When Is Utah The Right State In Which To File A Probate?
In short, probate is the transfer of person’s assets after they die. Probate is the legal process of distributing the assets and estate of a deceased person. This includes resolving all issues of probate property like taxes, insurance, title, and paying creditors for any outstanding money owed by the deceased. Probate is usually applied to large estates or significant sums of money. Assets eligible for probate varies from state to state, country to country so you have to check for specific probate laws or with a probate lawyer in your region to determine if the deceased’s assets were significant enough to warrant a probate.
Probate court is a surrogate court that interprets the will and appoints the executor. Probate judges the validity of claims made against the estate through heirs and beneficiaries as well as taxes and debts.
There are really reasons why you’d have to go to probate court to either make your claim on the deceased’s assets or to prove that you are a legal beneficiary. If any one of the following applies to you or to the deceased, then you might want to consult a probate attorney.
• Probate court is necessary if the will is deemed invalid for one of these reasons
• Improper Execution – it wasn’t written clearly or it was not a legal will.
• Mental Incompetence – the deceased was not mentally competent when he or she made up the will so their decisions are questioned.
• Undue Influence – the deceased was under duress when he or she wrote up the will.
Probate is required if the deceased didn’t have a Last Will and Testament. If there is no will, then there has to be a legal and equitable probate court process for distributing the deceased assets and for transferring the title of probate property. The only way to do this is with probate.
Probate is required if the assets were owned solely by the deceased. If there were no other owners or designates of the property or asset, then in most cases the property will have to be probated to get it out of the deceased’s name and into the beneficiary’s name.
Probate is required if the assets were owned as a Tenant in Common or Joint Tenancy. What this means is if the deceased owned property jointly with another person, such as in the case of a common law marriage, then probate is required to ensure that the deceased’s share of the property is properly distributed to legal heirs.
Probate is required if there are no designated beneficiaries or if all of the beneficiaries have predeceased the decedent. In the case of life insurance policies, retirement funds or certain savings accounts, beneficiaries are usually named. But if all the named beneficiaries have passed away or if the deceased didn’t name beneficiaries, then probate is required to transfer the money or title to the beneficiaries.
Probate is required if there are significant assets to be distributed or creditors to be paid outside of what is legally stated in the will or if there is no will at all. If any of these reasons apply to you or your situation, you can expect that probate is required and you’ll have to appear in probate court.
Probate is the formal process that handles the distribution of the assets of a deceased person. The probate process involves:
• Determining the validity of a will
• Document the property of the decedent
• Ensuring taxes and debts are paid
• Distributing assets under the will or state laws
As the probate process is controlled by state law, the procedures for probate will differ from state to state. Many states permit a simplified process for smaller estates. Every criminal court system imposes its own rules on the probationer. For a pre-determined period of time, the convicted individual must abide by certain rules and restrictions. Failure to do so will result in severe repercussions, from re-incarceration to an extended probation period.
A person can even violate the terms of their probation without realizing it. There are many rules that are given to a probationer from the state, federal, or county court. Among the most common probation violations are:
• Committing new criminal offenses
• Associating with a known criminal or organization
• Possessing, using, or selling controlled substances
• Failing a court mandated drug test
• Failure to appear at scheduled court appearances
• Failure to report to probation officer as scheduled
• Failure to pay for fines or restitution to victims if ordered by the court
• Failure to comply with mandated counseling or rehabilitation
• Travelling out of state or outside of any pre-determined parameters without permission from the court.
Just because an individual has been accused of violation of probation does not mean they have no legal recourse. However, no matter the state of their innocence, they must appear in court or risk a warrant being sent for their arrest. Unlike normal hearings, violations of probation hearings are held before a judge. Another difference is the goal of the case. The prosecutor must simply prove that it is more than likely that you violated your probation (known as “preponderance of evidence”). This is different from the normal hearings where the prosecution has to prove guilt beyond a reasonable doubt. The individual still has rights similar to those that they held previously, including the right to an attorney, the right to call witnesses, and the right to present any mitigating evidence. While it is not impossible to have the violation of probation charges dismissed or minimize the penalties, many individuals find it beneficial to hire a probation violation attorney. Oftentimes, presenting a chain of events and evidence can exonerate the probationer or help establish that the violation was unavoidable as a result of their normal duties.
Probate court is the office where all probate issues are handled. The probate court handles all matters of probate, right from admitting the petition for probate until issuing the order for transfer of property to heirs and beneficiaries. Probate and Family Courts function as one unit with two compartments; they take up additional issues such as birth and death, marriage, domestic violence, child abuse, adoption, separation and divorce, maintenance etc.
The court receives the “Petition for letters of administration” if there is no will, and “Petition for Probate of Will and Letters Testamentary” otherwise. These and the death certificate are submitted along with the prescribed fee. Probate court cases can be filed with or without an attorney. Then the Judge conducts probate hearings, and issues “”letters of administration”” [or “letters” as they are also called], to administer the estate or to admit and execute the will. When necessary, the judge holds hearings and clarifies queries raised by issuing written directions called “”orders””.
