Where Probate Can Be Filed

Where Probate Can Be Filed

Figuring out where to probate a loved one’s estate can be simple or complex depending on what the loved one owned. Some assets don’t even require probate, but the chances are that you will have to open a probate estate if he or she dies to own property in your sole name or to transfer it properly to the heirs. Did your loved one have a will? This also plays a role in the situation. Was the property owned as a joint tenant or as a tenant in common? It’s the only way to move that property from his name into those of his living beneficiaries and/or heirs. Probates are usually filed in the District Court in the county where the person died or where they owned property. This is a legal question that should be discussed with an experienced Utah probate attorney.

If the decedent died in the same county where all his property is located, there’s no issue this is where probate should be opened. But unique situations can arise, such as when probate isn’t required in the county where the decedent lived because he doesn’t own property located there, but he does own real property in another state. In this case, you might do best to consult with an attorney in the state where the property is located to determine the correct course of action.

Furthermore, Tangible assets are those that physically exist. They’re something you can touch or hold in your hands, like real estate, automobiles, artwork, and jewelry. Intangible assets are much more complicated. Think of these as rights to a certain asset and/or the income it produces, such as patents, copyrights, or bank or retirement accounts.

Technically, you could “touch” the last two if you emptied them out and held the cash in your hands, but the law doesn’t consider such finer points. And here’s another wrinkle: Some states do consider retirement and bank accounts to be tangible because yes, they can be emptied out and “touched.” If the decedent’s probate estate consists only of what the state considers to be intangible assets, a probate estate can be opened in the county where the decedent lived at the time of his death.

Although tangible personal property and real estate must be probated in the county where the property is physically located, an exception exists if the decedent owned tangible assets or real property located in more than one county within the same state. In this case, the estate should be opened in the decedent’s county of residence at the time of death, even if some property is located elsewhere. But not all states handle property in multiple countries this way, so check with a local estate planning attorney to make sure.

If the decedent owned tangible, immovable assets like real estate, this usually requires that probate is opened in the state where it’s located. If this is different from where he lived at the time of his death, you could end up handling more than one probate proceeding in different locations.

Tangible, movable personal property like artwork, as well as intangible property, should be probated in the county where the decedent lived at the time of his death. But an ancillary probate estate would have to be opened in other state or states as well, where the decedent’s out-of-state property is located.

Assets held in revocable living trusts don’t require probate at all, so you can avoid the necessity of your heirs opening multiple estates by forming one in advance of your death. It’s critical that you transfer all your assets into the trust after forming it, however, or it won’t serve the purpose for which it was intended. Probate is still required for any assets personally owned by a decedent and not placed in the name of his trust.

PURPOSE OF A PROBATE

The executor of an estate is responsible for collecting the deceased’s assets, paying any debts and then distributing the assets to the beneficiaries. A grant of probate is a legal document that authorizes an executor (or executors) to manage the estate of a deceased person in accordance with the provisions of the deceased’s will. The executor can take the grant of probate to persons that currently have assets of the estate or that are debtors of the estate (such as banks and retirement villages that are holding bonds) and require them to transfer the assets or monies to the executor (or to such other persons as the executor may nominate in accordance with the will). Uncontested applications for grants of probate are considered and determined in chambers by a registrar. Grants of probate made on an uncontested application are known as grants in common form.

Why You Need A Probate Order

Depending on the type, size and value of the assets it may not be necessary to obtain a grant of probate in Utah. There is no statutory requirement to obtain probate in every case. Some asset holders will often release smaller amounts without the need for probate to be obtained.

If assets of the deceased were jointly owned as joint tenants (that is where the co-owners did not own distinct portions of the property – no person has a separate share), if on the death of one of the joint owners (or tenants) the property automatically passes to the remaining joint tenant or tenants. There would be no need for a grant if all of the deceased’s assets were held as joint tenants with someone that survived them. If real estate is held solely in the name of the deceased or a share of real estate is owned by the deceased as tenants in common with someone else, a grant of probate will be required in order to deal with the asset. The certificate of title for real estate will show if the property was held as joint tenants or as tenants in common. The executor can contact the County Recorder’s Office to check this information. The County Recorder’s Office is where you can check the land title information of who is the title owner of real estate.

