his or her own interests and needs the court’s protection. The process is generally the same as in unsupervised formal probate. But the judge can require you, as personal representative, to do whatever is necessary to safeguard the estate and get the property to its rightful inheritors. For example, the judge might order a physical inspection of estate assets or require you to submit monthly accountings. And as you would expect, you must get court approval before distributing any property. 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. 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. 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.
Probate Lawyers In Utah
When you need legal help with probate in Utah, 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