Based on the court appointed executor’s [or the decedent-nominated personal representative’s] papers, the court will verify whether the will was written by the decedent himself and that all rules and ethics have been followed when preparing the will. Then it will validate the will.
Based on the court appointed administrator’s papers of submission, the court will identify, inventory and appraise all the properties. If the heirs are minors or mentally ill, the court appoints a guardian for them. It will review and hear when needed, all the petitions involved in probate. It includes petition from heirs, creditors and anyone who is involved in the process.
The probate court administers, through the personal representative, the sale of real estate, tangible property [vehicle, jewelry etc] and intangible property [stocks and shares, equities etc]. It records the total assets of the decedents. Then it oversees the payment of taxes, money etc. to be paid by the decedent to the government or to creditors. Then it oversees the inventory of the decedent’s remaining assets validates and issues an order to the personal representative to complete the probate.
Based on this, the personal representative disburses the assets and obtains the Receipts and Waivers, and files the Declaration of Completion of Probate to the Court. Thus concludes the probate process.
Probate Court also provides general information on probating process, probate records and all other relevant information to the end-user. The goal to terminate your probate early is no secret formula, but there are basic tips you must know:
• You should never miss your appointments with your probate officer.
• Get your court costs paid in full. If your unable to afford the cost check to see if you can complete community service as an alternative.
• Pay your fines.
• Pay your cost of supervision.
• Do not test positive for drugs.
• Complete the other conditions of your probate, including community service, drug and alcohol evaluations and treatment, psychological evaluations and treatment, pay restitution, etc.
• Stay out of trouble and do not get arrested for a new criminal offense.
• You need to show respect to your probation regardless of how hard that may be.
Steps To Obtain Probate
• Locate the original Will: Probate is rarely granted if there is only a copy of the Will available. The Will should be checked to establish who has been appointed as the “Executor”. It is the responsibility of the Executor to apply for Probate and carry out the terms of the Will.
• Notify all interested parties of the death: This need to be done in writing and the death certificate should be enclosed. Interested parties include banks, building societies, insurance companies, share registrars, investment and ISA providers, pension providers, tax and benefits authorities, creditors and so on.
• Value the deceased person’s estate: A date of death valuation of the deceased’s assets needs be obtained as this information has to be declared on the probate and inheritance tax forms.
• Work out whether any inheritance tax is payable
• Complete the inheritance tax form
• Complete the probate application form: Once this form has been completed it should be submitted to the nearest Probate Registry, together with the inheritance tax form and the Probate Application, and any other documents requested by the Probate Registry.
• Arrange an interview at the Probate Registry: Once the probate application paperwork has been processed by the Probate Registry they will contact you to arrange an interview. The purpose of the interview is to confirm the details given on the probate forms, to answer any queries they or you may have and for you to sign a form of oath confirming that the information you have given is true to the best of your knowledge.
The Grant of Probate is then issued by the Probate Registry, assuming there are no problems or further queries. Probate then needs to be registered with the financial organizations which hold assets belonging to the deceased person. It is then down to the executor to finalize the administration of the deceased person’s estate and implement the terms of the Will. The whole process usually takes between 4 and 12 weeks, depending on how quickly you proceed.
The Process of Probate Court
The process of probate is initiated when a person files a petition for probate with the state’s probate court system. This petition is normally filed by a family member of the deceased or by a designator of the deceased’s will. The probate court then issues an order that appoints a person to be the executor or administrator of the deceased’s estate. The executor or administrator is responsible for allocating the deceased’s estate to the proper beneficiaries, among other administrative duties. A probate lawyer is often hired to help deal with the intricacies of probate.
The estate settlement process may involve the following:
• Informal probate
• Formal probate
• Notice to creditors
• Trust administration
• Preparation and filing of a federal estate tax return
• Small estate proceeding
• Affidavits for collection of personal property
• Estate valuation and collection of benefits
• Estate and trust asset transfers
• Estate and trust accounting
• Real estate transfers
• Handling closely-held business interests
• Preparation and filing of estate or trust income tax returns
• Collection of retirement benefits plans, pension plans, etc.
• Receipt and release forms from estate or trust beneficiaries
• Formal estate closing and accounting with the probate court
• The Probate Process in Utah
When someone dies, they either die testate (with a valid will) or intestate (without a valid will). Either way, the deceased’s estate will likely go through probate. Probate is the legal process by which a deceased person’s estate is distributed, after all debts, claims, and taxes that the estate owes are paid off. However, not all property goes through probate. For example, jointly held property, financial assets with a designated death beneficiary, revocable living trusts, and gifts all pass outside of probate. As for any portion of the estate that does go through probate, after all applicable debts and taxes are paid off the court will distribute what is left of the estate to the deceased’s heirs. If the deceased dies with a valid will, then the probate court will attempt to settle the estate according to the terms of the will. If the deceased dies intestate, then the estate will be distributed according to Utah’s laws of intestate succession.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law 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