Check with Asset Holder for Criteria and Requirements To Release Assets
If there is no real estate then you should consider approaching the asset holders (e.g. banks, superannuation funds, insurers) to determine if they will transfer the assets without a grant of probate being made. It may be possible to have the asset holder transfer the assets by showing them the original death certificate and will and signing a declaration of your entitlement and/or an indemnity in favor of the asset holder in case someone else subsequently makes a claim. This should be considered, particularly if the executor is the sole beneficiary under the will. Different asset holders have different criteria and requirements for releasing assets. Note also that the proceeds of life insurance and superannuation generally do not form part of the estate. However, this will depend on the terms of the relevant policy. Despite this, sometimes the trustee will require a grant to be made or resealed before they determine who is entitled to the superannuation or insurance proceeds.

TIME-FRAME TO APPLY FOR A PROBATE

If an application for probate is filed after 3 years from the date of death of the deceased, you can’t probate the Estate. Instead, you have to do a Petition for Determination of Heirs. Someone at Ascent Law can help you with this.

WHO CAN APPLY FOR PROBATE

In the will, the testator usually nominates who he or she would like to act as the executor or executors. If the will does not nominate an executor then it is not possible to apply for probate. In such cases a beneficiary under the will can apply for letters of administration with the will annexed. Sometimes the executor will nominate a first preference but may nominate an alternate person as executor in certain conditions, usually if the first choice has predeceased the testator, or is unable or unwilling to act. If the testator has nominated one or more persons as his or her first choice, and has then nominated an alternative person or persons, the first choice is known as the instituted executor or executors, and the alternative choice is the substitute executor or executors. If a substitute executor is applying it is important to check the terms of the will to verify that the conditions for the substituted appointment to take effect have been met. Unless the conditions have been met the substitute executor cannot apply for probate.

If the testator has nominated more than one instituted executor (or substitute executor) then generally the application will be made by all of the named executors unless one or more of them have died or have indicated that they do not want to apply for probate by renouncing probate (there is an approved form for renouncing probate). If the application is being made by fewer than all of the instituted (or substitute) executors, the affidavit in support will need to explain why the other executors are not applying (the death certificate of any predeceasing executors must be attached).

The Court will accept a renunciation of probate before an application for probate has been filed. However, generally, the executor renouncing probate will give the form to an executor who does intend to apply for probate, and the form is filed with the application for probate. If an executor has renounced probate this information is included in the notice of intention to apply for probate. Being appointed as an executor is an important responsibility. An executor cannot renounce probate once a grant has been made, and cannot delegate his or her executorial duties. As such, it is important for a person named as an executor to determine whether they are willing and able to fulfill the responsibilities of administering the estate before they apply for probate. The only way an executor can be removed after a grant has been made is if the Court makes an order revoking the grant of probate.

Last Will and Testament

You should check that you have the original will (and codicils, if applicable). The original will (and codicils) must be filed with the probate application and will be retained by the Court. To be valid a will or codicil must be in writing and signed by the testator and by two witnesses and be verified that the will is not a carbon or photocopy. If you cannot find the original will but have found a copy, or if the will is unsigned or has not been properly witnessed, it may still be possible to apply for probate. If the will is undated, evidence will need to be provided as to when the will was executed. This will be particularly important if there is another will to establish which the last-made will was. An affidavit by an attesting witness, or from such other persons who may have relevant information as to the date the will was made, or narrowing down the possible range of dates when the will was made, should be provided.

An affidavit of an attesting witness will also be appropriate if there is any doubt as to the proper execution and witnessing of the will. If the will has any hand-written amendments that do not appear to have been initialed by the testator and the witnesses, an affidavit of attesting witness as to whether those amendments were made before the will was executed will normally be required. Affidavit evidence may also be required if it appears that other documents were attached to the will at some time and that those documents have subsequently been removed, or if the will has been torn or otherwise defaced since it was executed.

A codicil is a document that amends, rather than replaces, a previously executed will. If the testator has made a codicil, or codicils, to the will, the application for probate will be for probate of the will and the codicil(s). Amendments made by a codicil may add or revoke small provisions or may completely change the majority, or all, of the gifts under the will. A codicil may vary or replace the executors named in the original will.

Probate Lawyer Free Consultation

When you need legal help with a probate, 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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